Marriage having continued a full year and part of the day after the year, the tocher was found to belong to the husband.
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George Waddel having married his daughter to George Salmond, and paid the tocher in her contract, being 1300 merks; the daughter having been married upon the 23d of November 1677, and having died upon the 24th of November 1678, at two or three o'clock in the morning, Waddel pursues for repetition of the tocher, because the marriage was dissolved within year and day.—The defender alleged absolvitor, because the marriage stood undissolved for a full year, and part of the day after the year, which the law doth introduce only to make it evident, that the full year is complete, et in favorabilibus dies cæptus habetur pro completo; so that the husband's case being more favourable than the father's, he should enjoy the tocher.—It was answered, That the terms of the law is, that where the marriage is dissolved within year and day after the solemnization of the marriage, the tocher returns, and the case of the father is more favourable, the daughter being dead without succession; and by the common law, tochers do return in all cases by the dissolution of the marriage.
The Lords found, That the marriage having stood undissolved a year, and and a day thereafter, the husband had right to the tocher, albeit that day was not complete.
Fol. Dic. v. 1. p. 235. Stair, v. 2. p. 763.
1680. February 11.
*** Fountainhall reports the same case:
George Waddell pursues one Salmond for a tocher. It was alleged, the marriage had dissolved before year and day expired, in so far as she was married on the 23d of November, and on the 24th of November of the year following she died at two o'clock in the afternoon; and so the year and a day more were not fully expired. Answered, In such a favourable case the time must not be counted strictly de momento in momentum, but dies inceptus haberi debet pro completo, ut in favorabilibus interpretari solet: Yea it may be said this year and day is a kind of prescription, which is not counted de momento in momentum, l. 6. D. de usucapion. Answered, The father was more favourable to get back his money in solatium of his daughter and her issue he wanted; and in all other cases it behoved to be a full natural day, as in annual rebellions for liferent escheats, in the annus deliberandi, in the possession on base infeftments, by act 105, Parl. 1540; And Craig, l. 2. Dieg. 12. speaking de non-introitu, gives a good reason for it, Additur dies ut omnes molestæ quæstiones de anni tempore tollantur. The Lords, on the 25th of February, ‘found, that the tocher was due to the husband.’ Nota. It was only carried by a single vote of an extraordinary Lord, and the President was against it.
1681. June 7.—The probation led in the action (mentioned February 11th 168o,) between Waddel and Salmond, coming this day to be advised, the Lords, after much debate, ‘found it was enough that both the days of the marriage and of the wife's death were inchoate, though they were not complete, to make up the year and day; and found, seeing she was married on the 23d of November, and died the next year on the same 23d of November, there could not be two 23ds of November in one year; and therefore she had lived year and day.’ But this was a quibble, and no solid ground; for thus it should be construed year and day, though she was married the 23d at night, and died the 23d next year in the morning thereof; though in effect this would want a a day of the full year.
In the triduum of our Saviour's lying in the grave, neither the day of his suffering, nor of his resurrection were complete days, but only parts of days; yet they enter into the account of the three days. See Doctor Hammond's observations on the 40th verse of the 12th chapter of Matthew, anent Christ's lying three days in the grave, and Grotius's notes on the same passage. See elegantly for this, that annus inchoatus habetur pro completo, a debate in D'Avila's History of the Civil wars of France, anno 1563.
Some of the Lords were of opinion that it ought to be tempus continuum, and so counted de momenta in momentum, that one of the days ought at least to be complete; but the contrary was carried: In this cause, the Lords also admitted women to be witnesses for proving the time of the wife's death, because they are more commonly present in such cases, than men. See Witneess.
