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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jean Johnstone v Hunter James Ferrier. [1770] Hailes 368 (17 November 1770) URL: http://www.bailii.org/scot/cases/ScotCS/1770/Hailes010368-0184.html Cite as: [1770] Hailes 368 |
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[1770] Hailes 368
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MINOR.
Subject_3 A male, under the years of pupillarity, incapable of contracting a marriage. Effect of Inhibition after the years of pupillarity are expired.
Date: Jean Johnstone
v.
Hunter James Ferrier
17 November 1770 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, V. 130; Dictionary, 8931.]
Auchinleck. The maxim malitia supplet ætatem is an old maxim: But where is the malitia here? There is a great deal of stultitia if you please. This woman gave the child money to buy sweeties, I suppose: she gets herself joined to him in the form of wedlock by a Buckle-the-Beggars, and the child returns to the country with a wife and his sweeties. Where was the malitia then? Had there been any, he would have consummated directly. Instead of this, the first time he appears in the character of a husband, is lying in the same bed with Jean Johnstone, his clothes on, and his face turned to her back. Had there been any malitia in him, Jean would not have been in that posture: had Nash the dragoon been in bed with her, she would not have turned her back upon his malitia.
Gardenston. A marriage with Nash may be presumed: there is better evidence of that. In the course of the proof, we have much of low life and low love. Jean is a very fit wife for the dragoon: she has two husbands, one of them indeed a boy, and I suppose that he has had two or three wives since he parted with Jean. The maxim malitia supplet cetatem, is adopted by Lord
Bankton. I respect that authority; but I would require much more than that authority to persuade me, that the unripe vigour of a young lad is to supply the place of years and understanding. Justice-Clerk. The maxim cannot apply to our law. It is dangerous to suppose that the form of marriage, celebrated under the years of puberty, may become good after the years of puberty, unless there be a solemn consent and cohabitation of parties: Nothing of this kind occurs here.
Elliock. A solemn consent and cohabitation would do; for that is sufficient to constitute a marriage ab initio.
On the 17th November 1770, “The Lords remitted to the Commissaries, simpliciter;” [who had found no marriage.]
Act. Andw. Balfour. Alt. G. Clerk. Reporter, Stonefield.
The electronic version of the text was provided by the Scottish Council of Law Reporting
