Process sustained at the instance of a wife against her husband, upon a promise to pay her a yearly aliment, he having maltreated her, and cohabited with another woman.
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In an action pursued at the instance of the Lady Foulis against her husband, for payment of a yearly sum of money to her, for her sustentation, conform to his promise made thereupon, referred to his oath, this action at the wife's instance against her husband, was sustained, albeit there was no action of divorcement depending betwixt them; and albeit it was alleged by the defender, That the wife, stante matrimonio, could not be heard to pursue her own husband, who in all pursuits ought to authorise her; which allegeance was repelled in respect of the summons and action, which proported that he had diverted from her, and that he had married, and did cohabit with another wife, and that he being denounced rebel, being charged to compear before the Secret Council, for insolencies committed against her, and not compearing to answer thereto, in end by the mediation of his friends she purchased protection to him, to come and treat for the settling controversies betwixt them, at which time the said promise was made to a mediate person, to her use, and for her sustentation, and the bairn procreated betwixt them; and also the same was made to herself, for the same cause: Which case being considered in these circumstances, and being a cause alimentary, and to the pursuer, who was a stranger, it was sustained by the Lords, and the allegeance was repelled.
Act. Russel.Alt. Lawtie.Clerk, Gibson.
Fol. Dic. v. 1. p. 413. Durie, p. 251.
