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.
Elizabeth Blair v. Hary Hunter of Kirkton, her Husband
Date: 21 February 1708
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Elizabeth Blair pursues Hary Hunter of Kirkton, her Husband, for an aliment, in regard she could not live with him in safety, because of his outrageous barbarous cruelty towards her. A probation being led of the maltreatments; they were found to be very gross, by trailing her through the floor by the hair of the head, drawing his sword to her, beating and bleeding her, &c.
Alleged for him,—If he had been allowed a conjunct probation, he could have exculpated himself, by proving such provocations as would have made her unworthy of the benefit or protection of law,—she being Captain Blair, at the Clock-miln in the Abbey, his daughter, mali corvi malum ovum; and he trepanned when drunk to marry her, and then ensnared by her father in all his debts, and so rendered miserable: and if passion, drink, and weakness, did sometimes transport him, he may be excused; but in law she can have no separate aliment by deserting his house, because the most of the violent acts condescended on were in 1700, and, for many years after that, they cohabited together in a peaceable manner, and since that time she has bore him children; and so all these deeds are buried in the grave of oblivion; as is clear from the tit. De Injuriis, sect. ult. that dissimalatione tollitur et abolitur injuria; and which Vinnius, in his Commentary, does not only explain of verbal, but even of real injuries, by beating and wounding: Likeas, they are all prescribable intra annum, si injuriam in animo suo non revocaverit; I. 5, C. De Injuriis: so that Kirkton's wife had plainly forgiven and passed from all the bad usage she had met with, by living in a friendly peaceable manner, for several years together, after these outrages now complained of 5 so that he hath both dissimulation and the annual prescription for him.
Answered,—If modesty and respect to her husband's honour had made her so long in complaining, that could never be detorted to her prejudice; especially seeing the cruelty had made late eruptions like Ætna; for two witnesses bore, that, in January 1707 he had debarred her from her chamber, and made her lie on straw in the kitchen, and used other deeds of violence, which must be connected with the former; and he was so furious in his temper, that it was impossible for her to cohabit with him in safety of her life. In the reasoning, it was remembered by some of the Lords, that, at the Privy-Council, in the Lady Royston's complaint against Captain Hardy, her Husband, who having beat him with her slipper, he held her face to the fire till her eyes were like to start out, and yet he was only imprisoned for it one night. See it in Sir George Mackenzie's English pleadings.
The Lords thought the usage in the probation incapable of any justification, and below the character of a rational man, though provocations had preceded, as they were not proven; and therefore found she was not obliged to return to his family, but ought to have a separate aliment apart.
Then the second question was, What should be the quota? and it appearing his estate was but small, not above 600 merits by year of free rent, incumbered with debts, and that he behoved to keep the children, they modified 250 merits yearly to her; though many of the Lords were only for 200. Some inquired what her matrimonial liferent provision was? But that not being present to show, they modified ut supra.
