Subject_1 HUSBAND and WIFE. Subject_2 DIVISION XI.
Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. II.
Rights flowing from third parties in contemplation of the marriage.
Laird Covington v. Veitch
Date: 6 February 1606 Case No. No 378.
A person granted to his sister a bond of provision, bearing love and favour, and in satisfaction of her bairn's part of gear, payable the first term after her marriage.
She leaving the same by testament to her husband, and dying within the year, the Lords found the brother was not entitled to repetition, since the sum belonged to the wife, which she might dispose of at her pleasure wittv her husband's consent.
Click here to view a pdf copy of this documet : PDF Copy
The Laird of Covington pursued William Veitch, son to umquhile Patrick, to hear and see him decerned to refund and pay back to him the sum of L. 1000 which he received in name of tocher with the said Covington's sister, whom William Veitch married, conform to his contract of marriage and acquittance given thereupon, because his said wife died within year and day. It was alleged by the defender, That the summons was not relevant, because albeit in dote profectitia, the father, of the law, has repetition of the tocher, his daughter dying within year and day; yet, secundum L. 4. C. soluto matrimonio quemadmodum dos petatur, that has not place in dote adventitia, which the woman obtains by other means than by her father qui tenetur eam dotare secundum vires patrimonii; and so this tocher being dos adventitia, the brother had no repetition thereof, especially because the defender offers him to prove, that by a bond made by this pursuer to his umquhile sister, he was bound to pay to her within half-a-year after her marriage for brotherly love, for help to her marriage, and in contentation of her bairn's part of gear which she might claim by decease of her father and mother, the sum of L. 1000, and to pay to her the sum of. L. 100 yearly for the annualrent thereof, as well not infeft as infeft; so it being her own gear depending upon a preceding bond, it could not be repeated after her decease, seeing she, by her testament, had nominated her husband her executor, and he had confirmed this same sum. It was answered, That in Scotland, by our law, there was no difference inter dotem profectitiam et adventitiam; and the father of the woman being deceased, if her brother tocher her, that same reason which brings back the tocher good to the father, will give repetition to the brother, who paid the tocher with his own gear, if his sister die within year and day; and, albeit mention be made in the bond that it is given in contentation of her bairn's part of gear, yet she had no bairn's part of gear, because her father and mother were very mean, and had little or no gear at their decease; and if the defender would condescend upon the gear which she must have, fallen by her father and mother's decease, they should find it relevant to be admitted to probation pro tanto. The Lords found, that seeing this tocher good contained not only dotis causam, but proprium defunctæ pecutium her bairns part of gear through her father and mother's decease, that it was a cause onerous which made her brother debtor ex necessitate et non ex libertate, and therefore they would not astrict the defender to condescend upon the quantity of the bairn's part of gear; but found his exception relevant by the bond, contract, and testament produced; and found, that of the law, peculium adventitium, was not subject to restitution.
