Cui incumbit probatio that the debtors to the pupil were insolvent at the commencement of the tutory?
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Charles Weir and the deceased William Hamilton, having been appointed by Thomas Dunning, tutors to his, children, were afterwards removed as suspect. In the action brought against them to account, during the dependence whereof William Hamilton died, Charles. Weir was inter alia found liable, for omission to recover payment from the debtors to the defunct, in the sum of ————, in consequence of an interlocutor, of the Ordinary, in which he acquiesced, “Finding, it presumed, that the debtors, who were then insolvent, were solvent at the commencement of the tutory; but finding it relevant for the tutors to prove they were insolvent at the commencement of the tutory, or became insolvent within six months thereafter.”"
In the action now pursued by Weir against the representatives of William. Hamilton the co-tutor, for relief of the said sum, a defence was proponed, that the defender's father having died before any procedure had in the process, on which the said decree followed against Weir, it must be competent to the defenders to plead every defence against Weir which it was competent to him to have pleaded in the original process, whose omission cannot prejudge them, as their father was no party to it; and they alleged that Weir had omitted to plead, That there lies no presumption against a tutor, that the defunct's debtors, who were then insolvent, were solvent at the commencement of the tutory: That the rule in all cases is, that the pursuer must prove his libel; and as the libel, by the minor and his new tutor, was, That the minor had sustained damage by the omission of his tutors, it was incumbent upon the then pursuers to prove, that the debtors were become in worse circumstances than they were in when the tutory commenced.
The Lords “Repelled the defence.”
It was thought to be rightly judged in the process against Weir, That the presumption is for the solvency of the debtors at the commencement of the tutory, and that the tutor can only be exonered for not doing diligence, upon proof brought by him that they were insolvent at the commencement of the tutory, or became such within six months thereafter.
