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Now settled otherwise.

Jus mariti may be renounced or excluded.

mores," and so the Court ruled in 1667.

Waxing bolder their successors of 1745 did violence both to "the law of nature and the rules of morality," and decided that a husband could renounce his right of administration,2 and so the law still stands.

§ 19. In 1730 it was determined that the husband could renounce his jus mariti and that it did not fall sub communione; and it is now settled that a husband may renounce his jus mariti as to the whole of his wife's estate or as to any part of it, per aversionem or specifically, and as to acquirenda as well as to acquisita, and it may be excluded by a third person, in a conveyance of property or in any obligation of debt in favour of the wife. No technical language is required: any clearly expressed intention is sufficient,5 even an entry in the husband's private cash-book; and a renunciation may be inferred from facts and circumstances.7

1 Collington v. Collington, 1667, M. 5828; Dick v. Lady Pinkhill, 1709, M. 5999; but see Humbie v. Hume, 1634, M. 5933. As Lord Deas remarked in M'Dougall v. City of Glasgow Bank, (20th June, 1879, 6 R. at p. 1091) the old writers "seemed to find authority in the Bible for it-that because man was made first he was the nobler person.” This was the French doctrine. Pothier, Traité de la communauté, § 415, t. vii. p. 50; Traité du Douaire, § 3, t. vi. p. 316. Traité des donations entre Mari et Femme, § 23, t. vii. p. 457. So, too, by the Code Civil married persons cannot derogate from the rights which belong to the husband as head. Art. 1388.

2 Trustees of Murray v. Dalrymple, M. 5842 and 2273; Keggie v. Christie, 25 May, 1815, F.C.

3 Walker v. Creditors of her Husband, 1730, M. 5841.

M'Dougall v. City of Glasgow Bank, 20 June, 1879, 6 R. p. 1089: correcting 1 Bell, Com. p. 638 (5th ed.), p. 684 (7th ed.).

5 Irvine v. Connon's Trustees, 8 March, 1883, 10 R. 731; M'Dougall

. City of Glasgow Bank, supra.

Smith v. Smith's Trustees, 26 Nov. 1884, 12 R. 186.

7 Davidson v. Davidson, 28 March, 1867, 5 M. 710; but see Henderson v. Henderson, 25 Oct. 1889, 17 R. 18.

sion binding

§ 20. After it had been determined that the jus mariti Such exclu and right of administration could be renounced or excluded upon creditors. as regards the husband, it was still doubted whether this was effectual in a question with creditors. It was contended that they were entitled to rely upon the marriage and to assume that the husband was possessed of the rights the law conferred upon him. It is now, however, quite fixed that the renunciation or exclusion is effectual against creditors. both as respects acquisita and acquirenda, and that it requires no intimation. "No party has a right to assume that a wife was married without a marriage-contract, and that all her moveable property must have passed to her husband by the operation of law. Parties interested must inquire what were the actual conditions of the marriage." 1

clusion of jus


§ 21. The effect of the exclusion or renunciation of the jus Effect of ex. mariti is to leave the wife's moveable estate in her own person as if she were unmarried;2 but as a married woman she can do no act concerning it except with consent of her husband. His signature, for example, is necessary to validate her receipt for her income or for her rents. The effect of the exclusion or renunciation of the right of administration is that the and of the wife may deal with her separate estate both heritable and moveable as if the husband did not exist.3

1 Per Lord Mackenzie primus in Rollo v. Ramsay, 28 Nov. 1832, 11 S. 132. Post, § 122.

2 See per Lord Deas and Inglis, L.P., in Biggart v. City of Glasgow Bank, 15 Jan. 1879, 6 R. 470, infra, pp. 67, 76.

3 Fraser, Husband and Wife, pp. 572, 813 seqq. Per Lord Gifford in Standard Property Investment Co. v. Cowe, 20 March, 1877, 4 R. at p. 703. In England renunciation alone by an intended husband of his marital rights in his wife's real estate is not, owing to the operation of the Statute of Frauds, sufficient to clothe her with testamentary power or to constitute a valid declaration of trust after fee. The agreement must be signed by the wife as well. Dye v. Dye, L.R. 13,

right of ad. ministration.

Liability of husband for wife's debts.

Wife cannot grant a per


§ 22. As the jus mariti transfers to the husband the wife's moveables and the income of her heritage, so it imposes upon him during her life time-but no longer, unless he is lucratus by the marriage-liability for the debts contracted by her before marriage, other than heritable debts and debts affecting her heritage1 or other separate estate, when by convention she has such estate. As has been quaintly said, " marriage was a voluntary novation, whereby the husband subibat personam mulieris and undertook all her debts, which are compensated by the marital affection to her person with her fidelity and other qualifications." According to the French adage, qui épouse la femme épouse les dettes. Amongst these the law of Scotland includes the natural obligations which rest upon her. Hence the husband must aliment not only his mother-in-law if she is in want, but his father-in-law, his wife's children by a former marriage, and her children without marriage. Damages payable for a wife's delict or quasi delict, e.g. slander, are not, however, a debt for which her husband is liable, but her separate estate, if she has one, is liable. § 23. Another result of the subordination of the wife is that The personal obligation of a

sonal obliga- she cannot become a debtor.


married woman is of no legal effect; she is not liable to Q. B. D. 147. A feme coverte in England had under the old law no testamentary capacity.

1 This was only settled in 1696, Osborn v. Young, M. 5785. The decision was founded upon the Coutume de Paris, see M. 5788.

2 Wright's Executors v. City of Glasgow Bank, 24 Jan. 1880, 7 R. 527; Biggart v. City of Glasgow Bank, 15 Jan. 1879, 6 R. 470.

3 He is even liable for her wedding clothes, Neilson v. Guthrie, 1672, M. 5878: and for her school fees and board, Leslie v. Wallace, 1708, M. 5853.

As to the present law, see § 81.

5 Barr v. Neilsons, 20 March, 1868, 6 M. 651; Ersk. i. 6. 24.

6 For form of decree, see Scorgie v. Hunter, 22 Feb. 1872, 9 S.L.R. 292. 7 Per Lord Fullerton, in Thomson v. Stewart, 11 Feb. 1840, 2 D. 571. The law is here very carefully stated. See Stair, 1. 4. 16: Ersk. 1. 6. 25.

the consequences of a personal decree. She cannot enter into a contract so as to give a personal remedy against her. "A married woman," says Braxfield, L. J. C., “can grant no personal obligation: such obligation is null and void, because in law a wife has no person."1 If she has a separate estate she can, with consent of her husband, bind it, but she cannot bind herself personally. It is the property, not herself, that is the debtor. The liability is in rem as distinguished from in personam.2 Hence, when a security is taken over a married woman's landed estate, the husband grants the personal obligation and she dispones the land in security.3

land the same.

§ 24. The law in England is the same as regards a wife's Law of Engcontracts. At common law she cannot bind herself but only her separate estate; but it is only the separate estate of which she was possessed at the time of giving the undertaking that she could so bind and that her creditor could attach. It was only acquisita not acquirenda that she could dispose of; because as a married woman she had no power to bind what she was not yet possessed of. This was altered by Statute in 1882,5 but the law still stands that to make the contract of a married woman effectual against her separate estate she must have had some property at the time. These rules have not prevailed in Scotland.


1 Harvey v. Chessels, 1791, Bell, 8vo Ca. at p. 258.

2 Aylett v. Ashton, 1 My. and Cr. 105; Ex parte Jones, In re Grissell, L.R. 12 Ch. D. 484.

3 It has been held that a disposition by a married woman of her heritage without consent of her husband is null and void, although the husband was abroad at the time and the deed contained a power of redemption in his favour. Boyle v. Crawford, 5 March, 1822, 1 S. 372. To a similar effect, see Rennie v. Ritchie, 1845, 4 Bell App. 221. 4 There is an admirable exposition of the law by the Earl of Selborne, L.C., in Cahill v. Cahill, 1883, L.R. 8 App. Ca. at p. 425 et seqq.

The Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), § 1.

Exceptions1. Trade obli

wife has separate estate.

2. Trade bligations. If wife living

husband, etc.

§ 25. In certain circumstances exceptions to the general rule gations where are permitted. Thus, if a married woman having separate property, held exclusive of the jus mariti and right of administration of her husband, engages in trade, she may, by herself, enter into personal obligations which will bind her separate estate; but personal obligations unconnected with her separate estate will not bind her.1 If again a wife is living separate from separate from her husband and is engaged in trade, her personal obligation will be good against both her person and estate.2 This was decided at a very early date where a wife was "carrying on an hostelrie"; in another case where she was a vintner; and in a third where she kept a lodginghouse.5 The principle is that as the wife is separate from her husband she cannot have his advice and assistance; she must act as an independent person, and so the law treats her But otherwise for the time being as sui juris. If, however, a wife living separate from her husband is not engaged in trade her inability continues. Thus the personal bond of a married woman in this situation for aliment to her own son, who complained that he was troubled "by a bulimy and the appetite of a mastiff (appetitus caninus)," was found not to be enforceable against her; but the Lords in this case "recommended to her to furnish her son ex pietate materna (for venter non habet aures nec patitur moram), what she could spare." This, the reporter is careful to add, was a caution of moral equity, but of no legal compulsion.'

if wife not in


1 Biggart v. City of Glasgow Bank, 15 Jan. 1879, 6 R. 470.

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2 Churnside v. Currie, 1789, M. 6082, followed and approved in Orme

v. Diffors, 30 Nov. 1833, 12 S. 149; Ritchie v. Barclay, 5 June, 1845, ́7 D. 819; Bell, Pr. § 1612.

3 Hog v. Little, 1611, M. 5955.

4 Russel v. Paterson, 1629, M. 5955.

5 Hay v. Corstorphin, 1663, M. 5956.

6 Bailie v. Lady Lethem, 1680, M. 5998, 5981: Fountainhall, i. p. 102.

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