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Jus exigendi

must be such

is the extent and nature of the jus exigendi, and it is amply illustrated in the old cases arising upon destinations.

A father may oblige himself to take the titles of property, either heritable or moveable, in favour of himself and his wife in liferent, and the children of the marriage nascituri in fee. This is an obligation which confers upon them a jus exigendi when they come into existence. They are entitled to compel him, by action, to have titles made up in this form, but it does not give them a jus crediti to compete with onerous creditors. In such a case the father would remain fiar after the titles were made up in terms of his obligation. They are no better than children whose right stands merely upon destination. If, on the other hand, the obligation is to make up titles in such a form as will limit his powers or make the children the fiars-e.g., if the conveyance is to be to the father in liferent and the children in fee, or if the father is to be constituted fiduciary fiar for the children, the case is different: the jus exigendi, if followed out, would confer upon them a jus crediti.3

§ 215. In short, the jus exigendi must be such as will, as will result during the father's lifetime, result in a right of action to

in curtailing

father's power

of administra- abridge his powers of administration or the beneficial enjoy


available, if it is resisted, without a suit to compel persons to do something else in order to make the right perfect." Per Lord Cranworth, L.C., in Edmond v. Gordon, 1858, 1 Paterson, App. Ca. at p. 727; S.C. 3 M'Q. at p. 122.

1 M'Donald v. M'Lachlan, 14 Jan. 1831, 9 S. 269; Kennedy v. Allan, 19 Feb. 1825, 3 S. 544; Dewar v. M'Kinnon, 1825, 1 W. and S. 161; Fulton v. King, 1811, Hume, 533.

2 See per Lord Corehouse in Brownings v. Hamilton, 15 S. 999. 3 Supra, § 207; Douglas v. Douglas and Drummond, 1724, M. 12910. M'Intosh v. M'Intosh, 28 Jan. 1812, F.C.; Newlands v. Newlands, 9 July, 1794, M. 4289; Falconer v. Wright, 22 Jan. 1824, 2 S. 633.

ment of his property. If the provisees have a jus exigendi
of that character they have a jus crediti. They are creditors
of their father, entitled to rank with his other onerous
creditors, or to retain their security if their provisions have
been secured by part of the father's estate.
They have all
the rights of ordinary creditors. They may inhibit and
adjudge, either absolutely if their rights be purified, or in
security if these be contingent and the father be vergens ad
inopiam or about to flee the country.

to children having a

§ 216. A disposition by the father to children having a A conveyance proper jus crediti would not be reducible under the act 1621, as granted to a conjunct person without onerous cause.2

not challengeable under

Act 1621.


binding on

§ 217. Although provisions in favour of children may not Children's confer a jus crediti in competition with onerous creditors, parent. they will as a general rule bind the father and his representatives so that they cannot be defeated by gratuitous deeds.3 So, too, although wife or children may not be able to com pete with the creditors of their father, they may have a good claim against a cautioner who has obliged himself along with the grantor.

over creditors

§ 218. Whether the provision is a spes successionis or con- Preference stitutes a proper jus crediti, if it imposes an obligation of heir. upon the father, the children are entitled to a preference

1 See, for instance, Cruikshank's Trustees v. Cruikshank, 4 Nov. 1853, 16 D. 7.

2 Ersk. 3. 8. 40; M'Kenzie v. M'Kenzie's Creditors, 1792, Bell's 8vo Cases, p. 404; Fraser, Husband and Wife, ii. p. 1382; per Lord Curriehill in Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. at p. 1134.

3 Supra, §§ 203, 205; Bell, Pr. § 1987; Brodie's Stair, ii. p. 555; Adv. General v. Trotter, 12 Nov. 1847, 10 D. 56, S.C. Reports of Exchequer Cases in Scotland, No. 4.

4 Fotheringham v. Fotheringham, 1734, M. 12929, 12941; Wilson v. Wishart, 16 Nov. 1844, 7 D. 125; Ersk. 3. 8. 40.

Jus crediti

and vested interest not the same.

over the creditors of his heir.1 If it is a debt only upon the heir, the children can rank only along with the other creditors of the heir.2 If the heir accepts a disposition from his father omnium bonorum burdened with provisions in favour of the widow and younger children, the latter are entitled, on the bankruptcy of the heir, to rank pari passu with his other creditors for payment of these provisions, if the free property left by the father was sufficient to meet them.3 § 219. A jus crediti and a vested interest are not to be confounded. A child may have a jus crediti which will entitle him to compete with the onerous creditors of his father, but it does not follow that it is vested in him so as to enable him to give right to an assignee if he predecease, or to give his executors a right to take it up as part of his estate.1 § 220. Hitherto we have been considering the method of giving children a good claim for their provisions, in case of on sequestra the bankruptcy of their parents. Take now the converse case. The child may become bankrupt, and if he has a vested interest, it will pass to his creditors. Thus, if under the destination of a landed estate, the heir of the marriage is called to the succession, the father cannot gratuitously defeat his right, even although the son becomes bankrupt. If he does so, his creditors are entitled to the rights he has under the marriage contract.

If child has a vested

interest it passes to

his creditors


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If there is no vested interest the creditors take nothing."

1 Supra, §§ 203, 205; Wilson v. Wilson, 1811, Hume 534; Dundas

v. Dundas, 16 May, 1839, 1 D. 731; Kibble v. M'Donald, 16 Feb. 1832, 10 S. 341.

2 Cameron v. Robertson, M. 12879.

3 Menzies v. Murdoch, 14 Dec. 1841, 4 D. 257.

4 Fraser, Husband and Wife, ii. p. 1372.

Spiers v. Dunlop, 1778, M. 13026; Fraser, Husband and Wife,

ii. p. 1418.

6 M'Millan's Creditors v. M'Millan, 2 July, 1813, Hume, 536.

Thus, when any assignation of a spes successionis was, in the deed which conferred it, declared to be void, it was held that the trustee on the sequestrated estate of the person prospectively entitled to it was not entitled to an assignation to it, as a condition of the bankrupt's discharge.1 But if a child has a jus crediti, it is none the less property which will pass to the trustee, because it is subject to a power of division by his parent. It does not thereby become a mere spes successionis. The amount may be uncertain, but there is a vested right to whatever may be appointed by the parent under the power.2



§ 221. No questions arise more frequently or cause more Assignation trouble and disappointment than those regarding furniture. delivery. A man by ante-nuptial deed dispones his household furniture to his wife and nothing further is done. If then he becomes bankrupt, his trustee will take possession, and the provision intended for the wife is swept away. For no principle is more firmly established and none is more reasonable than this, that to complete a transfer of corporeal moveables there must be a change of possession. Traditionibus dominia rerum non nudis pactis transferuntur. In other words the property does not pass retenta possessione; according to the French maxim donner et retenir ne vaut.

This doctrine is not confined to the case of husband and wife, but is of universal application. In the case supposed, the wife loses the gift simply because she has not complied with the law; the property did not pass to her.3 "A mere private agreement in words, whether oral or written, without

1 Kirkland v. Kirkland, 18 March, 1886, 13 R. 798.

2 M'Donald v. M'Grigor, 10 March, 1874, 1 R. 817; MacKenzie's Creditors v. His Children, supra, § 212, note 3.

3 Brown v. Brown's Trustee, 19 Dec. 1850, 13 D. 373; Campbell v. Stewart, 13 June, 1848, 10 D. 1280; Shearer v. Christie, 18 Nov.


If furniture is the property of

not affected by husband's

any delivery or change of possession, or anything equivalent to ordinary delivery, we think cannot be sufficient to pass the property of moveable goods out of the husband, and into the wife, to the exclusion of his right and his creditors."


222. Take the converse case that the furniture is the wife's


the wife it is property exclusive of the jus mariti of her husband—that it is, her peculium. In this case it is not affected by her husband's sequestration,2 or by the diligence of his creditors. Her separate property is not liable for the payment of his debts; nor will his ostensible ownership of it alter this. The case, it will be remembered, is specially dealt with in the Married Women's Property Act (sec. 1, subsec. 4 and sec. 4 ), which provides that corporeal moveables belonging to the wife are not to be subject to arrestment, or other diligence of the law, for the husband's debts, although not clearly distinguished from his.5


§ 223. The only difficulty is identification. In an old case it was laid down by the Court that everything in the possession of the wife must be presumed to be the husband's till the contrary is established, and it was suggested that to

1842, 5 D. 132; Anderson v. Buchanan, 22 Dec. 1848, 11 D. 270; M'Caul's Trustees v. Thomson, 30 June, 1883, 10 R. 1064; Campbell's Trustees v. Whyte, 11 July, 1884, 11 R. 1078.

A policy of assurance under the Married Women's Policies Assurance (Scotland) Act, 1880, is an exception. Supra, § 87.

1 Per curiam in Shearer v. Christie, supra, 5 D. at p. 141.

2 M'Donald or Young v. Loudoun & Co., 26 June, 1855, 17 D. 998;

Cameron v. M'Lean, 5 Feb. 1876, 13 S.L.R. 278.

3 See M'Gill v. M'George, 6 Jan. 1887, 3 Sh. Co. Rep. 238.

4 1 Bell, Com. p. 131 (5th ed.), 126 (7th ed.). See the case of furniture belonging to children in the custody of the father, Bell, Pr. § 1580. Cf. Orr's Trustee v. Tullis, 2 July, 1870, 8 M. 936.

5 See Allan v. Wishart, 1890, 6 Sh. Co. Rep. 185. Supra, § 92.

6 Macdonald v. Doig, 1793, M. 5848. To the same effect see Cross v. Glode, 1798, 2 Esp. 574.

This is the rule in France; see the Code de Commerce, Art. 559; and was that of the Civil law, Dig. 24. 1. 51; Code 5. 16. 6.

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