Subject_1 ALIMENT. Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs.
Sibbald v. Falconer
Date: 19 February 1679 Case No. No 38.
A donatar of ward, found liable to aliment the heir, whether he had intromitted or not, unless he instructed how he was barred. An offer by him to aliment the heir in his own house, not relevant. An assignee to a gift of ward liable.
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Sibbald of Kair, pursues Sir Alexander Falconer, donatar to his ward, for a modification for his aliment, both for bygones and in time-coming. The defender alleged, 1mo, Absolvitor from bygones, because aliment is only due in the case when the heir cannot be entertained otherways, as neither having feu or blench-lands, moveables, or calling; but here this heir was alimented by his mother; and is neither engaged nor distressed for satisfaction thereof, nor cannot for years since his pupillarity; because the Lords have oft times found, That entertainmeat of a person who can contract, infers no obligation, but is a mere donation without passion. 2do, The defender is but assignee to a gift taken by the Lyon, and can only be liable for the time since his assignation. 3tio, He cannot be liable, unless it had been alleged, he had intromitted with the minor's rents. 4to, He offered to the pursuer to take him home to his own house and aliment him.
The Lords found the defender liable in a modification, suitable to the estate and quality of the heir; and found the heir not obliged to go to his family, as in the case of heirs or pupils; and found him liable, since the time of his assignation, whether he intromitted or not, unless he instruct how he was excluded from intromission legally; but found him not liable for bygones, since he was freely alimented by another.
