Found in conformity to Strachan against Drysdale, No 369. p. 12225.
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Anstruther reported Peter Archibald against James Wilson, merchant in Edinburgh. Patrick charges the said James for L. 200 contained in his bond. He suspends on this reason, that he must have compensation for the aliment of the said Patrick's daughter, who staid three years in his house. Answered, The case was res judicata, seeing he had an absolvitor from the aliment before the Sheriff. Replied, I have raised reduction of that decreet, which proceeded on a wrong ground; whereby his wife, in his absence, offered to prove there was express paction for an aliment, in the probation whereof she succumbed, whereas, there was no need of putting it upon that foot; for whether paction or not, you are liable, for debitor non præsumitur donare, and I liquidate it instantly by referring the alimenting and time of it to your oath, and the modification of it to the Lords. Duplied, If the process was mismanaged by burdening themselves to prove an unnecessary allegeance of paction; and, upon their succumbing, I being assoilzied, sibi imputent, but the decreet must stand.
The Lords thought competent and omitted did not militate against a pursuer, but he might still insist super alio medio than that which was formerly deduced in judicium; and being a decreet of an inferior court, they reponed him against it, and allowed the Ordinary to try the manner of her alimenting, whether she was also kept by them in cloaths, and at schools, or only at bed and board, or if she was used as a servant, and what was her age, to the effect they might have better meiths how much to modify yearly, the time being proved by his oath. Stair, part 4. tit. 40.
Fol. Dic. v. 2. p. 209. Fountainhall, v. 2. p. 77.
