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but it goes further than the corresponding section (sec. 3) of the English Married Women's Property Act, 1882, which limits the operation of the section to money lent by a wife to her husband for purposes of trade.

old rule.

$176. When the jus mariti is excluded by contract, and the Application of wife is not dependent for protection upon the statute alone, probably the old rule will hold.1 Nothing different was suggested in a recent case, and no reference was made to the statute. If the loan is not by the wife but by the trustees of her property the new rule apparently would not apply. It will not apply in any case to a security held by the wife for a loan.1

wife of

§ 177. The law as to donations between married persons is Revocation by not touched, it will be remembered, by the Married donations. Women's Property Acts. That law principally operates in practice to cut down gratuitous settlements by husbands in favour of their wives. Revocation is, however, a right possessed by the wife just as much as by the husband. Consequently upon his bankruptcy she may revoke, and rank upon his estate for the amount of the gift.5

The result in Scotland is the same, but the principle is different. As each partner is liable for the debts of the firm, one could not claim upon the other in competition with the creditors of the firm.

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2 Laidlaw v. Laidlaw's Trustee, 16 Dec. 1882, 10 R. 374.

3 See In re Kershaw, L.R. 6 Eq. 322; Newlands v. Miller, 14 July, 1882, 9 R. 1104.

+ Ex parte Sheil, L.R. 4 Ch. D. 789; cf. May, supra, p. 134, note 2. Nor does it apply when the loan is to a partnership of which her husband is a member, Ex parte Nottingham, L. R. 19 Q.B. D. 88.

It has been held that a person who had made a loan under Bovill's Act is not precluded from claiming aud ranking with the other creditors for other sums not advanced under the Act, Ex parte Mills, In re Tew, 1873, L.R. 8 Ch. App. 569.

5 Williams v. Williams, 15 Nov. 1844, 7 D. 110; Laidlaw v. Laidlaw's Trustee, 16 Dec. 1882, 10 R. 374.

No claim for aliment in sequestration.

Conventional provisions are

claim in


The questions that most commonly arise in bankruptcy respecting conjugal property have reference to the provisions made for husbands, wives, or children.

§ 178. 1. Legal Provisions.-At common law neither a man's children nor his wife have, in a question with creditors, any claim for aliment, not even out of the rents of heritage which passed to the husband jure mariti.1 An undertaking by a father in his ante-nuptial contract of marriage to aliment, entertain and aliment his children does not add to his obligation jure naturae or make it more effectual in a question with creditors.2 A wife cannot during her husband's life compete with creditors for prospective jus relictae or terce; or after his death for aliment. Children cannot compete for legitim.3

§179. 2. Conventional Provisions.-The provisions made for foundation for husband and wife and children by ante-nuptial and even by sequestration. post-nuptial contract are, in a question with creditors, in an entirely different position from those which arise by law. Terce, jus relictae, and legitim are mere spes; they confer no present right, and emerge only upon the husband's death, and then only to a surviving wife and surviving children, for they do not admit representation. The object of a marriage contract, on the other hand, is to create a present and

1 Ogilvy's Creditors v. Scot, 1687, M. 5892; Robb v. Robb's Creditors, 1794, M. 5900; Lee v. Watson, 1795, M. 5889. See supra, §§ 5, 68. 2 Macintosh v. Gibson, 17 Dec. 1819, Hume 10.

3 Reasonable mournings will be allowed to widow and children, in a question with creditors. Sheddan v. Gibson, 1802, M. 11,855; Buchanan v. Ferrier, 14 Feb. 1822, 1 S. 323. In a question with heirs the case is different. As to aliment to widow generally, Lowther v. M'Laine, 1786, M. 435, Hailes 1012; De Blonay v. Oswald's Represen tatives, 17 July, 1863, 1 M. 1147. Aliment by heir of brothers and sisters, Ersk. 1. 6. 58.

definite claim, and in so far as this is effected and the deed is not challengeable upon other grounds, the provisions it makes will be effectual in a question with creditors, although these provisions are the substitute for or the counterpart of the provisions made by law. The natural obligation upon a husband to aliment his wife gives her, as we have seen, no right to claim for that aliment against his creditors; but if he has by ante-nuptial contract agreed to give her a reasonable aliment, that is an obligation which will entitle her to rank upon his estate, along with his onerous creditors, to the effect of securing a fund for her aliment.1

preferences at common


§180. 3. Fraudulent Preference. To enable anyone having Fraudulent right under a contract of marriage to compete with the credi- w tors of the spouse who is the grantor of that right, in the event of his bankruptcy, it is essential that it be not what the law defines as a fraudulent preference. From the moment of insolvency of a debtor, says Professor Bell,2 "his funds are no longer his own, which he can be entitled secretly to set apart for his own use, or to give away as caprice or affection may dictate. . . . the creditors . . are not required plans and fraud

to enter on any scrutiny into the secret
ulent views of their debtor and of his friends, but have to
direct their inquiries to these points alone: whether was
this man insolvent when he granted this deed, or con-
stituted this debt? and, whether did he receive a valuable
consideration, or was it granted without a true and just
This is a statement of the common law

1 Bell, Com. 639 (5th ed.), 684 (7th ed.).

2 2 Bell, Com. 182 (5th ed.), p. 170 (7th ed.).



3 See also Stair 1. 9. 12; Ersk. 4. 1. 44; Roseberry v. MacQueen,

1 July, 1823, 2 S. 443.

Act 1621, c. 18.

Gratuitous alienations by

upon the civil law.1 In Scotland, as at Rome, it has been. enlarged by statute for rendering it more efficacious. This was by the well-known statute, 1621, c. 18,2 which makes special provision for the case of creditors prior to the date of the gratuitous alienation to conjunct and confident persons by an insolvent.

§ 181. This Act is a confirmation of an Act of Sederunt of 12th July, 1620, which after reciting "the godlesse deceites" of dyvours and bankrupts who, "in manifest defraud of their creditours, do make simulate and fraudful alienations. to their wives, children, kinsmen, alleyes, and other confident and interposed persons, without any true, lawful, or necessarie cause, and without any just or true price interveening in their saids bargaines, whereby their just creditours and cautioners are falsly and godlesly defrauded. . . enacts that the Lords "will decreete and decerne all alienationes, dispositions, assignations, and translations whatsoever made by the debtor of any of his lands, teindes, reversions, actions, debtes, or goods whatsoever, to any conjunct or confident person without true, just, and necessarie causes, and without a just price really payed, the same beeing done after the contracting of lawful debtes from true creditors; to have beene from the beginning and to be in all times comming null and of none availe, force nor effect, at the instance of the true and just creditor."

$182. Both at common law, therefore, and by statute, an insolvent gratuitous alienations by an insolvent to his wife or chil

invalid in a

question with creditors.

1 See Hunter's Roman Law, p. 881 et seqq.; Mackeldey, Modern Civil Law, Special Part ii., Appendix ii., §§ 9, 10 (Lipsiae, 1847).

2 It and the precedent A.S. are founded apparently upon the two statutes of Elizabeth regarding fraudulent gifts, 13 Eliz. c. 5, and 27 Eliz. c. 4, which still regulate the law of Marriage Settlements, antenuptial and post-nuptial, in England.

dren are invalid in competition with the onerous creditors of the husband and father. They are, in the language of the statute, alienations to conjunct and confident persons without true, just and necessary cause made after the contracting of lawful debts from true creditors, and are therefore of no avail in a question with such creditors.


consideration for antenuptial con


$183. Marriage is the highest consideration known in the Marriage as law and is a true, just and necessary cause in the sense of the statute. Marriage itself is therefore sufficient consideration for an ante-nuptial contract, and such a deed and its provisions in favour both of wife and children are good against the husband's creditors, even although he was insolvent at the time when he entered into the marriage,1 provided there was no fraud.2 Thus if the marriage itself and the contract made in view of it were merely part of a fraudulent scheme to defeat the just claims of creditors the contract cannot stand.3 Apart from fraud, the deed is binding as an onerous obligation of the husband. There may be a question whether such provisions are good in so far as they exceed a reasonable and moderate allowance, but to that extent there can be little or no doubt that they are valid.4

1M'Lachlan v. Campbell, 29 June, 124, 3 S. 1892; Carphin v. Clapperton, 24 May, 1867, 5 M. 797; Duncan v. Sloss, 1785, M. 987, as explained in the preceding case.

As to the English Law, see Campion v. Cotton, 17 Ves. 263; Kevan v. Crawford, L.R. 6 Ch. D. 29.

2 Fraser v. Thompson, 4 De G. & J., 659; Bulmer v. Hunter, L.R. 8 Eq., 46.

3 See per Lord Ormidale in Watson v. Grant's Trustees, 14 May, 1874, 1 R. at p. 887; In re Pennington, 1888, 5 Morrell Bankruptcy Cases, pp. 216, 268; Wood v. Reid, 1680, M. 977; Dig. 42. 8. 25. § 1.

41 Bell, Com. p. 684 (7th ed.), p. 637 (5th ed.); M'Laren on Wills,

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