Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. III.
The Wife if maltreated may withdraw, and be entitled to a Separate Maintenance.
Cook v. Johnston
Date: 23 February 1700 Case No. No 113.
In an action of adherence, the defence that since the marriage the pursuer had cohabited with other man was sustained.
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Jean Cook, daughter to Mr Patrick Cook minister at Prestonpans, having obtained a decreet of adherence against Johnston of Corehead, on these qualifications of marriage; that he had suited and courted her as his wife, and given her tokens; that he had cohabited and conversed together for some time as man and wife; and, 3tio, That she had born him children which he had owned. Of this decreet he raises suspension and reduction, on these reasons, 1mo, The Commissaries committed iniquity in sustaining these qualifications relevant. 2do, In finding them proved; for the material witnesses she had adduced were only women, who are inhabile in law, and only deponed, on hear says, 2do, He offered to prove, that during the time she pretended to be married to him, she was guilty with another man, and as that would in law dissolve the marriage, though it had been formal, public, and solemn, so much more must it defend him from adhering to or taking home a whore, where the marriage was only inferred by stretches, presumptions, and occulr converse. The Lords thought the 2d reason relevant, and would not put him to raise an action of divorce; but seeing this might be obtruded against all adherences, therefore they repelled it, unless he paid in a sum to her for her aliment medio tempore, and to carry on the process, and condescended on the person he meant, with certification, if he succumbed, they would consider the infamy, what it should import, if it be found a calumnious defamation.
Fol. Dic. v. 1. p. 394. Fountainhall, v. 2. p. 92.
