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.
King v. Ker
Date: 13 July 1627 Case No. No 380.
A mother having contracted for a tocher to her daughter, which was afterwards paid, demanded repetition, the marriage having dissolved within year and day, by the death of the wife. Found entitled, upon finding caution to make furthcoming to the executors of the deceased.
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In a pursuit by Margaret King, relict of David Heriot goldsmith, against George Ker, taylor in Edinburgh, for refunding to the pursuer of certain sums paid by her to the said George in tocher with the pursuer's daughter, married upon the said George, seeing that her daughter died within the year after their marriage without children; and therefore the pursuer craved repetition of the sum paid by her, and also to be free of payment of the rest conditionate to be paid by her to him; this action was sustained at the mother's instance, who was contractor, and obliged to pay the tocher, neither was it respected what the defender alleged, that he ought not to repay that which he had received and employed as his own money; and also what he alleged, that this and the like actions were competent to fathers who tochered their daughters, it being peculium profectitium, in the which the father had plenum dominium, yet it was not so privileged to the mother, who paying with her daughter sums in contentation of her portion natural, and other goods which might fall to her by decease of her father, the like action could not be competent to her; for in this case the defender alleged, the money was the proper money of the deceast daughter, and pertained to herself, which, if any repetition thereof could be granted, was only competent to the heirs and executors of the daughter, and not to this pursuer. This allegeance was repelled, and the pursuit was sustained at the mother's instance, who contracted only for the tocher and paid it, for the defender was found ought not to retain the money, nor have any benefit by that marriage, it being so dissolved within the year without children, quo casu, restitutio hinc inde est bona fide facienda, tanquam nunquam fuisset matrimonium. But the Lords ordained the pursuer to find caution, to liberate the defender at the hands of the heirs and executors of the defunct, and all others who might pretend interest in this sum libelled, or trouble him thereanent. See Jus Tertii.
Act. King & Heriot.Alt. Gray.Clerk, Hay.
Fol. Dic. v. 1. p. 414. Durie, p. 309.*** Spottiswood reports the same case:
By our practick, if a woman die within year and day after she is married, without children procreated between her and her husband, the husband must restore the tocher-good again to her father if he be alive, because then it is counted profectitia, (hoc non est sine ratione, non est enim æquum ut parentes et filia et dote simul priventur, nam afflicto non est superaddenda afflictio ait textus) but if he was dead the time of making the marriage, her mother nor any other has repetition of the same, as having proceeded from them, because they are but accounted as strangers: but it must be sought by the executors of the woman deceast, and will appertain to them. Conform hereunto between George Ker and Margaret King his good-mother, the Lords ordained him to deliver his tocher back to her, she finding caution to make it forthcoming to the executors and all others having interest.
Spottiswood (Husband and Wife), p. 155.*** This case is also reported by Auchinleck:
Margaret King, widow, having contracted her daughter with George Ker, taylor, and having by the said contract promised a certain sum in tocher-good with her, the young woman deceases before year and day. The mother, who had paid a part of the tocher, pursues for repetition. It is alleged, That the tocher was the young woman's own gear, and that she had made her husband's brother assignee thereto, to the behoof of her husband. The Lords ordain to pay back the tocher-good again to the mother contractor, and ordain the mother to find caution to make the sums forthcoming to all parties having interest.
