Where there could be no opportunity of Paction, Donation is presumed or not according to circumstances.
Spence and her Husband v. Fowlis
Date: 16 February 1681 Case No. No 110.
The Lords allowed aliment, though without paction, bestowed upon a woman now 40 years old, in respect it was begun in her minority, and continued till that age.
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In an action of compt and reckoning, between Margaret Spence and Fowlis of Ratho, her good-brother, as her curator, he craved deduction of 300 merks yearly for her aliment in his family, from her age of seven years, till her marriage, she being now about 50, and for L. 60 yearly for her gentlewoman, who was partly servant to the family, and partly to herself. It was alleged for the said Margaret, That she received nothing but meat, and drink, and lodging, the expenses of her cloaths being all allowed in her account, for which she could not be liable, at least for the time she came to 16 or 17 years of age, because she was as useful in the family as her entertainment came to, having employed all her labour and industry for the interest of the family, and not for herself, and having governed the family after her sister's death. 2do, She cannot be liable since her majority, because the Lords have several times found, that where any person being major, is entertained where there is no agreement, it is held to be a free donation, and to import no obligation. It was answered for Ratho to the first, That the said Margaret was never treated as a servant, but as a sister, and for a long time as mistress of the family, nor was she obliged to any service or industry, but what kindness she did, Ratho did the like to her, in managing her whole means, which is now very considerable, near L. 20,000; and by this marriage, when she hath no hope of children, Ratho's children, and her other relations, are all disappointed, and have no reason to gratify her husband a stranger; to the second, albeit the entertainment of persons being major is presumed to be gratuitous, yet here there are two relevant exceptions, viz. 1st, That her entertainment began in her minority, during which time she is unquestionably liable, and after her majority, it is continued per tacitam reconventionem; 2nd, There is a stronger presumption here, Ratho being debitor, qui non præsumitur donare.
The Lords allowed 200 merks yearly, till Margaret's majority, and 250 merks thereafter, while she was in the family.
Fol. Dic. v. 2. p. 142. Stair, v. 2. p. 860.*** Fountainhall reports this case:
In a curator count, Ratho claimed aliment the years she stayed in his house. Alleged none due, because no paction for it. Answered, though paction be requisite inter majores, yet here she entered when minor, and continued long after the same. The Lords allowed aliment during all the years of her abode in his family, in respect it was begun in her minority, and she remained therein till she was 40 years old, but they modified the aliment for her and her husband to 250 merks per annum, though she had L. 10,000 Scots of portion.
