Coutts v Coutts
| Jurisdiction | Scotland |
| Judgment Date | 08 June 1866 |
| Date | 08 June 1866 |
| Docket Number | No. 153 |
| Court | Court of Session (Inner House - First Division) |
Lord Jerviswoode. C.
Husband and Wife—Sœvitia—Aliment—Competency.—
THIS was an action by Mrs Coutts against her husband, John Coutts, concluding that he should be decerned ‘to make payment to the pursuer yearly, for her aliment, of the sum of L.75 sterling, payable half-yearly, and in advance, at the terms of Whitsunday and Martinmas, beginning the first term's payment thereof as at the term of Whitsunday last for the half year succeeding, and the next term's payment at Martinmas next for the half year ensuing, and so forth, half-yearly thereafter, with the interest of each term's payment from the time the same falls due until payment thereof.’
The parties were married in 1853, and the pursuer averred that shortly after their marriage the defender commenced to ill-use her; that she was frequently obliged to take refuge from him in her mother's house; and that in December 1855 his ill-treatment came to a height by his striking and kicking her, and she was then compelled to leave his house, and had not since consorted with him.
The defender denied these charges, and pleaded;—(I) The pursuer has not averred a relevant case to entitle her to insist or prevail in the present action.
The Lord Ordinary pronounced this interlocutor:—‘Repels the first plea in law in so far as maintained to the effect that the pursuer has not averred a relevant case entitling her to insist in the present action; and before further answer, allows to both parties a proof of their respective averments, such proof to proceed before the Lord Ordinary on a day to be hereafter appointed.’
The defender reclaimed, and argued;—The summons contains no conclusion for separation, and in a summons of aliment it is not competent to inquire into alleged maltreatment. It must be assumed that the pursuer is not legally living apart. The action is incompetent, in respect it does not conclude for judicial separation.1
Held that an action by a wife who had been living for nine years apart from her husband, against him, concluding for aliment, on averments that she was compelled to live separate from him on account of his cruelty, but not concluding for judicial separation, could not be sustained.
1 Countess of Caithness, M. 5886; Bell, Feb. 22, 1812, F.C.; Anderson, March 3, 1819, F.C.; Williamson v. Williamson, Jan. 27, 1860, 22 D. 599; Cowper v. Cowper, Nov. 24, 1860, 23 D. 68.
2 Foulis, M. 6158; Shand, 10 S. 384.
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