Subject_1 HUSBAND and WIFE. Subject_2 DIVISION XI.
Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. IV.
The birth of a live Child saves the right of the Husband.
Irvin v. Robertson
Date: 20 July 1632 Case No. No 388.
Marriage having dissolved within year and day, and a living child being born, which died within the year, the Lords found the tocher due.
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By contract of marriage betwixt one Irvin and Robertson,——Irvin, brother to his sister then contracted to be married on Robertson, is obliged to pay to the said Robertson, in name of tocher, the sum of 2000 merks; and they being married, after procreation of a bairn, who died before the parents, but within the space of a year after the marriage; and a space before the expiring of the year, the wife also died, and sicklike the husband; this husband's brother being served heir to him, pursues for registration of the foresaid contract, to the effect that he might have execution, for payment to him of the foresaid sum contracted to be paid to his said umquhile brother, being heritably contracted; wherein the defender compearing and alleging, that in respect the wife and her husband outlived not the year, but that the marriage was dissolved by death within the year, therefore the marriage quoad omnia hinc inde donata, was returned, as if it never had been; and that the tocher could not be craved by the husband, albeit he were yet living, and albeit he had not died within the year; neither could the procreation of a bairn who also died within the year of the parents marriage, make any exception against the common practice, whereby all is restored hinc inde, where any of the parties married dies within the year; and the pursuer replying, that the procreation of a bairn once living, albeit both the bairn, and parents died within the year, makes the contract to be effectual, and that the tocher should be paid to the husband and his heir, sick like as the conjunct-fee would have been due to the wife, if she had survived; The Lords repelled the allegation, and found, seeing there was a bairn born of the marriage, albeit both the bairn and parents died within the year, yet that the tocher was due to the husband, and consequently, after his death, to his heirs, being heritable, as said is.
Act. Stuart, Mowat, & Davidson.Alt. Nicolson & Russel.Clerk, Scot.
Fol. Dic. v. 1. p. 415. Durie, p. 648.*** Auchinleck reports the same case.
Stewart, spouse to Jane Douglas, pursues Irving for the sum of 2000 merks, promised by the said Irving, in tocher to the said Jane, his half sister. It is alleged by the said Irving, that the said Jane died within year and day after her marriage, and so the tocher should return et frustra petit cum mox restiturus sit; to which it was replied, That although she lived not year and day, yet she was delivered of a quick child, in which case the tocher belonged to her husband; which reply the Lords found relevant, and to stand as a practick to be observed in all such eases.
Auchinleck MS p. 127.*** Spottiswood reports the same case.
In an action, Stuart against Irving, the husband pursuing for his tocher-good; alleged, None due to him, because his wife had died within year and day, leaving no child of the marriage behind her. Replied, That ought to be repelled, because she had born a child, albeit it had died before the mother, which was enough to win the tocher. Duplied, Not sufficient, unless one of them had outlived the year. The Lords repelled the exception in respect of the reply.
