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wife.

husband and wife are known as baron and femme, and a Disabilities of married woman as coverte de baron.1 Marriage by that law

is an absolute gift to the husband of nearly all the property of the wife.

because she is

He cannot grant or give anything to her

himself; 2 and if there are any compacts

between them before marriage they are dissolved on marriage by the union of persons it creates.

Her earnings belong to him at common law. She cannot sue for them; and if the employer paid the amount to the wife, her receipt was void, and the husband could recover payment a second time.3 He may dispose of all her chattels personal, by deed or otherwise in his lifetime, or by his will. They are subject to his debts, and, in case of his intestacy, they form part of his general personal estate out of which his widow would merely be entitled to a distributive share, as she would be out of property which had originally been her husband's.

modified by

§3. The harshness of the common law was somewhat common law mitigated by the courts of equity. Equity long ago rejected equity. the doctrine of a married woman having no personality,

See e.g. Balfour, Practicks, p. 93; Edmonstone v. Edmonstone, 1570,
M. 5997.

1" Madam, we will have a trick for his trick; say you are my wife, and plead covert-bearn." Crowne, The Country Wit (1675), Works, iii. p. 102 (ed. 1874).

2" A feme covert cannot take anything of the gift of her husband," Co. Litt. 3. a. So too he cannot covenant with her: she cannot in law be convicted of stealing his property. While a husband could not at common law make a direct gift to his wife, he could do so through a trustee or otherwise See note to Coke upon Littleton supra. The result was the same under early Roman law, when the wife was in manu of her husband.

3 Offley v. Clay, 2 Man. and Gr. 172. The common law of Scotland is pretty much the same, Henderson v. M'Callum, 1794; Hume, 202.

Division of the subject.

recognized that a married woman might possess separate property, that having property she might dispose of it at her own pleasure, that she might make contracts regarding it, and as a necessary consequence that she might be sued upon such contracts.

It was seen, however, that what was required was not an ingenious device for avoiding the consequences of the law, but a modification of the law itself, and this has recently been effected by statute, as will be hereafter explained.

§ 4. Turning now to the law of Scotland we shall con

sider

(a) The effect of marriage upon the property of the spouses according to the common law.

(b) The disposition of that property which the common law makes upon the dissolution of the marriage by the death of either spouse.

(c) The modifications which have been made upon the common law by statute.

(d) The conventional arrangements by which the property of married persons is protected, and the interests of themselves and of their children therein are regulated.

(e) The effect of bankruptcy upon the property of married persons, and upon conventional provisions for married persons and their children.

CHAPTER II.

THE EFFECT OF MARRIAGE UPON THE PROPERTY OF THE SPOUSES

ACCORDING TO THE COMMON LAW OF SCOTLAND.

5. Immediately upon marriage the husband is by the Jus mariti and right of admincommon law of Scotland invested with what are known as istration. his jus mariti and right of administration-his headship and gubernative administration as Fountainhall calls it: and is constituted his wife's curator or guardian. In virtue of the jus mariti the husband becomes absolute owner, with a few trifling exceptions, of all the moveable property then belonging to the wife or subsequently accruing to her, capital as well as income, and, in virtue of his right of administration, of the income, but not of the fee of her heritable estate.2 The assignation is complete_contrary to the rule in nearly every other case-without intimation, and operates all the world over.3 While the marriage subsists the wife has no say in the disposal of anything that falls under the jus

1 Fountainhall, Decisions, ii. p. 220.

See

2 Distinguish between jus mariti and right of administration. Brodie's Stair, i. p. 30 n.; Fraser, Treatise on Husband and Wife, i. 676, 796; and Lord Gifford in Bryce's Trustee, 2 March, 1878, 5 R. 722. Cf. Dick v. Lady Pinkhill, 1709, M. 5999, and the Married Women's Property (Scotland) Act, 1881, § 1., sub-sec. 1, and § 2.

3 Per Lord Meadowbank in Royal Bank v. Stein & Co's Assignees, 20 Jan. 1813, F.C.; S.C., Buchanan's Cases, p. 320, and 1 Rose Bank. Ca. App. 481; See also Selkrig v. Davies, 2 Dow, 230; S.C. 2 Rose Bank. Ca. 99. As to the present law, see infra, pp. 66, 79.

mariti.1 She can only claim maintenance from her husband; 2 and even that is postponed to the payment of his debts. If he deserts her and she attempts to support herself by her own industry, all that she earns, all that she saves, becomes the property of the husband, and, if he becomes bankrupt, passes to his creditors. If during his lifetime she has been imprisoned upon a false charge, she cannot recover solatium after his death, because, it is said, the claim for damages vested in the husband jure mariti and was transmitted to his

executor.3

Foundation of 6. The theory of the law is that the property of the

husband's rights.

spouses constitutes a common stock, the administration of which is vested in the husband during the marriage. The jus mariti, it is said, is purely a right of administration, and it is in virtue of this, it is suggested, that the husband obtains the practical ownership of the goods in communion.

1 See for instance per Lord Jeffrey in Campbell v. Stewart, 13 June, 1848, 10 D. at p. 1283. As to the present law, see infra, pp. 66, 76.

2" Maritus enim debet alere uxorem, sive dotatam sive indotatam ; et si non fecerit, jure canonico excommunicatur; quia qui indotatam accipit, sibi imputet," was the rule of the Canonists. Dos is here used in the Roman sense of dowry or portion.

In a curious case, The Lady Kinfauns v. The Laird of Kinfauns, 1711, M. 5882, the court held that if the lady's sickness requires it, and the husband's fortune can bear it, he is obliged to promote the cure, though it be by going to the baths or other medicinal water. The celebrated Dr. Pitcairn recommended that the Lady Kinfauns should go "to the warm baths in England or to the waters of Aix-laChapelle." The physicians consulted by the husband "attested the use of medicines at home might as probably recover her." The judges in giving judgment put the case of the lady having made the journey by sea and being carried by pirates into Dunkirk behoved he not to have ransomed her? they say.

3 Milne v. Gauld, 14 Jan. 1841, 3 D. 345. Where, however, the husband has renounced his jus mariti, a married woman has been held entitled after his sequestration to sue an action for personal injury without the appointment of a curator ad litem and without finding caution. Horn v. Sanderson, 9 Jan. 1872, 10 M. 295.

On the other hand, it has been remarked by Professor Bayne, that "the rights competent to the husband, and the obligations prestable from him, are more properly to be explained and accounted for from the personal subjection of the wife than from the alleged communio bonorum created by the marriage." 1 This was the theory of the older writers, who, bearing in mind the manus of Roman law, said that de jure the wife was "in potestate viri sui," and that consequently her dower and other things were in his disposition, and that he was "dominus omnium quae fuerunt uxoris suae." "2 Although this language was probably derived from the Civilians, the idea was not. What is thus described is, no doubt, a form of the German Mund, which, although in Mund. many respects similar to the Roman manus, was still essentially different. From the Mund was developed community of goods and the conjugal partnership.3

1 Bayne, Notes for Students of the Municipal Law, p. 22 (Edinburgh, 1731). From Sir P. Home's report of the case of Earl of Leven v. Montgomery, M. at p. 5817, it would appear that in 1683 it was contended that there was no true communio bonorum in the law of Scotland.

2 Regiam Majestatem, ii. 13 (ed. Innes; c. 16, ed. Skene); Glanvil, vi. 3; Quoniam Attachiamenta, c. 16 (ed. Innes; c. 20, ed. Skene). In a MS. copy in my possession, the expression is "sub virga et potestate mariti." Bracton distinguishes between those who are in tutela, in curatione, and sub virga. Wives are in the last category. De Legibus Angliae, i. 10. 2. Coke treats coverture as the equivalent of in potestate. Co. Litt. 112 a. The disposing power of the husband is apparently borrowed from the late Roman law as regards dotal property, which was a very different matter.

3 Laboulaye, Recherches, p. 137 and seqq. A very interesting form of marriage ceremony, under the form of a suit at law, is preserved in the Formulae Longobardicae. The parties having expressed their willingness to accept of each other, the bridegroom is asked to give a "wed " that he will provide the bride with one third of all the property he then had or which he might acquire, moveable and immoveable, under penalty of ten pounds of gold. A symbolical action with sword and cloak follows, after which the wed which the bridegroom had given to

Manus.

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