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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, 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 provision 3 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. Clark, 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

the Act applies the perty acquired

whether pro

before or after

§ 68. The Act applies whether the wife succeeded to property at or after the passing of the Act, but not in 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. 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

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.3


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.

3 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.

in 1869 a Bill to amend the law was brought in, in the House of Commons, by Mr. Russell Gurney, but did not pass. It was almost identical with those of Lord Brougham and Sir Erskine Perry of twelve years before. Next session Mr. Russell Gurney and his friends brought in another Bill upon somewhat different lines, and were successful in carrying it through Parliament.

In 1874 an Act was passed to amend the Married Women's Property Act.

equity made applicable in

apurland in all


§ 73. One of the arguments used by the opponents of the Rules of various Bills was that, whatever the common law might be, the rules of the Courts of Equity gave ample protection. This was not admitted upon the other side, and the course of legislation proves that the argument was fallacious; but the protection afforded in equity-and it was considerable 2-was, in 1873, made, as regards England, the law all round, the Judicature Act 3 having provided that when there was any conflict or variance between the rules of equity and the rules of common law, the rules of equity were to prevail.

English Act


§ 74. The principle of the Married Women's Property Acts Principle of was borrowed from the legislation of the United States of adopted in America. Scotland in turn borrowed from England, and in 1877 the Married Women's Property (Scotland) Act, 1877, was placed upon the Statute book. It is merely a clumsy adaptation of parts of the English Acts, while these Acts are not nearly so neat or so well drawn as the Bills of 1857 or 1869.

1 37 and 38 Vict. c. 50.

2 Supra, § 3.

336 and 37 Vict. c. 66, § 25, sub-sec. ii. As to its effect on the common law remedies of a married woman, see In re Crawford Crawford v. May, 63 L.T. 395; 6 The Times, L.R. 461.


Jus mariti and right of administration excluded from

(1) Wages and earnings;

(2) From pro

perty acquired


§75. This statute sets out with the somewhat grudging preamble that "it is just and expedient to protect,2 to the extent hereinafter provided for, the property of married women in Scotland."

By sec. 3 the jus mariti and right of administration of the husband are excluded

(1) From the wages and earnings of any married woman acquired or gained by her after 1st January, 1878,

(a) in any employment, occupation, or trade in which she is engaged, or

(b) in any business which she carries on under her own


(2) From any money or property acquired by her after that

by wife's liter- date through the exercise of any literary, artistic, or scientific

ary, etc., skill.

Wages, etc., to


Such wages, earnings, money, or property, and all investsettled for her ments thereof, shall be deemed to be settled to her sole and

be deemed

separate use.


separate use,3 and her receipts shall be a good discharge for such wages, earnings, money, or property, and investments thereof.5 These last words, "and investments

1 40 and 41 Vict. c. 29, Appendix, p. 193.

2 In Rust v. Smith, 14 Jan. 1865, 3 M. 378, the Court, prior to the recent legislation, practically protected a wife's earnings.

3 An English expression; also used in the Conjugal Rights (Scotland) Act, § 6. Infra, pp. 82 and 186, note 4. The Court of Chancery, says James, L.J., invented that blessed word and thing, "the separate use of a married woman," Ashworth v. Outram, L.R. 5 Ch. D. at p. 941. 4 This was necessary, as it had been held in England that it was a bad plea to maintain that because a wife had her husband's authority to earn money, she must have thereby his authority to receive it. Offley v. Clay, 2 Man. and Gr. 172; cf. 26 and 27 Vict. c. 87, infra, p. 189. In Morrison v. Tawse, 18 Dec. 1888, 16 R. p. 247, the Act was field to apply to the earnings of a washerwoman living in family with her husband. His and her savings were placed in bank on deposit

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