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.
The Children of Walter Law v. Mr John Liddel
1682.
November. Case No. No 371.
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A man having granted a bond of L. 1000 to his wife stante matrimonio, payable to her in case there were no children of the marriage, and the marriage having dissolved within the year, and a pursuit being raised upon the bond;
It was alleged for the defender; 1. That marriage dissolving within year and day, all provision, intuitu matrimonii are null, unless there be a clause dispensing with the dissolution. 2. The husband having intromitted with L. 1000 of the tocher, it is presumed he gave a bond for the repayment, and which de facto was repaid.
Answered for the pursuer; That provisions between husband and wife, or third parties, in contemplation of marriage, do indeed resolve upon the dissolution thereof within the year; but this bond was granted after the marriage.
The Lords generally inclined to sustain the first defence; but some being unclear as to that, the Lords determined upon the second, that the husband being debtor, by intromitting with L 1000 of the tocher, the granting of the second bond was intended in satisfaction of that debt, seeing debitor non præsumitur donare; and here the bond bore ‘ love and favour,’ and onerous causes.
