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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.
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,

Marriage as consideration does not sub

sist in the

case of a


$184. In the case of a post-nuptial contract, marriage no longer subsists as consideration, as in ante-nuptial post-nuptial arrangements. The wife has accepted the position and the rights which the law assigns to her: she is identified with her husband; "conjux prosperis dubiisque socia." On the principle therefore of unity of person she cannot, during the marriage, compete with his creditors, amongst whom, apparently, are to be reckoned children of a former marriage claiming under their mother's contract of marriage.3

A provision is not necessarily gratuitous because it is post-nuptial.

Old view was that


§ 185. Every provision in favour of a wife is not, however, necessarily gratuitous because it is post-nuptial. The question in each case is whether the provision is a donation and therefore gratuitous, or whether it is founded upon a consideration that is in law deemed onerous.

§186. Lord Stair seems to have been of opinion that compost-nuptial petent provisions to husbands or wives ad sustinenda onera

provision for

aliment of

wife was good against creditors.

matrimonii were valid although post-nuptial.

now law, at least in this form.

This is not

At one time the idea was prevalent that as the husband is bound to aliment his wife and children, he is therefore entitled to fulfil this obligation by setting aside a

i. p. 419; M'Lachlan v. Campbell, 29 June, 1824, 3 S. 192; Carphin v. Clapperton, 24 May, 1867, 5 M. 797. See per Lord Neaves in Miller v. Learmonth, 21 Nov. 1871, 10 M. at p. 115; Fraser, Husband and Wife, ii. p. 1350.

1 See Campbell v. Creditors, 1744, M. 988. Marriage was held to be consideration for a post-nuptial provision to a wife: but this cannot now be regarded as law.

2 Tacitus, Ann. 12. 5. He repeats the same sentiment, Ib. 3. 15; 3. 34; Germ. 18.

3 Guthrie v. Cowan, 21 Nov. 1846, 9 D. 124.

4 Stair 1. 9. 15: See also Dirleton's Doubts, s.v. Aliment.

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that is not

part of his property for the purpose, and that if he did so it would be protected against his creditors.1 'But there is," says Lord Chelmsford, "no natural obligation upon a husband, recognized by Scotch law, to divest himself of a Now decided portion of his property and put it out of his control to pro- law. vide for his wife and children. On the contrary, it would rather appear to be his natural duty to preserve his right, as head of the family, to dispense his means according to a just view of his obligations, and not to deprive himself of the exercise of that discretion by making an absolute and irrevocable disposition of any portion of it to his wife." During the subsistence of the marriage the wife has right to be alimented; but in what style? Only to be alimented according to the circumstances of her husband. If he fall into poverty she must suffer. It cannot be said that during his life she is entitled to have such and such luxuries, independent of his circumstances. If the post-nuptial contract affects to make her independent of her husband and his circumstances, this is pure donation and cannot be supported.3

to take effect

death will

§ 187. After the death of the husband the position of But provision matters is different. The wife has her claim for jus relictae at husband's and terce, and these may be the subject of bargain between her be sustained. and her husband; and he may make a conventional provision for her in lieu of these claims. Again, while a husband is bound during his life to maintain his wife, he cannot be compelled to make provision for her after his death, and, this being so,

1This was vigorously combatted by George Brodie, Brodie's Stair, i. p. 99 note.

2 Dunlop v. Johnston, L.R. 1 Sc. App. at p. 112, S.C. in Court of Session, 24 March, 1865, 3 M. 758.

3 Per Lord Benholme in Johnston v. Dunlop, 24 March, 1865, 3 M, at p. 764.

Subject to conditions.

Intermediate income.

the law allows him to do so by post-nuptial contract.1
support such a provision it is necessary


(a) That the husband be solvent at the date of the deed.

(b) That the provision be reasonable.

(c) That it is to take effect only upon the husband's death.2

(d) That the provision is not revocable or defeasible by the husband.3

§ 188. The mere fact that there is income derivable from the provision will not invalidate it. If the provision has been made by means of immediate investment, the revenue during the husband's lifetime will, even although in terms payable to the wife, belong to his creditors if he becomes bankrupt, and as a counterpart he will remain liable for the

1 See per Lord Gifford in Melville v. Melville, 15 July, 1879, 6 R. 1286. The ancient rule was that the sum settled by the husband by post-nuptial contract upon the wife must not exceed the tocher he received with her. Reg. Maj. ii. c. 15 (ed. Skene). The maxim was, Dos et donatio propter nuptias in jure paribus passibus ambulant et æqualiter regulantur. This was copied from the civil law regarding Donatio propter nuptias; it might not exceed the dos. As the husband was bound to dower his wife, a provision in lieu of dower was not a donation, Pothier, Traité du Douaire, §§ 5, 6, Œuvres, vi. p. 318.

2 Dunlop v. Johnston, 24 March, 1865, 3 M. 758, affd. H.L., L.R. 1 Sc. App. 109; Craig v. Galloway, 1861, 4 M'Q. 267; Rust v. Smith, 14 Jan. 1865, 3 M. 378; Donaldson v. Thomson, 25 Jan. 1873, 11 M. 347; Thomas v. City of Glasgow Bank, 31 Jan. 1879, 6 R. 607; Miller v. Learmonth, 1870, 2 Paterson, App. Ca. 1777. Here the provision was made out of the wife's own legitim, which had fallen to the husband jure mariti. The distinction between a provision stante matrimonio and one to take effect on the husband's death was early recognized. See e.g. Gordon v. Gregory, 21 Jan. 1658, a case decided by the English Commissioners. Decisions of the English Judges, p. 129.

3 Honeyman v. Robertson, 7 Dec. 1886, 14 R. 163; cf. Jardine v. Currie, 17 June 1830, 8 S. 937.

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