Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Isobel Ellies, Lady Invergelly, v. Robert Lumisden of Invergelly, her Husband
Date: 30 December 1707
Click here to view a pdf copy of this documet : PDF Copy
Isobel Ellies, Lady Invergelly, having several years not cohabited with her husband, Robert Lumisden, Laird of Invergelly, in respect of his alleged scevitia cruelty and severity to her, and having no allowance for living apart from him, she pursues a summons of aliment; wherein it was admitted to her probation what maltreatments she met with, and what was the extent of his estate out of which the aliment was to be modified: and it was sustained to him to prove intolerable provocations, and that she had a separate estate of her own, whereof she was in possession, from which his jus mariti was secluded.
The probation falling to be advised, the Lords found maltreatments proven to a very high degree, and that he had only L.1000 Scots by year, the creditors possessing the rest; and he had proven no preceding provocations, except some chiding words. And the Lords thought that no provocations could excuse such usage, save only unchastity or adultery. And, as to her separate estate, it was proven, by a contract betwixt Sir Alexander Anstruther and her husband, that the result of her estate was 1,5,000 merks, provided to her in liferent, and her son in fee; but that she, looking on this balance as too small, had never accepted of it. Therefore, the Lords modified L.50 sterling to her of yearly aliment, with this express quality and burden, That he should have access and liberty to uplift the annuity foresaid provided to her out of the 15,000 merks of stock, aye till she think fit to accept of it, and then this aliment to cease.
The next question was, a quo tempore it should commence,—whether a lite mota, or from the date of the interlocutor, or from the act of litiscontestation? And the Lords drew it back to the date of the citation on this summons; but, in regard the separation was several years prior to the summons, they reserved the consideration how far back this aliment should go. And it being demanded for Invergelly, that some partial modifications for aliments, being given her before, in the interim, might be defaulked from the years now decerned for; the Lords refused the same, but declared they should be deduced and allowed out of the years prior to the summons, when the same came to be determined; in regard she had all that time been borrowing money, and paying annualrent for it, through his default.
