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Margaret Pursel v John Paterson. [1707] 4 Brn 677 (21 November 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Brn040677-0175.html Cite as:
[1707] 4 Brn 677
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.
Margaret Pursel v. John Paterson
Date: 21 November 1707
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Lord Register reported Pursel against Paterson. Margaret Pursel, relict of one Brown, tenant in Meggitland, pursues John Paterson, jeweller in Edinburgh, for adherence, before the Commissaries, as having got her with child under promise of marriage; and craves that he may accomplish the same.
In that process, witnesses being led and advised, the Commissaries found that it did not amount to a marriage consent; and therefore assoilyied from the adherence; but found strong insinuations whereby he had enticed her into that belief proven; and therefore decerned him in £100 sterling to be paid her for his abusing her, and for the expenses of her in-lying, alimenting the child, and its interment. This decreet he suspended on this reason,—That it was ultra petita, the libel being allenarly for adherence; and so, he being assoilyied from that, the Commissaries' decreet had no foundation, for there was not the least conclusion in the libel for damages or reimbursement of expenses. He acknowledges, he being then an unexperienced apprentice lad, by her seduction, had to do with her; and she gave him up as the father of the child, though there were many about it beside him, as appears by the scandals delated against her in the West-kirk books: and, he being now lawfully married to another woman, whores are not to be encouraged in such unjust claims, but ought to suffer for the damage arising from their own sins.
Answered,—The Commissaries' decerniture for her expenses, though not expressly libelled, is no more but a native consequence of the process resulting from the probation; which, though it did not amount to a marriage, yet imported that she was exceedingly damnified both in her reputation and fortune; and it were frustra to put her to raise a new libel; but, without any violent detor-tion, her former process might be transformed into an action of damages; even as criminal judges, where death is libelled, turn it into an arbitrary punishment.
The Lords found the decreet ultra petita et libellata; and therefore suspended the letters, and assoilyied from the Commissaries' modification on this process, whatever they might do in a new one.
