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Murray's Trustees v. Dalrymple, 20

M'Allan v. Alexander, 61
Macara v. Wilson, 56, 77, 133
M'Caul's Trustees v. Thomson, 162
Macdonald. Doig, 162, 163
M'Donald or Young v. Loudon, 162,
163, 165

M'Donald's Trustees, v. M'Donald, 100, 101

M'Donald v. M'Grigor, 101, 131, 161
Macdonald v. M'Lachlan, 155, 158
M'Donell v. Clark, 125
Macdougal. Wilson, 36 (bis)
M'Dougall r. City of Glasgow Bank,
20 (ter)

M'Gibbon v. M'Gibbon, 146
M'Gill v. M'George, 162
Macgowan v. Robb, 111

M'Gregor v. M'Gregor, 64

Macintosh v. Gibson, 136

M'Intosh v. Macrae, 68, 163

M'Intosh . M'Intosh, 158

Mackenzie . Mackenzie's Trustees

(1877), 203

Mackenzie v. Mackenzie's Trustees

(1878), 16, 93, 105

Mackenzie's Creditors . Mackenzie

(Redcastle case), 118, 152, 157 (ter), 159, 161

Mackie v. Gloag's Trustees, 93, 99 Mackie v. Gloag's Trustees (2nd case), 99

Mackie v. Herbertson, 93, 99 Mackie v. Mackie's Trustees, 99 MacLachlan v. Campbell, 139, 140 MacLarty's Trustees v. M'Laverty, 117, 206

M'Lean v. Angus Brothers, 76 M'Lean's Trustees v. M'Lean, 93 M'Leod v. Cunninghame, 93, 100 M'Millan's Creditors v. M'Millan, 160

M'Nair v. M'Nair, 102

M'Nish v. M'Donald's Trustees, 107
Macpherson v. Stewart, 204

Nasmyth v. Brands, 154
Neilson v. Guthrie, 22
Newlands v. Chalmer's Trustees, 33,
200

Newlands v. Miller, 135
Newlands v. Newlands' Creditors,
109, 112, 158
Newman v. Belsten, 63

Nicholson v. Drury, 51
Nicolson v. Inglis, 19, 121
Nimmo v. Murray's Trustees, 179
Nisbett v. Nisbett's Trustees, 33, 200
Nottingham ex parte, 135

Oddie v. Woodford, 116
Offley v. Clay, 5, 54

Ogilvie v. Kirk Session of Dundee, 203, 204

Ogilvy's Creditors v. Scott, 136
O'Halloran v. King, 107
Orme v. Diffors, 24
Ormiston v. Broad, 179
Ormistoun, Lord, . Hamilton, 90
O'Rorke v. O'Rorke, 41
Orr's Trustees . Tullis, 162
Osborn. Young, 22, 58

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Reid v. M'Walter, 14, 15, 50, 51
Reid's Trustees v. Reid, 100
Rennie v. Ritchie, 23, 93, 104
Riddel v. Riddel, 155
Riddell Petitioner, 114
Riddell v. Lord Polwarth, 114
Ritchie v. Barclay, 24, 75
Robb v. Robb's Creditors, 51, 136
Robertson and others, 128
Robertson v. Robertson, 133
Rogerson v. Rogerson's Trustees,
104, 129

Rollo v. Ramsay, 21, 96 (bis), 109
(bis)
Roseberry v. Macqueen, 137, 147
Ross v. Aglianby, 177

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Shepperd ex parte, 55
Short v. Murray, 144
Simons v. Neilsons, 73, 92

Simson's Trustees v. Brown, 92, 94
Slanning v. Style, 134
Smith v. Brown, 37, 92

Smith and Campbell, 106, 108, 111
Smith v. Kerr, 64, 73, 144

Smith v. Smith, 68, 78

Smith v. Smith's Trustees, 20
Smith's Trustees v. Smith, 108
Smitton v. Tod, 97, 146

Smyth's Trustees v. Kinloch, 203, 204

Snowdon v. Dales, 123

Somner v. Somner's Trustee, 50, 51 Spiers v. Dunlop, 160

Stair, Earl of, v. Head, 95 Standard Property Investment Co. v. Cowe, 18, 21, 93

Steedman v. City of Glasgow Bank, 58, 59

Stephens ex parte, re Pearson, 118,

119

Stephenson, In the Goods of, 74
Stevenson v. Hamilton, 36 (bis) 51
Stewart v. Agnew, 118
Stewart v. Kerr, 200
Stodart v. Dalzell, 111

Storrar v. Creditors of Lidster, 176
Storror's Trust, re, 198, 201
Strain v. Strain, 163

Strathmore, Countess of, v. Bowes,

95

Strathmore, Earl of, v. Ewing, 76 Strathmore v. Strathmore, 112, 116, 117

Suggitt's Trusts, In re, 50

Sutherland, Case of the Countess of,

35

Suttie v. Suttie's Trustees, 112

Tait v. Wilson, 25
Taunton v. Morris, 50
Taylor ex parte, re Grason, 134
Taylor v. Forbes & Co., 111
Taylor v. Gilbert's Trustees, 128
Taylor v. Meads, 82

Taylor v. Taylor (June 1871), 50
Taylor v. Taylor (Oct. 1871), 50, 51
Tench v. Cheese, 202, 203

Tewart v. Lawson, 204

Tews, re, 135

Thellusson v. Rendlesham, 116
Thellusson v. Robarts, 116

Thellusson v. Woodford, 116

Thomas v. City of Glasgow Bank,
58, 59, 142, 143 (ter), 144
Thomas v. Howell, 41
Thompson v. Krise, 76
Thomson v. Stewart, 22

Thomson v. Thomson (1838), 18 Thomson's Trustees v. Thomson (1879), 19, 73

Tipping v. Tipping, 11
Tod's Trustees v. Wilson, 96
Tomkinson v. West, 56

Trappes v. Meredith, 120, 124
Trotter v. Campbell, 19
Turnbull (1709), 131
Turnbull (1864), 48

Turner v. Couper, 178, 179

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THE PROPERTY OF MARRIED PERSONS.

CHAPTER I.

INTRODUCTORY.

partnership.

§ 1. According to Professor Erskine marriage creates a Marriage as a society or partnership between the married pair. If marriage is, in any sense, a partnership, it can only be of that description. which was known, amongst Roman jurists, as leonine. The lion in the fable divided the prey into four shares, but devoured all four himself; so the law of Scotland speaks of a communio bonorum between husband and wife, but gives everything to the husband. Marriage was, however, a true partnership according to the old laws of the Norsemen and the customs of the ancient Germans. A community of property, une communauté des biens, between husband and wife in which fact was not altogether at variance with language formed part of the law of Holland, of Spain, and of France in those provinces which were governed by their own coutumes. Originally it applied only to the bourgeois and peasantry, but on the revision of the customs in the sixteenth century it was extended to the nobles of Northern France. The code civil, when these coutumes were abolished, retained la régime de la communauté, and made it, jointly

A

Betrothal wedding.

with another arrangement, the modern law of France;1 and now, says M. Laboulaye, "Je ne sache point de jurisconsulte qui l'ait sérieusement attaquée." 2

§ 2. Marriage in old times consisted of two distinct parts, the betrothal (desponsatio et dotatio), which was a civil contract, and the giving away (traditio et sanctificatio), which took place at the end of a year, when a priest was present and sanctified the union by his blessing. The former was the "wedding," so called from the weds or pledges between the bridegroom and the parents or guardians of the bride;3

1The two systems are la régime de la communauté, which represents that of the old German or native law; and la régime dotal, which represents that of the Roman law. "Under the régime de communauté the arrangement is that, subject to special stipulations, the husband and wife shall form a partnership, the husband to be the managing partner, and to account to the wife, in person if necessary, or by his representatives if she survives him, to their children, or her heirs, if he survives her. Under the régime dotal, the bargain is, that, in order to assist the husband to pay the expenses of the marriage, the wife or her family will pay the husband a sum of money, which he is to manage during the marriage, and for which he or his representatives are liable to her representatives after the marriage. If the dower [more properly dowry] is in danger,' he is liable at any time to be called to account as to his proceedings. Under either system the parents may, during their life-time, advance their children, but the interest of the children on the death of the parents is provided for, not as with us by clauses in the settlement, but by the general law as to inheritances."-The Cornhill Magazine (1863), vol. viii. p. 673.

2 Recherches sur la Condition des Femmes, p. 380 (Paris, 1843); see also p. 396.

3 See The Laws of King Edmund, Ancient Laws and Institutes of England, i. p. 255; Thrupp, The Anglo-Saxon Home, p. 46 (London, 1862). The Regiam Majestatem (ii. c. 13, ed. Innes, c. 16, ed. Skene) provides thus:"Tenetur autem unusquisque tam de jure canonico quam jure seculari, sponsam suam dotare, tempore desponsationis.” (Cf. Glanvil, xi. 1.) The concluding words refer to the ceremony at the church, but evidently relate back to the time when desponsatio et dotatio was an independent and anterior proceeding.

The use of the word dos is misleading. In Roman law it meant

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