Subject_1 ALIMENT. Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs. Subject_3 Import of the Act:
It is ordained, that where any lands happen to fall in ward to the King, or any baron of the realm, spiritual or temporal, or lands given in conjunct fee or liferent, as well as to burgh as to land, that the sheriff of the shire or bailies shall take surety of the person or persons, that gets or has such wards, that they shall not waste or destroy their biggings, orchards, woods, stanks, parks, meadows, or dovecots, but that they hold them in such kind as they are in the time that they receive the same; they taking their reasonable sustentation, or using, in needful things, without destruction or wasting thereof. “And an reasonable living to be given to the sustentation of the air, after the quantitie of the heritage, gif the said air has na blanche ferme, nor feu ferme land, to susteine him on, alsweil of the ward lands, that fallis to our Soveraine Lordis hands, as onie uther barronne, spiritual or temporal.”
Scots Acts, v. 1. p. 158.
Hamilton v. Symington
Date: 16 July 1667 Case No. No 2.
In a pursuit against an heir renouncing, at the instance of a liferenter, for aliment furnished, the heir assoilzied; because the liferenter was bound to aliment the fiar. The aliment was bestowed before the renunciation.
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David Hamilton, as assignee of Robert Steel, to a bond granted by Andrew Symington, pursues Grissel Symington as representing him, for payment; who alleged absolvitor, because the alleged bond is manifestly null, in so far as on that side where the subscriptions are, there is only the clause of registration, and all the rest is filled on the other side with another hand, and there is not one word on the subscribed side of the matter of the bond, that might have connection with the back side, which is un-subscribed; so that this has been the last sheet of a writ taken off, and filled upon the back, upon which any thing might have been filled up that the pursuer pleased.—The pursuer answered, That he opponed his bond subscribed by witnesses, which he abides by as a true deed, and is valid unless it were improven.
The lords found this writ null; and yet declared, That if the pursuer could adduce writs or adminicles to astruct the same, they would examine the same ex officio; as the writer and witnesses, if they were alive.
The said pursuer did also insist against the defender for her own aliment, as having right thereto from his own son, who had married her mother.—It was alleged for the defender, That her mother liferented her whole estate; and so by act of Parliament was obliged to aliment the apparent heir.—It was answered, The defender had renounced to be heir to the same pursuer, and so could not crave that benefit.—It was answered, That as apparent heir, she had right to the aliment; and her offering to renounce, was but to save her from personal execution; and it could not prejudge her of her aliment, which she had received before she renounced.
Which the Lords found relevant.
Fol. Dic. v. 1. p. 28. Stair, v. 1. p. 474.*** The same case is thus mentioned by Dirleton:
It was found, That the mother, being liferenter of all that could belong to the daughter as fiar and heir to her father, was obliged to entertain her; and de facto having entertained her, could crave nothing for her aliment, though the time she was entertained, she was only apparent heir, and thereafter was about to renounce to be heir.
