Subject_1 HUSBAND and WIFE. Subject_2 DIVISION XI.
Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. I.
Terce. - Second Marriage. - Mournings. - Effect as to Postnuptial Contracts. - Effect as to Liferent Provisions.
Maxwell v. Hairstaines
Date: 23 July 1634 Case No. No 370.
Marriage having dissolved within year and day, all things are restored hinc inde, whether the husband or wife were formerly married or not.
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Thomas Maxwell having married the relict of umquhile Matthew Hairstaines, in their contract of marriage she assigns to him and his heirs, the sum of 3000 merks of that 6000 merks which was addebted to her by John Hairstaines; after which marriage she dies within the year. There being no bairns procreated betwixt them, the said Thomas thereafter pursues the said John Hairstaines for payment of the 3000 merks, conform to the said contract; who excepting, That the pursuer had no right by virtue thereof to the said sum, in respect the wife, whose money it was, died within the year, there being no bairns born of that marriage; this exception was found relevant, albeit the pursuer replied, That this party had no interest to propone this allegeance, he being only debtor, who could be put in tuto by this sentence; and also replied, That this allegeance holds not where the wife, so deceasing within year and day, was a widow, as this pursuer's wife was; for albeit when a virgin married dies within the year, omnia hinc inde restituuntur, yet it is not so where the wife was married before. Which reply was repelled; for the defender was found to have sufficient interest to exclude the pursuer's right; and also it was found alike to infer restitution, whether the wife dying was a maid the time of her marriage or not; and sicklike in the husband, whether he had been married before, or that he had never been married before; but because the pursuer replied, that the only bairn of the defunct woman, and who would be excutrix to her in law, and so have only interest to the sum acclaimed, concurred and assisted this pursuit, therefore the defender was ordained to allege farther.
Act. Gibson.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 1. p. 413. Durie, p. 732.
