Scottish Court of Session Decisions

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.

Macktellina Walrave de Nimmeguen
v.
Sir T Livingston, Viscount of Teviot.

Date: 14 December 1703

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Macktellina Walrave de Nimmeguen. pursues Sir Thomas Livingston, Viscount of Teviot, her husband, for an aliment, craving: £500 sterling for bygones since he withdrew from her, to enable her to pay the debts she had been necessarily forced to contract, and £400 sterling for a yearly aliment and subsistence in time coming.

Alleged for the Viscount,—Aliment cannot be due de prceterito; for that is past, and she is already alimented, and it must be presumed out of her husband's means, (though he at present nowise acknowledges the marriage;) and it is of a most dangerous consequence for a wife to take on debt at her pleasure, so as to make her husband liable. And if she have any creditors, if she be a married woman, then no action can lie against her; let them pursue him, and he will give them an answer. 2do, No aliment can be claimed profuturo; because a wife must depend on her husband's allowance and discretion;. and sucli a preparative would embolden wives to divert and make separation, and then bring in a claim of debt against her husband; unless the wife could subsume, on cruelty and maltreatment, that she could not safely cohabit with her husband; whereas, here, any want she fell under was due to her own restless unaccountable humour, whereby she refused to settle at Rippon, which he had appointed for her, but would vague and wander from one place to another, contrary to his express commands; which put him not only to serve inhibition against her, according to the law of Scotland, but likewise to raise a process of jactitation in the English forms, being a declarator of immunity and freedom of being married to her, and concluding a prohibition of her asserting herself to be his lawful wife, which was pursued before the Bishop of London's official.

Answered,—That cohabitation and alimenting are natural duties incumbent on husbands to their wives; and though one already alimented is not to be alimented over again, yet the husband must indemnify her, in so far as she has contracted debt to supply her necessities, and must liberate and exoner her of that expense; and not only common sense and honesty, but even the principles of honour, conscience, and law, oblige a husband to this. And cruelty must not be restricted to beating: there may be many other sorts of scevitia, as to question her marriage when she is in the natural possession of her matrimonial state, fully acknowleged by his factories and letters; is it not maltreatment, if the husband's affection be drawn away by criminal rivals. And the Lords did modify a considerable sum for bygones to the Duchess of Gordon against the Duke, and likewise a yearly aliment in time coming; supra, 8th June 1697 and Dury observes the like remarkable case, 23d July 1629, Lady Buchanan against the Laird. And foreign lawyers are clear, where a woman is controverted to be a lawful wife, she must, medio tempore, during the dependence and trial, be alimented, except in the case of adultery: So Pontanus and Colerus, in their several tractats, De Alimentis, that though marilus diffiteatur earn esse suam uxorem, omnino tamen alenda est donee de veritate conjugii consti-terit, et expensas solvere obstringctur quas interim dum a marito abfuit fecit; and they assign several grounds on which she may warrantably withdraw, viz. si maritus domi concabinam alat, si crebra savitia utatur, &c.

The Lords thought a wife was to be regulated by her husband's orders where to live, and he was not always bound to take her alongst with him; as appears in ambassadors, merchants, skippers, soldiers, whose wives staid commonly at home, sufficient maintenance being left and allowed them; and that they ought not to follow them without their consent; but, in respect of the special circumstances of this case, they recommended to some of their number to endeavour to cause pay her bygone debts, and to settle somewhat upon the lady yearly in time coming; and to deal with the Viscount for that effect.

Vol. II. Page 199.