A woman claiming aliment as a wife, in the Court of Session, must first prove her marriage, if denied, before the Commissaries, and not incidentally in the action.
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Anstruther reported Mary Lyon against James Gordon of Techmuiry, son to the parson of Rothemay. It was a pursuit for aliment, on this ground, that she being his cousin-german, and he a widow, he invited her to take the government of his house, and oversight of his children, and then enticed her to his bed, under assurance of marriage by a writ under his hand; and, after they had cohabited several months as man and wife, he seized on her papers and letters, and turned her away. Alleged, No aliment due, unless she had been uncontrovertedly his wife; and he altogether denies any promise of marriage, or converse with her, which must be first proven in a competent judicatory before the Commissaries of Edinburgh. Answered, The presbytery having taken notice of the affair, she has adduced probation there, of their cohabitation, and his subsequent bad treatment; and, however the Commissaries be judges prima instantia to declarators of marriage, and processes of adherence, yet it is not so privative but the Lords are also competent thereto, who are called the King's Great Consistory by the act of Parliament 1609; and if there arose any question if children were lawfully begotten, and so capable of succession, there is no doubt but the Lords would sustain themselves judges to such a process. Yet the Lords here superseded to give answer to the aliment, till she first pursued an adherence before the Commissaries, who are the most proper judges to the vinculum matrimonii, where the parties are alive. Some moved to have trial taken before answer in this same process, of the conjugal acts; but it was carried ut supra.
At last, on a bill, the Lords allowed her to prove, before answer, the robbing of her papers, and to infer damages, &c.
1701. July 29.—In the cause, mentioned 20th July 1699, Mary Lyon against Gordon of Techmuiry, the probation being led, came to be advised this day; and the Lords found it proven, that though he never owned her for his wife, yet they were generally habit and repute by the neighbourhood as married persons, and that he seized on her trunks and goods, which they thought sufficient to make him liable in an yearly aliment to her, though it might not amount to declare the marriage, or oblige him to adhere, which was not proper before the Session, but only competent for the Commissaries of Edinburgh; therefore, they modified yearly 200 merks, to be paid by him to her during her lifetime, and for her bygone expenses decerned him to pay her 200 merks more, and that presently; for the Lords thought, as he deserved to be punished for abusing her, so, on the other hand, women who prostitute themselves are not to be encouraged nor rewarded.
