Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Catharine Lauder, Lady Balquhilly, v. Mr James Elphinston, William Gordon of Pancaitland, &c
Date: 13 July 1694
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Catharine Lauder, Lady Balquhilly, against Mr James Elphinston, William Gordon of Pancaitland, &c. anent an aliment to James Mowat, a child, the apparent heir of Balquhilly, from William Gordon, as donatar to his ward. The Lords first burdened the creditors with the expenses of the commission and report of the witnesses for proving of the rental. 2do. They would not leave the place alternative or indefinite, but named Aberdeen. 3tio. They ordained William Shand's name to be expunged out of the commission, in regard he had deponed already before the Lords at Edinburgh; unless they condescended, on pertinent grounds, to urge a reexamination. And, 4to. They modified to the relict, and the heir, her son, for their aliment in the interim, during the dependence, till probation be led and advised, £1000 Scots; to be paid by the factor, on her bond to refund, if, in the event, no aliment shall be found due. What moved the Lords was, This was not in the case of a common aliment, which uses not to be granted except there be a clear visible superplus above the payment of the creditors, but was founded on the statute of James V, 1535, ordaining the wardator to aliment the ward-vassal while minor, if he has no other lands; and which was a preferable debt. Likeas, the teinds held not ward, and yet were possessed by him; and, though the donatar alleged he had no intromission, and was content to take home the child to his own family, yet the Lords remembered that both these were repelled in the case of Sibbald of Keir against Sir Alexander Falconer of Glenfarquhar, 19th February 1679, unless he instructed that he was legally excluded.
