Causes in which the Court cannot judge in the first Instance.
Mr John Innes v. Anna Cameron
Date: 29 December 1710 Case No. No 114.
In a process for aliment at the instance of a woman against her alleged husband, the defender denied the marriage, and the pursuer offered to prove it. Though this was an incidental question, the Lords refused to sustain themselves judges; but stopped the process until the pursuer should instruct her marriage before the Commissaries.
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Mr John Innes, son to Sir A. Innes of Coxton, having conversed several years with Anna Cameron, as his wife, and begot two children on her, and she being with the third, he deserts her, and denies any marriage to have passed betwixt them. She being reduced to straits, before she pursues a declarator of adherence, she raises a summons of aliment against him medio tempore for L. 50 Sterling, for each year bygone and in time coming. Alleged, 1mo. This summons has been originally blank, and not designed for an aliment because, by the act of sederunt in 1672, aliments are enumerated among the' privileged summons to pass on six days, whereas this is upon 21 days warning and so cannot have the benefit of a summary enrolling; and though it be a libellus nominatus, and well known in law, yet it is not so much as backed “a summons of aliment.” Answered, She opponed her summons fairly libelled as alimentary, seen, returned, and enrolled; and if it be executed on more days than law requires, that is your advantage of having the larger induciæ, and can never furnish you with an objection of nullity. The Lords repelled this first dilator. 2do, Alleged, This was a preposterous process, for aliment pre-supposing marriage as a necessary consequence thereof, the marriage must be first cognosced and declared before the Commissaries of Edinburgh, as the sole privative judges in prima instantia, ere any process can be sustained for aliment; and the act 55th, 1573, prescribing the manner of prosecuting for adherence, does clearly suppose, that the marriage must be first proved before the Commissaries. And if it were otherwise, these impudent common prostitutes will catch improvident youths in their snares, and then pursue for aliments without instructing a marriage; which lewd practices ought to be discouraged; and the Commissaries' instructions, inserted in the books of sederunt in 1666, clear this point, that they are the judges competent to marriages, divorces, adherences, and bastardies; and thus aliment being only the effect, marriage, its cause, must first be proved to exist and have a being. Answered, She will instruct her marriage in due time, which, though irregular, by an Episcopal minister, and without proclamation, yet a precognition being taken by the minister and kirk-session of the Canongate, where she was questioned as a fornicator, witnesses were examined, who deponed they were present at the marriage; but all now needful is to instruct cohabitation by the space of three years, and they being repute man and wife, which she offers to do; and such interim aliments have been often sustained, as in the case of Mrs Cook against Johnston of Corehead, No 113. p. 5905.; and Lyon contra Gordon, son to the parson of Rothimay, Div. 8. h. t.; and l. 24. D. De ritu nupt. says very charitably, “In liberæ mulieris consuetudine non concubinatus sed nuptia intelligendæ sunt;” and the 77th act of Parliament 1503, declares a woman shall be kenned to her terce, where she dies in possessorio as a wife, till the contrary be proved. The Lords likewise repelled this dilator, and found she ought to have an aliment, she proving cohabitation, and their being held and repute man and wife; and, in order to state the quota of the modification, allowed her to prove the value of his fortune and estate.
N. B. Lord Fountainhall has observed, that, on the 13th February 1711, an appeal was given in by Anna Cameron, because the Lords had altered their interlocutor, and stopped her process of aliment till she cognosced and instructed her marriage before the Commissaries of Edinburgh, as the proper judges thereto.
Fol. Dic. v. 1. p. 496. Fountainhall, v. 2. p. 616.*** Forbes reports this case.
1711. January 25.—In a process of aliment at the instance of Anna Cameron against Mr John Innes, as being held and reputed her husband, the Lords stopped the process of aliment till the marriage betwixt them be proved before the Commissaries of Edinburgh: Albeit it was alleged for the pursuer, That where a consequent of marriage is concluded in a summons, and the marriage denied, the Lords are in use to allow such a proof of the marriage as the nature of the things admit of, without any previous constitution or prejudicial process before the Commissaries of Edinburgh; as in declarators of bastardy, or ultimus hæres, or in a pursuit for a terce; and consequently in this action of aliment, where the pursuer's marriage is denied by the defender, the Lords should allow it to be proved even in prima instantia, though the question was never tabled before the Commissaries: For albeit a direct declarator of marriage or adherence is more proper before the Commissaries, the Lords are most competent to judge in this pursuit, whereof the conclusion is a civil interest or effect arising from marriage, and to determine the proof of marriage, in so far as necessary to support either defence or reply: In respect it was answered for the defender, That the Commissaries of Edinburgh being established judges competent to cognosce marriage in the first instance, though liable in subordination, to be regulated by instructions from the Lords; the pursuer's libel which imports marriage to be proved or inferred from qualifications, must be remitted to the Commissaries, proper judges in the first instance of marriage, which is the foundation of the libel, and all the consequences thereof: 2do, Non sequitur, that because the pursuer of a bastardy, or ultimus hæres, (who needs not to libel marriage) is not put to prove it in a prejudicial process before the Commissaries, therefore such a previous trial is not necessary to the pursuer of the present aliment: For bastardy, &c. is not (as aliment) the effect or consequence of the marriage; but on the contrary, marriage excludes the libel of bastardy, &c.: And when marriage is admitted to be proved before the Lords, by way of defence for excluding bastardy, that defence respects only held and reputed married de præterito, which proof would not infer an obligement upon the parties to adhere, in order to which an individua vitæ consuetudo must be tried by the judices Christianitatis: Nor is there any contingency betwixt this, and the process of a relict for her terce, whose cohabitation with the defunct till his death without being questioned, entitles her to a terce, act 77. Parl. 6. James IV. without further proof of marriage; whereas, the pursuer's marriage is here denied by the defender in his own lifetime, and requires to be positively proved before the Commissaries, in order to aliment her.
