Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
- v. Stuart of Brugh and his Spouse
Date: 15 June 1672
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One Mrs. Stewart being married upon one Buxton, he, being taken at Worcester, made his escape and went over to the parts of France, where he staid by the space of eight or ten years. His wife, having waited about seven years without hearing from him, supposing him to be dead, married one Mr. Seaton. After they are married some two or three years, home comes Buxton, her first husband, and confesses ingenuously he had wronged her, and occasioned that snare she had fallen in, in never giving her the least notice of his being on life; and, therefore, to make her amends, takes her home and treats her very kindly as his wife. He at last dies, and she marries again to one Stewart of Brugh, in Orkney; and having given a bond in her reputed viduity, betwixt the going away of her husband and her marrying Mr. Seaton, for 700 merks; and she and her present husband being charged thereon, suspension thereof is raised on this reason, that she was vestita viro at the time of the granting, and he does not consent, and so the same is null of the law.
To which it was answered,—That she was tenta habita et reputata vidua, which put the lieges sufficiently in bona fide to bargain with her; that she really believed she was such a one, in regard she married again; that a minor affirming himself to be major, though falsely, yet will never be restored against that bond, and so with her.
Replied,—Præsumptio et fictio cedit rei veritati: now ex eventu, it appeared she was then clad with a husband, though in regard of his absence the common presumption ran to the contrary; and, therefore, the bond must be void and null. Item, there was no dole in her, as in the minor's case.
