Aliment bestowed without Paction, when Paction might have been.
Wilson v. Archibald
Date: 15 February 1701 Case No. No 98.
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Peter Archibald's daughter, a young lass, having staid three years in the house of James Wilson, burgess of Edinburgh, and got her breeding and education there, he pursues her father for her aliment during that time.—See 2d January 1700, voce Process.—Alleged, 1mo, She was put in the quality of a servant, and went their errands; 2do, No aliment, because no paction; and though she was a minor, yet he might validly have pactioned for an aliment with her father; which not having done, it was to be presumed gratuitous. Answered to the first, She was not capable of doing any service worthy of her board and entertainment; 2do, She was not kept as a servant, but put to schools and liberally educated: As to the second, Whatever may be presumed, where a friend comes and stays some time for a visit; yet here no such presumption can take place, where she staid three years; and though there was no stipulation or express paction, yet that does not infer a donation; where, 1mo, the giver of the aliment is but a poor person, and so not presumed to be gifted; 2do, If he be debtor, non præsumitur donare; but Wilson owed Peter Archibald 300 merks by bond, which made Wilson advance the aliment the more frankly, that he knew he would have retention and compensation of his bond pro tanto; as was decided 15th December 1668, Winrame contra Elies, No 108. p. 11433.— The Lords repelled the defences, and found an aliment due; but modified it only to 100 merks yearly in full of all.
Fol. Dic. v. 2. p. 141. Fountainhall, v. 2. p. 109.
