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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

tion.

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.

5

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. 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

CORPOREAL MOVEABLES: FURNITURE.

without

§ 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.

L

If furniture is the property of

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."1

3

§ 222. Take the converse case that the furniture is the wife's not affected by property exclusive of the jus mariti of her husband-that it bankruptcy. is, her peculium. 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

Identification.

§ 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.

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.

redargue this presumption there should be an inventory of Inventory. the wife's property, when it consisted of such articles as household furniture.1 This would no doubt be useful, but is not essential; and will not protect the furniture if the property is not in the wife.2

On the other hand the want of an inventory will not change the property if that be the wife's.

Neither was it necessary under the former law that the husband's jus mariti should be excluded by contract. It was sufficient if it has been excluded by a third person in making a gift to the wife.3

presents.

§ 224. Since the passing of the Married Women's Property Wedding Act all a wife's wedding presents, napery, furniture, and the like are in the same position as her paraphernalia under the old law. It has been held, in the Sheriff Court, that wedding presents, although made to the wife, are really intended for the common use of the spouses, and are not, therefore, the separate property of the wife under the Married Women's Property Act. This may be so in certain cases, but it seems rather a violent presumption in the absence of evidence; and a contrary conclusion has been arrived at in later cases.5 It is a question of intention, and

1 Macdonald v. Doig, supra. An inventory is one of the modes of proof suggested in the Code de Commerce, see Art. 560; as also in the Roman law, see Hunter's Roman Law, p. 150.

2 Campbell v. Stewart, supra, p. 161; Brown v. Brown's Trustee, supra. p. 161.

3 M'Donald or Young v. Loudoun, supra. See also Annand v. Chessels, 1774, M. 5844, affirmed H. of L. 2 Paton App. Ca. 369.

4 Strain v. Strain, 1885, 2 Sh. Co. Rep. 108.

5 Duncan v. Gerrard, 1888, 4 Sh. Co. Rep. 246; M'Intosh v. Macrae, 1887, ib. 4. 317. The old rule was that gifts are none the less paraphernal because made to husband and wife jointly, Bracton De Legibus Angliae, ii. c. 39 (Rolls series, vol. ii. p. 52).

Principle of wife's separate

defeat credi

tors.

if it could be shown that any of the articles were really intended for the husband, they would belong to him and would pass to his trustee upon bankruptcy; but in the absence of proof to that effect they will remain the separate estate of the wife.1

§ 225. Since the Married Women's Property Act came estate used to into force, full advantage has been taken of the rule that the wife's property is not to be seized for the husband's debt; and what between the Act and the abolition of imprisonment for debt, it is almost impossible to recover payment of a debt amongst certain classes of the community. When a messenger-at-arms or sheriff officer proceeds to execute a poinding, he is shown receipts in the wife's name for every article of furniture in the house, and she claims them as hers. Unless, therefore, he disregards these evidences of ownership, which it is not safe to do, the diligence is abortive. Of course, if the furniture is in fact the husband's and not the wife's this device will not protect it, but in the cases in which it is resorted to, the debts are mostly of small amount, and the creditors cannot afford to have the question of fact judicially determined.

Devices for protection of furniture.

§ 226. The furniture, as a rule, is purchased by the husband not by the wife; it is often all that they have in the shape of tangible property, and the loss of it makes a

1 In re Jamieson, ex parte Pannell, 6 Morrell, Bank. Ca., p. 24. The Coutumes de Toulouse made a special regulation upon the subject. All things given or sent to the husband on the marriage day or the day before, even although on the part of the wife, were the property of the husband. Coutumes de Toulouse, par Ad. Tardif, §§ 84, 85, p. 40. (Paris, 1884, Recueil de Textes pour servir à l'enseignment de l'histoire du Droit.)

2 As to documents of this kind see Scott v. Horsburgh, 20 Feb. 1889, 26 S.L.R. 362.

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