Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 LYON-COURT.

Janet and John Duff
v.
John Stewart

1776. March.

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Janet Duff, and John her father, brought an action against John Stewart, to whom Janet alleged she was married, before the Sheriff of Perth, for aliment to Janet, furnished by her father, upon the principle that every husband is bound to maintain his wife. The defence pleaded was a denial of the marriage ; and consequently that, as the question resolved into a declarator of marriage, the Court was incompetent. The Sheriff ordered the defender to be examined, and thereupon, and production of marriage lines, decerned for the aliment. But, on an advocation, the Lords passed the bill. They demurred greatly upon the point of jurisdiction, and thought, that, if modes of evading the jurisdiction of the Commissaries, as in this case, were allowed, it would tend to abolish the Commissary Court in one great article, and bring all questions of this sort before inferior judges ; for, although cases often occur where a question, which is not in itself, in prima instantia, competent to be tried before a particular court, is yet the proper subject of determination when occurring incidentally; yet these cases are to be strictly interpreted ; and, when plainly calculated to evade the proper jurisdiction, ought to be disallowed. See Law Tracts, Vol. I. p. 343.