Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ALIMENT - HUSBAND AND WIFE.
Subject_3 Interim aliment allowed to a married woman pursuing a divorce.

Emelia Fraser
v.
Alexander Abernethy

Date: 11 March 1774

Click here to view a pdf copy of this documet : PDF Copy

Mrs Abernethy insisted in an action of divorce against her husband for adultery. She applied to the Commissaries for an interim aliment; they refused it: she presented a bill of advocation. Lord Pitfour, without hearing the other party, remitted to the Commissaries, with an instruction to give L.30 in name of interim aliment. Abernethy reclaimed, and pleaded that it is the practice of the Commissary Court to give a wife an interim aliment, when defender, because innocence is presumed, and for the same reason to refuse it when she is pursuer.

Pitfour. I gave a speedy judgment here, to save time at this late hour of the Session. I perused the writings before the Commissaries, so that I was master of the argument. I considered that, if I erred, the party had an opportunity of reclaiming. The lady is a woman of an excellent character, Lord Strichen's niece, and, according to the report of the country, has met with very bad usage.

[This was, one way or other, the most extraordinary argument that I ever heard from the bench. Lord Pitfour ought to have reported the case.]

Gardenston. If the practice of the Commissary Court is as represented, it is high time to correct it.

Auchinleck. In the last cause before us, the man pleaded remissio injuriæ, because the woman had not left his house. Here the woman has left the man's house, and he will not aliment her. Thus, if she stays, the objection will be, You have forgiven me; if she goes, she must starve.

Hailes. Innocence is presumed. This is a presumption of law; but it is also a presumption of law that what one undertakes to prove, is true, in questions of relevancy. These are no more than unimportant axioms. The short conclusion on the case is this, A woman cannot be obliged to live with the man from whom she concludes to be divorced ever since a period already past. If she cannot live with him, she must either be alimented extra familiam, or no woman will have it in her power to obtain justice against her husband.

On the 11th March 1774, “the Lords refused the petition after having heard parties, and adhered to Lord Pitfour's interlocutor.”

Act. H. Dundas. Alt. Al. Abercrombie.