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1. Protection order for wife deserted by her husband.

2. Exclusion of jus mariti and right of administra

tion when wife has obtained judicial separation.

Amendment Act, which applied solely to Scotland. The principal provisions of this statute relative to the present subject are these:

§ 62. A wife deserted 1 by her husband may (sec. 1) obtain from the Court of Session an Order protecting against him and all creditors or persons claiming under or through him all property falling under the jus mariti (sec. 19) which

(a) she has acquired, or may acquire by her own industry 2 after such desertion, and

(b) property to which she has succeeded, or may succeed to, or acquire right to after such desertion.

After intimation of the Order, as required by the statute, the above property belongs to the wife as if she were unmarried (sec. 4), except

(i.) property which the husband or his assignee or disponee has, before proceedings were begun in court, obtained full and complete lawful possession of; and

(ii.) property which has been attached by arrestment followed by a decree of furthcoming, or by a poinding and sale reported before the date of presenting the petition for the Order.

So long as the Order stands, the wife (secs. 5 and 6) may sue and be sued as if unmarried.

By an Act passed in 18743 the Sheriff may grant the like Orders in cases coming before him.

§ 63. After decree of separation a mensa et thoro has been obtained at the instance of a wife, all property (sec. 6), which

1 What is desertion? See Turnbull, 14 Jan. 1864, 2 M. 402; Chalmers v. Chalmers, 4 March, 1868, 6 M. 547. The English cases are brought together in Griffith's Married Women's Property Acts, p. 91 (5th ed. 1883); and in Stroud, Judicial Dictionary, s.v. (1890). 2 That is in some lawful calling. Property acquired by immoral practices is not protected, Mason v. Mitchell, 3 H. & C. 528. 3 37 and 38 Vict. c. 31, Appendix, p. 187.

would otherwise (sec. 19) fall under the jus mariti, which she may acquire, or which may come to or devolve upon her, is to be held and considered as property belonging to her in reference to which the jus mariti and husband's right of administration are excluded. It may be disposed of by her as if she was unmarried, and on her death, in case she shall die intestate, passes "to her heirs and representatives in like manner, as if the husband had been then dead," 1 or otherwise as she may direct by will.

during jud

§ 64. The wife, while so separate, is (sec. 6) capable of enter- Wife's position ing into obligations, is liable for wrongs and injuries, and is icial separation. capable of suing and being sued, as if she was not married.

The husband is not liable in respect of any obligation or contract she may have entered into, or for any wrongful act or omission by her, or for any costs in any action she may sue or defend, after the date of the decree of separation and during its subsistence.

tection is of same effect as decree of septain respects.

§ 65. An Order of protection duly intimated in terms of the Order of proAct is (secs. 4, 5) of the same effect as a decree of separation as regards the property, rights, and obligations of the husband aration in cerand of the wife, and in regard to her capacity to sue and to be sued.

under the Act subsists only so long as hus. band and wife

§ 66. The protection subsists, however, only so long as Protection the husband and wife remain separate. If they again come together, the wife is (sec. 6) in the same position, as regards her remain property, as if a separation had not taken place, subject to this proviso that all property, which she has acquired in the interim,

1These are the same words as in the English Act (20 and 21 Vict. c. 85, § 25), and are intended to exclude a claim on the part of a surviving husband. He might have contended that his marital rights were excluded only during the subsistence of the marriage, and that they revived upon its dissolution.


3. Wife's equity to a settlement.

is to be held to her separate use, and the jus mariti and right of administration of her husband is excluded therefrom.

67. The statute provides (sec. 16) that when any married woman succeeds to property or acquires right to it by donation, bequest, or any other means than by the exercise of her own industry, the husband,1 or his creditors, or any other person claiming under or through him, shall not be entitled to claim it, or if it be heritable, the rents or produce of it,2 as falling within the communio bonorum, or under the jus mariti, or husband's right of administration, except on the condition of making therefrom a reasonable provisions for the support and maintenance of the wife, if she so demands. This is subject to the condition that, prior to the wife's claim being made, the husband or his disponee or assignee has not already obtained complete and lawful possession, that is, actual possession

1 Question with husband, Clark v. Clark, 25 May, 1881, 8 R. 723.

2 See Taylor v. Taylor, 23 June, 1871, 9 M. 893; Reid v. M'Walter, 1878, 5 R. 630.

3 What is a reasonable provision? See Rust v. Smith, 14 Jan. 1865, 3 M. 378; Somner v. Somner's Trustee, 2 March, 1871, 9 M. 594; Taylor v. Taylor, 28 Oct. 1871, 10 M. 23; Ferguson v. Ferguson, 7 Nov. 1871, 10 M. 54.

The ordinary rule in the Court of Chancery is that one half of the fund will be ordered to be settled, and the other half will be allowed to go to the husband or his assigns, Jewson v. Moulson, 2 Atk. 417; Brown v. Claiк, 3 Ves. 166. But the circumstances of each particular case will be considered, Re Suggitt's Trusts, L.R. 3 Ch. App. 215. Three-fourths allowed, Coster v. Coster, 9 Sim 597. The whole, the fund being small, re Kincaid's Trusts, 1 Dr. 326. The whole income, £500 a year, the husband being insolvent, Taunton v. Morris, 1879, L.R. 11 Ch. D. 779. So also the whole will be settled where the husband has been guilty of gross misconduct, or has abandoned the wife, or is not in a position to maintain her, and the fund is not more than sufficient for her maintenance. See Lewin upon Trusts, p. 743 et seqq. (8th edition, 1885); White and Tudor, L.C., i. p. 521, et seqq. (6th edition, 1886).

and enjoyment of the property, or that his creditors have not done effectual diligence against it.2

whether pro

before or after

§ 68. The Act applies whether the wife succeeded to the Act applies property at or after the passing of the Act, but not in the perty acquired former case if the husband was also sequestrated before the its commencedate of the Act.3


equity in

§ 69. The principle embodied in this enactment had for long No remedy in been given effect to by the Court of Chancery in England. Scotland It had its origin in the maxim that "He who seeks equity must do equity." The Scotch Courts recognized a similar principle in 1785, but the case was appealed to the House of Lords and was compromised. It was conceded that such a rule could not be given effect to in Scotland, and the wife had, until 1861, no claim to any provision out of what had been her own property.

In earlier days a similar question had arisen between the relatives of the wife, who had undertaken to provide a tocher, and the creditors of an insolvent husband. The Court at first held that the tocher was the counterpart of the husband's obligations, and that payment of it could not be demanded unless the husband or his creditors first secured the wife in the provisions stipulated for from the husband; but subsequently this rule was abandoned on the ground that the marriage itself was consideration for the tocher. As pointed out by Lord Mac

1 This is the interpretation put upon the statute in Somner v. Somner's Trustee, supra; Clark v. Clark, 25 May 1881, 8 R. 723. See, per Fry, J., in Nicholson v. Drury, L.R., 7 Ch. D. at p. 55.

2 As to this provision see Miller v. Learmonth, 21 Nov. 1871, 10 M. 107; Jack v. Ferguson, 5 Feb. 1878, 5 R. 624; Reid v. M'Walter, supra.

3 Taylor v. Taylor, 28 Oct. 1871, 10 M. 23; Learmonth v. Miller, L.R. 2 Sc. App. 438.

4 Lisk v. Lisk, M. 5887. This was practically overruled in 1794 by Robb v. Robb's creditors, M. 5900. See Stevenson v. Hamilton, 7 Dec. 1838, 1 D. 181; Hitchcock v. Clendinen, 1850, 12 Beav. 534.

Terce now demandable

kenzie primus, it is not a case of mutual contract, but if a jus crediti is conferred upon the husband, it vests absolutely in him, and so transmits to his creditors.2

from burgage property.


This Act not superseded by subsequent legislation.

English Married Women's

§ 70. At common law terce is not due from burgage This is altered by sec. 12 of the Act of 1861, and now the widow of any person who dies infeft in property held by burgage tenure is entitled to terce therefrom.

Courtesy has always been due from burgage as from other heritage.

§ 71. The enactments of the Conjugal Rights Act, as regards earnings and the wife's equity to a settlement, have been, to a considerable extent, superseded by subsequent legislation, but the protection afforded by that statute to these earnings and to the property of a married woman who has obtained judicial separation or an order of protection, is more complete, and the wife's position more independent than under the later Acts, which relate solely to marriages subsisting in their integrity. Not only is the property of a wife who has obtained a Protection Order or a Decree of Separation protected, but the husband's jus mariti and right of administration are excluded. She is, as regards her property, as if she were unmarried. She can also enter into obligations, make contracts, sue and be sued, as if she were a spinster or a widow.


§ 72. The movement for the further protection of the Property Act, property of married women gathered force in England; and,



1 Boswell v. Miller, 4 Feb. 1846, 8 D. at p. 438.

2 Lawson v. Maxwell, 1803, 4 Pa. App. 464.

Supra, § 49. The old law was not so wide. The Leges Burgorum only provide (c. 106, ed. Innes, c. 110, ed. Skene) that a man may not dower his wife with the principal messuage if he has other property. See also c. 24, ed. Innes, c. 25, ed. Skene.

4 33 and 34 Vict. c. 93.

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