Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Haisty v. Haisty
Date: 11 November 1671
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This was an action, at the instance of a relict against her husband's oldest son and apparent heir, for refunding to her the expenses she was at, the time she lay in of a postume child, as also for aliment to the said postume child, his sister.
Alleged,—It is contrary to our law, and the constant practique of this kingdom, for seeking that one brother or sister should aliment another; yea, it has been expressly found that they are not obliged to do it.
Answered,—They crave nothing but what natural equity, in its greatest purity, would dictate; they are clearly founded in the common law: neither is our practique so averse to it as they would make it; for in the case Edgars against Edgar of Watherly, the Lords modified a small provision to the younger children, to be paid them by the Laird.
It was taken to interlocutor. The report was, that the Lords, having seriously considered the case and its merits, find a brother liable to aliment a brother in tota latitudine; and declare they will follow this in all time coming, and decide conform thereto when the like cases occur.
I think they mean only the eldest brother, who either succeeds or may succeed to his father's fortune; and that he shall only be bound to aliment fratres aut sorores germanos ex utroque parente, non item consanguineos et uterinos; and that this obligement shall only remain till they be of such age as they can rationally provide for themselves. With which explication, the decision is most just and most agreeable to natural equity. See Monsieur Servin's plaidoiez, last part, page 181; where, a father not found obliged to keep his bastard daughter, though it be recommended to him. Quæritur, if in our law a brother be obliged to aliment his bastard brother. Sed puto quod non, with Craig, Feudorum p. 265. Vide L. 4. D. ubi pupillus educari debeat; L. 1, p. 2, D. de tutela et rationibus, &c.; L. 73, in fine, D. de jure dotium; L. 20. D. soluto matrimonio; L. 13, p. ult. D. de administratione tutorum, ibique Glossam et D D. Vide Fabrum, tractatu de alimentis, p. 29; Stair's system titulo 5, No. 10.
