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Scottish Court of Session Decisions >>
Gordon v Lesly. [1680] Mor 11426 (11 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor2711426-096.html Cite as:
[1680] Mor 11426
Aliment bestowed without Paction, when Paction might have been.
Gordon v. Lesly
Date: 11 June 1680 Case No. No 96.
In a suit against a father for aliment of his child, at the instance of the grandfather, found that nothing was due till requisition.
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John Lesly having married the daughter of Walter Cochran and Janet Gordon, did, by his contract, provide the children of the marriage, and obliged himself to entertain them after his wife's death; Walter took his eldest daughter, and entertained her till his death; and his relict Janet Gordon hath entertained her to this time; and now pursues John Lesly, her father, for payment of her entertainment; who alleged, Absolvitor, because the entertainment, being by the father, and grandmother, it is presumed to be animo donandi, and could infer no obligation, unless it had been by agreement with the father, or that the father had failed to entertain his daughter. It was answered, That this being but a presumption, it was taken off by the pursuer's requiring the father to take home his daughter; wherein he having failed, though the grandmother sent her not, or thurst her out of doors, yet it taketh off the presumption that her meaning was not to entertained her gratis. 2do, Entertainment ex pietate not extended beyond father and mother, especially where the person entertained has sufficient provision, and the father is so far liberated of that burden.
The Lords found the entertainment in question presumed to be made animo donandi, till the requisition; but from thenceforth, found the father liable.
Fol. Dic. v. 2. p. 141. Stair, v. 2. p. 770.*** Fountainhall reports this case:
A pursuit for the sum of for alimenting the defender's child: The Lords found this defence relevant, That the pursuers having kept their own grandchild, the defender's daughter, in family with them, it was presumed to be ex pietate parentali, and so there were no expenses due for her aliment, except there had been a paction to the contrary: As also, found this reply relevant, That the pursuer required the defender to take home his daughter, and that he sought her back, and she was ready to part with her, so as to make the defender liable for her aliment since the requisition or offer, and found them probable by writ, witnesses, or oath of party, reserving the modification to themselves of the aliment.
