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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


§ 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

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

defeat credi


Devices for protection of furniture.

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.2 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.

§ 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.

world of difference to them. Various devices are therefore resorted to for its protection against the risks of trade. Sometimes the husband, before the marriage, gives a sum of money to his intended wife or to trustees, and she or they purchase it in their own names. Such a gift is no doubt good in itself, but if, as must necessarily happen, the husband is let into possession, or joint possession, of the property, it would probably be claimed by his creditors, if he became bankrupt, on the ground of reputed ownership. But it is not easy to see why such a claim should be sustained. The case differs from the bare assignation of the furniture itself, as the intended gift there fails for want of delivery, while here there has been actual payment and valid delivery of the money before marriage. If so, the investment, that is the furniture, belongs not to the husband but to the wife. In England it would not pass to the creditors under the doctrine of reputed ownership.1

assigned to


§ 227. The furniture is often conveyed directly to trustees Furniture by ante-nuptial deed. If it is duly delivered and bona fide belongs to them, it will be protected, even although it is in the apparent possession of the husband at the time of his sequestration. If the husband has an unprotected liferent in the furniture, that interest passes to the trustee for his creditors; it is valued, and, failing payment from other


Robson, Law of Bankruptcy, p. 520 (6th ed.); Yate-Lee and Wace Law of Bankruptcy, p. 391 (2nd ed. 1884); Campbell, Law relating to the Sale of Goods, p. 98; Davidson's Precedents, vol. ii. pp. 817, 1263. The same applies in the case of a post-nuptial settlement, if made for valuable consideration. Ib., and also Ashton v. Blackshaw, L.R. 9 Eq. 510; Farrington v. Parker, L.R. 4 Eq. 116; Ex parte Cox, in re Reed, L.R. 1 Ch. D. 302.

2 See M'Donald or Young v. Loudoun, 26 June, 1855, 17 D. 998; Scott v. Horsburgh, 20 Feb. 1889, 26 S.L.R. 362; Grieve v. Herald, 1889, 5 Sh. Co. Rep. 250.

Disposition of furniture to wife if she

survives does

sources, the trustee is entitled to have so much of the furniture sold as will satisfy the value of the liferent.

Where both house and furniture are the property of the wife, or where the furniture belongs to her, and she is tenant of the house, and pays the rent out of her own separate estate, it has been held in England that the furniture could not be seized for a debt of her husband,1 and the same rule would seem, on principle, to apply in Scotland.

§228. A disposition by a husband of his household furniture to his wife, in the event of her surviving him, confers not enable her no right upon her, in the event of his sequestration, to compete with his creditors, even although he has died subsequently to the sequestration.2

to compete

with husband's


1 See Duncan v. Cashin, L.R. 10, C.P. 534; Jarman v. Woolloton, 3 T.R. 618; Haselinton v. Gill, 3 T.R. 620.

2 Darling v. Mein, 20 Dec. 1851, 1 Stuart, 233; S.C. 14 D. 296. See also per Lord Fullerton in Campbell v. Stewart, 13 June, 1848, 10 D. 1280.



of recent

of Great change and years is that

wife's property remains

§ 229. I have thus attempted to state the position the property of married persons, the rights which they their children have in reference to it, and how far it can be her own. affected by creditors. The one great change, which has been made in recent years, is that the wife's property remains her own after marriage, and does not go to pay her husband's debts, as heretofore, unless she is directly a party to this. Her whole moveable estate has, by statute, been Her whole converted into peculium, and is regulated by the law which peculium. applies to that kind of property. The husband's right of administration subsists, as of old, except in some small matters, and the wife must still act with her husband's consent, unless advantage is taken of the established practice and his right of administration is excluded by


moveable estate is now

has not


§ 230. Legislation has not interfered with provisions, ante- Legislation nuptial or post-nuptial, for wife and children. Much may no touched doubt be advanced against the policy of family settlement as developed in England, but that practice is unknown in Scotland, and with us the marriage contract is used for the legitimate purpose of protecting the wife's property, of securing contracts are a provision for the wife and the children of the marriage necessary.



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