Imágenes de páginas

§ 12. Industrial fruits of land are moveable, and so are Rents fall

under jus rent and other annual returns from land and from other mariti. heritable rights after the terms of payment, and all fall to the husband during the subsistence of the marriage. The whole of the wife's rent, dividends, and interest, and the termly payments of an annuity1 might consequently be swept off by the creditors of a bankrupt husband during his lifetime. He has, however, no control over the fee of his wife's heritable property, which belongs to her and her own heirs, of whom he is not one, unless by provision.

§ 13. The wife's civil capacity is suspended by the marriage, and she becomes practically a minor, not from want of a disposing mind as in the case of a minor, but from want of disposing power. Her husband's consent is, therefore, requisite to every deed she grants, and without this it is bad. But that consent will not validate a deed which is challengeable upon other grounds. If the wife during minority grants a lease of her heritable estate, she will be entitled to reduce it, within the quadriennium utile, on the ground of enorm lesion, although her husband was a consenter.3

Husband must

consent to wife's deeds.

persona standi

The wife has no persona standi in judicio, and she can wife has no neither sue nor be sued in respect of her separate estate, in judicio. unless her husband be joined with her; "to fortifie, assist, and authorize hir," says an old writer. Age has nothing to do with the matter; for if a woman of 50 marries a youth of 21, he becomes ipso jure her curator, and without his consent she cannot deal in any way with her own property. 1 See per Lord Gifford in Reid v. M'Walter, 5 Feb. 1878, 5 R. at p. 632. 2 This is an English statement, but is equally applicable to Scotland. See Lush, Married Women's Rights and Liabilities, p. 26 (London, 1887). Fraser, Husband and Wife, i. pp. 517, 520.

3 Gibson v. Scoon, 6th June, 1809, F.C.

4 Balfour, Practicks, p. 93; Quoniam Attachiamenta, c. 22.


inter virum

bidden by civil law,

The authority is appendant to the relation not to the person.1 She cannot, without his concurrence, validly pledge her wedding ring or sell a trinket. In 1711" the Lords, by a scrimp plurality, found wives had the sole administration of their jewels when in straits to raise money," but "some merrily said this was too great an interlocutor in favours of women"; 2 and on second thoughts the majority came to this conclusion, for when the point again arose, in 1754, the court unanimously decided that the wife of a journeyman tailor could not validly pledge a ring without her husband's consent.3

14. By the civil law a husband could not during marriage et uxorem for make a gift to his wife, nor a wife to her husband. A conveyance with this object conferred no ownership; stipulationes were not binding; acceptilationes were no release. The reason assigned by the Emperor Antoninus was that marriage is the product of honourable love, and harmony should not in appearance be purchased by money. Some exceptions were permitted. It was a Roman custom that husbands made presents to their wives on the Kalends of

1 If the husband be under 21, that is himself a minor, his own curators must concur in his concurrence. See Fraser, Husband and Wife, i. p. 517. In Mackenzie v. Mackenzie's Trustees, 10 July, 1878, 5 R. 1027, the Court appointed a curator ad litem to the wife.

2 Pringle v. Irvine, 1711, M. 5970; Fountainhall, ii. 660; followed in 1717 in Clerk v. Sharp, M. 5996.

3 Anonymous, 1754, 5 B. S. 811; Gemmil v. Yule, 1735, M. 5997. This was the ancient rule. See Regiam Majestatem, iv. c. 32, ed. Innes. 4 The Regiam Majestatem (ii. c. 12, ed. Innes, or c. 15, ed. Skene) repeats the reason of Ulpian, Dig. 24. 1. 3 pr. In the old translation "All other gifts, except the gifts foresaids, are discharged, and forbidden betwix husband and wyfe, that they throw great affection of mutual love betwix them, they spuilzie not other, that they become pure and beggars." (Regiam Majestatem translated out of


Latine in Scottish language. Edinburgh, 1609 fol.

March and wives to their husbands on the Saturnalia-the

merry makings of December. These1 and birthday presents, of moderate amount, were allowed; as were gifts to take effect only on the dissolution of the marriage. Gifts by a wife to her husband to enable him to acquire senatorial or equestrian rank, or the like honour, were valid. Hence a present to defray the expenses of standing for office or of the games was allowed, just as in Scotland the preservation of the political influence of a great family has been claimed to be a proper act of administration by a tutor-in-law.3

of By law of Scot


§ 15. The Scots law, like most of the coutumes France, adopted the principle of the Roman rule to donations, but without the exceptions, and not to its full extent. With us donations inter virum et uxorem are effectual if not revoked. They may be revoked at any time during the marriage, and even after its dissolution," not

1 Dig 24. 1. 31 § 8.

Dig 24. 1. 42; 24. 1. 40.

3 Graham v. Hopeton, 1798, M. 5599. Here the Court refused to allow a tutor to take credit for sums expended by him in "political operations" for the benefit of the pupil on the ground, apparently, that the ward was a lunatic.

An interesting account of this branch of the law in France will be found in Pothier, Traité des donations entre Mari et Femme, Œuvres, ed. Bugnet, t. vii. p. 499 and seqq. (Paris, 1861).

5 This is the rule laid down in the Regiam Majestatem, ut supra : "si talis donatio facta in vita donatoris, manet rata, ejus obitu confirmatur."

This chapter of the Regium Majestatem is one of those for which there is no equivalent in Glanvil. Bracton, however, deals with the subject (ii. 12) almost in the same terms as the Regiam Majestatem. See also Britton, 2. 3, §§ 6 and 11; Fleta, 178; Fragmenta Collecta, No. 12; Acts of the Parliament of Scotland, vol. i. p. 732; Sachsenspiegel, Art. 31, § 2; Laboulaye, Recherches, p. 282.

Edward v. Cheyne (No. 2), 1888, L.R. 13 App. Ca. p. 385; S.C. 15 R. 37 H. L. See also Cousin v. Caldwell, 5 June, 1838, 16 S. 1109; Melville. Melville's Trustees, 15 July, 1879, 6 R. 1286.


land good if not revoked.

Remuneratory donations.

withstanding a clause importing irrevocability, and not only by the donor spouse, but by his or her curator bonis in case of insanity,2 or by the creditors in case of insolvency. Sequestration, indeed, is eo ipso revocation.1 The heirs of

the donor cannot, however, revoke.

§ 16. While pure donations are thus ambulatory, husband and wife may enter into contracts with each other, and donations made for valuable consideration cannot be revoked.5 These are known as remuneratory grants or remuneratory donations. Consideration must, however, be proved, or otherwise donation, which implies no consideration (liberalitas nullo jure cogente facta), is presumed. The consideration in such cases is often the abandonment of the legal rights of one or other of the parties, or of both, but the renunciation by a married woman of the rights conferred upon her by an ante-nuptial contract of marriage is a donation, and therefore revocable, unless an equivalent is given.8 What is sufficient consideration to support a transaction and convert it from donation into remuneratory grant is a question of 1 Cousin v. Caldwell, supra; Jardine v. Currie, 17 June, 1830, 8 S. 937. 2 Blaikie v. Milne, 14 Nov. 1838, 1 D. 18.

3 Shearer v. Christie, 18 Nov. 1842, 5 D. 132.

4 Kemp v. Napier, 1 Feb. 1842, 4 D. 558; Honeyman v. Robertson, 7 Dec. 1886, 14 R. 163.

5 Shaw's Trustees v. Shaw, 19 Jan. 1870, 8 M. 419; Standard Property Investment Company v. Cowe, 20 March, 1877, 4 R. 695.

Erskine, 1. 6. 30; Fraser, Husband and Wife, ii. 940. See also Pothier, ut supra, § 118 et seqq. In France such gifts are known as "mutual or reciprocal gifts."

7 The rule is the same in England; See Hewison v. Negus, 16 Beav. 594.

8 Thomson v. Thomson, 20 February, 1838, 16 S. p. 641; Rae v. Nielson, 14 May, 1875, 2 R. p. 676; Melville v. Melville's Trustees, 15 July, 1879, 6 R. 1286; Jardine v. Currie, 17 June, 1830, 8 S. 937.

circumstances; but it may flow from a third person as well as from one of the spouses.2 A gift, again, may be of the nature of a post-nuptial provision, and this will, if it complies with certain conditions, hereafter to be explained, be sustained, and not be revocable.

17. At one time the opinion prevailed that the jus mariti was so inseparably associated with the husband, as head of the family, that he could not renounce it, and that the wife could not reserve the administration of her own property to herself. It was ingeniously argued that such a renunciation or reservation, being a right conceived in favour of the wife, fell under the jus mariti and so disappeared, according to the brocard vinco vincentem vinco te. In the language of the day the jus mariti was a faculty so inseparable from the character of husband that any reservation thereof by the wife or renunciation by him before the marriage always ran back upon him, as water thrown upon a higher ground doth ever return.1

[blocks in formation]

as to right of


§ 18. In a similar way it was argued that the right of Same opinion administration could not be excluded, for, "both by the laws administra. of God and the land, the husband was princeps et caput familiae, and to divest him of that power, and invest it in the wife, was against the laws of nature and contra bonos

1See Hepburn v. Brown, 1814, 2 Dow App. Ca., 342; Beattie's Trustees, 23 May, 1884, 11 R. p. 846; Hewison v. Negus, supra, p. 18. 2 Forbes v. City of Glasgow Bank, 28 June, 1879, 6 R. 1122.

3 So stated by Sir George Mackenzie, Institutes of the Law of Scotland, Part I. tit. 6, p. 50. (Edinburgh, 1684, 12mo.)

4 Stair, 1. 4. 9; Forbes, Institutes of the Law of Scotland, i. p. 63; Kilkerran, Husband and Wife, No. 8, p. 260; Nicolson v. Inglis, 1678, M. 5834; Vallance v. M'Dowall, 1709, M. 5840; Campbell v. Sandilands, 1682, M. 5836; Trotter v. Campbell, 1682, M. 5836. In Thomson's Trs. v. Thomson, 9 July, 1879, 6 R. 1227, a similar argument was attempted, but was overruled; see per Lord Gifford at p. 1231.

« AnteriorContinuar »