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A HANDBOOK OF HUSBAND AND WIFE. E V PRINTED BY U)K1MEU AND GILLIES FOR WILLIAM GREE.V AND SONS, EDIMiURGH. AGEXT3 IN LONnON— STEVENS AND IIAY.NES. AQBNT8 IN ni.ASfiOH— JOHN SMITH AND SON. A 'l^^ . i\ A HANDBOOK OP ! HUSBAND AND WIFE ACCORDING TO THE LAW OF SCOTLAND. BY FREDERICK PARKER WALTON, B.A. OXON., LL.li. EDIN., ADVOCATE; AUTIIOU OF ".MAIUUAGES, REGULAR AND IRREGULAR." ^i EDI.NBUKCII WILLIAM GREEN ^ SONS, gaU) ^Publishers. 1893. •v kf , ■ I PREFACE. This book is an attempt to give an account of the law of Husband and Wife with more detail than is possible in a systematic view of the whole law of Scotland, such as Bell's " Principles," — marvel of condensation though that is, — without aiming at the exhaustive treatment of a work like that of Lord Fraser. In England, such monumental works as those by Lord- Justice Lindley on " Partnership" and " Company Law ; " by Addison on "Contracts ;" Taylor on "Evidence ;" or Jarman on " Wills" — to give only a few examples — have been found not to prevent the usefulness of books on a smaller scale dealing with the same subjects. And in Scotland the success of Professor Kirkpatrick's book on " Evidence," and Mr. Craigie's volumes on Heritable and Moveable Rights, shows that there is a demand for works of a moderate size. I have been further encouraged by the facts that during the seventeen years which have elapsed since the publication of the second edition of Lord Eraser's standard treatise, the number of cases decided in this branch of the law has been very considerable, and that a profound alteration in the position of a wife with regard to property has boon effected by the Married Women's Property Act of 1881. The constant references made to Lord Eraser's work sufficiently indicate my great indebted- ness to it as a storehouse of the authorities prior to its date. But the cases have all been independently examined, and the t',: VI PREFACE. attempt has been made to cite only those which directly support the proiwsitions in the text. As many of the judg- ments are of great length, I have in general referred to the particular passage founded upon. Every practitioner knows the irritation produced by having to run over twenty pages in the search for an isolated dictum. The first page of the report may always be found by referring to the Table of Cases. I have sometimes adopted the method of stating a case as an illustration, partly for the greater brevity attained by using the form of a rubric, and partly to avoid the tedious iteration of long relative clauses introduced by phrases such as, " in a case in which," &c., &c. A separate chapter gives an outline of the English law of Husband and Wife, and I hope may be found useful as a guide to the authorities. In some parts of the subject it may be thought that I have quoted English authorities with dangerous freedom. In questions properly consistorial, where the English cases are applications of rules derived from the canon law, it cannot be doubted that they are entitled to great weight in Scotland, in the absence of any conflicting Scottish authority. In Gollins V. Gollins, 1884, 11 R. H.L., at p. 23, it was remarked by Lord Blackburn : " Even now, if any principle to be found in the canon law has been worked out in modern English jurisprudence, or any foreign jurisprudence founded on the canon law, so as to come to an approved result, I think it IS not to be too hastily assumed that the result has been rejected by the Scotch law. The .same considerations which have led to its being retained and adopted in the English or foreign jurisprudence, may show that it ought to have been retained in Scotch law, and if it be not clear on the Scotch authorities that it has been before now rejected, it may bo proper even now to adopt it." Similar considerations apply to the cases on private inter- national law, in which the Enoilsh Courts have laid down or 1 PREFACE. VU ■ applied principles of general jurisprudence. In this branch of the law there are many recent English judgments of great importance ; and although some of the results arrived at in that country ma}^ not be followed when the question arises in Scotland, the arguments and outhorities considered in the judgment cannot fail to be fully examined. A reference tu nn English or American ca^ is likely to be of more service than the citation of the conflicti?;^ speculative opinions of foreign juri-sts, however eminent The nebulous condition ol a good deal of this branch of the law has made it necessary to treat it with somewhat disprcjportionate fulness. After con- sideration I have omitted the subject of marriage contracts, which belongs rather to conveyancing than husband and wife. It would be impossible in a short statement to do more than repeat what is to be found in the works on conveyancing, while any attempt at a detailed examination of the cases, many of whicli are extremely special, would have been incon- sistent with the scope of my book. In conclusion, I desire gratefully to acknowledge the kind assistance of my friends Mr. John Harvey, Mr. William Hunter, and Mr. J. S. Taylor Cameron, advocates, while this book was in the press. Mr. Harvey very kindly read most of the proof-sheets, and not only verified the references, but made many valuable suggestions. F. P. W. ! Edinbukgh, Odolm; 1893. E C ^} G CONTENTS. CHAPTER 1. THE CONSTITUTION OF MARRIAGE. Definition of Marnacrc, .... Cliristian Marriage, .... Wlio are capable of Matrimonial Consent ? Grounds of Nullity, .... (1.) Nonage, ..... (2.) Impotence, .... What is Impotence i . Incapacity inferred from Resistance, . Wife's Frigidity, Limit of Age, .... Action only Competent during Life of both. Rule of Triennial Cohabitation, "Sincerity," . Delay, . (3.) insanity as Ground of Nullity, Who may bring tiie Action ? Evidence of Insanity, . When sane Spouse prefers to rest Content, Homologation and Acquiescence, Intoxication, .... (4.) Consanguinity as Ground of Nullity, Collaterals, .... Artinity, .... (5.) Adultery v > Ground of Nullitj', . Act IGOO, c. 20, I.Iarriage with Paramour, ((5.) Non-residence in Scotland as Ground of Nullity, (7.) Previous Marriage as (Jround of Nullity, I'AOE 1 1 2 2 2 2 3 4 4 4 4 5 6 7 7 7 7 8 8 8 8 8 9 10 10 10 11 11 CONTENTS. Effects of Decree of Nullity— Kestitutio in Integrum, Cliiklren of Putative Marriage, Where one Spouse is iii homifide, Debts extinguished revive on Nullity, Questions witli Third Parties, Interim Aliment and Expenses, i;j 13 i;3 13 13 13 CHAPTER II. MODES OF CONSTITUTION. Regular Marriage- Banns, .... Marriage Notice Act, . Clandestine Marriage, . Irregular Marriage, By Declaration (h pramnti. . Written Consent, Subsequent Conduct of Parties looked at, Consent must be to Present Marriage, Not necessary to specifiy exact time and place, 14 15 IG IG u; 17 17 18 lii CHAPTER III. HABIT AND REPUTE. Nature of Presumption, . Repute docs not constitute Marriage, Repute should be inter familians, Divided Repute, Must be Cohabitation, . Cohabitation must be in Scotland, Parties at Commencement of Intercourse not free to Marry Intercourse known l)y Parties to be Illicit, . . Presumption in England, 20 21 21 21 22 22 22 23 24 CHAPTER IV. OF PROJIISE, iiUB.SEQUENTi: COPULA. Nature of Presumption, . Kind of Proof required,. . [ Proof of Pronuse must be by Writ or Oatii Writ need not be Hoh)graph or Tested, Promise not inferred Irom Conduct, AVhether from consent to Banns, 25 25 2() 2G 26 CONTENTS. SI Not necessary to prove precise Time ami Place, Couilitioiial Promises, .... Promise Conditional on Pregnancy, Coinda presumed to be on faith of Promise, But not if there has also been Copula prior tu Promise Not necessary that Woman knew legal eifect, . Must l)oth Promise and Copula be in Scotland ( Does Promise, cum copula, make very Marriage I Is Declarator essential ? . I'AGE 26 20 27 27 27 28 29 29 31 CHAPTER V. THE DISSOLUTION OF MARRIAGE. Of Divorce, .... Divorce for Desertion, . Is it Desertion to refuse Marital Intercourse ! Pursuer must have been willing to Adhere, Privy Admonitions not a Solemnity, Offers by Defender to Adhere, . Separation, not at first Desertion, may become Bars to Action, .... Desertion must be Malicious, Jurisdiction, .... Voluntary Separation no Defence, What degree of Cruelty is good Defence >. 33 34 34 35 3G 36 37 38 39 39 40 I CHAPTER VI. DIVORCE FOR ADULTERY What is Adultery ? ■ . . Title to Sue, Title to Defend, .... Procedure, Evidence of Marriage, Evidence of Parties, Proof of Adultery, Evidence of Children, , Evidence of Prostitutes, Ante-nuptial Incontinence by Defender, Evidence of Indecency, . Presence in Houses of Ill-Fame, Extra-judicial Confessions, Admissions, .... Defences, . . i Condonation, Condonation liy Wife, , . . 41 42 42 43 43 44 45 46 45 46 46 47 47 48 48 49 Xll CONTENTS. AVhen Condoned Adultery may be referred to, Condonation of Wife does not bar Husband from Action against Paramour, ..... Pars Judicis to notice Condonation, Condonation after Lord Ordinary's Judgment, Connivance, ..... Watching not Connivance, Collusion, ..... Mora, ...... Pursuer who has obtained Judicial Separation for bring Divorce on same ground. Damages against Paramour, How Assessed, ..... . . 50 Action against , , . 50 , . 50 51 51 52 f)3 54 Adultery, WVX} 54 55 55 CHAPTER VII. JUDICIAL SEPARATION. Grounds— (1.) Adultery ; (2.) Cruelty, ... Separation Permanent, unless both consent to renew Cohabitat"- What is Cruelty ? Threats, ..... Insults, ..... Course of Tyranny, Attempted Violence, Communication of Disease, Communication of Venereal Disease, . Is it Cruelty although Wife escapes Infection ' Conlining Wife to House, Cruelty in Fit of Insanity, Violence under Influence of Disease, . Delirium Tremenit, Constructive C uelty, . Cruelty by tlie Wife, . Remissio Injuriof, Mora, 57 57 58 59 ()0 Gl (i3 04 04 ()5 (J5 m 07 67 U7 G8 (58 70 CHAPTER VIII. CUSTODY OF AND ACCESS TO CHILDREN. Father's Right, 2*r/j«a /am, . Conjugal Riglits Act, Edect of, Custody, Matter of Discretion, . May be decerned for, though iio conclusion for, Order may be varied, . . Access, . . _ Wife not to be arbitrarily deprived of Access, '. Motiier, when entitled to Custody, 73 73 74 75 75 76 7G 77 CONTENTS. CHAPTER IX. CONSENT IN FORM BUT NOT IN FACT. What is Non-Adherence 1 ..... . Is it Non-Adliorence to refuse Sexual Intercourse ? . Defences to Action of Adherence, ..... Is any defence relevant which would not ground an Action for Judicial Separation ? . ' . ■ CHAPTER XI. ALIMENT AND EXPENSES. Husband cannot set aside means for Aliment of Wife which shall be protected from his Creditors, Is Action competent for Aliment only? Where Contract of Voluntary Separation, Conduct justifyin;^ Non-Adherence, (I.) Interim Aliment — When Action competent in Sheriff-Court, Aliment pendente lite, Wlien Wife is Pursuer, . When she has Separate Estate, . Wlieu Wife is Defender, Aliment pending Appeal, Reduction, Wife presumed Innocent till Decree, Wife in Gaol, . xiii PACK May Regular Marriage be Reduced on Proof of no real Consent ? 79 Nature of Evidence required, ..... 80 Inference from Copula, . 80 Marriage merely Feigned, 81 Ulterior Purpose, 81 Want of serious Consent, 84 Error, Force, and Fraud, 37 Error as to Condition, &c., 88 Fraud, . 88 Acquiescence and Mora, 89 Fraud on Adults, 89 Fraud on Weak Person, . . 90 Force and Fear, . . 91 CHAPTER X. ADHER] 5NCE. 94 95 95 96 100 100 101 102 102 103 104 104 105 106 106 106 106 \iv\ XIV CONTENTS. (I.) Interim Aliment- When Husband has no Funds, . In Declarator of Nullity, Amount of Interim Aliment, . . May be afl'ected by Wife's Conduct, May be varied, ..... (II.) Permanent Aliment- Amount granted, ..... Rules for fixing, ..... May be varied, ..... Diligence on Dependence of Separation and Aliment, . Husband may .sometimes be required to find Caution for Aliment, Arrears not Claimable, ..... Liability of Husband for Wifvs Law Expeymes, What is Separate Estate ? . . Where Husband refuses to concur in Action by Wife, In Actions between Spouses — (1.) When Wife has separate Estate, (2.) When .she has no separate Estate, When Wife is Pursuer, Where plea of no Juri.sdiction is .sustained, . When Wife may Reclaim at expense of Husband, Woman's Expenses in Declarator of Marriage, Expenses in Inner House, In Declarators of Nullity, When Woman is Defender, . Reduction of Divorce, Actions for Aliment, Custody, &c., . Reponing, ... Counter-Actions of Divorce, . Where Wife has separate Estate, Co-defender's liability in Expenses -^Yhan he will not be Co-defender A.ssoil/,ied may be refused Expenses, 'Jl'': PAGE 107 107 108 109 109 109 111 112 113 113 114 114 114 115 117 117 119 119 119 120 121 121 121 122 122 123 123 12S 124 CHAPTER XII. DONATIONS INTER VIRUM ET UXOREM. History of Rule as to, . Between whom Rule exists, What is a Donation ? . Donation by Wife of Income, What is a Revocable Donation ? Rights of Third Parties, . Third Parties' Interest must be separate Renunciation of right may be Donation^ 125 126 127 127 127 128 128 128 129 CONTENTS. XV not Conv Donation depends on Intention, Value to be fixed as at Dissolution of Marriage, Reasonable Provision is not a Donation, Provision to be secure from Husband's Creditors must be beyond his control, ..... Post-nuptial Provision to take effect stante matrimonio, against Creditors, .... Proof of Donation— Premmption, Delivery, ..... Special Destination, .... Special Destination not revoked by general words o Entries in Business Books, Deposit-Receipts, .... Where Money was Wife's before Marriage, . Surrogatum, ... Donation by renouncing jus mariti, . IVJio viay Revoke 'i ■ . . . Right of Creditors to Revoke, Presumption against Revocation, How Revocation may be made. Implied Revocation, .... Need not be intimated to Donee, Right to Revoke may be barred by Homologation Not barred Ijy Ratification or Prescription, . Nature of Donee's Riudit, The Risk, Advances by Wife to Husband, eyance placed good ) • l'.\GE 1.30 130 131 132 1.32 1.34 134 134 135 136 136 137 138 139 140 140 140 141 141 141 141 142 142 142 143 mM y |i i>.. CHAPTER XIII. J?7.S' MARITI. Wife's Ec^uity to a Settlement, . When does tlie jx.s mariti subsist I When is jus mariti e.xcluded ? . How jus mariti is renounced, . E.vclusion need not be in very apt terras, Nature of jms mariti, Communio Bonorum, What Subjects fall under jms mariti? Heritable Securities, What Bonds Heritable inter conjugcs ? Bonds secluding Executors, Bonds taken to Heirs, . Dung, .... Building Materials, Sum to be applied to Heritage, . 144 146 146 146 147 148 149 160 160 150 151 162 162 152 153 Pf •U..-.H'- 1 XVI CONTENTS. 'I Fixtures, • • • • Trade-fixtures, . . • • ■ Conversion, . • • • ■ Implied Direction to Convert, . Division virtually impossible, . Conversion not operated by Sale, Woman having a pis crediti at Marriage, Claim to Share of an Estate is Moveable, Right mere jus crediti, . • • • Share in a Partnership is Moveable, . Policies of Insurance, . . . • Property Abroad, .... Wife's Earnings, . .... Earnings of Unlawful Occupation are not Protected, Evidence of separate Business, . . . ' Evidence of separate Trade, CHAPTER XIV. THE STATUS OF A MARRIED WOMAN. Character of Status, .... Adherence not Enforced, Wife cannot be Curator, but may be Executrix or Trustee, Husband's Curatory of Wife, . Nationality, ..... English Law, ..... PAGE 153 154 155 156 156 157 157 157 157 157 158 158 158 159 159 159 IGO 161 162 163 164 164 CHAPTEE XV. THE CAPACITY OF A MARRIED WOMAN. Wife's Obligations when Null, . Limitations on Incapacity of Married Women, . Obligations in rem Vcrsum, When Husband is civiliter mortuus, or imprisoned, Ad factum praestatidum, Obligations by Married Woman who is a Trader, Obligations by Married Woman living separate, Where Husband is Abroad, ^Vllere Deserted Wife is a 'Trader, Liability of Wife fraudulently holding herself out as Unmarried, Capacity imder Conjugal Rights Act, 1861, . Married Women's Property Act, 1877, . Married Women's Property Act, 1881, . How far j«s adviinistratiouis excluded, Savings from Income of separate Estate, 165 166 167 168 169 169 169 170 170 171 172 172 173 174 174 1 1« CONTENTS. XVU Powt?!' of Court to dispense with Husband's Consent, . Married Woman living with her Husband has no greater capacity to contract a personal Obligation than before Act, . Husband's Administration not excluded, Limit of Capacity of a Married Woman as to Estate separate by Act of 1881,' ...... Wife's Capacity to deal with her Heritage, Wife's i)ower to grant Leases, . . . . . When a Wife may deal with her Heritage as if Unmarried, . Capacit of AVife to grant inter vivufi Deed not to take effect till lier Death, ....... Capacity of Wife to Test, ..... Wife's Right of Election, PAOK 175 17(i 177 178 178 179 179 180 ISO 181 CHAPTER XVI. HUSBAND'S LIABILITY FOR WIFE'S CONTRACTS. AVife as prdcpo-^ita rebus domcsticia, Presumption of Agency, Husband may rebut Presumption, Where the goods are not necessaries agency is not presumed. Insanity not notified, no revocation. Credit given to Husband, Wife not lialile. When Husl)and and Wife are living apart, AVhen is Wife justified in living apart ? When the Separation is by Mutual Consent, . Legal E.vpenses are Necessaries, Effect of Notice or Advertisement of Husband, Inhibition of Wife, .... 182 183 . 183 nimed, . 184 185 185 18G 187 187 188 188 189 CHAPTER XVII. LIABILITY OF HUSBAND FOR WIFE'S ANTE-NUPTIAL DEBTS AND FRAUDS ON MARITAL RIGHTS. Wif^ as Shareholder, ....... 190 Does Husl)aml's Liability cease on Dissolution of Marriage I . .192 Former Law, . . . . . . . .192 Husband is liable in quantum hicratus for Wife's Heritable Debts contracted before Marriage, . . . . .194 Deeds granted by a Woman after Proclamation of Banns, . . 194 Fraud on Marital Rights, ...... 195 b xviu CONTENTS. CHAPTER XVIII. EFFECTS OF DIVORCE ON PROPERTV Legal Eight?, . "Where Groiuid of Divorce is Husband's Adultery, restore the Tocher? Guilty Spouse Bankrupt, Divorce has no retroactive Effect, Donations, Mutual Divorces, Heritage of Divorced Wife, Efifects in England, he bound to PAHE 190 197 197 197 197 198 198 198 CHAPTER XIX. TERCE. Who is entitled to Terce 1 . • • Divorce, ...••• Nature of Terce, . . . • AVhat Subjects are liable to Terce ? Terce is due from lands and houses, Wiiere Heir does not Live in Mansion-House, . Where the House is Let, What is a Mansion-House ? . Where there are two ]\Lansion-Houses, . Terce of Servitudes and Fishings, Heritable Securities, .... Teinds, ...... What Subjects arc not liable to Terce ? . (1.) Real Burdens by Reservation, . (2.) Superiorities, .... (3.) Eights of Reversion, &c., (4.) Coal and other Minerals, (5.) Timber, ..... (6.) Leases, . . . . . (7.) Burgage, ..... (8.) Personal Bonds, . Lesser Terce, ..... Husband must Die Infcft, or be Infeft at Divorce, Where Properly Sold, but the Seller is still Infeft, Where Husband's Infeftment is only Nominal, Where Terce is due, though Husband did not die Infeft, Where Father has Contracted in Son's Marriage-Contract, Where Husband lias Fraudulently delayed to take Infeftment, Where Husband was Infeft at Death, but his Title afterwards Reduced, ....... Where Husband has ilisponed lands in trust or for security. 199 200 200 20O •200 201 202 202 202 203 203 203 203 203 203 204 204 204 205 205 205 205 205 205 206 20G 207 207 207 208 CONTENTS. XIX Where Trust did not flow fro:n Husband, and he was never Infeft, . When was Hnshand's infeftnien'. completed ? . . . . Terce opens at Husband's death, . . . . . How Ti'ire in excluded, ....... (((.) By direct discharge and ante-nuptial marriaf,'e-contract, (b.) By post-nuptial deed, ...... (c.) By acceptance of provision in testamentary deed of husband, . Where the provision in deed is not expressly in full of legal rights, the onus of showing that this was not intended, lies on the Widow, . .' AVhen Exclusion presumed, ..... Acceptance to be valid must be in full knowledge of rights, . Implied Acceptance, ...... Terce barred by entail, ...... Conviction of High Treason, ..... Terce barred by Divorce, ..... How Widow's Right is made Effectual, . . . Service, ........ Appeal, ........ Nature of Widow's Right before Service, Does Right of Widow unserved Transmit to her Representatives ? Efl'ect of Service, ...... Service operates retro, ...... With Heir, With singular Successor, ..... When Purchaser may retain part of price to meet Terce, Kcnniiir/ to Terce, . . . Where Subjects are indivisible, . .... Remit to Valuators, ...... No Infeftment necessary, . . . . . PACE 209 209 209 210 210 210 210 210 211 212 213 213 214 214 214 214 215 215 215 216 216 217 217 217 218 218 219 219 CHAPTER XX. JUS RELICTAE AND JUS RELICTI. Nature of Right, ...... Vesting of Jus liclictae, ...... How Jus lieHctac may be defeated, .... Deatli-bed, ....... Deeds in fraud of Jus liclictae, ..... Hon; Jus Relictae 'may be discharged or renounced, (I.) By Ante-nuptial Contract, .... Renunciation will not be Implied, (2.) By Post-nuptial Deed, ..... (3.) By Acceptance of a Conventional Provision, Deed inconsistent with intention that Widow should take both Provision and Jus lielictae, . Where there is a Total Settlement, . 221 221 222 222 223 224 224 225 225 225 2^6 226 XX CONTENTS. (4.) By electing' after Husl„an,Us death to take the Provi.iou.s iu hi. Settlement or other Deed, . • • • • Ek'Ction may be inferred from Conduct, Dekv i^ no l)ar, . ■ • ■ ' ,. -i',, When Jm Itdidac is discharged, how is Estate divided i Effect of Wife's election to take lei,'al Rights, . . ■ Husband must die domiciled in Scotland, . • • PAliK 22(i 227 227 228 228 228 CHAPTER XXI. COURTESY. Conditions of Right to, ..••••• Wife's Infeftment, • Courtesy does not extend to Lands held Ijy Trustees under Instruc- tions to Convey to the Wife, . . . • ■ Heritable Bonds, Feu Duties, Burgage, Casualties, . Real Burdens Preferable to Wife's Sasine exclude the Courtesy, Birth of a Child heard to Cry, ....•■ No other Evidence of Life Competent, ..... Child must be at some time AVife's Hei'', .... Wife must have taken by Succe.«sion, ..... Constitution of Courtesy, ...... Courtesy is Personal to the Husband, ..... Husband enjoying Courtesy liable for the Interest of Wife's Personal Debts, ....... By ancient Law Husband enjoyed during his life all the Honours and Dignities belonging to Wife, ..... Where Husband had no Jus Mariii, ..... How Courtesy is excluded, ...... Acceptance of a Conventional Provision is not an implied discharge of Courtesy, . . . . . . . Alien Husband is not entitled to Courte.sy, .... Caution may be demanded on cause shown, . . . . 22!) 22i) 230 230 23U 230 230 231 231 23J 232 232 233 233 233 233 234 234 CHAPTER XXII. WIFE AS PARTNER IN A FIRM, OR SHAREHOLDER IN A JOINT-STOCK COMPANY. (1.) Is Partnership dissolved by Marriage of Woman ? . . 235 Can Wife become Partner witiiout her Husband's consent I . 236 Can Wife enter into trading Partnership with her Husband ? . 23(5 (2.) Shareholder, ....... 237 Wife as Shareholder in respect of her separate estate, . . 240 Can Wife become Shareholder without her Husband's consent ? 240 Right of Administration not excluded, . . . 242 Husband's Li^-llity as Contributor}', . . . .242 CONTENTS. CHAPTKR XXIII. WIFE'S HERITABLE ESTATE. (1.) WliL-re Jm Mariti Jiud lli.^'ht of Administration are botli exchuk'd, ....... (2.) Herita.Lje vested prior to 1881 or Act excluded, . Husband's riL,dit to Wife's Rents may be attached, Husband having no right of property in corpun or stocl-: cannot^sue or transact with reference to it, . Powers of Wife over lier iieritage to which Act does not api)ly, Deeds should be executed by both Spouses, A Minor Wife may set aside deed granted by her witii consent of lier Husband to iier Lesion, . . . • • Husband can consent to deed in his own favour, I'roof of Husband's consent, ..... Deed null for hick of Husband's concurrence may be homologated by the AVoman, wlieii sui juris, . . . • AVill Husband's ,sul)se(pient consent valithite deed ? Husband civiliter mortuns, or Insane, .... Wlien Husband's consent may be dispensed with. Court may dispense with Husband's consent, . Jus JM'U-iti and Right of Admiiustraticju not excluded from^Income of Heritage of which the fee vested in Wife prior to Act, (.3.) Riglits of Spouses in Wile's Heritage to which the Act applies. CHAPTER XXIV. JUDICIAL RATIFICATION OF WIFE'S DEEDS. Act 1481, c. 83, . Present Practice, ..••••• Ratification not essential, ...... Ratification will bar challenge though deed in favour of Husband,^ . Deed, though ratified, may be reduced on proof of force of third party, or of fraud or error, ...••• May Wife prove that Ratification was extorted i . . . CHAPTER XXV. PARAPHERNALIA AND PIN MONEY. What things are Paraphernalia? Articles of promiscuous use, . . • ■ Wedding Presents, . . ■ • • Pin Money, ...••• XXI PAOK 246 246 247 248 248 248 248 249 249 250 250 251 251 252 252 252 254 254 255 257 257 257 259 261 261 263 r in II. xxu CONTENTS. CHAPTEE XXVI. LIABILITY OF WIFE TO CONTRIBUTE TO THE EXPENSES OF THE HOUSEHOLD, OR TO ALIMENT AN INDIGENT HUSBAND. rAOE Where Husband is indigent, is Wife with separate estate bound tu contribute to meet domestic expenses ? . . . . 2G4 Where Husband is not indigent, ..... 2G5 Wife not liable to aliment indigent Husband, .... 26(5 Bi CHAPTER XXVII. RIGHT OF SURVIVOR TO ALIMENT-WIDOW'S MOURNINGS. Aliment to ind'^^ent Survivor, ...... 2G7 Claim barred by Ante-nuptial Contract, .... 2GS Widow's mournings and aliment till first term after Husbaud'.s death, 2G8 Not renounced by general words, ..... 2G9 CHAPTER XXVIII. PROTECTION ORDERS UNDER THE CONJUGAL RIGHTS (SCOTLAND) AMENDMENT ACT, 18G1 [24 & 25 Vict. c. yo]. Analysis of Act, ....... 270 What is Desertion without reasonable cause ? . . . .271 Effect of Protection Order, . . . . .272 Property exempt from Order, . , . . . 272 'I CHAPTER XXIX. WIFE'S DELICTS AND (^C/.l.ST-DELlCTS. Husband not Liable for, When Execution .suspended against Wife, She may be Imprisoned, When she may be Fined, . . _ \ JVhenshe may be arrested as in mcditationc fugac, Husband must be called, S73 . 2" "3 2- '4 2' •4 . 2- "4 2; •4 CHAPTER XXX. CRIMES AND EVIDENCE OF SPOUSES IN CRIMINAL AND (3f/^«/.CRIMlNAL PROCEEDINGS Not Crime in'wife to Conceal Guilty Husband, ] \ ['^l CONTENTS. XXUl Evidence of Spouses against each other in Criminal Cases, Evidence of Divorced Spouse, .... Where Husband charged with Others, . Penuria Testium, ..... Spouse injured may give Evidence, Bigamy not Injury in this sense, Spouse as Production, ..... Where Marriage is Disputed, .... Evidence in Cases under Public-Houses Acts, . Evidence tending to Criminate other Spouse, . Evidence of Spouses competent under certain Statute^, In Bankruptcy Proceedings, .... Can Wife Steal from Husband \ . . . Can Husband commit Rape on Wife i . Assault, ....... PAGE 27G 276 277 277 27H 279 280 280 280 281 282 283 283 283 28-1 CHAPTER XXXI. BREACH OF PROMISE OF MARRIAGE. Implement of Promise not Enforced, 285 The Promise — Proof, 286 Breach — Proof, . 287 Defences, .... 288 Fraud,. 28t) Change in Health, 290 Mora, .... 292 Action Ijy or against Executors, 292 Measure of Damages, 294 (t! CIIArTEK XXXII. SEDUCTION. Meaning of Term, Married Woman, Danuiges, how Measured, 296 297 297 CHAPTER XXXIII. THE REGISTRATION OF MARRIAGES. Certilied E.vtracls not ■pi'ohatio j^robata, Reguhir Marriages, Irregular Marriages, Where Marriage Established by l)eclaratf)r, Foreign Marriages, 299 299 300 300 300 :t X.XIV CONTENTS. CHAPTER XXXIV. THE MARRIED WOMEN'S POLICIES OF ASSURANCE (SCOTLAND) ACT, 1880 [43 & 44 Vict. c. 26]. Analysis of Act, . Fraud on Creditor!*, Wife may Assign Polic}', Policy may be Surrendered, Foreign Husband, I'AGE ;iui 302 302 303 303 CHAPTER XXXV. ELECTION LAW. Parliamentary Francliise, .... Husband's Riglit to Vote in respect of Wife's Heritage, Not as Tenant, . JIunicipal Franchise of AVife, County Councils, Scliool Boards, . Parochial Boards, 304 304 300 306 30(1 306 307 CHAPTER XXXVI. PRACTICE. Title to Sue, Sums falling under jus mnriti, . Title to Sue as to Wife's Heritage, Where Husband Refuses to Concu'r, Wife's Title to Sue since Act of 1881 When Wife may Sue as if Unmarried, Where Husband is Defender, Where Husband cannot Cncur, Where Action is (,ne of Damages Husband's Subsequent Concurrence, . When Husband must be Cited ns Defender, Wliat Actions are Consistorial ? Signing of Summons, . Service, Defender absent less thnii Forty Days AVhen no Defences are Lodged Sisting a Mandatory, Oath of Calumny, [ Identification of' Defender, lies judicata, I'oni Scotland, 308 308 309 310 311 312 313 313 314 315 316 316 317 317 318 318 310 319 320 BfiO CONTENTS. XXV Cruelty Proved as Defence to Divorce not res judicata in Action of Separation, ...... Reduction, • . . . . Is Averment of Perjurj' Relevant Ground of Reduction i Reponing may be Allowed, ..... Custody^ Ar.o^iig of Compelling Return to Jurisdiction, Interim Custody, Petition to Lord Ordinary or Inner Hou^e, Weight given to E.xtra-Judicial Confessions, .... Specification of Name of Paramour and of Time of Acts of Adultery, PACK 321 321 322 322 323 323 323 324 CHAPTER XXXVII. A SKETCH OF THE ENGLISH LAW OF HUSB AND WIFE. Constitution of Marriage, . . Regular Marriage— Consents, Banns, • • . . . Licence, ..... Registrars Certificate, ..... Registrar's Licence, . Jews and Quakers, ..... Diswlntion, ■ ■ . , . Divorce, • . . . . . Groiniils of Divorce, ■ • . . ^etllemenis Varied on Divorce, Judicial Separation, • ■ . . . J'(t(rimo)tial Jiifjhts of Spouses, .... Uiglit of Husl)aud in Wife's Estate, . Rt'al Estiite of Wife, . . . , , Wif's Anlc-nnjitial r>cbts, . . . Wife as Shareholder', ..... Wife's Liability in Contract, . , . Torts of Wife,' . . . . Breaches of Trust by Wife, .... Lial)ility of Wile for ^faintenance of Husband and Children. Wills of Mai'ried Women, .... Rights of Succession, ..... Husliand's Puglits of Succession in Wife's Estate on Intestacy, Wife's Right.s of Succession in Husband's Estate on IntestacV, .\ND 325 326 326 327 327 327 328 328 328 329 32!) 330 331 331 331 332 334 334 33G 336 337 337 338 338 339 CIIAriKR XXXVIII. PRIVATE INTERNATIONAL LAW Introductory, ...... Domicil, ....... Evidence of jierson whosi- Domicil is in dispute, Domicil of Wife follows that of her Husband 341 341 342 343 XXVI CONTENTS. Domicil — Where Jlarriage is altei'wards declared Null, Husband can choose and change Domicil, . Where there is a Voluntary Separation, Where Husband has deserted Wife, . Where there has been Judicial Separation, . Domicil of Widow, Divorced Wife, or Wife Judically Separated Summary of following Chapters, .... 343 343 345 34r) 34(5 347 347 CHAPTER XXXIX. CAPACITY. By what Law determined ? . Is person prohibited to Marry properly incapax ? Marriage forbidden by the Ux domicilii, Is rule in Scotland same as in England ? Case of Fenton v. Livingstone, . English cases on Capacity, Case of Sottomaijor v. De Banvs, Where the parties have different Doniiciis, Capacity of Foreign Minors, Voluntary Deeds of Minors, Contracts by Minor, Wife's capacity to Contract, .... Where Wife has separate Estate by the Law of her Domicil, . Where Foreign Wife with separate Estate acquires Scottish D Validity in point of form of Transfer of Moveal)les, onucil 34!) 350 352 353 355 35{) 35: 1 3(;3 3(i4 3G5 305 3(18 301) .370 371 CHAPTER XL. THE FORM BY WHICH THE JIARRIAGE IS CONSTITUTE Lex loci actus must be complied with, . Can ScotcJi persons Abroad contract Irregular Marria; When Marriages are regarded as Valid, independei contractus, ..... Foreign Marriages Acts, E.xterritoriality at Common Law, Is Scots Law applicable to domiciled Scotsman l Marriages on Board Ship, Validating Statutes, ... Wliero no kx loci, or lex loci not available. Marriages in the Colonies, Colonial Marriages Validity Act, 180.5, . Marriages in India, .... E-xceptions to Rule that a Marriage good where everywhere. Marriage in Polygamous Country, ce of the lex lo bi'ated is ''ooc ;d. 372 373 377 377 37!) 380 382 385 380 388 38!) 3S!) 3!)0 3!)0 I CONTEXTS. XXVll Marriage in a Country where Concubinage is sanctioned by Law, Incestuous Marriages, ...... Marriage with Deceased Wife's Sister, .... Marriage of guilty Spouse with Paramour named in Decree, . Will such a Marriage celebrated Abroad be good in the Foreign Country ! . Will it be good in Scotland if valid by the lex loci 't Marriages in Breach of Royal Marriages Act, . Validity in Scotland of Marriages of Foreigners celebrated in this Country, ....... Penal Disqualilications not recognised, .... Marriage of Bhxcks and Whites, .... Marriage of Priest or Nun, ..... PAGE 391 391 391 393 394 395 395 397 398 398 399 I t 1 CHAPTER XLI. THE ESSENTIALS OF MARRIAGE. Essentials depend on the hx domicilii, ..... 400 Where parties contemplate Change ci Domicil after the Marriage, 401 Where Husband's Donucil is Changed during ^larriage, . 403 Rights lield to be merely Rights of Successiun, . . . 405 Elfect of Cliange of Domicil ui)ou Personal Rights of Spouses, . 408 Ell'ect of Change of Domicil on Patrimonial Rights of Spouses in their ^lovealde Estate, . . . . . . .408 Ell'ect of Change of Domicil on Rights of Spouses in their Heritable Estate, . . . .414 Where there is a Marriage Contract, ..... 415 What Law decides whether Estate is Ileritalde or Moveable ? . 41G Effect of Change *' Domicil on Donations inter vinun ct uxorcin, . 41G Where Donati(jns 1 jet ween Spouses are forbidden, . . .416 Donatiniis wliich are IJevocable when made, .... 417 EliVct of Change of Wife's Domicil on Husband's Liability for Wife's iKlits, ' . . . . . . . .417 Cliange of Husljand's Domicil will not ail'ect his Liability for Wife's Debts ........ 419 CHAPTER XLII. LEGITIMACY. Jjegitimacy fi.xed liy Personal Law, ..... 420 Does Pule ajiply to Children of Marriage incestuous in Scotland ! 420 English cases as to, . . . . . . ,421 Legitimation, prv subtinincuK matrimimintu, in its International aspect, 422 .Must dates of C'liild's Birth and of Marriage be Imtli regarded \ . 422 Child so legitimated cannot succeed as Heir to Englisli Real Estate, . 424 I W- 'i^' .'-1' ' '.♦ xxviii CONTENTS. CHAPTER XLIII. JURISDICTION. PAUB Divorce, ....-•••• 426 Lochs delicti immaterial, ...... 427 Adultery, ...... . 427 Desertion, ...... 427 Doctrine of " Matrimonial Home," ..... 427 Jack V. Jack, ....... 428 litt V.Pitt, .428 atacert v. Stavert, ....... 429 English cases as to, . . . . . . . 432 Exception to Rule that Husband's Domicil mu.«t be in Scotland, 434 Husband's motive in acquiring Domicil i.s immaterial, . 435 Jurisdiction cannot be founded by Consent, .... 435 Jurisdiction over Co-Defender, ..... 436 Recognition of Foreign Divorces, ..... 43() Foreign Divorce recognised if parties Doniicile.l in the Territory, 438 Not recognised if Husband never domiciled there, . . 44(» Nor if obtained by Collu.sicii or Fraud, .... 441 Is Husband's motive in acquiring Domicil material i . . 442 Is Divorce valid if for cause unknown in Scotland? . . , 443 Must Court be that of a Ciiristian country ? . . . 445 Actions of Separation and of Adherence, .... 446 Declarator of Nullity of Marriage, or Putting to Silence, . . 447 Aliment,. ...... . . 44^ 1^ CONTEXTS OF APPKXDIX. XXIX 426 427 427 427 427 428 428 429 432 434 435 435 436 43(1 438 440 441 442 443 445 44(i 447 448 CONTENTS OF APPENDIX. I.— STYLES. Prdciilure iur Warrant to Register Irregular Marriage, Summonses : — Declarator of Marriage with alternative Conclusions, Adherence and Aliment, Putting to Silunce, . Nullity of ]\Iarriage, . Aliment, Separation ami Aliment, Divorce for Adultery, Divorce for Desertion, Issues for Breach of Promise and Seduction, Registration Acts, List of, n.-STATUTES, Marriage Schedule, Act, 1573, c. 55, . . . , Act for amending Law of Marriage in Scotland, 19 & 20 "Vict Act as to Scotcli Banns in England, Conjugal Rights Act, 1801, Conjugal Riglits Act, 1874, Married Women's Property Act, 1877, . Married Women's Policies of Assurance Act, Married Women's Property Act, 1881, . Englisli Married Women's Property Act, 1882, Evidence Amendment Acts, 1853 and 1874, c. 96, I'Aiii: 451 . 452 . 453 . 453 453, 454 . 454 . 455 . 456 457, 458 . 459 . 459 460 461 462 463 463 470 471 472 474 476 485 I . 'I -I INDEX, 4?0 TABLE OF CASES. A. V. A., 1887, 19 L.R. Ir. 403, . A. V. B., 1853, 1 Spink, 12, A. B., 1850, 12 D. 1297, A. V. B. ami Another, 1868, L.R. 1 P. and D. A. B.r. CD., 1853, 16 D. Ill, A. B. V. C. D., 1847, 10 D. 229, Abd-ul-Messih v. Farra, 1888, 13 App. Ca. 431 Abdy, Lee v., . Ackroyd, Brown v., . Acton, Caf,'e v., . Adam's Policy Trusts*, 23 Ch. D. 525, . Adv.-Gen. v. Blackburn's Trs., 1847, Exch. Ca Aglianby, Ross v., . Aikman v. A., 1859, 21 D. 757 ; 3 Macq. 854, Aitcliison v. Solicitors-at-Law, 1838, 1 D. 42, Aitken v. Anderson, 1815, Hume, 217, Aitken, Gibson v., , Aitken v. Munro, 1883, 10 R. 1097, . Aitkens v. Orr, 1802, M. 16,140, Aldis V. Cliapman, 1810, Sel. X.P. 232, AlexamL-r v. A,, 1860, 2 S. and T. 95, . Alexander, M'AlIan v., . Allan V. Hutcliison, 1843, 5 D. 4G9, . Allan, Mackay v., Allan V. Youn,!,', 1773, Fer^. Con, Rep., p. 37, Allen r. A., 1859, 30 L.J., P. and M. 2, All Saints' Worcester, R. v., AUsopp V. A., 1830, 8 S. 1032, . Alston V. Philip, 1682, M. 6007, Anderson r. A.'s Trs., 1892, 19 R. 684, Anderson, Aitken v., Anderson, Auld v., Anderson v. Fullarton, 1795, M. 12,690, Anderson v. Hay, 1890, 7 rimes' L.R. 113, Anderson, Jankouska v., XXX 559, 32, r.vdi; 3 4 77 4 39, 97 76 382 371 187 13 302 156 211, 21G, 228 423 16,22 193 247 156, 157 248, 3i)9 184, 187 . 45 192, 193 . 127 . 312 . 90 51 . 281 . 106 185, 193 . 143 . 193 . 156 18 . 336 . 211 P.. p. L Hadcocl Pa i lev Eailli,. Raillio Baillie, P>ain, M Baird, Balver, Baker ?> Baker v Baker, Ballant TABLE OF CASES. XXXI Anderson v. Shand, 1833, 1 1 S. 688, . Anderson's Trs., Hart r., Angle r. A., 12 Jur. 52"), Angus Brothers, M'Lean v., Angus, Bucliiinan r., Annand v. Chesscls, 1775, 2 Pat. 369, . Annandale v. Scot, 1711, M. 15,848, Araljin, Beale r., Arbuthnott, 1805, Hume, 2i)4, . Ariuitage v. A., 1866, L.R. 3 Eq. 343, . Armour, Todd v., Armstrong, 1844, 2 liroun, 251, Arnold V. Scott, 1673, Tsl. 6091, Arthur, Gairns v., Artliur V. Gourlay, 176!), 2 Pat. 184, . Aslnvorth v. Outrani, 1877, 5 Cli. D. 923, Astley r. A., 1828, 1 Hagg. E.R. 719, . Atchinson v. I'aker, 1797, Peake's Add. Ca. 103, Atkins V. Curwood, 1837, 7 C. and P. 756, Atkyns v. Pearco, 1857, 2 C.B. N.S. 763, Att.-(!on., Brinklcy r., . Att.-Gen. v. CkMnents, 1871, L.P. 12 Eq. 32, Att.-Gen., De Tlioren v., Att.-Gen. v. Mullvey, 4 Rnss. 320, Att.-Gen., Scott v., Att.-Gen., Shaw v., Audk'y, \\. v., Auchinclnss, Lennox v., . Auchinleok r. Monteitli, 1675, M. 5879, Auchinleck c. Williamson, 1G67, M. 6033, Auld r. A., 18S4, 12 H. 36, Auld r. Anderson, 1876, 4 R. 211, Auld V. Sliairp, 1874, 2 R. 191, Aveling, ] )eane v., r.. r. L., 18G9, L.R. 1 P. and D. 639, . P.adwck r. P.., 1858, 1 S. and T. 189, . Bailey v. Holison, 1860, L.R. 5 Gli. App. 180, Bailli'e V. P.ryson, 1818, 1 Mur. 317, 334, Baillie ?'. Chalmers, 1791, 3 Pat. 213, . Baillie, Muntier v., P)ain, Wilkinson v., Baird, Hnbhs r., Baker, Atchinson i>., . Baker V. B., 1880, 6 P.O. 12, . Baker v. Cartwright, 1861, 10 C.B. N.S. 124, Baker, School! iread (;., . liallantyne v. B., 1866, 4 M. 494, 12, 169 274 50 176 156 246 207 184 203 391 371 279 128 170 101 236 46 290 186 188 2, 391, 445 326 23 326 395, 440 440, 441, 442 279 166 189 195 35, 36, 37, 38 . 156 . 293 4 4 . 124 . 154 55, 297 . 274 . 201 . 314 . 268 . 290 . 42 289, 290 . 185 121 107 xxxu TABLE OF CASES. I'll Bancroft v. B., 1865, 34 L.J., Mat. 144, Banks, Scfit v., . Banuatyne r. B., 188G, 13 11. 019, Barclay !•• Scot, 1675, M. 15,844, Barker, Hadaway v., Barlee i: B., 1822, 1 A(kl. 305, . Barnes v. B., 1867, L.K. 1 P. and U. 505, Barr v. XL-il.^ Trs., 1878, 5 11. 722, . Bryson, Baillie v., . Biyson V. Menzies, 1C98, M. 5869, Bu-han v. B., 16G6, M. 411, Buclian r. lli.urn, Grahamo v., Burnett r. Brit. Lin. Co., 1888, 25 S.L.R. 35(5, Burnet v. Lepers, 1CG5, M. 5871, I'.urns c. B., 1879, 7 R. 355, Burns, Blair v., .... Burns, Browne v., Burns, Cuthill v., burroughs v. ])., 1861, 2 S. and T. 303, Burrows v. B., 1807, L.R. 1 P. and D. 554, Burton r. Sturgeon, 1876, 2 Ch. 1). 318, Butcher, Freestone v., . Bute V. B., IGGO, M, G031, Bute r. B., 1711, M. 5824, Butler v. B., 1842, Milhvard's Ir. Rep. 629, Butler r. B. 1885, 14 Q.B.D. 831, Butler r. B., 1S!)0, 15 P.D. 66, . Butler r. B. [1893], B. 185, Butterlielil, Urijuhart v., Bywaters, Robson v., C. B. r. A. B., 1885, 12 R. H.L. 36, Cadogan v. C, 1796, 2 Hagg. C.R. 4, Cage r. Acton, 1 Ld. Raymond, 515, Cahill V. C, 1883, 8 App. Ca. 420, Caines v. Smith, 1846, 15 M. and W. 189, Calcraft r. ITarliorough, 1831, 4 C. and P. 501, Calder v. Steele, 19 Nov., 1818, F.C., . XXXV PAOB . 280 . 177 55, 297 . 194 . 264 256, 257 . 156 . 223 , 209 . 269 . 297 . 306 . 167 178, 250 . 41 34,95 . 187 46,47 . 374 . 12 . 179 . 285 . 177 . 194 . 113 310, 312 108, 121 157 97 104 330 184 195 261 HI 164 53 329 342 234 5,7 45 13 168 287 55 247 227 mi h. I ■ t r. ' < \ \ I ' \l I XXXVl TABLE OF CASES. Callwell r. C, 18C0, 3 S. and T. 259, . Cameron v. M'Lean, 1870, 13 S.L.R. 278, Canimell v. Sewell, 1860, 5 H. and N. 728, Campbell v. C, 1776, 5 Br. Supp. 627, . Campbell r. C, 1854, 17 D. 514, Campbell v. C, 1867, 4 M. 867, 5 M. H.L. 115, Campbell v. Ebden, 1676, M. 5879, . Campbell v. Falconer, 1892, 19 R. 503, Campbell v. Honyman, 1831, 5 W. and S. 92 Campbell v. Jla'^iiay, 1888, 15 R. 784, . Campbell v. W;'.r 448 407 237 • il TABLE OF CASES. XXXVU 244 148, Cliilton, Miles v., . . . Cliirney, Finlay v., Clioj'lton V. Lings, 1868, L.R. 4 C.P. 374, Cliristie, 1731, MacLaurin's Crim. Cu. 632, Cliristie, Downie v., Ciiristie v. Gib, 1700, M. 6283, . Christie, Gowans v., . Christie, Kej^'gie v., . Cliristie, Sliearer v., Cliiirchill, Ringer v., . . . . . 426 Cluirnside v. Carrie, 1789, M. 6082, . Ciocci r. C. 1853, 1 Spinks, 121, Ciocci V. C, 1859, 29 L.J., P. and M. 30 and 60, City of G. r.lc, Biggart v., 1G7, 1G9, 173, 176, 179, 241, City of G. Elc, Ciirniichael v., . (Mty of G. Bk., Forbes v., City of G. Bk., Hill v., . City of G. Bk., M'Dougall v., . City of G. Bk., Stcednian v., City of G. Bk., Thomas v., City of G. Bk., Wisliart v., ( 'ity of G. Bk., Wright's Exors. v., . 138, 1 Clarence, R. v., . Clark r. C, 1881, 8 R. 723, Clark r. Fairweather, . Clark /■. Henderson, 1875, 2 R. 428, Clarke V. Newniarsh, 183(5, 14 S. 488, . Clegg V. Levy, 1812, 3 Canij). 166, <'leinent v. Sinclair, 1762, M. 337, Clements, Att.-Gen. v., . Clinton r. Trefusis, 1869, 8 M. 370, <'iiviger. Rex v.,. Cloncurry Case, Macq. H.L. 607 (1811), Cocliran v. Hamilton, l(i98, I\L 6001, . Cochrane, 1840, 8 Dowl. B.C. 630, Cochrane v. Lamont's Trs,, 1891, 18 R. 451, Cockburn v. Burn, 1679, M. 5795 and 5998, Cndrington v. C, 1865, 34 L.J., Mat. 60, Cole V. (Jottingham, 1837, 8 C. and P. 75, Coleman i: Birmingham Overseers, 1881, 6 Q.B.D. 61 Coleman, Trelavvney 11.,. Colletl V. C, 1838, 1 Curt. E.R. 678, . Collins V. Bishop, 1878, 48 L.J. Ch. 31, Collins r. C, 1882, 10 R. 250 ; 11 R. H.L. 19, Collins, Ji'sson v., CoUiss V. Uwtcr, 1875, L.R. 19 Eq. 334, . -12, Cohiuhoun V. C, 1804, M App. v. H. and W. 5, Colquhoun V. Lady Roseburn's E.\rs., 1720, M. 6973, I'AOE . 3, 11 . 292 . 304 . 277 . 151 8 . 204 . 246 . 140 436, 444, 448 . 170 46, 65 . 54 246, 312, 369 238, 240 . 244 163, 191 147, 414 238, 240 2:^7, 238 191, 245 l(i7, 2.38, 239 64, 284 . 144 12 188 . 410 . 374 . 42 . 32(5 229, 230 . 281 49, 387 . 250 . 161 . 143 . 179 . 124 . 287 . 265 . 55 46, 64 . 24 48, 49, 50, 124 . 32 416, 442, 446 94, 161 . 180 iV. m xxxvni TABLE OF CASES. Colquhoun's Trs., Fernie v., Colvil, Gardiner v., Colville y. Lauder, 1800, M. App. v. Succession 1, Colvin V. Johnstone, 1890, 18 R. 115, Comniplin, 1836, 1 Swinton, 291, Comptoii V. Bearcroft, 1769, 2 Hagg. C.R. 430, Connal v. Loder, 1868, 6 M. 1095, Connell's Trs. v. C.'s Trs., 1886, 13 R. 1175, Connelly v. C, 1851, 7 Moore, P.C.C. 438, Connolly v. Woolrich, . Connon's Trs., Irvine v., Cook V. C, 1876, 4 R. 78, Cooke V. C, 1863, 3 S. and T. 126, Cookp. in re, 1887, 56 L.J. Ch. 637, Cooke, Stones v., Coombs V. C, 1866, L.R. 1 P. and D. 218, Cooper V. C, 1888, 12 R. 473 ; 15 R. H.L. 21, 132, Cooper, Chappie v., . Cooper V. Crane [1891], P. 369, . Cooper, Hodge v., . . . Cooper V. Lloyd, 1859, 6 C.B., N.S. 519, Cooper V. MacDonald, 1877, 7 Ch. D. 288, Cooper, Young v., Corbet, Fleming v., Corbet v. Waddell, 1879, 7 R. 200, Corstorphine, Hay v., , Costick, Lapnrte v., Cottingliam, Cole v., Coulson, ex park, 1887, 20 Q.B.D. 249, Cousen v. C, 1864, 4 S. and T. 164, Coutts V. C, 1866, 4 M. 802, . Coutts' Trs., Hay v., . Cowan, Ferguson v.. Cowan, Wilson v., Cowdry, Robertson v,, . Cowc, Standard Investment Co. r., Cowper V. C, 1860, 23 D. G8, . Craig r. C, 1851, 14 D. 261, . Crnig ('. C, 1852, 14 D. 829, . Craig r. Galloway, 1860, 22 D. 1211 ; 4 Mac(i Craig r. Monteith, 1684, M. 5819, Craigie, Dunduff v., . Craigie v. Hoggan, 1838, 16 S. 584 ; M'L. and Craigleith v. Prestoiigmnge, 1681, M. 15,845, Craig's Exors., Meuse v., Craik v. Penny, 1891, 19 R. 339, Crane, Cooper v., . . _ 30 210, 235, 351, 35 354, 361, 364, 36 35 267, Rob. 128, 942, 17, 1 240, 2.^ I'AOE 128 314 407 292 278 362 371 135 99 IMi 147 44 71 367 114 107 353, ■), 403 1S3 93 18!) 188 233 115 ;), lOS 41.-) 170 I.')!) 2M7 334 !•<), (53 102 222 310 30.-> IS 6, 257 112 317 123 140 2.'.!) . 221 27 . 211 . 152 20((. 214, 215 !)3 131, 127. I' .--. TABLE OF CASES. XXXIX Crawfonl, Boyle v., Crawford v. C, 1886, 11 P.D, 150, Crawford, Primrose v., . Crawford, Stirliiif; v., Crs. of Eastur Ogle, Carlyle v., . Crs., Saul v., . Crewe v. C, 1800, 3 Hagg. E.R. 128, Cristall, ^laclean v., Croft V. C, 1830, 3 Hagg. E.E. 310, Crombie v. C, 18G8, 6 M. 776, . Crosbie's Trs. v. Wright, 1880, 7 R. 823, Crump V. Morgan, Culleu V. Ewing, 1830, 9 S. 31, . Cullen V. Go.-^sage, ISnO, 12 D. 633, (himmiiig v. King's Adv., 1756, M. 15,854, Cuuiuiigiium c. C, 1814, 2 Dow, 482, Cuniiiugliani, ex parte, 1884, 13 Q.B.D. 418, (,'nniiiiigham, Mitchell v., Cunuington r, C, 1 S. and T., 475, Cuno, in re, 188!), 43 Ch. D. 12, Curie, Blyth v., . Currie v. C., 1833, 12 S. 171, . Currif, Clnunside v., Currie v. (iuthrie, 1874, 12 S.L.R. 75, Currie, .Tardine v., Currie v. Turnbull, 1806, Hume, 373, Curtis V. C, 1854, 4 S. jind T. 234, Curtis r. C., 1858, 1 S. ami T. 1!)2, Curtis, Greenwood t\, . Curwtjod, Atkins v., Cuthill r. ]'.urns, 1862, 24 D, 841), Da Costa, Berry v., D'Aguilur r. D'A., 17!)4, 1 Ilagg. E.R. 775, Dalgleish V. 1)., 1878, 5 R. 67!), Dailidusie r. M'Douall, 1840, 7 C. and F. 817, Dallas r. 1)., 1874,43 LJ., 1'. and M. 87, Dailing r. -M'Kenzie, 1675, M. 6005, . Dalryniple Case, 1811, 2 llagg. C.R. 64, D' Alton V. D'A., 1878, 4 P.D. 87, Daltoii, Riddell r., Daly, (■/( re, 1858, 25 Beav. 456, Darleith v. Campbell, 1702, M. 3113, Darling, Watscin v., Darnford, Ozard v., Davib, De Tliuren v. Att.-Gen., 1876, 3 R, II. I.. i'8, De Voto, Stewart v., De Wahl v. Braune, 1856, 1 II. and N. 178, Dewai", Wii,'lit )•., Dick V. Doiiald, 1826, 2 W. and S. 522, Dick, Loch v., .... Dickinson v. D., 1889, 62 L.T. 330, . Dicks V. Massie, 1655, M. 5821, Dickson V. Blair, 1871, 10 M. 41, Dickson v. D., 1823, 2 S. 162 [N.E. 138], Dickson, Hope v., Dickson, Hunter v., Dickson, Sonierville's Trs. v., . Difl'ors, Ornie v., ... Dij,'l)y, Howard v., Di.\on V. D., 1841, 3 D. 559, . Di.\on, Fisher v., ... Di.\on V. Hurrell, 1838, 8 C. and P. 717, Dixon, Shirer v., Dobie, Johnstone v., , Dobson, Morrison v., Dolphin i'. Robins, 1859, 7 II.L.C. 39(1, Donald V. ])., 1863, 1 M. 741, . Donald v. 1)., 1H62, 24 I). 499, . Donald, Dick v., Donald's Trs., M'Ni,sh c, Donaldson r. M'Chire, 1857, 20 I). 307 ; 3 Mai Donaldson v. Tainsli's Trs., 1886, 13 R. 967, nrto 345, 142, PAUB 11,397 . 288 . 137 4 . 187 364, 365, 375, 397, 398, 399 182, 183, 185, 189 184, 187 . 2()9 . 439 . 434 190, 418 . 100 73 . 383 . 288 . 112 .39, 319 23 . 394 . 169 178, 312 . 249 8 38 . 259 . 250 . 204 :!13, :i27 130, 132 , 128 . 170 . 263 . 118 154. 228 . 86 77 152, 153 25, 27, 85, 86 346, 347, 441 52, 106 . 109 . 249 . 147 406 212,213,227 'i i TABLE OF CASES. xli ■'I Donegal, Chichester v., . Donou'hue v. Marshall, 32 L.J. 310, Ddu's Estate, 1857, 4 Bvcw, 1!)4, ]3oiiglas, 1(529, M. 5504, Douglas, Lyle v., Douglas, Munroe v., Douglas' Trs. v. Kay's Trs., 1879, 7 R. 295, Downie v. D.'s Trs., 186(5, 4 M. 1067, . Drew V. W, 1888, 13 P.D. 97, . Drew r. Nuun, 1879, 4 Q.B.D. 661, Driiiield, Leak v., . . . Dniitt, Du Moulin v., . Du 15ois, Richardson v., . Du Moulin v. Druitt, 1860, 13 Ir. C.L. 212, Dun, j\[acalister v., Dunbar v. Melville, 1566, M. 6001, Duncan r. Cannan, 1854, 18 Beav. 128, 7 De. G Duncan i: Casliin, 1875, L.R. 10 C.P. 554, Duncan r. D., 1893, 30 S.L.R. 435, Duncan v. (Jeranl, 4 S.C.R. 246, Duncan's Trs. v. Thomas, 1882, 9 R. 731, Dunclull'r. (."raigie, 1612, M. 3843, Dunrcrniline (Lady) r. ])., 1628, M. 15,840, Dunlop r. (ireenlees' Trs., 1865, 3 M. ILL. 46, Dunlop r. Johnston, 1865, 3 M. 758, 5 M. H 109,. .... Dunloj), AVilkie v., Dunn r. Matthews, 1842, 4 D. 454, Dunn, MHjueen c, Duntze v. Levett, 1816, Ferg. Div. Ca. 397, Durant r. D., 1 Ilagg. E.R. 768, Durliam r. 1)., 1885, 10 P.D. 80, Durham r. Spence, 1870, L.R. 6 E.\. 4(5, Durrant Steuart's Trs. v. ]). S., 1891, 18 R. 11 Dyke r. Rendall, 2 D. M. and G. 209, . Dysart v. D., 1 Rob. E.H. 106, . Dysnrt Peerage Ca., 1881, G A pp. Ca. 489, Eastlan 192 264 172 8i> 12 151 221 37 171 13, 445 108 197, 200 382 10 314 329 215 278 287 9, 3 Maccj. 497, 358, 359, 391, 392, , 415, 420, 421, 425 . 310 144, 197, 30'.> 158, 23(i . 144 . 128 . 209 2 321, 322 . 91 265, 26(! . 292 . 43 440, 4 ^ TABLE OF CASES. xliii Finlay r. Hamilton, 1748, M. 6051, . Firebrace v. F., 1878, 4 P.D. 63, Fisher v. Dixon, 1840, 2 D. 1139, 4 Bell's App, Fitzseraia v. F., 1869, L.R. 1 P. and D. 694, Fit/Gibbon, Pike v., . Fleming v. Corbet, 1859, 21 D. 1034, . Fleming v. Corbet, 1858, 21 D. 179, , Fleming, Peters v., , Fleming, Wigton v., . Fletcher, IGll, M. 6029, : Fletcher v. F., 1862, 2 S. and T. 434, . • Fletcher v. Grant, 1878, 6 R. 59, Flower v. F., 1873, L.R. 3 P. and D. 132, Foley, Hill v., . Forbes, 1816, Ferg. Div. Ca. 397, Forlies V. C. of (}. Bank, 1879, 6 R. 1122, :• Forbes v. F., 1881, 19 S.L.R. 118, ■ Forljes V. Halley, 1882, 10 R. 4, -i Forbes v. Strathmoro, 1750, 6 Pat. 684, ' Forbes v. Wilson, 1868, 6 M. 770, \ Ford, Greeuhill v., ■'I F(ird, Wilson r., . . , . i Forrest, iSawers v., Forster v. F., 1872, 10 M. H.L. 68, Forster r. F., 18(59, 7 j\I. 546, . Forth V. F., 1867, 36 L.J., P. and M. 122, Foss V. F,, .... Fotheringiuuu's Trs. r. F., 1889, 16 R. 873, Fouli.s V. Fairbairn, 1887, 14 R. 1088, . Fowler v. F., 3 P. Wms. 355, . Fowler, Williams v., . Fowlie, (Jray v., .... Frampton n Stepjieus, 1882, 21 Ch. D. 164, Franks, ex parte, 1813, 7 Bing. 762, Fraser v. F., 1870, 8 M. 400, . Praser v. Walker, 1872, 10 M. 837, Fraser, Hodge ;•., Fraser, Rose r., .... Freestone v. I5utclier, 1840, 9 C. and P. 643, Frier, Sniitii v., .... Froebel r. F., 1884, 22 H.L.R. 22, Frost V. ivniglit, 1872, L.R. 7 E.\. Ill, . FuUarton r. F., 1873, 11 M. 720, Fnllai'tdii, Anderson ('., . Fulton r. F., 1850, 12 1). 1104,. Furlonger r. F., 1847, 5 N. of C. 422, . 286. PAGE . 312 . 447 154, 228 . 34 . 334 17, 19 108, 121 . 183 . 262 . 195 . 107 . 289 . 188 . 331 1 . 244 36 . 305 375, 370 287, 297 42,51 116, 188 20 18 121 68 90 220 193 263 188 346, 347 340 168 43(i 149, 150, 198 22 9, 231 207 184 247 123 287 324 18 61 68 ■;:■[ I i . I Ciairns v. Arthur, 16C7, M. 5954, 170 xliv TABLE OF CASES. Galbraith, Logan ■;;., Galbmith's Trs., Miller u, Gale r. Bennett, 1857, 19 D. 665, Gall V. G., 1870, 9 M. 177, Galloway, Craig v., Gauld's Trt., Milne v., . Garcie v. G., 1888, 13 P.D. 216, Gardvne v. Eoyal Bank, 1851, 13 D. 912, Gardiner v. Colvil, 1667, M. 6038, Gardiner, in re, 1887, 20 Q.B.D. 249, Gatehouse v. G., 1867, L.E. 1 P. and D. 331, Geils V. G., 1848, 6 N. of C. 134, Geils V. G., 1850, 13 D. 333 ; 1 Macq. 255, Gemmel v. Yule, 1735, M. 5997, George v. G., 1867, L.R. 1 P. and D. 554, Gerard, Duncan v.^ Gib, Christie v., . Gibson v. Aitken, 1798, Hume, 205, Gibson's Trs. v. G., 1877, 4 E. 867, Gibson v. Hammersmith Ey., 1863, 32 L.J. Ch. 33'; Gibson v. Hutcliison, 1872, 10 M. 923, , Gibson v. Eeid, 1795, M. 15,809, Gibson v. Scoon, June 6, 1809, F.C., Gibson, Ker v., . Gibson, Paul d., . Gilchrist v. Pringle, 1682, M. 6032, Gilligar, v. G., 1891, 18 R. 387,. Gilmour, Lawson v., Gilpin V. G., 1804, 3 Hagg. E.G. 150, Ginger v. G., 1865, L.R. 1 P. and D. 37, Gipps V. G., 1863, 32 L.J., P. and M. 78, Glenbervie v. Luss, 1541, M. 15,835, . Glover v. Samson, 1856, 18 D. 609, Goddard v. Snow, 1826, 1 Buss. 485, . Godmond, Grindell v., . Goldie, 2 Hume, 400, . Goldie V. G., 1842, 4 D. 1489, . Goodden v. G. [1892], P. 1, Goodheim v. G., 1861, 2 S. and T. 250, Goodman v. G., 1862, 3 Giff. 643, Goodman's Trusts re, 1881, 17 Ch. D. 266, Gordons. G., 1832, 11 S. 36, . Gordon V. Pye, 1814, Ferg. C.E. Ap. 17, Gordon V. Sempill, 1776, M. voce H. and W. Ap. 4, Gordon r. Step-daugliter, 1687, 2 Br. Supp. 110, Gordon, Buie lu, Gordon, Gray v., Gordon, Hacket u, . 353, 2C 12 218 , 17G , 315 , 84 131 140 , 315 , 37 208 209 , 314 , 334 36 u' ), 61 54, .347 262 , 104 261 8 , 247 131 154 1.34, 1.38 213 248, 249 189 . 313 , 195 157 , 231 , 51 , 47 5 1,53 203 , 55 195 , 188 , 278 208 330 . 105 , 423 421 423 • 246 .305, 408, 446 189 141 167 151 310 w TABLE OF CASES. xlv '. :iT!f. I Gonlon, Thomas v., Gonlon, Wilkinson v., . Gore V. Knis^t, 1705, 2 Vern. 534, Gossa},'t', (>ullen v., Gould, Sliiiw v.y . . .12, 54, 421, GouMer r. G. [1892], P. 240, . Gourlay r. Wri<^lit, 18G4, 2 M. 1284, (Joni'lay, Arthur v., Govier V. Hancock, 17!)G, 6 T.R. 603, Gow V. G., 1887, 14 R. 443, G()\v, Hojiij! v., . Gowansc. Christie, 1873, 11 :\r. ILL. 1, Gower i: G., 1872, L.IL 2 P. and D. 428, Grady, Harrison v., Graft'on r. G., 1872, 27 L.T. X.S. 768, Graham v. Bmiuluuiano, Grahaine v. Burn, 1685, M. 8472, Graham r. G., 1878, 5 11. 10!)3, Graham V. (t., 1881, !) R. 327, . Graliam v. Hunter's Trs., 1831, S) S. 543, Graham v. Londonderry, 1746, 3 Atk. 3!)3, Graham, Bell v., Graham, Bowman v., Graham, Brown v., Graham, Maepherson v., Gran<,'o v. G. [1892], P. 245, Grant, 1642, JL 16,483, . Grant i: G., 1S62, 31 L.J., Mat. 174, tirant, Borlhwick v., Grant, Fletcher v., tiray v. Brown, 1878, 5 R. 971, . (!ray v. Fowlio, 1847, 9 D. 811, . Gray v. G., 1582, M. 5802, Gray r. Gordon, 1666, ]\L 3629, Gray, Mistress of r. Master, 1582, M. 5802, Gray r. Richardson, 1876, 3 R. 1031, Gray r. Walker, 1859, 21 D. 709, Green v. G., 1869, 21 L.T. N.S. 401, Green v. G. [1893], P. 89, Green, Taylor v., GreenhillV. Ford, 1824, 2 Sh. App. 43 (jlreenlees' Trs., Duulop r.. Green way v. G., 1848, 6 N. of C. 221, Greenwood r. Curtis, Greenwood, Irviuj.; v., . Grindell v. Godmond, 1836, 5 A. and E. 755, Grierson, Chalmers i\. . Grierson, Lapsley f.. 425, 430, 437, 73, PAGR 21 . 12 . 175 . 377 438, 440, 441 . 427 . 228 . 101 . 188 . 39 285, 286 . 204 52 183, 184 . 110 34, 95 . 285 8, 59, 69, 110 53, 122 311, 312 . 263 . 86 106, 122, 176 . 313 . 140 . 436 . 258 . 42 . 250 . 289 . 296 346, 347 . 259 . 151 . 259 . 218 . 151 . 90 . 441 . 273 42,51 . 225 . 61 . 393 . 289 . 188 . 226 21, 23, 86 I U ,1 xlvi TABLE OP CASES. Grieve v. G., 1885, 12 K. 969, . Grieve v. Pringle, 1797, M. 5951, Grove, in re, 1888, 40 Cli. D. 216, Guepratte v. Young, 1851, 4 D. G. and S. 217, Guibert, Lloyd v., Gurney, Palliser ■;;., Guthrie, Currie ■y., Guthrie, Neilson v., H. V. C, 1860, 1 S. and T. 605, H. V. P., 1873, 3 P. and D. 126, Racket v. Gordon, 1673, M. 6039, Hadaway v. Barker, 1830, 8 S. 800, Hailstone, Taylor u, Hakewill v. H., 1860, 30 L.J., Mat. 254, Hakewill, Tempany v., . Hall V. H., 1864, 33 L.J., P. and M. Go, Hall, Wake v., . Hall V. Wright, 1859, E. B. pnd E. 746, Halley, Forbes v., Halliday, Bell v., Hall's Trs. v. Hall, 1854, 16 D. 1057, Haly burton v. H., 1666, M. 5675, Hamilton, 1849, J. Shaw, 149, . Hamilton, Blair v., Hamilton v. Boswell, 1716, M. 3117 ; Rob. App. 192, Hamilton, Boyd v., Hamilton, Cochran v., . Hamilton, Finlay v., Hamilton v. H., 1842, 1 Bell App. 736, Hamilton v. H., 18.39, 2 D. 89, . Hamilton, Linning v., . Hamilton, Ottaway v., . Hamilton, Stevenson v., Hammersmith Railway Co., Gibson v., Hanbury v. H. [1892], P. 222, . Hancock, Govier v., . Hannay, 1873, 1 R. 246, Handley v. H. [1891], P. 124, . Happer, Trotter v., Harborough, Calcraft v., Harford v. Morris, 1776, 2 Hagg. C.R. 423, Harkey, Powell v., . . Harley, Wright v., Ilarman, Thrupp v., . Harris v. 11., 1862, 31 L.J., Mat. Ca. 160, Harris v. H., 1828, 1 Hagg. E.C. 351, . Harris v. Morris, 1801, 4 Esp. N.P.O. 41, PAGE 320 247 42.3, 424 371 383 335, 336 288 193 4, 53 3 310 2(ii) 188 109 187 G6 154 291 305 217 411 250 276 207 230 218 250 312 18 21 297 117 309 154 42 188 164 7G 295 55 93 263 133 263 54 110 18G, 188 TABLE OF CASES. x Ivii Harrison i: Grady, 13 L.T. N.S. 369, . Harrison v. H., 1*888, 13 P.I). 180, Harrison v. H., 1842, 4 Moure, P.C. 96, Harrod v. II., 1854, 1 K. and J. 4, Hart V. Anderson's Trs., 1890, 18 R. 169, Hart V. H., 1845, 7 D. 1081, . Harvey r. Farnio, 1882, 8 App. Ca., 43, 345, 346, 354, Harvey v. Farquhar, 1870, 8 M. 971, 10 M. H.L. 26, Harvier. H., 1828,6 S. 1144, . Hatcher, cx parte, 1879, 12 Ch. D. 284, Hawkes v. H., 1828, 1 Hagg. E.G. 526, Hay, Anderson v.. Hay r. Gorstorpliin, 1663, M. 5956, Hay V. Goutt's Trs., 1890, 18 R 244, Hay V. H., 1882, 9 It. 667, Hayter, Phillipson v., Hayward r. H., 1858, 1 S. and T. 81, Head, Stair v., . Hector, Golliss v., Heisleid v. Lindsay, 1591, M. 6087, Hellmann, in re, 1866, L.R. 2 Eq. 363, Hellonr. H., 1873, 11 M. 290, . Hemlerson, Clark v., , Henderson, Fairgrieves v., Henderson r. H., 1888, 16 R. 84, Ifenderson v. H., 1889, 17 R. 18, Henderson v. 11., 1855, 17 D. 348, Henderson v. Lafreis, 1696, M. 5881, Henderson, Robertson v., Henderson's Trs. v. Tnllocli, 1833, 12 S. 133, Heplmrn v. Brown, 1814, 2 Dow, 342, Hepburn v. Kirkwood, 1686, M. 5650, Herbert);. H., 1819, 2 Hagg. C.R., 203, Herries Peerage Claim, 1848, 3 ^lacq. 585, Hewat V. Wood, 1803, Hume, 210, Hibbit, Hill r., .... Hickey v. Campion, 1872, 6 Ir. G.L. 557, 20 W.R. 752, Hill V. C. of G. Bank, 1879, 7 R. 68, . Hill V. Foley, 2 H.L. Ca. 28, . Hill V. II., 1864, 33 L.J., Mat. 104, Hill V. H., 1872, 11 M. 247, . Hill V. Hibbit, 1870, 25 L.T., 183, Hobbs V. Baird, 1845, 7 I). 492, Hobson, Bailey f., Hodge V. Cooper, 1841, 10 L.J., G.P. 218, Hodge V. Eraser, 1740, M. 3119, Hodge V. H., 1879, 7 R. 259, . PA(iE 183, 184 . 335 4 . 92 . 274 . 127 401, 430, 432, 438, 440, 443, 445 197, 200 . 268 191, 244, 334 . 110 12, 102, 183, 114, 336 170 222 112 184 95 415 416, 442, 446 123 365 54 188 264 117 148 16 193 297 i41 1 -.^0 250 390 233 262 24 286 163, 191, 244 331 110 158 24 268 154 189 231 150 261, I -'^r 229, ■ xlviu TABLE OF CASES. I i 24, 343 Hoddens v. H., 1837, 4 C. and F. 323, Hodgfs V. H., 1705, 3 Hni,'^'. E.R. lib, Hod^'es V. H., 1706, 1 Esp. 441, Hoeyr. H., 1883,11 R. 25, Hoey r. PI., 1884, 11R.905, . Hoy, Lasliley r., . . . 223, Hogf.Little, IGll, M. 5955, . Ho;m V. Gow, 27tli May, 1812, F.C., Hogj,'au, Cmigie v., Hoj,'yau v. Ranken, 1835, 13 S. 461, 1 Robin Holden v. H., 1810, 1 Hagg. C.R. 458, Holmes r. Simmons, 186«, L.R. 1 P. and D. Holt V. Everall, 1876, 2 C'li. D. 266, . Hult r. H., 1868, L.R., 1 P. and D. 610, Home, Walker v., . Homfray, William r., . Honeyman & Wilson v. Robertson, 1886, 14 R Honeyniaii, Campbell v., Hood r. 11., 1871, 9 M. 449, Hood, R. i|, . Hope r. Dickson, 1833, 12 S. 222, Hope V. H. [1892], 2 Ch. 336, . Horn i: Sanderson, 1872, 10 M. 295, . Horsbrugh v. Scott, 1889, 16 R. 507, . Houliston V. Smith, 1825, 3 Ring. 127, Houston, Bartholomew r., Hmvanl c. Digby, 1834, 2 0. and F. 634, Howe V. H., 1867, 15 W.R. 498, Hoy V. Little, 1611, M. 5955, . Hudson V. H., 1875, 1 P.D. 65, . Hulme r. H., 1823, 2 Add. 27, . Hume r. H., 1862, 24 D. 1342, . Hunt I'. De Blmiuiere, 1829, 5 Ring. 550, Hunt V. H., 1856, 1 Deane, 121, Hunter v. Dickson, 1827, 5 S. 266, 5 W. and S, Hunter v. Edney, 1881, 10 P.D. 93, . Hunter r. H., 1883, 1 R. 359, . Hunters Trs., Graham v., Hurrell, Dixon v., . . . Hutcheson, Fr'estnell v., Hutchinson, Teiry y., . Hutchison, All.'.n v., . Hutchison, Gibson u, . Hutchison V. H., 1843, 5 I). 469, Hutchison v. H., 1890, 18 R. 237, Hutton V. Mansall, 3 Salk. 16 and 61, . Hyam's Case, 1859, 1 De G., F. and J. 75, Hyde v. H., 1866, L.R. 1 P. an: M'Leod, 1880, 7 R. 1131, . Jane, Paradine v., Jankouska r. Auder.«on, 1791, M. 15,868, and Janverin, Middleton v., Jardine v. (.'iirrie, 1830, 8 S. 937, Jardine, De la Jlotte r., Jarvie's Trs. v. J.'s Trs., 1887, 14 R. 411, Jellynian, R. c, . Jenner r. Morris*, 1861, 3 D. F. and J. 45, Jesson c. Collins, 2 Salk. 437, . Jewsbury r. Newliold, 1857, 26 L.J. E.x. 247, Jobson r". Reid, 1832, 10 S. 594, Johnston c. Brown, 1823, 2 S. 495 (X.E. 437), Jolinstune r. P)erry, 1725, M. 5657, Johnston i: Dobie, 1783, M. 5443, John.ston v. Ferrier, 1770, M. 8931, Johnston v. Manning, 1860, 12 Ir. C.L.R. 148, Jolmston V. Sumner, 1858, 3 H. and N. 261, Johnstone-Beattie r. J., 1867, 5 M. 340, Johnstone-Beattie, 1868, 6 M. 333, Johnston, (,'arruthers v., Johnston, Dunlop r., Johnstone, Colvin v., Jolly V. M'Crcgor, 1828, 3 W. and S. 85, Jolly V. Rees, 1864, 15 C.B. X.S., 628, . Jopp V. Wood, 1865, 4 Ue G. J. and S. 616, Justice V. Murray, 1761, M. 334, PAOE . 186 17,84 . 371 . 142 . 131 . 142 248, 310 . 304 . 147 . 262 . 289 17 . 428, 434, 436, 443 . 168 144, 197, 309 . 331 . 66, 95, 161 . 114 . 327 . 112 . 137 . 291 6457, . 211 . 351 > . 128, 132, 134, 142 . 106 . 136 . 277 187, 188 . 32 . 184 . 314 8 . 250 152, 153 2 . 188 . 186 196, 20O . 197 . 207 100, 133 . 292 11, 12,80, 81 183, 185, 189 . 384 . 197 d I •t ^ ■ ■ i TABLE OF CASES. Kattenburg, Seroka v., . Kay V. Wilson's Trs., 1850, 12 D. 845, . Kay's Trs., Douglas' Trs. v., . Keats V. K., 1 S. and T. 334, . Keerl v. K., . . . • KeL,'gie v. Christie, 25tli May, 1815, F.C., Keith's Trs. v. K., 1857, 1!) D. 1040, . Kello, Taylor r., Kelly V. K., 1870, L.R. 2 P. and 1). 59, Kelly V. K., 1863, 4 S. and T. 227, Kemp V. Napier, 1842, 4 D. 558, Kennedy v. Bell, 18G3, 1 M. 1122, Kennedy v. Bell, 1864, 2 M. 587, G M.H.L. 69 Kennedy v. M'Dowall, 1794, Fert,'. Rep. 163, Kennedy v. "Watson, 1848, 11 D. 171, . Kenrich v. K., 1832, 4 Hat^rr. E.R. 114, Kent V. Bnrjjress, 1840, 11 Simmons, 361, Ker V. Gil)son, 170!., M. 6023, . Ker, Smith v., . Ketchen v. K., 1870, 8 M. 952, . Keyn, R. v., Keyse, v. K., 1886, 11 P.D. 100, Kilj^'our, 1851,. T. Shaw, 501, . Kinfauns V. K., 1711, M. 5882, Kint; v. Iidiabs. of Birmingham, 1828, 8 Earn, King r. K., 1842, 4 D. 590, King V. K., 5 Notes of Cases, 252, King V. Lucas, 188.3, 23 CJi. D. 712, King V. Patrick, 1845, 7 D. 536, King's Case, 1871, L.R. 6 Cli. App. 196 King's Advocate, Cumming r., . Kinloch v. Rait, 1674, M. 11,;- 45, Kinnear r. Ferguson, 1871, 10 M. 54, Kirk V. K., 1875, 3 R. 128, Kirkman r. K., 1807, 1 Hagg. C.R. 409, Knight V. Robinson, 1786, M. 8815, Knight, Frost v., Knight, Gore c, Kydd V. K., 1864, 2 M. 1074, . L. V. L., 1882, 7 P.D. 16, L. V. L., 1890, 17 R. 754, Lafreis, Henderson v., . Laidlaw v. L.'s Tr.^., 1882, 10 R. 37', Laing, Paul v., , Laing, Reid v., . Lambert in re, 1888, 39 Cli. D. 626, . Lamington, Lady v. Her Son, 1682, M. 8240, and Cr 2!i, PAOB , 336 296 297 , 147 , 49 448 , 246 , 225 , 83 , 62 . 106 13, 140, 142 , 343 343 406 2 r,.32 246 310 , 46 374 , 189 , 158 75 3S3 55 , 283 184, 188 326 45, 56 123 , 4() .3(»3 117 239 , 206 , Ml 144 , 119 , 6S , 232 2^7 , 175 43, 56, 123 3 , 320 193 , 143 , 320 18, 19, 28 33! 338 , 204 I 1 I .^sa^-. Ca TABLE OF CASES. L unont's Trs., Cochrane v., l.an^ r. P.mwii, 1SG7, 5 M. 789, Liui- r. L., 184!), 11 D. 1217, . Laii- V. L., 1S(;8, 7 M. 24, I.aiiL! r. L., 186!), 7 M. 445, Laii;_'\v(irtliy r. L., 188(i, 11 P.D. 8"), . Lapi.rtu V. Costick, 1874, 31 L.T. N.S. 434, Lai)sli>y r. Orierson, 1845, 8 IX 34, 1 H. of L La,slilfy V. Hol;, 1804, 4 Pat. 581, 223, 224, Latimore v. .Simiuoiis, . Lauder. Cdlville v., Lau.IiT.lalc IVera-^'u Ca., 1885, 10 App. Ca. 692 Lau-lilaiid V. L., 1882, 19 S.L.K. 645, . Lii'irv, lii^lis v., Lautour r. Tumlale, 1816. 8 "^lunt. 830 Law, t^ilkirlv c, LawtVinl v. Davies, 1878, 4 P.D. 61, Lawrence r. L., 1862, 31 L.J., P. aiul M. 145, Lawsoii r. {Hlniour, 1709, M. 3114, l.awsdii's Tis, r. I'.rit. Lin. Co., 1874, 1 R. 1065 Lawton v. L., 1743, 3 Atk. 12, . Le ^[ar(:llant v. Le M., 1876, 45 L..J., P. and M Lc Siuiir r. Le S., 1876, 1 P.D. 13!), . L.ak r. Diiiru'l.l, 188!), 24 Q.P.D. 98, . Liarnmiilli, Miller v., Lee r. Ali.ly, 1886, 17 Q.15.1). .309, Lee /■. I'.ates, 1840, 3 D. 317, . Lt'e, .Stn;,'(l()n *■., .... Li us, TaitV Trs. r., I.i'itcli, Kalstiin c, Lenno.x r. Auehinel.iss, 1821, 1 S. [N.E. 19], Li'imard, Wri.Ljlit r., l.tjiiTs, I'liirnet c, l,r-ly r. Niehnlsim, 1725, M. 5766, Lrssiy r. Nairn, 1712, 4 \W. Supp. 880, Leslie r. L., ISdo, ^-I D. 993, . I.rslie r. Walla.v, 1708, M. 585.3, l.isli.', Main^va^ill,^' r., . L.'thani r. I'mven, 1823, 2 8. 284, Leviii r. >hint^(imery, 1683, M. 5876, . Livett r. L., 1S16, Per;,'. Div. Ca., 397, . Levy, CleLTj,' v., .... Lewis, I'.raiinstein v., licwis, Kitldut r., Lewis, Wliartnn r., Lilley r. L,, 1877, 4 1!. 3!)7, Lille'y V. L., 1881, 12 R. 145, . Lindsay, lleisleid v., 498, 343, 405, 43, 406, 222, li I'AUB . 143 . 128 72, 116 110, 121 73, 75, 122 103, 121 . 159 21, 23, 86 408, 40!), 415 . 293 . 407 223, 384, 388 . 318 . 142 387, 388 . 213 11, 397 36 . 231 . 319 . 155 . 47 345, 347, 434 . 335 . 133 . 371 . 268 . 335 221, 228 . 234 . 166 . 172 . 194 . 152 63 19 . 194 . 186 . 63 . 193 1,446 . 374 . 335 . 263 . 289 3, 76, 77, 122 . 36 . 128 ' r ■■(! ! <, 1 3': ; \ I'f ]' 1 i !■ i ' lii TABLE OF CASES. Lindsay, Stewart v., Lings, Chorlton v., Linning v. Hamilton, 1748, M. 13,909, Little, Hog v., Littlewood, Millward v., Liverpool Adelphi Co. v. Fairhurst, 1854, 9 Ex. 422, Livingstone, Fenton v., 9, 42, 351, 352, 354, 355, Livingston, Murray v., . Lloyd V. CJuibert, 1865, L.R. 1 Q.B. 115, Lloyd V. Petitjuan, 1839, 2 Curt. 251, Lloyd, Cooper v., Loch V. Dick, 1638, M. 6278, . Locliwinnoch Case, Lockyer v. Ferryman, 1876, 3 R. 882, 4 R, H.L. 32, Lockyer v. Sinclair, 1846, 8 D. 582, Loder, Connal v., Logan V. (lalbraith, 1665, M. 15,842, Lolley, 1812, Russ. and Ry. 237, Lomlon, Bombay, &c., Bk., 1881, 18 Cli. D. 581 Londonderry, Graham v., Long v. L., 1890, 15 P.l). 218, . Longworth i'. Yelverton, 1864, 4 Macij. 834, Lord Adv. v. Oswald, 1848, 10 D. 969, Lord Adv., Farquhar v., Lord Adv., Weir v., Lotliiau I'. Todd, 1829, 1 Jur. 129, Louis V. L., 1866, L.R. 1 P. and D. 23( Loury, Inglis v., . Loveden v. L., 1810, 2 Hagg. C.R. 2, Lovell V. Newton, 1878, 4 C.P.D. 7, Lovering v. L., 1792, 3 Hagg. E.R. 85, Lo»v V. L, 1891, 19 R. 115J Low ('. L.'s Trs., 1877, 5 U. JS5, Lowrie r. Mercer, 1840, 2 D. 961, Lowther v. M'Laine, 1786, M. 4U5, Lucas, King r., .... Lu.ss, CJlenbervie v., . Lyle I'. Douglas, 1670, M. 329, . Lyle V. Mackay, 1849, 11 1). 404, Lyon, Bonnor v., . , , , Lyon, Roliertson i-,, M. r. C, 1872, L.R. 2 P. and I). 414, , U. V. I)., 188,5, 10 P.D. 175, . M. (.. De B., 1875, 44 L.J., P. and M. 41, M. r. II., 1864, 33L.J., P. and M. 159, M. V. M., 1861, 31 L.J., P. and M. 168, I'Aii; . 26 . 304 . 297 . 170 . 292 • • • . 172 356, 358, 359, 391, 392, 394,415,420 ,421,425 . 198 . 383 . 379 . 188 8 . 307 321, 322 . 17, S4, 87 . 371 202, 218 . 439 . 239 . 2()3 41,42 . 19, 2.5, 28, 32, 377 . 158 . 108 . 156 . IIG . 110 . 131 45 . 159 . 53 . 343, 345, 347, 431 . 133 22 . 268 . 303 . 203 10 . 315 . 336 . 192 . 121 . 4 1 . 122 4 * . . 48 TABLE OF CASES. liii Maas V. Sheffield, 1 Rob. 364, . Macadam, Maloy v., . Macadam v. Walker, 1813, 1 Dow, 177, Macalister v. Dun, 1759, 2 Pat. 29, Macalister'.s Trs. v. M., 1851, 1.3 D. 1239, M'Alister v. M'A., 1854, 26 S.J. 597, . M'Allan v. Alexander, 1888, 15 R. 863, M'Allister v. M., 1762, M. 4036, IM'Alpinu, M'Ginty v., . Macar'i r. WilrJon, 1848, 10 D. 707, :\I'Aulay r. Bell, 1712, M. .3848, M'Anlay r. Watson, 1636, M. 3112, . M'Callum r. M'C, 1865, 3 M. 550, M'Callum r. M'C, 1893, 20 R. 29.3, M'Cally r. In^dis, 1821, 1 S. 69 [N.E. 70], M'Caithy r. Decaix, 1831, 2 Russ. and My. 614 M'Clure, Donaldson r., . ^I'Clure, Maxwell v., . M'ClurL,' V. Terry, MacCuilocli V. :\[aitland, 1788, :\I. 15,866, M'Cidl.icli r. M'C, 1759, M. 4591, 2 Pat. 33, .M'CulIoch, lUicliauan v., M'Cullocli, Tlidmson 1'., M'Diarmid, .laukson r., . M'l)!arniid, Marshall r., MacDonahl r. M., 1846, 8 D. 8.30, :\la..'l)i)nald v. M., 1863, 1 M. 854, .MaoDuiiald r. M., 1885, 12 R. 1327, . Mao Donald, Cooper r., . M' Donald, 1842, 1 Brouue, 238, M 'Donald r. M'D., 1875, 2 R. 705, M'Diaiall, Dalhousie v., . MaeDou^'al r. Wilson, 1858, 20 D. 658, M'Dou^'all V. n. oiO. Bank, 1879, 6 R. 1089, M'Doufjall V :\l'D., 1801 ; M. v. Terce, App. 1 M'Dowall, Kennedy v., . : I'Tadyen v. M'F.'s" Trs., 1882, 10 R. 285, M ularlane v. M., 1849, 11 1). 53.3, .Maelarlane v. M., 1S44, 6 D. 1220, Mad'arlane i-. M., 1848, 10 D. 962, M'Karlane, IJurthwick v., M'CJaan c. M'O., 1880, 8 R. 279, .M'CJiuty V. M'Alpine, 1892, 19 R. 935, .M'dowan, J].>vl e V. M:icUrej,'or c. Martin, 1867, 5 M. 583, . M'UreKor v. M'd., 1841, 3 D. 1191, M'dre^'iir, Jnlly r., M'lnnes r. More, 1781, -M. 12,68.3, 2 Put. App. 598, PAOE . 337 . 29 8, 16, 31 18 . 205 . 197 192, 193 . 188 . 159 115,237 . 221 . 232 . 317 . 323 248, 310 . 439 . 406 . 406 79 . 206 22, .377 . 306 . 267 . 168 . 128 . 264 . 29 50, 55, 297 . 233 . 279 102, 448 . 384 308, 310 147, 414 . 204 27 212,21.3,227 . 69 . 104 104, 117 . 247 61 . 169 . .304 . 188 . 118 U, 12,80,81 . 82 ^'■, liv TABLE OP CASES. ! I i I M'Intosh V. Macrae, 4 S.C.R, 317, M'Intosh V. Shillinglaw, 1829, 1 Jur. 135, M'Intosli, Muirhead v., . M'lutyre v. M.'s Trs., 1865, 3 M. 1074, M'Iiit}Te, Webster v., M'Lsiuac, AValker v., M'lver V. M'l., 1859, 21 D. 1103, Mackay v. Allan, 1868, 40 Sc. Jur. 221, Mackay, Lyle v., ... Mackay, Waketiekl v., . Mackenzie v. M., 1881, 8 R. 574, Mackenzie v. M., 1883, 11 E. 105, Mackenzie v. M., 1892, 20 R. 636, Mackenzie v. M.'sTrs., 1873, 11 M. 681, Mackenzie v. Stewart, 1848, 10 D. 611, M'Kenzie, 1628, M. 15,838, M'Kenzie v. Ewing, 1830, 9 S. 31, M'Kenzie, Bailing v., M'Kenzie, Dawson v., . M'Kenzie, Dennis v., Mackoul, Sliepperd v., . M'Kowl, Bedford v., Maclachlan v. Watson, 1839, 1 D. 1177 M'Laine, Lowtlier v., Maclean v. Cristall, 1849, 7 X. of C. Supp. XVII M'Lean v. Angus Brothers, 1887, 14 R. 448, M'Lean, Cameron v., M'Lean, Elder v., M'Lean, Malloch v., M'Leish v. Rennie, 1826, 4 S. 485, M'Leish, Htoole i;., MacLeod, Monro v., M'Leud V. Telfer, 1820, Ilunie, p. 10, M'Leod, Jamieaon r., M'Leod, Ross t;., M'Lurg, Martin v., M'Millan v. M'M., 1871, 9 M. 1067, M'Millan, M'Quail «., . Macnal), Buchanan v., . M'Nuill r. Steel's Trs., 1829, 8 S, 210, M'Nish 1'. Donald's Trs., 1879, 7 R. 9G M'I'hersnns v. Graham, 1750, M. 6113, M'giiail V. M'Millan, 1676, M. 5874, M'Queen i\ Dunn, 1874, 2 R. 3, M'Quillan v. Smith, 1892, 19 R. 375, iMacrae, M'Intosh v., Macreight, in re, 1885, 30 Ch. D. 165, Macreight, Paxton v., . 30, FAOB . 261 27 . 283 222, 269 . 94 . 296 76 . 312 . 315 88 76 . 38 40, 63, 99, 321 . 228 17, 26 . 203 . 316 . I8r) . 137 . 288 115, 116 . 298 . 132 . 268 388, 389 . 176 260, 261 . 20 . 153 216, 217 . 288 . 194 . 108 . 137 26, 27, 32 . 305 110, 111, 114 . 192 . 297 128, 132, 258 . 147 . 140 . 192 . 306 . 314 . 261 . 384 . 384 TABLE OF CASES. Iv I M'Vicar, Pattison v., . M'WiiltiT, Rt'id v., Madau i'. M., 1867, 37 L.J., P. ami M. 10, Mainwaring v. Leslie, 1826, 2 C. and P. 507, Maitland, MacCullocli v., ^tale V. Roberts, 1800, 3 Esp. 163, Mallac, Simoninr., . . . 356,357,358,360, Mallinsou r. M., 1866, 1 P. and D. 93, . IMallocli r. M'Lean, 1867, 5 M. 335, Mallocli, Blair v., Maloy V. Macadam, 1885, 12 R. 431, Maltass V. M., 1844, 1 Rob. E.G. 67, . ^laltass r. M., 1842, 3 Curt. 231, Manby r. Scott, 2 Smith's L.C., 9th Ed., p. 466, Mainiin;4 v. M., 1872,6 Ir. Ecj. 417, Mainiin- v. M., 1871, L.R. 2 P. and D. 223, MaimiiiL;, Johnston, v., . Mausall, lluttdii r., Mansliold v. M., 1889, 43 Ch. D. 12, . Maiitou r. M., 1865, 4 S. and T. 159, . ]\Ia,-iiay r. Campbell, 1888, 15 R. 784 and 606, March," in r,; iss.3, 24 Ch. D., 222, 27 Oh. D. 166, Marjoribanks, O'Connor v., :\lar'risr. M., 1862, 31 L.J., P. an[. 781, Matthews r. .M., 1869, I S. an- 1 T. 499, Matthews, Dunn c, Mawe, Elwes c, Maxwell r. M'Clure, 1860, 3 Maci. 852, Maxwell, Scott r., Mea 132, 204, 407 . 103 . 176 . 338 . 319 3 . 185 . 198 . 277 . 215 59, CO . 287 . 321 » . 17t> O'R Orr Osw Os\\ Ott; 0ns Out Ox. 0/a TABLE OF CASES. O'Eourke v. O'R., 1849, 11 D. 976, Orr, Aitkens v., .... Oswald's Ruprs., De Bloiiay ;'., . O-waltl, Lord Adv. v., . Ottaway v. Hamilton, 1878, 3 C.P.D. 39.3, Onsey v. 0., 1875, 1 P. and D. 56, Ontrani, Asliwoith v., . O.xenford ;;. O., 1664, M. 6136, . Ozard c. Darulbrd, Selw. N.P. 229, Paj,'an v. P., 1883, 10 R. 1072, . Palliser v. Gurney, 1887, 19 Q.B.l). 519, Palmer r. Sinclair, 27tli June, ISll, F.C., Palmer, Steljlnns v., P.iradine r. Jane, Aleyn, 26, Passur, Read c, .... Pater.:, Read )•. Passer, 1794, 1 Esp. 212, Reddin- r. R., 1888, 15 R. 1102, . 36,39, Ree 170 346, 317, 441 , 334 , 47 • 47 ' .1 * ..!JU -•34 , ;{ i .•) . 207 353, 365 , 276 , 180 212, 216, 228 26,2^ ',32 . 323 . 52 . 298 353, 365 157, 206, 230 , 399 68 95 309, TABLE OF CASES. Ro.\1)iirf;lie i\ T5., lOtli Jan., 1816, F.C., IJoyal I'.ank, Gardyne v., lUulini,' /•. Smitli, 1821, 2 Haf;-. C.ll. 371, lUissfil i: Putersiiii, 1()29, M. 5955, Kus^^.ll r. 11, 1874, 2 R. 93, Rus.^ell, l'ater.sou v., Eutlierfonl, Stoddart v., S. V. A., 1878, 3 V.T). 72, S. r. B.,1884, 9P.]). 80, St. Ceiir^'c r. Wakf, 1833, 1 M. ami K. 610, Samson, Lilovt'i' r., Santk'isoii, Ildi'n v., Santo Teodoro i;. S. T., 1876, 5 P.D. 79, Sar^'uant, R. v., . Sassi-n r. CampViell, 1824, 3 S. 159, 2 W. and S Sa^si-n r. Cam|)bull, 2()th Jan., 1819, F.C., Saul r. His Creditors, Sawei's V. Fonvst, 17SG, Suhoolliread r. Jiak.r, 18G7, 16 L.T. N.S. 359, Suliumann c. Scottish Widijws' Fund, 1880, 13 E. G78, Scoon, (Jibson ?•., Scot c. Panks, 1628, M. 61)1.5, . Scot, Annandalc r., Scot, I'arday v., .... Scot, Riddcll >:, .... Scott, 1S()6, 4 M. 1103, . Scott V. Att.-(ien., 1886, 11 P.D. 128, . Scott r. Maxwell, 1851, 13 T). 50.3, Scott r. .Morley, 18S7, 20 Q.P.D. 120, . Scott c. S., 18()5, 4 S. and T. 113, Scott r. Scbn^ht, 1886, 12 P.D. 21, Scott, Arnold v., Scott, Horsbruj,'!! v., Scott, Mauliy c, Scott, Rollers /•., .... F itt, Taylor c.,. Scott and" otlier.s, 18tli July, 1893, X.R., Scottish Widows' Fund, Schumann v., . Scrimshire r. S., 1752, 2 Ilagj,'. C.R. 395, ScafieM r. S., 8th Fel)., 1814, F.( '., -, arle i: Price, 1816, 2 lla,u'-,'. C.R. 187, Seath V. Taylor, 1848, 10 1). 377, Sehris^ht, Scott v., Selkirk v. Law, 1854, 16 D. 715, Sempill, Gordon v., Seroka v. Kattenburp;, 1886, 17 Q.B.D. 177, Serrell v. S., 1862, 2 S. and T. 422, 145 Ixiu r.\iiG . 204 208, 209 379, 387 . 170 . 235 . 58 . 162 4 107, 121 . 195 55 . 313 . 434 . 279 82, 120 . 120 366, 412 . 26 . 185 . 303 248, 249 . 273 . 207 . 216 . 250 . 320 395, 440 . 115 . 335 . 97 91, 93 . 128 174, 252, 253 . 182 . 234 . 374 . 196 . 303 361, 362, 374 . 268 12 . 227 91, 93 . 213 . 189 . 336 . 48 m ']■■ '■.■l'J»> ■if" !, :! \ ;■ » * - 3iiil 0|;1 a Mi , ! ■ i 3 ' I! i . |l I ! I Ixiv TABLE OF CASES. Seton, Norton v., Hewell V. S., 1862, 31 L.J., P. ami M. 55, Sewell, Caiumcll v., Seyton, in re, 1887, 34 Cli. D. 511, Sliairp, Aulil v.,. Sliaml r. S., 1832, 10 S. 384. . Sliai;il, Amierson v., Sliarp r. Paton, 1883, 10 R. 1000, Sharp, Wri.Ltlit v., ■ ■ ■ 81iaw V. Att.-Gcn., 1870, 2 P. aii.l D. 15(5, Sliaw r. Gduld, 1868, L.i{., 3 E. ami I. App. 55, Sli/'w, Uraml v., . ,S]ia>" JIt'tcalfe v., Shuarer r. Christie, 1842, 5 1). 132, ShcMMaii. 1802, M. 11,855, Slu'ltii-M, -Maas r., Shtphenl, ex parte, 1879, 10 Cli. D. 573, SliqilK'nl )'. Mackoul, 1813, 3 Camplu'll, 326, Slicppai'.l's Trs. v. S., 1885, 12 K. 1193, Sliiliiiii,'law, M'Iiito.«h r., Siiirer c. Dixcii, 1885, 12 R. 1013, Sium'v r S., 3P.\V. 276, .SidiR'V /•. S., 1865, 4 S. au.l T. 178, Sim (•'. Milus, 1829, 8 S. 89, Simnidiis, Holmes v., Simmons, Latimore r., . Simonin r. Mallae, 1860, 2 S. and T. 67, 356, 357, 3 Simon's Trs. r. Neilson, 1890. 18 R. 135. Simp.son, Miller c, Siinsoii's Trs. v. ]5ro\vn, 18i)0, 17 R. 581, Sinclair r. Richardson, 1677, M. 5984, . Sinclair, Clement *•., Sinclair, Lockyer v., Sinclair, Palmer v., Sinlijee, Ross r,, Sleigh r. S., 24th May, 1893, N.H., Slei^di r. S., l.S!)3, 30 S.L.R. 272, Smallwood i: S., 1861, 2 S. and T. 397, Smart r. Ilbtrry, 1842, 10 M. and 1). 1, Smith i: Prier, 1857, 19 D. 384. Smith I'. Kerr, 1869. 7 M. 863, . Smith V. S., 1874, 1 R. 1010, . Smith r. S., 18(13, 4 S. and T. 228, Smitii r. S.'sTrs., 1884, 12 H. 186, Smith r. Stoddart, 18.')0, 12 1). 11S5, Smith r. Woodtine, 1857, 1 C,]!., X.S. 660, Smith, Rinnv c. PAOK 3 43 . 371 . 302 , 293 69 . 169 . 137 13 12, 440, 441, 442 12, 54. 421, 425, 430, 437, 438, 440, 441 78 . 184 . 140 . 26S . 337 . l.'')9 115, 116 . 156 27 77 . .34(» 110, 111 27, 28 . 328 . Jli3 S, 3(iO, 3(.l, 374. 3!).-i . 226 43 . 147 . 167 42 17, 84, 87 . 2G9 . 298 . 317 . 75 59 . 180 . 247 . 1B8 . 102 . 106 131, 136, 11 s . 315 21M, 2;»5 184 ^' TATTLE OF PASES. Smith, Brown v., .... Smith, Caiues r., .... Smith, E.sto v., . Smith, IIouli.stnn v., . Smith, M'Quillun r., .... Smith, Mos.s v., ..... Smitl;, 11. /•., ..... Smith, lliitliiij,' (;., .... Smiths, Milne v., .... Smytli r. S., 1824, 2 Add. 254, . Snow, (loddiinl c, .... Soiidy, I'role >:, ..... Solicititr to Tivusury, Vauclior c, S()licitor.s-at-L.i\v, Aitcliisdii c, . Soinervilh''.s Tis. r. Dick.-^oii, ISC'), ;} M. ()02, 5 M. II. I Somncr r. S.V Trs., 1871, !) M. f)!)!. Son, DunlVrnilint' c, .... Son, Laminj^ton c., .... Sopwilli r. S., 185!), 4 S. and T. 24:5, . Sottonmyor r. ]\- I'.aims 1877, 2 IM). 81, 3 IM). 1 ; 1 :i')3, 3r,(;, ;j5!), ;j(iO, ;if;i, 3()3, :$( Southcvk, llobini< r., .... Souttt'M, iVaiv r., .... Sponci', Durham c, . . . . Stair t: Head, 1844, (i IJ. !)04, . Standard Invf: tnicnt Co. v. Cowo, 1877, 4 H. 095, Stall' lit' 'riiuif.-^.^ci', lV'nni'j,Mr c, Stavirt V. S., 1882, '.) H. 5I!», Hi), 127, 12!», 4:10, 43 ,, I Sti4)l)ins V. i'alnui', .... Sti'i'dman '■. City (d'CIas^dw I'.ank, 1*^71), 7 U. Ill, Stwdman r. S., 1887, 14 H. (182, Stoil r. S., 1835, 13 S. lO'.Ki, Stwl r. S., 1888, 15 |{. 81)(), 3(1, 3!), 3 Sti'ole r. I'.raildfll, 1838, Mihv. 1, 3 Sni. and (!. 3(12, Stei'li', Caldcr r., .... Stoid'rtTr.-^., M'.N'fiU r., . StL'iil'on.'*, Kraniiiton c, SIi'IiIr'H, Stewart c, .... Sti'uart Piirnuit, Tr.s ..t, ,. I). S., 18!)1, 18 |{. 1114. Stiiiart r. S., 187(», 8 M. S21, . Stunart, Iloln'rt.son /•., .... Sttven t\ S., 1882, !) 1{. 730, Stfven.x r. S., 1881, 18 S.L.h'. (iOl, Stovenson r. ilaniilton, 1838, 1 I). ls|, Stiivcnson v. S., 1st Marcli. 18!)3, N.IJ.. Sti'vcnsoii, .Mcnziii's c, . . , , Stewart, 1845, 2 IJronn, 5 11, . Stvwurt (. ('iini|ilitdl, 18(i!), 8 .M. 13, . Ixv I'AllK . 384 . 287 . 37!) . 187 . 314 . 328 . 277 37!), 387 273, 274 . 103 . 195 . 330 423 Ui, 22 J. (ii». . . 128 . 144 203 . 204 45 87!), 5 '.D. !)4, 1 5, 375, 3!)7, 3!)8, 3!)!) . 170 . 187 . 288 . 415 128, 2 It), :;5t;, 257 . 3!)5 ;',3, 135 437, 112,417 . 21)3 2;!S, 240 . 122 . 324 13, 382, 127. 13.5, 442 . 3118 . 247 128, 132, 258 310 225, 415 (iC, 73, 75 17 Ti\ 1 / , i it . 321 00 . 301) 7, 8, !)2 4iJ » . 305 .':! • «•.'■! i I ^ I' ' t j :; ' I I XVI TABLE Of CASES. Stewart v. De Voto, 1878, N.R., Stewart r. Limlsay, 1818, Huiue, 380, . Stewart v. Menzies, 1841, 2 Hob. App. 547, Stewart r. Robertson, 1874, 1 R. r)3i', 2 R. ILL Stewart r. S., 18C3, 1 M. 449, . Stewart t: S., 1887, lo R. 113. . Stewart r. Steplieii, 1832, 11 S. 1:11), . Stewart r. Watson's Hospital. 18(i2, 24 D. 2.")n, Sli'wart, ^Fackenzie r., . Stewart, AVilkie c, Stiekland r. S., 1S7(), 3") L.T. 7(17, Stirlin- r. LVawtunl, 171G, M. Olll. . Stirlint,', 3luir r., Stoeken r. Patrick, 1873, 29 L.T., N.S. 507, Stotblart t». Rutlierfonl, 30tli June, 1812, F.C., Stotldart, Smith v., Sto,ur,l,m V. Lee [1891], 1 Q.R. (Jdl . Stone r. S., 1844, 1 Rob. 99, . Stones c. Couke, 183'"-, 8 Sim, 321, Stoole /■. M'Leisli, 1870, S M. (il3, Stool, Evans v., . . . Story V. S., 1887, 12 I'.I). 196, . Strain v. S.. 1885, 13 1{. 132, . Strain v. S., 1890, 17 I!. 297, . Strain v. S., 2 S.C.R. 108, Stratliiuore r. Howes, 1789, AVIiite and TuibirV Stratliniore's Trs., Kwin^' ''., Stratlimore, I''orln's c, . Stnri^'eon, Murton c, Suj,'!,' i\ S., 18(il, 31 N..I., 1'. and M, 41. Sui.',Lrate r. S., 1859, 1 S. and T. 492, . Siiiiivan v. S., ]8|8, 2 lla-g. C.H. 238,. Sumner, Jdjinston c., Surman r. Wlnirton [1891], I (.U!. 4!)1, Siirtecs /•. Wiitlierspoon, 1S72, 10 M. 8(;(! ; 18 Sussex Peerage CaM', 1844, 11 ('. and F. 85, Swinton, Mead r., Sykes, (!lnene /'., Symc, Derliy c, . . . , Symin,L,'ton, 1h75, 2 R. 974, Symington /•. S., 1874, 1 |{. 871,2 11. II.L. 11. Syiin'nf^lun r. S., 1875, 3 W. 2n5, Symin-^ton w. S., 1871, 1 i{. jOOd, T. ».. 1). 18(5(J, I I', and I). 127, Tainsli's Trs., Donaldson c. Tail's Trs, ,-. Lees 188(i. 13 l(, lloi, . 80, L.C.I, 1, 1 1 M 17 3SI, 112, PAOK , 394 , 26 7, 32, 83 297 , 85 100, 118, 321 in. 112 22() 152 1 7,26 192, 1!)3 194 37 1 •> 1 128 117 162 , 315 335 , 51 » 114 , 288 293 , 55 59, (M, (if) , 58 261 195 168 375, 376 , 330 , 52 .50, (i7 . 88 , 186 , 339 27, 2S , 32, 350 w4 it 3!)7 , 201 » 407 , 112 , 77 7 I. 75. 112 , 113 117, 118 212, 213, 227 22 1 . 22H 1 1 ■ ;^M TAHLK OF CASKS. I X \' 1 1 i i Taylor r. JJrittiiii, 1S23, 1 C. and 1'. K! „., Taylor 7-. Green, 1837, S (". aii.l l\ liUi, Taylor r. irai'-'ue, 1882, 47 L.T, 440, Taylor r. Kel i7S(!, M. 12,f;87, 3 I'at. A\)[>. '>(i, Taylor?-. So 1847, i) 1). 1504, Taylor r. T., 1871, 10 M. 23, . Taylor, Seatli c, Tawse's Kxtrix., Morri.-on v., Tca-le r. T., 18r)8, 1 S. and T. 188, Teakl", Keiieaux v., Tecsdalf, Lautoiii' c, Teller, .M'i..'od /•., Teiiiiiaiiy r. llakiwill, 18r)8, I l'\ and F. 138, Teini.lcton r. Tyree, 187:2, !..!{. 2 l\ and I). 420, Tenants of Ni'Wtoii, Moncriet' c, Tennant r. T., 1883, 10 H. 11S7, Tenneiit r. T., 188!), IfJ K. .sTC, . Tennent -•. T.V Hxrs., K! H. 870, 18 1{. ILL., Tennent, Welch c, Tennessee (Slate (ir\ I'elineuar /•., Terry r. iiulLliin>on, 1808, L.ii. 3 (,».);. ;V.)1J, Terry, M'Clnr- r., Tlinni V. T., \K>-1, 14 I). 801, . Thninas c. City n|'(!. 15ank, 187;), II. 007, Tlionias V. (iordoii, Ls2'.), 7 S. 872, 'i'lumias, Diinean's Trs. c, Tlioniiisdii r. T.. IS07, L.i{. 1 I', and D. r.,-.3, Tli.iinpson r. T., 18!)0, 17 U. 10!)1, Thompson, Cherry v., Thoniiison, Turner r., ThdiMiison's Trs. r. T., 1^7!), K. 1227, ThoiM.-nM r. I'.nlhiek, !)lh Dec, 1830, !■".('., Th(iiM>on r. M'Cnilneli, 177.S M. 131, . Tiioni^nn r. 'I'., 1838, IT. S. 041, Tii.inisdn r. T., 1887, 14 i{. 034, Thonis.in'.s K\y. r. T., 1SS2, !) IL IM ., . Tiiorliiirii, 1841, 2 liroun, 4, Thrniii) r. liariuan, 1834, 3 .M. and K. ,".13, Til)l)ells *•. T., 1802, 24 D. oltK, . Tinmiin.^'s r. T., 3 llaj.,% H.ll. 83, Tippin:.,' i\ T, 1 W Williams, 72!), Todd V. Armour, 1S82, I) 11. !)01, T.Mld r. T., isOti, L.I!. 1 P. and D. 121, Tddd, Lotliian r., Tullemaehe /•. 'I\, ls,-,!i, I S. amlT. h^u, Toiilal's'l'msts, 1883. 23 Ci:. |). ."i32, . Topliam c. Mar.-liall, M. App. r. Inliiliilioii, No. 2 i,l8U8;, Towells, KdwiU'dK /"., . . , TAIO: 184 273 l,s8 83 374 144 . , 227 lo!) :>(\, 123 183 387, 388 108 1S7 1)1 2n2, 203 45 1 .)7 13!i, 410 1 1: < 4 17 I3!i, 3;;2 117 3!).j , 21)8 71) 1 1 *7 237, 1 .'< 238 • ) 1 J 1 loU lOS 110 2S8 313, 440 447 130 1 r.8 , , 41 207 131, 132 4 i, 71 137 , 27!) 203 lid, 122 41) , , 203 371 i".3 , , 110 ol 438 , 382 , ^ 18!) . 18(i l\\ ' p 0': \> I ! I h ■'-, H- Ixviii TAHLK OF (;ASES. Trail, Fea v.. . Treasury Solicitur, Vauclier v., . Trel'usis, Clinton r., Trolawncy v. Coleman, 1817, 2 Stark, 1!)1, Trevelyan r. T., 1873, 11 M. 51(i, Trotter r. Ilapper, 1888, IG R. 141, . Tnlloch r. T., 18G1, 23 D. G39, . Tulloch, Henderson's Trs. r., Turubull, 18G4, 2 M. 402, Tiirnbull, Curric r., Turner r. ]\[eyers, 1808, 1 IIat,% C.R. 414, Turner *•. Thinupson, 1888, 13 P.D. 37, Turnley v. Watson, 1832. 6 W. ami S. 271, Turton r. T., 1830, 3 Uiv^^^. E.R. 338, . Tyree, Tenipleton r., Twisleton, Monroe r., . Udny )'. v., 186!), 7 M. ILL. 8'.), UHee, in iv, 188G, 03 L.T. N.S. 711, 54 L.T. N Urquliart r. liuUertield, 1887, 37 Cli. D. 357, Urnnliart, ]5orlhwick r,, Vansittarf r. V., 1858, 27 L..i. Cii. 28!), A'ardiil, liirtwliistle v., . Vauclier r. Solicitor to Treasury, 1888, Cli. I). 21G, Veitcli, Blackwood v., . Veness, Vineall ?•., Vineall r. Veness, 18G4, 4 I', and V. 344, W. r. }{., 1870, 1 IM). 405, Waddell V. W., 18G2, 2 S. and T. 584, . Waddell?'. W., 1837, IG S. 79, . Waddell, Brownlee r., , Waddell, Corbet ;•., Waitlinian v. Wakelield, 1807, 1 Camp. I I!), Wake r. Hall, 1883, 8 App. Ca, 1!»5, . Wake, St. Ueorne c, . Wakefield r. Mackuv, 1807, 1 llag-j;. C.IJ. 3!)1, Wakefield, U. r., . . . Wakefield, Waitlinian c, Waldei,'rave lVerai,'e Case, l,s37, 4 C. and !■', (i:i!t. Walker v. Home, 1827, (1 S. 204, Walker r. M'Adam, l'^07, Mor. App. r. I'rodf, Xo. 4, Walker r. M'Isaac, 1857, 1!» I). 34u, , _ , Walker r. \V., 1871, !) M. 4G(), . Walker r. W.. 1871, !» .M. I()!)l, Wftlker'.s Kxrs. r. W., 1878, 5 if. !)Gn, . rxoB . 21.'> . 423 22!), 230 . n.'j 405, 4()G . 2!)5 4(), 324 . 141 . 271 18 7. S, !)0 343, 440, 1 17 . 274 . 52 . i)l 342, 354, 3(i5, 403, 423 S. 2.S(i, 3!)(i, 421, 422 . 342 . 312 1813,5 l'at.( 134, IGl 425 40 305 2SG 28G 6 . GO . 312 . 24!) 1 1 5 . 1 84 . 154 . 105 . 88 . 87U . 18t . 37!» . !(!7 75, 8, IG, 31 . 2!IG I 23 45, 324 135, 141 TAltLK OK CASES. WalkiT, J"'riisei' v., Walkor, (Jiay v., Walk"!', Macadam c, Walker, UL-niiif r., Wallace, ]5r(iiiiley r., Wallace, Leslie r., Waiii|pliray, KJC!), -2 I'r. Sii|i]i. 1 in, Waidlaw, (.,'aiii])li('l] c, . Wardlaw's Trs. r. \V., l,sH), 7 i;. InTd, . Waiiii',' r. W.. IS] 3. t2 lla.L'-. CI.'. ]"> I, . Warreiider r. W., Is;},'), -I S. ami M. I.". I, Watson r. Darling', IS2:), 1 W. and S. I8S, Watson r. W., 1S!(0, 17 IJ. 73(;, Watson, Kennedy c, Watson, M'Aulay /•., Watson, Maclaclilau r., . ^\'atson, I'linirose r., \\'ats(in, 'rnrnley c, AVatson's Hospital, Stewait c., . Watts r. W., iss:,, \-2 1!. s-.t I. . Walls r. Wilkin, Iss:,, i:{ I!. i;|s, Wauciiope r. W., 1S77, I i;. !tl."), Welili, 1{. /•., .... Weber r. W., Is,".^, 1 S. and T. ill it, Webster r. M'lntyre, . Weir r. Liinl Adv., I^fi.'t, A M. Hkh;, Weloli r. Tenni'.iit, |S!>1, IS i;. II. h. 7i'. Weniyss r. W., ISC*;, 1 M. (U'ld, Wensliall r. .Mcr-an, ISSS, :2() (,>.!'.. I ). CX,, West r. W., lS7(i, L.I!. -J P. and I). l!Ki, Westniealll r. W., "J ll;i:-. Ivl!. o."., Wharton r. Lewis, ISJl, I ('. and I'. :>-2'.K ^VIlart(ln, Snrinan ''., Wheeler /'. W., Isv.t. II I M ), I. -.7, Whield.m r. W., ISC.I, -J S. and T. .iss, \Vliile r. W., IS,-)!), 1 S. and T. .".'.(I, White, .Mnllen, r.. White, N. 1). IJy. Co. ,„ Whittak.'r, In i;\ |Ssl>, J| Ch. |). (;,-,7, . Whyle r. W., I sill, Is |{. .Jdlt, . Whyte /•. W., I SSI, II K. 710, . Wi-ht /■. Dewai', IS::7, o S. .".lit, Wij^'ton ". Kleniin.L,', 17 js, M. .'i77l, Wilkie /■. |)unln|., |s;n, I li S. oOC, Wilkie i: StewMil, M;7S, .M. riS7(;, Wilkin, Watt.s r Wilkinson r. H.nn, ISSii, s II, 72, Ixix I'AdE 14!), 150, 1!)8 . 151 S, 1 1, 31 . 2(i!» . r>') . 1!)4 217, 21!) . 204 . 157 5!) i,;i44, ;}i.-.. 317, 372, 3!)0, 3!J1, 10 1, 103, 1-27, 432, 440, 445, 447 . 102 31, 35 24(5, 310 . 232 . 132 . 1G7 . 274 . 152 3 IS, -132, 43H . 232 384, 407 . 277 . 10!) . !»4 . 150 13!), 332,417 . 52 . 1(14 . 124 . 70 . 28!) . 33!) 43 110 (17, (is . 273 . 31!) . 15!) . 323 15, l(! 178,312 . 2()2 . 3(;(! l;t2, 11)3, 11)1 . 232 . au :i::i m Ixx TAHLP; OB' CASES. * I Wilkinson r. (^.ordon, 1824, 2 Add. U)2, AVilkinsoii v. W., IS t5, 4 N.C. 295, . Willeyt'. W., 1884, 11 i{. 815, . Williams' Case, 1875, 1 Cii. D. 57(i, . Williams r. Fuwler, 1825, Miicclel. and Y. 209 Williams r. Homfrav, 18G1, 2 S. and T. 240, Williams ?•. W., 1798, 1 Ha<,',^. CM. 303, Williams v. AV., 1804, 3 S. and T. 547, Williams, R. v., .... Williamson r. W., 1800, 22 1). 599, William.son, Aucliinlock n, Williamson, Chamlierlain n, Willis r. Bmiiird, 1832, 8 I'.inj,'. 37<;, . Willis, Nelson & Co., FerL;uson'.s Tr. r., AVillock V. Noble, 1875, 7 E. and Ir. App, 580, Willox r. Farrell, 1849, 111). 1206, . Wills, De Greucliy v., . AVilson ?'. Cowan, 1868, 7 M. 299, Wilson V. Ford, 1868, L.R. 3 Ex. 03, . Wilson r. W., 1849, .Mooiv, V.C. 484, AVilson r. W., 1872, L.K. 2 V. and 1). 43.-). Wilson, Forljcs r., Wilson, Macara v., Wilson, Macl)ou,L;al c, . Wilson's Trs., Hay v., . Winchcombe r. W., 1881, 8 li. 72(;, Wisliart r. C. of (!. 15k., 1879, G 1.'. 823, Wither, Rankin v., Witt V. AV. [1891], P. 103, AVood r. AV. , 1 882, 1 9 S. L. 1{ . 03 1 , AVood, Davitlson r,, AA'ood, Ilewat r., AA'ood, Jojjj) c, . AA'ood, ^lid},'e]ey c, AVood, Milne v., .... AVooiI, Ueeve '•., .... AVoodline, Smith c, AVoods r. \V., 1840, 2 Cnrt. 521, AVoods r. W., 1884, 10 IM). 172, AVooIricli, (,'onnilly c, . AA^jthcri^jHion r. AV., 1809, 8 M. 81, AVothersjiooii, Surtees r., AA'ri-ht, ?» rr, 1850, 2 K, and .1. 5!).-., . AVri.ulit r. iiurley, 1847, 9 1). 1151, AVri},dit r. Leonard, 1801, 11 (M!. N.S. 2.-.S, AVri^'lit c.Shar]), 1880, 7 11.400, AVrij^ht V. AV.'.s Tr.s., 1837, 15 S. 707. AVriKlit,Cr..sbie'sTrs. r, PA 123 1 33 1 ~.) 1 ( J 13 11 . 1.37 TAHLE OF CASKS. Wrij,'hl, (iiiurli\y c, Wii-ht, Hall r., Wri^iit, Y(mii<,' v., Wri-lit's Exrs! r. C. of ({. IJk., 18S0, 7 H. 0-27, WyVi.mrn, Pollard c, A ill row r. V. [18!)2], V. !)2, Vcatnuui r. Y., L.U. 1 1'. and D. 48!), . ^'ldvertoll, Loiigwortli r., Voomaii r. Olipliant, KIGO, .M. 15,813, . Voiiii',' /'. Cooiier, iSii,-), 4 S. 81 (N.H. Ki . Vouii^' r. Naylor, Vomi;^ r. Wri-lit, 188(1, 7 U. 7C.(i, VouiiL,' r. v., ISSl, 10 H. 1S4, . Vouiig, Alli'U r., Vouiii,', ( JiU'pratte v., \'iil(', ( li'iiniiil r., 1:58, 1 -, 148, Ixxi I'AdK 228 291 262 I(i7, 238,23!) 19,25,28,7 42 39 1,377 215 115 13 202 38 90 371 2G2 ■i- -i ■ ,Ji!, • ■f.i' ■ 1 m ABBREVFATroNS. The following text-books are referred to by the iiiuno of the Author :— Hiahop on Marriago, Divorce, and .Separation. I'mrge's Commentary on FoniLiii ;in(l ('(ilnnial L;i\vs. Dicey on Domicil. I'hillimore's International Law. Westlake's Private International Law. Story on the Conflict of Laws. Fraser on Husband and Wife is cited as Fr. Wiiere the defender's name is the Siinie as the piirsiiii"s it is referred to by the initial letter — €.[/., IJaktr v. B. ERR.VTA. Page 10, line 5, /or Act Ifino, c. 29, raid e. LIO. „ 12, note '', for Sliaw v. AU.-lhn., 2 P.l).. raid ■> V. ;ind D. ., 13, note '",/or Piirtmnonlh, 1 llagg., raid 1 llagi,'. llll. „ 22, note \ for 6 Apji., ratil G Apj). (":», „ 46, note ', for ManluiU, 9 R., nad S 11, „ 49, note ", /or T'i'wmmy,'), 3 Hagg., me(/ 3 Hagg. K.K. ,, .'iO, note ', for Popkiiu, 1 Hagg., rend 1 Ifagi;. C.l{. „ 55, note ", /or tWcnifl, i C. and P., :ii)l, ronl ."lOl. ,. 105, note ■'',/or 2 L.U., P. and J)., read L.U. 2 P and D. „ 107, note ' and note '•.for 1 L.U., raid L ii. 1. ., 110, note '■, /or 6ou/.s, 1 L.H., read Louis, L.l{. 1. „ 12\, note ■', for Xa-.rcK, raid Lay r(>i. „ 132, note •', for cases, read ease. „ 154, note -, for L.U. 55, raid L.K. 5. „ 162, note ', for Paierson, raid PntlUoii. „ 211, note "'.for JaiikotisLa, raid Janhoimka. „ 213, note \for Oihmi, 15,869, raid M. 15,809. ., 365. note •',/)r Ihllimnm, raid /fiHimnn. „ 384, note \ for Ihillioitnie v. M'lhnall, raid M'DoikiII. „ 397. The statement as to the necessity fen' twenty-on.. days' reai.lence in Scotland by one of the parties f.,r the validity of an irregular marriage entered into by foreigners, (l,,es not .'xtend to an irregular marriage by promise, mbucqiicntc coimln. , 421, line 15, f,r status as a rule must be, raid nnist not be. CHAPTER I. TIIK ("OXSTITL'TIOX OV MAIU'JACi:. If' I:.! Definition of Marriage. — Mcarriagc is the voluntary union for lit'u of one man and oiu.' woman, to tlic exclusion of all others, entered into in some form recognised by the lex loci as sufticient.' It is not merely a civil contract, but is rather a status, the gate of which is a contract. The contract once validly made, the parties must accept tlu* incidents and consequences attached by the law of the man's domicile to the status of marriavi'. In the words of Sir James Ilannen,- "very many and serious difficulties exist if marriage be regarded only in the light of a contract. It is, indeed, based upon the contract of the par- tics, but it is a status arising out of a contract, to which each country is entitled to attach its own conditions, both as to its creation and duration." Christian Marriage. — The lawful union of a manand woman, in any Christian country, confers upon them the status of husband and wile throughout Chrisl iidoni. I'lUt such an union in a country in which polygamy is lawful, will not be recognised by our Courts as marri.'ige, miless tlu; intention of the parties to contract a Christian marriiige be clearly proved." The expres- sion, "(Christian marri;ige," used in many of the ca.ses, imports no mori' than the kind of marriage rccogni.sed in Christendom : and a marriage, celebrated in Japan, between a domiciled Englishman and a Japanese woman, was held valid in Eng- land, (in evidence! that the forms of the lex loci had been ' Its iiatiMr is (li.sfii.-sfd liy Lurd IVn/.iUH't', ill lljiilf V. J I., ISOC), I l\ an<, 1K7'.», f) IM)., at \K inl. •'• Cast's 1)1' /)i7/it7/ ami JIijili; ^nprn. B ^ 2 THE CONSTITUTION' OF MARRIAGE. coniplicd witli, aiul that tlic union was essentially monoga- mous, so that neither spouse, during its continuance, could lawfully contract a second marriage.^ Who are capable of Matrimonial Consent? — Before the status of marriage is acquired, there must bo complete le^al evidence of the consent of parties to enter into it. Tiiere must, therefore, be capacity in both to give consent. The following disabilities are recognised by the law of Scotland : — Grounds of Nullitv. (1.) Komigc. Males below the ago of fourteen, and females below the age of twelve, are by our law — in this following the lloman — incaj table of matrimonial consent. The rule, malitia suitpht aeiatem, is not applied to this case, and it is irrelevisnt to plead that tlu' parties, though under age, are piiheirs, and that the alleged marriage has been consummatcd.- The union of pupils may be converted into marriage if they continue to cohabit after attaining minority, in circumstances which lead the Court to infer that matrimonial consent has been exchanged.^ The same sort of evidence will be re ; iM.-k. i. . ■ i ■ f , Ji ,1 1 ■ m '• h 4 THE CONSTITUTION OF MARRIAGE. ///. — Wife alleges husband is impoteut,doctors say she does not seem to be virjo lntacta,and he appears potent. Decree refu.'^ed.^ It is usual to remit to surgeons to examine both the partie.*!,-' and, in England, the parties, if within the jurisdiction, can be compelled to submit to an insiiedlo cuqiurls. J>ut this would not be enforced in Scotland. But probably if the party whose capacity is in (juestion with- draw from the jurisdiction and decline to be inspected, this will be taken as an adniissidn.-* It has been held in England that pene- tration must be complete.^ If it be proved that the husband is impotent, quoad the wife, this will be surticient though the evi- dence is that he might possibly be capable of intercour.se with another woman.' Incapacity inferred from resistance.— When after a reason- able time tliere has been no sexual intercourso, and the wife has resisted all attempts, the Court, if satisfied of the bond ji(h.-< of the suit, will infer that the refusal arises from incaiiacity, and will amiul the marriage.'"' Wife's Frigidity.— Ill an action by the wife, the husbajid may plead that iion-consummatiuii is duc^ to the wife's frigidity and dislike to connection." Limit of Age.^ — There seems to be no limit of age in actions of this kind,'' but when the parties were of advanced age at the date of the marriage, it is not probable that the Court would annul it on proof of impotence unless there was actual nialfermation. Action only Competent during life of both.- The validity of a marriage cainiet be impeached on the ground of impotence after the death of one of the parties.^ No one but the injured spouse has a title to sue."' ' T. V. />., 18(;(i, 1 1'. aiul I). 127. -y;.v.A.,lH(;i),L.l{.lP.an.l]).(;.3:>. •'■ i'()//.(C(/v. U'ljlmiini, 1 S2s, 1 Ila.L,".'. E.K. T2r>; Fount. Due. Vol. i., 271 (22iul Jan., 1(!84), Vv. i. 104 ; Jln- rUon V. 11., IM.', 4 .\ln,,iv 1\C. !)U. < Dennc v. .1 rvlituj, \bAh, 1 l{<,ljLTt- !-iin, Kic. fa. 27!». ■M. V. /;., 18,j;3, 1 Spink, 12. It Keenis iniiiliud in //. v. ('., ISGU, 1 S. aiul T. Coij. As u> '• ivlativu iinpi ,t- ciici','" ,s',e Ti(ly'.s " Legal Mcilicinc,'' ii., I'. L» ; ("asiicr's For. ^[..(l. iii. :>42. '■N. V. .1., 1H7S, 3 IM). 72;.sv. note (in (asc of /'. V. /,. there j;i veil. '' M. V. //., 1804,33 L..r., !'. an. I ^U'illuniis V. Jfnnifmy, iSfJl, 2 S. ana T. 240. ■'-1. V. /;. (uitl AiKillm; iSdH, L.l{. 1 I', aii.l 1). 551). "'Ueir.s Prill. 1524; .1. v. //., .s-;/y,. IMP( )TENCE TIllKXNIAL COHAniTATlOX. The law on this subject has been much more developed in England than in Scotland, where the authorities are very meagre. The extent to which the English decisions may be regarded as laying down rules which will be adopted in our Courts may be gathered from C. B. v. A. li.,^ which is now the leading case. Several doctrines which had been elaborated to a somewhat utu'easonalile extent by Courts of first instance, arc in that case fully dealt with, and ])laced upon a sound and equitable basis. The ca.se was one in which the parties had cohabited for twenty months, and it was admitted that sexual connection had not taken place. A separation followed, and the wile subsetpiently gave l)irth tu a child, of which the husband was not the father. He raised an action of divorce for adultery, whereupon the wife craved declarator of nullity on the ground of the husband's impotence. In defence, it was pleaded that she was barred in respect — (1) that the spouses had not cohabited for three years; (2) that the action was not " sincere," being brought for the collateral purpose of frustrating the divorce for adultery ; ami (3) that the wife had been guilty of unreasonable delay. The law with regard to these three defences was thus laid down by the House of Lords. Rule of Triennial Cohabitation — By the canon law a pre- stnnption of incapacity arises in certain cases after three years cohabitation. Where the impotence was not clearly proved, and action was raised within that period, the Courts have required the spouses to retui'u to cohabitation initil its com- pletion. The rule is stated in the I'oUowing terms by Lord Watson: "Where two persons after solemnising a marriage live together and cohabit for a period of three years, and the lady is al)le to show that she is virgo iufuda, that state of things, in the absence of rebutting proof on the part of the husband, will entitle her to have the nullity of the marriage declared."-' As to the admission of the ride in Scotland, his Lordship says : " No ditubt there is not much authority to show how far that rule has been followed in practice in the law of Scotland, but seeing that it is to be found in the canon law, and is in itself not an unreasonable rule, and has been so recogiusi'd in the jurisprudence of England, I have no reason to suppose that the (.'ourts of Scotland would hesitate to adopt •18S,-., l:i 1!. H.L. UC. "-My. M\. 11 11% I Vi ?-,\ !4i i: ^i ' ■ B i> w *ki' ^i: t M 6 THE C()XSTrrL""»N or MAUKIAGE. it when it is applicable." In i.iany cases the rule is inapplic- able, and it may be regardeil as settled, that when the iiipotenco is established the Court will not insist on cohabitation for three years as a condition of the action. "Sincerity." — In a case v,here the husband's ini[)otenco was undoubted, and the wife found to be viiyo intacfa, Sir Robert J'hilliniore refused to annul the marriage, on the ground that the wife's delay of twenty-six years in raising- action was a proof of want of "sincerity." ' lie says: " The law has always required sincerity in the conipiauier, tiiat is, a real sense of the grievance eoinplained of, unniixnl with any other subsidiary motive ; and, as a necessary proof of such sincerity, has also rtMpiired a reasuiuible promptitude to be exhibited by the complaiiii';' in seeking legal redrt'ss." - This ground of judgment may be treated as ovL'riiihd, or at h-ast limited to circumstances indicating iiiiira ami ncijulcsfeitri'. In the words of Sel borne, L.C. : — " Tlure may be eomhut on the part of the person seeking tliis remedy whieli may estop that person from having it, as, foi iu.staneo. any act- from wliich the inference ouyht to be drawn that durinii the ante- cedent time tlie party has, witli a full know Ic.lgf of tlio facts and of tiie law, approbated the eoiitiiict wliidi ho or she afterwards seeks to get rid of, or has taki'U advautams and derived benefiis from the matrimonial idation which it w»uld be unfair and ine(putable to porniit him I'r hoi-, al'toi- having received tiiem, to treat as if im such ro];itioi, had ever existed. Weil, now, that explanatidu can be rclnrci] to known principles of equitable, and, I mav s; •, of t;cneral jurisprudence. The tiicumstances which may iustifv it inav be \ery various, ;uid in cases of this kind many sorts of con- duct might exist, — tnking pecuniary b.'iK fits for exanq/le, — living for a long time togetlier in the s;;m.' liniise or familv, with the status and oharieter of hn.-lMiid ;ind wile, after knowledge of everything which it is matciial to kiiow. T do not at all mean to say tliiit there may not Ix- nlher eircuni- stances whicii would produce the same eifoct ; but, it apjiears to me, that in order to give a reasonable foundation for anv stich doctrine as that which has been insisted on at the bar, ' n.v.ll, 1870, 1 IM). 40.-.. '^ 7A/,/., p. Kis. INSANITY TITLE TO SUE. 7 there must be a, fouiuLitioii of substantial justice depending upon tlie acts and comhict of tlie party sought to be barred."' Lord Watson says thi' rule in this form would be applied also in Heothuit!.'-' Delay.- -On the [Ava of delay, as proof of waut of sincerity, Lord Selborne says: "Time, like any other circumstance of conduct, is a very material (ilement in the investigation of a case which, upon the facts, is doubtful. When there is a controversy of fact, great delay in bringing forward the case increases, in proportitm to the lengtii of that delay, the harden of proof which is thrown upon the [)laintiff ; but that there is any deliniti' or al)snliite bar arising from a certain auuiuut (if delay, is a proposition which 1 apprehend cannot be estal)lished, citlirr by any Scottish or by any l']i)glish authorities."'' (o.) IiiSdiii/i/. An iiisaiu' jxtsoii can give no consont. A marriage, tliere- forr, will he dcclarrd null if it be provc'd that at its ihite one of the p;>rti('s was of unsound mind.' J)i'finitions of insanity are nuslea.din!j:. In a rc( cast; it was said, the Court has to determine " whether tin di'londer was capabh,' of understanding the natui'i' of thr coiitrart sho was entering into, free from tile inlliieiicc of morbid dehisioiis upon the siibject."' ' Onus. -'V\\:' burd'-n of showing ti.;,' the defender was insane' at the time of the maniage \\r> .in the party asserting it. 1 1, liowever, it be pro\ed tiiat insanity existed a short period before the marriage, this will shiit tlie onus, and it will tall on tlie defender to prove that the marriage tiiok place during a lucid interval." Who may bring the Action? — It is always competent for the sane spouse to raisi' tin; action. if tlie "nsane spouse has bee\i cognosced as a lunatic, the ciirdfoi' boiiis has a title to sue. If, howevei', lliiMO has bi'en no judicial determination as to the allc't'd insanity, the right of action is limited to the ' '' '■' V t '■■ 'I >. ;,, 188,"), 10 r.l). so. ,SV. ('. /;. .1. /;, at p. :u ■■' //-/./., [.. 10. '• Stair,i.l,(); Krsk.i.C, ^' /'ic Sir.hiiiR'.s llaiiiiiiiiii //»/((i'' " 7 V. /'.'(//I,//, iss|. 10 lM).,at p.!).-.; '^l <'.!!. lit. cii.^t- ef Stii'iiiscm V. .v., li'ii'il I\yl- lacliv, Onlinarv, l.-l .Manli, \su:i. ''r. i.-'"!."). ii"l yet ri'imrti'i mill r V. Mciff-s ISOS, 1 llas^(: nm i ft • ^ I] 'J ! i I I = t-' 8 THE CONSTITUTION OF MARRIAGE. two spouses.' But after the death of cither the sane or the insane spouse, any person who can qualify an interest, may crave declarator that the alleged marriage was a uuUity.- Evidence of Insanity. — Proof of the insanity of relations of the alleged lunatic has been held incompetent. On appeal the point was not decided.'' But in criminal cases, where such evidence has been tendered in support of a plea of insanity, it has always been rejected.' When sane Spouse prefers to rest Content. — It has not been decided whether the contT.ct can be aimullcd if the sane spouse is ignorant of the other's insanity at the date of the marriage, and prefers to maintain tlic *h\ Homologation and Acquiescence. — The insane i)arty on regaining sanity may homologate the marriage, or it inay become good by ac(juiescence."' Intoxication. — If one of the parties at the time of the marriage be in such a state of intoxication as to bi' incip.ible of exercising reason, the marriage may be annulled on the ground of want of consent." But such a case could hardly arise without involving fraud in the other party. (4.) ConsavijH hilly. Persons related to each other by con.sanguinity or atlinity within certain degrees, are by the law of Scotland unable to marry. The statute, ir)(]7, c. l."), the title of wbieli is "Anent lawful marriage of the awin bludo, in degrees not forbidden by God in His Word," makes all marria;4i''s la^vlul which are not forbidden in tho I.Sth chapter of Lcviticu.s. This chapter is thus adopted as statiito law in this oMiiitry, and has been judicially construed. The chief rule of construc- tion as to its prohibitions has been t(. hold that, where certain marriiiges are forbidden, others, in wliich the parties .stand to each other in the ,samo degree, shall be tak.'u as als.. forl.idden ■' Miir,i(l,i,il V. Il'ilh, r, \s\:\ 1 l>|'w, 177. ' Diiksdii (111 i'lx iilnicr, |i. 0. ' Jiilii,slini V. Ilniiri,^ 1.-S2.J, 2 S. •)!tr» [x.i':. .i:i7|; si:c!r,,ia n,i m,.,,- lin.,'!', 1!)7. '' •fiiliH.ilnii V. Ilrniiii, ■■'I'ljira. " Turiurv.Mnjei:^] n,i--.r.l{..ll4. In >7cm(«f)»,,s»y/m,]i.7/o/,',tlic (■!(/•'/- tor hin's (li'fuink'd in a dudiimtor of iii,iiTi;i;,'t' a;,'aiiist a Ituiatii'. -' 1 lluiiic mi Ciiiiiis r. Aihiltciv ; Clinslic V. (lib, 1700, M.di'S.'j; /,„',./, N CON S AXGU IX IT Y — A Ft IN ITY . 9 by necessary implication. E-0-^ it is said that a nephew may not marry liis aunt. Tiiis is held to imply that an uncle may not marry his niece.' Furthornioro, prohibitions as to relations by consanguinity are extended to relations by atHnity. Applying these rules, we find that marriage is i\)rbidden between all persons related to each other in the direct line of ascent. I *■ Collaterals. — All pers(jiis beyond the second degree, accord- ing to the civil law mode of computation, are free to marry, ( \cept where one of the parties is the brother or sister of a direct ascendant of the other party — v/j., grand-uncle. Hero owe of the parties is said to stand in Invn im n nils of the otiier.'^ Affinity. — It is convenient, thounh not strictly correct, to ■neak of degrees ot' affinity. 'Vhv prohibitions arc analogous to Ihosc reuarding relations in blood. There has been, however, nin<'li dispute as regards the marriage with a brother's widow or a deceased wife's sister. 'I'hese are .said to be expressly forbidden by verse If! of the 1 Sth chapter of Leviticus, 'i'l'ough it is probable this is a wrong Const luction, it has been uniformly adopted, and there can be n(» doubt that such marriages are held by the Courts to be within tiie forbidiK'ii ihgrees.-' 'I'lie relations of tlie spouses a 'e not njj'iiHS to each other, or, as it is expressed by the caiumists, there is no (ifjinlhtH tijji iiildlis. 'i'lms, two bi'others of one family may many two sisters of another fiimilv. 'i'he itrohibition 'ii I'act onlv alfects tile spouses themselves, who :'.!" eai'h prohihited fnnu eoutiact- ing ;i secend marriage with a bloo'l relation of the otlu"' within the prohibited degrees. Tlieri' is in this mattir no distimtion between the full blood and the hali-blood.' In C(>ittr liicmi, .M I. ■'' 1 lliiiMf, Cii III. V-, I (M •.;•',/,/,)» v. '•' Cr.iiu', ii. \K, IH : Stair, i. I I : Llrlii.jsion, I'^C.l. li.'! D. lltlC. Kisk, i. C, !) ; r.iiiikt. i. ."i, ;i:i aii'l 17. * Siair, iln. Ii'. ti>-- 10 Tin: cDNsTirrTioN ok marhiage. Tliup thr nuiniage of a man witli tlir diuightfi" of his deceased wife's illeiritiiiiate lialf-sister was set aside.' (.").) A<(idier>/. Tiic common la\r of Scotland did nut I'orbid tlie marriage of a divorced spouse wiiii the parficcjiK criniini-i or paramour. But the Act IGOO, c. 20, dechucs all marriagis null which are contracted bv a divorced spouse with the jK-rsons " with ([uhome they ar declarit be sentence of the ordinar judge to have comniittit the .said crynie and fact of adultery," The statute further iU>clares that the cluhlren of such unlawful marriage shiill not he I'apable of succeeding to their parents.-' There appears to be no modern decision on the subject, and Mr. I'ell doubts if it is now in forci', at any rate, to the oti'ect of barring the succession of children. Lord Fraser, however, denies th;it it is in desuetude.''' The ilivorce must be preiinunced in Scotland, a strict inter- pretation (if the phrase " lU'dinai- judge," and apparently the paramour nmst be exjiressly nameil in the decree.' In jiractice it is cunimdu to onut the name in the decree, and this is invariably dune when it is not given in the .sununons. Except when damages are sought against a co-defender it is unnecessary tu insert his name in the summons, and this niude of evading a statute of very doubtful policy is frequently resorted to. This impediment iloes imt exist in England. Marriage with Paramour.— The Act l*)')2,c. 11, im pests certain di>abilities (m a div(n'C(>d wifi- who contracts a second marriage with her paramour. Jt enacts that when any woman has been divorced for adultery and completes indawful and pretended marriage with the person with whom she C(»mmitted adiutery, or dwells with him :it bed and board, it shall not be lawful fur lu'r to dispone her lands, heritages, tacks, room.s, or possessions, either to her prt>tended husband » Ersk. iv. -1, ij(,; Alison, r,(\', ■ 10, !) ; K^iy. (',,„ QuecH V. Jh-njlilnii, iHil, 1 I!, and S )-l7 ; luul .vk; ll'iiiuls V. ]}'., IS to, -J Curt. .'•.:> 1; II,,, V. C/indirld; 1^17, 11 «,).!!. 17H; I'nvuttT on M.'.ria-c, 118; Slic||'(,|,l nil Maiiiiii^i', 17 t. 2Stiiir,i.4,7; Ki>k. i.n. J.-Jan^l ill, .;iw, p. 17:i ; lii'l.U'll, i., |.. IV.n ; niil, V. Ihnigl,,^, -M. :52'.)and -J Suiip. l'l7 (1U70;. Kr, i. 1 tJ and 1.^0, » .Morc's Xoti.s, ],. x\i. ; I!i,l,l,..irs I\'ora;.'r Law, \. ;i:)l and 110. / ADULTERY NON-RESIDENfK — PREVIOUS MARRIAGE 11 or to the children of th:it iiiarriatie, or to my other person, in prejudice of the lieirs of the fir-st lawful nuirriiige, or failing them, of her other heir.s wliat.soever. It i[)plies only to the woman, and to her only if she be the owner of heritage. According to Erskine,' it extends to onerous as well as gratu- itous deeds. The statute does not appear to be illustrated by ilecisiouH. (G.) X(iii-Res!(J(i)ce in Scotland. In order to put a stop to the Gretna (Ireen and other similar maniages, an Act was passed pi'oviding that after 31st October, KS.')(), " no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony, shall be valitl unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in .Scotland for twenty-one days next jireceding such marriage."- And, where the parties arrived in Kdinburgh from England between five and six in the morning of 1st July, and wen- married at 11.30 on 21st July, it was held, on the evidence of Scotch counsel as to the iv'gal mode of computing time, that the statute had not been complied with.-' (7.) J'rcv'DHs Mil I'l'ifdji'. It is impossible that a man should have two lawlul wives, or a woman two lawfid husbantls at the same time. It will, conse(piently, be a giound for holding a marriage mill that one of the piirties to it was j)reviou>ly married, and that this j)revious marriagt; has nut been ili.ssolved. Such an action can be broti";ht bv either spouse of the secon.(C(V.<,1^VS. lI'.D.dl. ■■' i\/(7.s v. rinllon, IS lit, I Hub. * Jolly v. MHirojor, ItfiJ^, :'. W. aihl Iv-c. ( 'a. CS 1, i sp. iil ("Xi, xf'i- jiMUi 't i II: I 12 Tin; CONSTITUTION OF MAllHIAOE. if the parties wore free to marry, tlie party by whose fraud the marriage was procureil will l»e barred from founding upon it, A prior marriage still sllbsi^^ting is always a ground for anntdling a second marriage, although the former was irregular or clandestine and the latter regular.' And whether promise >iuhsfquenie copula constitute marriage, or a declarator must first be obtained, it is undoubted that if decree of declarator lie obtained by the woman this will be a ground for annulling a subse([uent marriage by the man, whether regular or irregular. If the first marriage be null on account of nonage or other legal impediment, then the .second marriage will be binding, although the nullity of the first have not been declared." Doubts have been raised as to this in the case where a spouse of the first mar- riage was impotent ami the nullity had lutt been declared.-' Dank- ton thinks that in this ease also the second marriage would be valid. It has beeii liehl that the crime of bigamy had been com- mitted, though the second marriage was void from consanguinity.' If a marriage has been dissolved by divorce, the parties to it are free to marry again. IJut should it afterwards turn out that the divorce was invalid the .second marriage will be annulled.'' In a case in which a .Scotch divorce of an Knglish marriage was held to have bee!i invalid for want of jurisdiction a second marriage was annulled and the children of it held illegitimate." In all cnses for nullity on the ground of a prior subsisting marriage the Court will require the strictest evidence of identity. It will be necessary to product' witnesses who have known the defender in his or her characti'r of spouse of both marriages. A-lmission by the offender will not be sufTieient," nor will a conviction for bigamy be conclusive.'^ A woman ulio has been imluced to go through a form ol' mar- riage with a man already nn.rried is entitled to recover damages In an old ease the commissaries gave .C'JOOO.'' from hini. ' ■/o//»/v..U'f,',v;/oc,:]\V.aii.lS..H.J, P.D.inO; nmK'oUl.^sy. //cc^»r, 187.-,, tioned. - 1 IIUIHC, 1(11 ; Alisdll, r)'.]H. •■'M'Kuii. Criiii. I.iiw r. lii-aiiiv, ISs ; liiinkt. i. r>. Ml ' A'.v. /.')v(in,,ls-|H,|('.,„„lK.| ij. ■' HotKiiKirk v. /;. [1N1»2], I'. U)± '■' >7i(tty V. (,'i.uhl, iSfJH, ;i I|.|,. :,.-, . Mt iils.i Sh'i'i: V. All. <,',!,., |s7o, -2 ' Soirli' v. I'rlir, Isld, -2 lla^-Lr. f'.U. 1H7 ; UajidrdwMarpli.ir, \H\r>, 2 l'liill.:jL>l ; llnir, wJlud,. \X-2r,,il A.I.I. ISO; Jllnl\-.J',.;\~-,l,\ \Ai,{\'2-2. If'ill,i)is(i)iy.(,')ir(liiii, \i^-2 \,2 AiM. 1 :.:.'. ''Clod- V. F,iinr,,ilhn\ |s (),). \~,-2S. .■it(.,l l,y |,,,tlii 1,1, ],. I'-O. ,1, v. EFFECTS OF Nl'LLITY I'UTATIVE MAHIUAGE. 13 The Effects of a Decree (»f Nullity. Betwcuii the parties there is, so fur as may be, a restitutio in intejrum} Tlie Court orders a nmtual restitution of property, and may give damages to a woman who has been induced by fraud to enter the marri;jge now declared null. She mjiy compel the man who has defrauded her to account for intromissions with her propcrty.- Where one Spouse is in bona fide — Where one of the spouses of a putative marriage i.s ignorant of the impediment the children are, it is said, acccjuntetl legitimate and will have till' ordinary rights of succession. jjiit the parent who was //( mala fidr has no parental rights over the children and cannot take from them l)y succession. •'• It is said by l^ord Fraser that the spouse in txnni liilr acipiiies the same patrimonial rights in the estate of the otlier as if no imoedimi'nt h..id existed.' In a reci'ut case this was e.\pre.-s]y left o|ien. A wonian eontiactrd a bigamous marriage with a man ignorant of till' impediment. lie chiinied y'ffs ntdrili in her estate, which consisted of a sum of C()-. it was held that, even i'' the law was as stated by i^ord Fraser, the rule diil not apply to estate of so small value.'' Stair savs : " All thinsjs return /ilm- im/c." Debts exting-uished by the Marriage revive on decree of Nullity. Questions with Third Parties. — A pi'rson, aware of the im[»edinient, who purchases from the |)utati\(' hus- baiiil [)roperty belonging to the woman aei[uire.^ no gooil title, and it may be reclaimed by her." PuiL if the husl)and, unaware of impediment, has given or soM goods of the wife, in the belief that they had vested in him,_y/*/v' nmr!/!, she has no remedy."^ Interim Aliment and Expenses.— When a marriage exists <(c I'dclii the Court will award ah'iiieiit and expenses to the alleged wife, /ninh iilc lili,'' though at judgment costs may be given against her if the mai'riage was induced by her i'raud.'" 'Stair, i. 1, i-'O ; I'lr-k. i. •'., i;'. ; IlinI \. />'., .s/^/iyv/. Vi: i. il'.». ■' U'llijld V. Sli.n-j: Isso, 7 j;. -lOo. - l'(HMi|/v. .V(0//ii/,iiliM| li\ I'.i^lMip, '' Cdi/r \ . .\(i(i)i, I I, Mill |{a\ iniiiid, ii. i'!)l. r.l,^), .■)L»|. ■I Vv. nu l';nviil ami CliiM. \<. •2-2. ' _' Itri-lit, II. and W. ;',(;."). Till' autlmritii - ai'r lnTr rcvii-unl. ' //*/(/., .'}(!."). 'I'lii' i|U('.-ti(iii is iini fnc tVom (liiiilil. '■' l'(irl.<>iiiiiifli v. /'., Isiji!, ;; A'\'\. ^ lliiil. Wnl .-ii-r J':.ir.' of E'jl I itloi, (u). \. Tit, C.iiutc)!^, KJIO, M. «;1S.-); '"//.■/(/., 1 Ilaj;-. ;i7-l. .'.vi;;' I- i- . Hi s < I 7>, > I ,, CHAPTER II. MODKS OF rUNSTITlTloN. Rkgular Marriagk. In Scotland inarriaj^e may be citlier regular or irrrgnlar. A regular marriage is one wliich is celebrated by a minister of religion before two witnt'sses after due i)ublication of banns, or after the statutory notice to the registrar has been given J A marriage is regular which is celebrated by a Jewish Rabbi, or among the (^hiakers by the person whose function it is to perform this ceremony, though he may not be, strictly speak- ing, a minister.- Tlicro is no form of celebration prescribed by law, but it may be assumed that the minister will always ask the bridegroom and I)ride wliether they take each other respectively as husband and wife, and on their replying in the atlirmative, will solemnly declare them to be married persons. Banns. — The n'gulation of banns is left by the lav,- to the discretion of the Church, The i)ractice now is that the session- clerk of the parish or parishes of bf»th the intending spouses is furnished with a notice of their names and designations.-' This the session-clerk hands to the minister or precentor, by one of whom it is read during the public service. If the man and woman reside in ditferent ])arislies proclamation must be ' MarriiiLje Notice Act, 41 & 42 not know tliiit llii-s riilf ha.s licoii Vict. c. 43. - 17 & 18 Vict. c. SO, 55 4(;. ■' Fifteen (lays' residence in tlie \K\v\A\ liy one o|' the piu'ties is suili- cieut. And it tlie session-clerk dues 14 I'onqdied witli, .'uid lliat the jwirties are iVee to many each otluT, a ccr- tilicate of these fads, sij^neil by an elder or two honsoholdeis, nmst he "iven to liini with the notice. I'.ANN'S NOTICK TO HKCISTIIAH. 15 t made in both. The form is, " There is a purpose of marria^'c between A B, residing in , and C J), residing in , of nhicli proclamation is hereby made for the first (second, or third) time." By the Statute IGOl, c. 'M, if the ilomicile of either of the parties is in England or Irelaml, banns must be jjroclaimed there in his or her parish church. In England the practice is to proclaim banns on three successive Sundays, and this was formerly done in Scotland also. It is now, however, usual to ])roclaiin them three times on the same Sunday.' When proclamation has been made a certificate to that etf'ect is given to the parties by the session-clerk, together with a statutory schedule.- This is producetl to the miiuster at the solenniisa- tion of the marriage, and signed by him, the spouses, and two witnesses. It must then be sent within three days to the registrar of the })arish, by whom it is entered in the duplicate rcgistei.-'' On payment of a fee the registrar is bound to be j)rcsent at the marriage.' Notice to Registrar — Marriage Notice Act. ' — The parties may, ii' they prefer it, adopt another procedure. They may intimate the intended marriage to the registrar of births, marriages, and deaths, for the jiarish or district in which each has resided for not less than fifteen days. The particulars are i-ntcred by him in a marriage notice-book, ami a notice in statutory form is then jxisted by him in a conspicuous place on the window or outer wall of his otlice. It must remain there seven da}s, during which time any person may lodge a wj'itten ♦ ibjection to the marriage. The objection must be signed by the objector and handed in 2)crsonally. Lodging a false objection exposes the sid)seriber to the penalties of perjury. Objections of a fornnd character — c.,V is \'i(t. f. SO, ^ 47 ; .-fee iii/i-'i, iu';^i.-lraliipii 111' MiiM'iage. I ( I i s 16 MdUns OF CONSTITUTION'. The parties arc not uiulcr any legal incapacity to marry re^^istrar's certificate is valid only for three months.' Clandestine Mauuiage. Bv this torn\ is meant iu Scotland a marriage celebrated by a layman assuming the character of a clergyman, or by a clergyman without banns or certificate of notice.- A number of old statutes imposing penalties on ministers not beh^ng- iuf to tiie Establisiied or the Episcopal Church are virtually repealed by the statute allowing the ministers of other churches to solemnise marriages.'' T UK KG f LAI! Maiuiiaci:. An irregular, as distinguish«. 1 from a clandestine marriage, i.s one which is contracted witho'it any religious ceremony. ibirriages of this kiml arc div'ded into three clas.ses, accord- ing to the manner in which it 1.-. proved that consent has beim interchanged. 1. By Declaration de praesenti. — If a man and a woman mutually declare that they accept each other for hu.sband and wife, this constitutes in Scotland a valid marriage. A promise to marry at some future time must be clearly distinguished. There must be interchange of consent to ])resent marriage. But if it bo proved that the man said " I take you, A 15, for my wife," or pointed to the woman before witnesses and said, " This is my wife," or used equivalent words, and that the woman signified her a.ssent, there is a yood marriage. Wliat- ever the nature of the language employed, and whether the consent be given by word or by writ, the question for the Court is always '' Was there genuine consent to marriage there and then?'" It will not — c. Win. IV. c. 2^. by .ihjc'ctiiiL! to tlie issuing ofii pro- ^ ll'alkir v. M'AiImn, is!:!, 5 clanuilion ofbaniis, sei!i7cHtto'6-o)iv. Paton, G7.") ; Aitch{fii>n v. Suliritors- JL, 1855, 17 D. 348. at-Lnv; 18:58, 1 J). 4-2. 2 By the Marriage Notice Act tlic ^ Furnl v. Jiarric ami ()llnr.<, celcbrator is lialde to a penalty of 1828, (i S. 47:2. i50, 41 & 42 Vict. c. 43, !^ 12. WltlTTKN' ACKNDWI.KIifi.MKNTS (»K MAlilllAOi:. 17 i i: Written Consent. — If (.m- of thij parties give the otlier a written det'laratioii or ackiiowlodgincnt that tliey arc man and Avitr, ami this he accepteil by tlie other, this is sufficient. Tlie cxprrssioii in a h-tter, "I hereby decUire yon to be my Uiwiiil wife,' was IrKI tt^ eonstitute marriage.' Such a writing, if not i)rubative, must be proved U) bo in the hand of the defender, or, at any rate, to have been adopted and signcil by him.- It is competent to i)rove tliat the writing was given in jest, or was intended not to constitute marriage, but to effect some uUerior object." If it be proved to be in the writing of the (h'fender, tht; oiiu.^ lies on him to show that it does not mean what it says. It is not enough merely to product; a written declaration or aekiiowledgment of marriage, or to prove by parole that con.sent was exchanged. Before tinding for the marriage the Court will regard the surrounding ciicumstances, ami the conduct of parties both before and after the critical i)anctiim feinporls.^ The ride is thus .stated bv Lord D'Hagan'^' : " In all intiuiries of this sort, I ap[)rehend the true rule is not to regard singly ami apart the one transaction on which reliance is placed as constituting the marriage. It is necessary to exercise 'a large discourse of reason looking both before and after,' and from all the antecedents and all the con.sequents to ascertain the true mind and purpose of the parties who.se intention deter- mines tile character of their act." The leading case is Lockijer V. Siiirli'lr. Here the parties who were engaged to marry signed an antenuptial marriage-contract in common form. Shortly thereafter they e.xehanged declarations that they were married persons. No copahi followed. It was proved by jHirole that at the time of exchanging the declarations, they had said they did not intend present marriage. Their svd)se- quent correspondence indicated that they still regarded them- selves as merely engaged. It was held there had been no constitution of marriage. ' JHchiinlitiii v. IrviiKjy 1785, lluiiic, Dccis. 3(il. - .lf<(.7.', *r;iV V. Strmni, 18 is, lo 1). (Jll. ^ Fhmwfj V. Corhii, 1859, 21 I). 1043; Lvdiiii- v. Sinchttr, 1S4(!, S 1). CUI. ' Iwrlc v. /., 18!)1, li) R. 185: Lorkijir y. Siiirlnir, 1840', 8 1)., (ipiniDii (if L.J.C. HdiPi', at p. G07. ■'' Jiol'tiison V. iStcwid, 1875, 2 IMl.L. SO, alp. 108. C ill I'; !• ' f ? 11'' 3 i I IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I L^IM |2.5 ■ 50 ■^~ ■■■ ^ 1^ 12.0 11-25 i 1.4 1.6 o> Photographic Sciences Corporation 23 WIST MAIN STRUT WnSTH.N.Y. MStO (716)I73-4S03 ^.V '^A^ W 1 18 MODES OF CONSTITUTION. A stronger case is given by Mr. Bishop.' A man of twenty- three is engaged to a girl of sixteen. Her parents arc anxious to break off the connection. To prevent tliis, he persuades her to go througli a form of marriage with liim before a clergyman. He declares to her that this is merely to -nake their engagement more solemn, and that they are not to be husband and wife until after two years, and then only if her parents con?- .,t anu after the ceremony has been gone through attain. Thcr.- ■ ^- no cohabitation. Two days afterwards, the girl told her pa:. .'.a what had been done, and subsequently she was succeG;-rrl in an action to have the marriage declared null. The consent must be to present marriage. But the effect of an explicit declaration of consent will not be impeded by a provision that the marriage shall not be disclosed. Nor is it essential that a written acknowledgment of marriage be de- livered to the woman if it be proved that she knew uf its existence and relied upon it. Where a man told his mistress that he had written an acknowleugment of his marriage to licr which would be found in his repositories after his death, there was held to have been no consent on his part to present marriage. The letter, which was found, was endorsed "not to be opened till after the death of George Fullarton." This was regarded as an attempt to bequeath to the woman the status of widow, though she had never been recognised by him as his wife." But where a letter in which the writer declared a woman ti) be his wife, but that he desired the marriage to be kept private, was delivered by the man to his agent, and it was proved that the woman knew of the existence of the letter, a marriage was held proved, the agent being taken as holding it for the woman.'' In many of the cases in addition to written decliirations, there were verbal acknowledgments before witnesses, and cou- cubltus.* If the woman understood the declaration to iiuati ' i. 245 ; Ilahcrtnon v. Cowdnj, • Antlcmm v. Fi(Uiirtnn, 1705, I [nine, Docis., ]>. ;}(;,■., M. \-2,(>',)0. •' Umniltim v. //.. 1842, 1 IVll, Wiin'!,' V. Tunihitll, ISOC, llunic, Dfcis., p. :{7;} ; li'riil V. I iiiiii/, IH2:{, I Sli. A\)\>. JK); /''../•,s7.r v. F., IS72, 10 }>l. ][.L, fiS; ^fnrnl!4ir v. />»/*, 1751), 2 I'.'ildii, 2!>. NOT NECESSAKY TO SPECIFY PRECISE DATE, 19 present marriage, and that be the natural construction of the writing, the man will not be heard to say he meant soinething else.^ It is not necessary for the pursuer to prove the exact time and place of marriage, or the precise words used, if the writings or facts proved sufficiently point to matrimonial consent having been exchanged.'- In the case of Lcdie, a man and woman cor- responded for twenty-eight years. In their letters they styled each other husband and wife. No cop}d(t was proved, nor any jiarticular date fixed at which consent was interchanged. ^Mai'riagc was held established. The circumstances must indi- cate that the acknowledgment was accepted, and the rule of mercantile law would not apply that a party to whom an offer is made must repudiate it or be taken as accepting. Cases are to be distinguished in which, at making the declaration, the parties contemplate the subsequent perform- ance of a ceremony or the purifying of some condition before the marriage is constituted. The question was expressly waived whether the words " I hereby engage to be a true husband to you " were verba de inxvscnti, or merely a promise of future marriage.^ It has never been decided if marriage can bo constituted by exchange of consent in letters. In all the cases in which correspondence has been founded on this has been to prove that consent must have been verbally exchanged.'* ^ FIcmiini V. Corhcl, 1i-r>'.), -21 I). 1S04, 4 MiiC(i. 8:54. li»;54, j>,r L..).C. lii-lisiit ]\ 1045. ■■i:,id v. 7,»;,/;/, 1823, 1 Sli. Ap]). ■ Lisli,' V. L., 18(;o, p, r ].nvd Diiis 440. '22 I). 1017, mill fir. Ldid W.stluiry's ^ Vv. i. ^K!. (il'inidii ill Lnuijtrdiili v. Yilrcvton, \r CHAPTER III. HABIT AND EEPUTK. The Presumption of Marriage arising from Cohabita- tion and Habit and Repute. — It is cousouant with sound reason and humanity that when a man and woman hokl themselves out as married persons the ones of sliowing that the relation between them is concubuiage, and not marriage, shall lie on the person who makes that asser- tion. " Habit and repute arises from parties cohabiting togethei openly and constantly as if they were husband and wife, and so conducting themselves towards each other for such a length of time in the society or neighbourhood of which they are members as to produce a general belief that they are married persons."^ "Habitoand repute aiford by the law of Scotland, as indeed of all countries, evidence of marriage always strong, and in Scotland, unless met by counter evidence, generally conclusive." ^ The presumption rests in Scotland on an old statute'' which provides that a woman who has been reputed during a man's lifetime to be his wife, shall be entitled to torce unless it be proved she was not married to him. In the words of Lord Glcnleo, " marriage is founded on consent, and there may be single facts so strong as to supersede everything else. But a man's allowiiig a woman to take the station, and be called his wife, is a constant and continued declaration of consent, and after this has gone on for a considerable time is sufficient proof that they are married."* ' Lonl Chaiiculloi' Chelmsford, •' l.')(i;i, c. j;?, Tlioinsnu'w StiiUUo>, Bvmilalhane Case, 1867, L.K. 1 Sc. ii. 24:i. Api.., at p. 190. < EhUf ' Luiil (,'iiunvortli, ibid., \), 2nl. ut \\ (li. 20 .1/'/., 1H2!», H S. *-'', NATURE OF REPUTE DIVIDED REPUTE. 21 It is entirely a question of evidence. No definite length of time is prescribed by the law, during which the cohabitation is to continue to ground the presumption. Repute does not constitute Marriage, — " The fact to be proved is that the parties themselves did mean and intend to contract the relation of marriage, and had truly formed that relation, the indications and appearances of which gave rise to the habit and repute. But the belief and understanding of others do not make and constitute the relation of marriage. It is the consent of the parties inferred from, and evidenced by the conduct which gives rise to the opinion of others." ^ Nature of Repute which will be Sufficient Evidence. The Repute should be //7fer /am/7/ares The best evidence will be that of relations or friends of the parties, who are presum- ably in the same rank of life, and have a good opportunity of judging what is the ue character of the connection. The evidence of landladies, of neighbouring shopkeepers, and the like persons, who .say they supposed the parties married, never having heard anything to the contrary, but that they had no intimate ac(piaintance with them, is almost worthless. -£".,7., n, retired army-surguoii, of small means, lived many years with a woman of inferior rank in a Hat in the Old Town of Edinburgh. Ho continued to associate with persons of his own station, most of wliom resided in the New Town. By them it was thought that the woman was his mistress. His neighbours in tlie Old Town, shopkeepers, and others, believed her to be his wife. The repute was tn^ated as insufficiiMit.- A was the mistress of B in Demerara. She followed him to Scotland, and lived with him in various lodgings, going by the name of Mrs. B. B also spoke of her as Mrs. B. Lodging- house keepers deponed that they took them for married per- sons. A was never introduced to l)'s friends when they called upon him. It was held that no marriage had been jirovi'd.'' Divided Repute. — It has been said that tiie repute must ' l',r li.J ('. ITdiH' ill Liii^hij V, (lrlu:n[ ..,,• ;,ifr„, p. :is. i'l COHABITATION AT FIRST ILLICIT. 23 aiul the coLabitatiou and repute continue, difficult questions may arise. It may be that at the commencenicrit the parties were ignorant of tlie impediment, and believed that tiiey were entering into a valid marriage. E.g., A, an Englishman, • btained a divorce from his wife. He was, as the law then stooil,^ not free to contract" a second marriage till the period allowed for appealing to the House of Lords had elapsed. In ignorance of this im[)ediment, he went through a form of marriage in Scotland with B, who likewise knew of no obstacle. They were universally reputed to be married persons, and cohabited as such till the death of A. It was held that they must be presumed to have interchanged matrimonial consent when the impediment was removed. - When the Intercourse at its Commencement is known by the Parties to be Illicit. — It has been laid down that in these circumstances no presu:nption of marriage arises from the fact that the parties coiitiuiie to cohabit and ;iro reputed married, atter the impediment has been removed.'' Lord Eraser thinks that this doctrine has been overruled by the judgment of the House of Loi'ds in the B.cadalhiine case.'' But this, it is submitted, is not a sound deduction from that case. If two jjcrsons who are free to mar^y enter upon a course of illicit cohabitation, the presumption undoubtedly is that they intend to continue unmarried, and strong evidence of change of anluniH will be required before the Court will hold that they have exchanged matrimonial consent. On the other hand, if at the commencement of the intercourse there was an impcdiiiirnt to the marriage, cohabitation and repute when fivedoni has supervened, may point to the necessai'y exchange of consent. In other words, if in all the circum- stances th(> fair inference is that there was matrimonial consent, this infeience will not be excluded by the fact that the intercourse was originally illicit. Lord Westbury's opinion in the Brauhtlha iw case does not seem to go beyond this proposition, which appears consonant with reason and equity. ! i ' For tlio exist iii;u law, Wi Viut. .-. 77, J5 1. ■ !>!■ TIkii'i II \. AlL-d'i'ii. ;? iMi.b. i]\ •' Cuiuiiiiijhttin V. ('., ISI l,:i Dow, 31 >^ , 1,S7<;, •182 ; l.. Ml. 41 ■l.'Mi ii •■(: i I m »]■' 24 HARIT AND REPUTE. The facts were these-: A, an officer, eloped with B, the wife of an apothecary. After three years B's husband died. A and B continued to cohabit for twenty-two years, moved in good society, and were universally reputed to be married. It was held that they must be presumed to have exchanged matri- monial consent after the death of B's husband. In a later case, an illicit connection was held to have been converted into marriage. A formed an illicit connection with B in London. Sub- sequently they went to Glasgow, and there cohabited for a year and a-half. A then introduced B to his family, and acknowledged her as his wife. They afterwards separated, and lived in America separately for thirty years, B reassuming her maiden name. It was held that mairia^e had been con- stituted in Glasgow. ^ The Presumption in England. — In England marriage may be proved by reputation.- But cither a rc'ligious ceremony or acknowledgment before a registrar is there essential to the constitution of marriage. The iircsumption, therefore, from cohabitation and repute will not suffice, unless from lapse of time or other cause the absence of any record of the ceremony is explainable. 1 Hill v. Hibbif, 1870, 2o L.T. 18,3. '^ iScc Head v. Passer, 1794, 1 Ei^p. 212; CoUin.i v. liishnp, 1878,-18 L..]., Ch. .31 ; Fr. i. ;3!)G. V 1 CHAPTER IV. OF PROMISE, Sl'lL'iEQUEXTE COPULA. If a, woman prove, by a man's writ or oath, that he promised to marry her, and satisfy the Court by this or other evidence tliat, on the faith of the promise, she allowed him to have sexual intercourse with her, marriage will be held established from the date of the coinda} It has never been authoritatively decided that the action is incompetent at the instance of the man. The absence of precedent makes it, however, almost certain that such an action would not now be entertained. Nor is there the same natural prestimption that a man in consenting to copula, does so only on condition of marriage. This doctrine rests on a presiimption or fiction that when two [jcrsons have jDromised to marry each other, a subsequent ro])ul(i is regarded by them as the fulfilment of the promise. Nature of Proof required.- — Precise and specific words of promise arc not essential. In many cases the Court has inferred from the tenor of a correspondence, taken as a whole, that ])romisc must have been interchanged.- But the mere fact that the letters are amatory in tone is not enough. For two persons may so correspond without any matrimonial intention. The ago, rank in life, actings, and admissions of the parties will all be taken into account in construing a correspondence of doubtful import. Proof must be found in the Writing if Promise be not Admitted. — It will not' be inferred from the fact that the ' Stair, i. 4, (1 ; Krsk. i. (1. 4. irorth, 18(14, 4 :\rac(i. at ji. 85G ; Mor- '■^ Cimplicll V. IfiDiiinian, I8:il, jv'.svio v. />o^w)», 1800, 8 M. at p. SaS, 2 DdW and Clailu', r^nr), and .^ "Wilson jur Lord Ardniillan. and Shaw, U-2 ; Yilnrton v. Loiuj- 25 'PI '■'IH i:|:,i :|i " $ m I. ,!' M w 20 OF PUOMISi:, fiUBSEQUENTE COPULA. parties wore reputed to be engaged. But this fact may bo taken into account in constriung doubtful expressions.^ Writing need not be holograph or tested — If the writ founded on be not in the defender's own hand, but merely signed by him, the onus lies on the pursuer to show that he appended his signature to it. For otherwise, as pointed out by Lord Mackenzie, a woman finding a man's signature on a blank piece of ixaper, might write over it a promise of marriage.- Promise not to be inferred merely from conduct — In one case, a man admitted that he had sliowed a woman a passage in a Bible, 1 Cor. vii., relating to marriage, and also the scheme of a widows' fund, to which he was a contributor. From these facts, in connection with the circumstances of the case, the Court inferred that he had promised marriage.'' But this case has never been followed. Promise proved by Proclamation of Banns. — Lord Fraser says that promise will be inferred from the parties agreeing to have banns proclaimed.'' But this seems very doubtful, and the case of Servers v. Forrest,^ on which he relies, cannot be considered as an authority. There was, in that case, no proof of coinda after the proci'vmation. It is not necessary to prove the precise time and place of the Promise.*' Conditional Promises. — Where a man has promised to marry a woman, subject to the fulfilment of a ctmdition, us, e.g., after tlie lapse of a certain length of time, and there is subsequent cojnda, it will be presumed that he agreed to waive the condition, and marriage -.uU be held constituted. But this presumption may be rebutted. And when the terms of the promise itself imply that the copula is to take place ' Caniphill V. Ihuninidn, siqnu; /»'o,ss V. M'Leod, 1801, 23 D. !)72, esp. per L. l\ M'Xoill at p. !)8l ; iuul SVC Monkith v. liohh, 1844, G 1). !),34. - M!)U ; Kcnnedij v. M'JJoicall, 1794, Fer^'. Con. Law Rej). 103. •■' Mori'isuji V. Dohson, 180!), 8 JI. 347. ■« Craiijic v. ITogijan, 183S, IG S. 584, Air., .M'L. ana KoU. !)4i' ; lios.^ v. M'Lml, 1801, 23 D. at p. I)!)4 ; l^nrticuv. ]r<)llu'.rfipo(iii, 1873, 11 M., at p. 38!) ; Sim v. MiU^, 182!), 8 S. 8i). ■ , I i IH i; M ■ '''': '^\ ■ ■ "if ; ' / -! ■ ' ' '\ >-i ' ; ■'■'f! ■ :•. '\ ■ i - ■ >' ' ■ ' ii [ -l ■■)■ .' i::l ; ^!^ . i 'i ^T- 2.S OF l'IK)MISE, HUliShlQUKNTE COPULA. the man's mistress at the date of the promise, there is no pre- sumption that she, in continuing to be so, is relying on the promise. But she may prove that this was the tact. Lord Ardmillan figures the case of the woman being seized with repentance, and decHning to continue the intercourse, oyccpt on receiving a promise of marriage. In such circumstances, marriage would be constituted.^ If the Woman, in consenting to the copula, relied on the Promise, it is immaterial that she was ignorant that this would make Marriage. ' Must Promise and copula both take place in Scotland ? — This question is anrwered by Lord Fraser in the aftirmativo, and is supported by several dlcUi in the Yelvcrton case.^ In the same case, Lord Westbury doubts if it would be any bar to the constitution of marriage in this way, that there had been copula in England, if copula in Scotland followed. But it is submitted that the question is still open. It must be borne in mind that, in the Yelvcrton case, the first copula was in Ireland. By the law of that country, as of England, marriage is not constituted by promise suhscqiLoite copula. It is, therefore, consistent with principle to hold that the contract, not having been made in a form which satisfied the requirements of the lex loci, marriage was not thereby made. But it is thought that a different ?-esult ought to be reached if the promise and the cu/nda occurred in a country where this is a valid mode of marriage — e.g., some of the American States. Nor would it affect the matter that the promise was given in Scotland and the copula followed in a country, by the law of which, promise cum copula suhse- quente makes marriage. In either case, if the domicile of the jiarties is in Scotland, the conditions of both the lex doinlcUll and the lex fori seem to have been complied with, and it is ' Snrtccs, supra; Sim v. .!///(.<, Kupra, per Lord (ilonlcc, at p. !)8. - Laing v. Ikt-I, 182.3, 1 Sli. Ajip., per Eldoii, L.C., at p. 451 ; LniKj- worth V. Yvlrertaii, .luprK, per \W>t- liuiy, L.C., at pp. 854 and 855. •^ See Lcivd Clielnisfonl, 4 ^faiMi. 879; Lord Kiii,!.,'sdowii, 4 Mac(i. 902. f 'i DO PUOMISE AND COPULA MAKE VEUY MARRIAGE? 29 not easy to see why the Scotch Court should refuse to recog- nise the marriage as valid. ^ Does Promise cum copula constitute Marriage, or merely afiFord a ground of Declarator ? — This questiou is of more than academic interest, as the competence of raising t nc; action, after the death of tlie defender, depends on the au.-^wei whicli may be given to it by the Court. It is discussed by Lord Frascr at great length, and with much Icarni !.;,,. The vicv adopted by that eminent authority is, that promise r'ollowed by cojnda dues not constitute ■^psmn matrimonluni, but cst:i^^Hs]ies a relation of such a binding and peculiar character, as to ground an action for annulling a subsequent marriage of either to a third person, although entered into in facte ecdenkv. Lord Eraser is of opinion that originally promise cum. co/Hihi grounded an action on the part of the woman to have the marriage solemnised. As, however, it was impossible to compel the man to solemnise, the decree ordaining him to do so was held to have the same effect. From this the next step was to raise an action of declarator in place of the older action for solemnisation. This change of procedure may have been partly due to the lloformation. The Presbyterian Church could not enforce the judgments of the Commissar}^ Courts by decrees of excommunication. As already stated, one of the most important consequences of this theory would be to make the action incompetent after the death of the defender. For, ex hijpoUicsi, the decree of declarator stands in place of an order to solenmise, and as the Court could not order a dead man to solenmise his marriage, so neither will it declare the marriage after his death. Lord Eraser's doctrine with this consequence was adopted by Lord M'Larcn, ordinary, in a modern case.- The first division did not find it necessary to decide the question, holding the promise not proved, and it was expressly reserved. Lord President Inglis remarked : " I have nut yet been convinced that it is incompetent to con- stitute or establish a marriage between the parties in respect of promise suhacqucnte copula, after the death of one of them." It is submitted that the sounder opinion is, that promise 1 .S'u; Gillespiu's Bar, 2iul ed., p. - :"^aloy v. Maouhim, 188.-), 12 V. 370, .sr^. ; Vml ace Mncdoiiald v. .1/., 431. 18G3, 1 I\r. 854. l...ii!. ■^'1 "^in 30 i)F I'ROMISE, SUli^EQUENTE COP 'LA. emit co[)ida constitutes ipmm mutvhnonium. For, as declination of present consent is snfficifnt for tliis purpose, it is not unreasonable to suppose that when promise has been proved, the voinda shall be a ground for inferring that the man consented to instant marriage, and that the woman's con- sent to the copula was only given on that condition. Lord Fraser argues that the consequences of marriage have never been held to flow from promise cum co/niht, until after declarator. But it appears a sufficient answer to this, that though the relation of marriage be ijiso facto constituted by the copula, the legal consequences thereof could in no view follow until the facts had been found completely proved in the appropriate Court. Lord Stowell thus states the cancm law : " If the parties who had exchanged the promise had carnal intercourse with each other, the effect of that carnal inter- course was to interpose a presumption of present consent at the time of the intercourse, to convert the engagement \n\o an irregular marriage, and to produce all the consequences attributable to that species of matrimonial connection."'^ And this, with all deference to Lord Fraser, appears clearly laid down by Stair. There is not, as Lord Fraser suggests, an inconsistency between Stair's two statements on the sul)ject. In i. 4, G, Stair says, "The marriage itself consist? not in the promise but in the present consent, whereby they accept each other as husband and wife, whether that be by words, expressly or tacitly, by marital cohabitation, or acknowledgment, or by natural commixtion, where there hath been a promise or espousals preceding, for therein is presumed a conjugal consent, (h pra'ffenti" In the other passage, iii. 'i, 42, the words arc : " Cohabitation as man and wife supplied the solemnity of public marriage, which being a transient act, and having no record, could seldom be proved, yet though it could bo proved by the oath of both parties or otherwise that there never was a formal marriage, if the parties were capable of marriage, cohabitation would supply; for after contract, or ])romise of marriage, or sponsalia, if copulation follow, then is there presumed a matrimonial consent, , rf. iii. li, 42 ; SwiubuiiK' on " Siiunsul.-;," p. :i24. ess» Sto of pal me Er.' dc the C02 a T J ^'1 \ i IS DECLARATOR ESSENTIAL ? .'U essential requisites of marriage." Lord Fraser argues that Stair intends here a relation " having the essential requisites of marriage" without being marriage, a statement almost paradoxical and in no way borne out by the context. Stair is merely distinguishing between regular and irregular marriage. Er.skine is equally explicit.^ He says, " though the promise (le futuro should be barely verbal, the canonists, and upon their autliority both our judges and writers, arc agreed that a copuht subsequent to such promise constitutes marriage, from a presumption or fiction that tlie consent, er verba de iircvscnti Lord Eraser says that there were five dissentients. But it appears from their opinions'' that their tloiibts were as to the sanity of M'Adam or his intention to make the woman his wife and not his widow. Not one of them maintains that ipsum matrimonium cannot be con- stituted 2'er verba de jn'a'nentL The judgment was affirmed unanimously by the Hoiise of Lords, presided over by the greatest lawyer of the century, who says, "I have also looked at the decisions again and again. I find in all of them, that a contract de proisentl forms a present marriage, or very matrimony." ^ If this be so, the judgment of Lord Chance 'or Lyndhurst,° upon which ' riin. i. (i, -J. ■• ./Vr Lnrd Ehlon, )7(('(/., at p. (i!)l. ■-' I SOT, Moi: Aiiji. V. I'roof, No. 4, ^ The Qua a v. .l////(,s', 1844, 10 Alip.; 5 I 'at, (17'). ( '. fiml F. r);54,iuitl si'iiiiiatL'lyrL'iuiitiMl '■ ■:> Pat. l)v ])i.\. 1' PIH 1 iiii \M Ik i ; 'i :i;t: . r>\ I !» m i 32 OF PROMISE, SUB.SEQUENTE COPULA. . Lord Frascr so strongly founds, cannot be, as he says it is, a correct exposition of the present law of Scotland. Foi' Lord Lyndhurst does not suggest that verba de futaro cunt copula produce an effect in any way different from that pro- duced by verba de iircesenti. No distinction between the two cases is even hinted at. And it is significant to notice that in England the ecclesiastical Court used to compel persons who had contracted per verba de prcesentl, as well as those who had done s*^ per verba de futuro cum copida sequente, to solemnise their marriage in facie ecclcsicu} In support of the theory that promise subsequente copula con- stituter- very marriage, reference may be made to the under- noted judicird dicta.- Moreover, tbe case of Pcnnycooh v. Grinton'-^ seems in direct conflict with Lord Frasor's view. There " it was held for law, that a promise of marriage, followed by a copula, made from that moment an actual marriage." In that case a subsequent marriage was set aside. ' JcssoH V. Collins, 2 Salkeld, 437, Ardmillaii in Sitvkcs v. JVothcrsjiooit, Holt, 457; Swiubmne ou ".Spous- 1873, 11 M. 388; LordWe.sllnuy in ills," Slid ud., 222. Ydnrton v. Lon,ju-ortIt,mrj4,-i'MM(i., - Lord President C'iuupidl in A' «- ai \). H'lO; Lord Clianeellor Cotten- /(t'l/z/v. .l/ac/)(»(v//?, 17i)f), FevLj. Con. liani in Stonirt v. McnrAcn, I f<-il, 2 Law Rep., p. 181 ; Lord Curriehill l{ol)., p. 5!)1. in lioss V. Madcod, 1801,23 D., at p. ^ 1750, M. 12,G77. !)S7 ; Lord Deas, ibid., y. 9!)2; Lord ^. ' CHzVPTER Y THE DISSOLUTION OF MAl!i;iA<;K. A MAllRlAin-; is ilissulved by the Juath of o\n; of tliu spouses, or by their bemg divorced by the judgment ol' a competent Court. Of Divorce. — There are in Scotkxnd two legal grounds of divorce. If either spou.se succeed in proving that tlie other lias committed adultery during the marriage, or has been at the time of the action in malicious desertion for four years, the marriage will be declared at an end. Divorce for Desertion. — This is based updu the statute 157o, e. oJ. The Act provides that if either spouse "diverts from the other's company, without a reasonable cause alleged or reduced before a judge, ami remains in their malicious olistinacy by the space of lour years," and refuses to obey pri\y adnmni- tions to adhere, that the deserted spouse shall raise an action of adherence, and, if necessary, thereafter shall apply to the minister to publicly admonish the deserter to adhere, and if he shall fail to comply he shall then l;e guilty of ' malicious and obstinat dcfeetioun," and divorce may be obtained. 'JMiese preliminary proceedings were, however, rendered unnecessary by the Conjugal Rights Act, 1801, J:} 11, and an action of divorce may now be raised at once if there has been malicious desertion for four years. "Privy admonitions," or horn t Jul e requests to return, addressed by the deserted to the deserting spouse, arc not of the nature of a solenniity, and may be dispensed with in certain cases — c.i)., it may be manifest from the circiun.stances that am' request of the kind would be unavailing. Or, from ignorance of the deserter's address, the request may bo impossible. But to justify decree it must in every case appear — (1) tiiat there was wilful 33 I) \]. \\ m\ 34 THE DISSOLUTION OF MAURIAGE. desertion; (2) that it has been obstinately persisted in; (3) it must be without lawful excuse ; (4) it must clearly appear that the pursuer of the action, throughout the period of four years of illegal desertion, was desirous of cohabitation, and ready to renew it. The remedy is one given to a spouse who has done his or her duty in the past, and is willing to do it in the future.^ The Court will jealously guard against the possibility of two spouses, both of wliom desire to be free, availing themselves of this mode of severing the marital tie. This would be to open a wide door to divorce by mutual consent, which is quite contrary to the history and policy of WalsoH V. W., 18i)(), 17 R. 7.3(), - Oralum. v. lliKiuhanaiw, iJTtli IK r Lord Presi.lcnf lii-lis, at p. 73i), Feln'uury, irjG7, M.SS. Hi'conls, Com. au.l Lord Sliaiid, at ]). 74.3, in wliidi Couit, vol. ii., cited liy Vv. ii. 120!>. inHeii V. ir., ISM, 11 |{. S15, was •'' Filz;i,r,tld v. /•'., iWii), 1,.K„ 1 |>. disqiiirowd of. jind 1). (i!)l. i 1 THIVY ADMO.VITIONS. 36 i U !•( separation, and never showed an honest desire to induce the defender to resume cohabitation. " It is not enough that the ])ursuer of a divorce for desertion, who has sat with folded hands all the time, should, when he at the lapse of the statutory period applies for a divorce, say : ' I have been desertion nnod not be in Scotland, but Scotland must I ir,»/Mi,(, si(/./-s ;»./• I..J.C. Mac- <; I!. i:}r>:i; .1"/.' v. .1., issj, 12 W. (luii;ilil, lit ]). 74± M'., 1S82, 10 \\. 20S. Ti'C. ; iukI lUnU!, v. .l/r(xo,(. IS77, ] j ■' M '((/>'((/), .sujicrf, ^)i)' liord Sliiunl, .S.L.l!. TiDi. ;it y. 713; and src Mvirw M., 187!), 11 " i 36 THE DISSOLUTION OF MARllIAGE. be the husband's domicile at the time of desertion if he is tlie defender, or if he is pursuer, at tlie raising of tlie action.^ Offers by Defender to adhere. — The Court will judge of the shicerity of alleged offers by the defender to adhere, and will disregard lliem if they appear to have been made not to brinne letter contains an address. They are all forwarded through his brother. Tlu.' letter giving an address comes before expiry of the four years. In it lie invites his wife to join him, but sends im money, and gives no information as to his means of subsistence. Held this was not such an offer as slie was bound to accept, and that she was entitled to decree.' ///, — Husband said he offi/red to return. In cross he admitted that at the time he was livin<4, \-2 Ti\. 14"); S(r iilscj Ximvn) V. Ill iif, July, 18;}U, Lotliian, p. 110; Muden'dr v. il/., 18!)!', 30 S.b.K. :>7(i. ■^ Auld V. A., 1884, 12 1{. 30; Laxvnna v. L, ISdi', ;ji L.J., l\ ami ,M. 14"). ' Muii; a 1\. 13.")3, siijini. ■' Malliiisoii V. .1/., 18li(!, 1 I*, iuiil 1 ). !)3. " IhilliLsY. />., 1874,43 b..I., I', iiii.l M. 87 ; Kii A}il(l, .•oijirii : iiiul Farlics V. /<'., 1881, l!).S.L.l!. 118. 7 aatrhiiiH, V. a., i8(;7, b.H., i v. ami I). 331. I ',J SEPARATION I5EC0MIXG DESERTION- — liAHS. 37 Husband left England for Australia Avith knowlcdu'e and consent of wife. For some years lie corresponded regularly with her. Correspondence having suddenly ceased, enquiries were made as to the husband, and it was found he had been living in adultery with a woman who had borne him three children. Held he must be taken as in desertion from the time he formed the intimacy with this woman, or time when correspondence with wife ceased.^ 7//. — Husband, in 1880, ceased to live with wife, pre- tending that his business as editor prevented him from getting home at night. He supplied her with money and visited her occasionally, and in February, 1884, a child was born. In January, 1884, wife discovered tli * husband had for years been living with another woman. Ibid by Hannen, President, that desertion did not begin until the wife had discovered the husband's adultery, and was therefore entitled to refuse him access. - 111. — Parties married in 18GG. After four year.s' cohabita- tion, husband being in difficulties, it was agreed that a house and shop should be taken in wife's name. From this time they never lived together, but husband occasionally visited wife and slept with her, and he made her an allowance. In spite of wife's request he refused to recommence open cohabitation. In 188.") wife suspected he was carrying on adulterous inter- course, and she ne\er afterwards cohabited with him. In 1888, obtaining positive proof of his adultery, she raised action. Ht'ld husband had been in desertion for two years.'' NtiO'. — These examples of change o( ((.nhniis are subject to the remark that in Scotland adultery, pcv sc, would have grounded decree. Bars to Action. — Seeing that by the Act, 157^^, c. 55, the remedy is to be given when one spouse " diverts from the other's company without a reasonable cause," a pursuer will be barred from claiming it if he or she has given the defender a sufficient reason for breaking up tlie home. If, therefore, he has been guilty of cruelty or adultery' he cannot obtain a divorce on the ground of the other's desertion. It has also been questioned whether a husband was not justitiod in leaving ' SUdlnnilv. S., IHTO,."}') L,T. TGT. -^ Garcu' v. G., 1888, 1.3 P.l). 216. - ranitn- v. F., 1884, !» iM). 24.-). • Auhl v, A., 1S84, 12 IJ. 30. i Pi !-;1 1 m ■ ';:■■ ! ■ fij'!"! ■ _' ■ 'M '•m ■1 ■1' '■*!' ■'■' E*l ■IM Pill ■ Hl'i IM m Iff iM'f m 38 TRK DISSOLUTION OB' MARRIAGE. bis wife if he discovered that she had been unchaste before marriage. But it was lately held by Butt, J., that an allega- tion of premarital incontinency and pregnancy at the date of marriao-e is not a relevant defence to an action for restitution of conjugal rights.^ The pursuer is barred from insisting in the action if he has been guilty of adultery even after the four years' desertion. And it is pars judicis to notice this, though the action be undefended.- In this case decree was refused where it came out in answer to a question by the Lord Ordinary that the wife, who was pursuer, had given birth to a child seven years after the iiusband had left her. Great delay in raising action is not necessarily a bar. Ii; one case a husband succeeded in an action brougiit twenty - seven years after the wife's desertion." Desertion must be Malicious. — Divorce will not be granted if one of the spouses has left the other to pro- secute his business or for .some other good reason, and not merely with the intention to break up the home.* Accord- ingly a husband who was a domestic servant was held not to be in desertion merely because he did not give n\) ser- vice and take to some employment which would enable him to cohabit constantly with his wife.'* It is not desertion if the absence be caused by imprisonment or captivity. And even though the husband be in desertion when the imprisonment commences, it ceases at that date.-' Either spouse having a good reason for ceasing to cohabit may do so, and is not barred if he or she subsequently raise an action against the other as being in desertion. III. — The husband brought a mistress to his house. The wife said either she or the mistress must go. The hu.sband said the mistress should stay, whereupon the wife left the house. Held by Butt, J., that, in the circumstances stated, although the wife had been the first to leave the common home, the husband was guilty of desertion." ' M(mn v. il/.,7th June, 1889, fil L.T. 304 ; see also I'errin v. P., 1822, 1 A(ld.4;/?twcsv.iv'.,1813,2Pliill.l27. ^ Anid V. A,, supyif. •■' Mnch'iizie v. M., 1883, 11 R. 10.5. ^ Williams v. W., 18G4, 3 S. nn.l T. 547. ^ Youiui V. r., 1884, 10 n. 184 ; seats in Eii^'land, Drew v. !>., 1H8M, 13 P.D. 97. 'KDidinsnu v. />., 2Slli Ort. 1889, G2 L.T. 330. 1 I h T JURISDICTION VOLUXTAUY SEPARATION. 39 ii III. — Wife leaves husband on account of his drunken violence and goes to live with her father. She is held not barred from raising action against husband on the ground of desertion.^ Jurisdiction. — The Court has jurisdiction to grant divorce at the instance of the wife, although the husband after desert- ing has acquired a foreign domicile. - For when a cause of action has arisen, it would be highly inequitable to allow tie husband to defeat the wife's right to a remedy by changing his domicile. But when the husband's domicile was in England, the deserted wife is not entitled to raise a divorce in Scotland though that was her domicile of origin, and she has returned to it after the desertion." And if tlie husband has acquired a genuine domicile in Scot- land, he will be entitled to insist in the action, though the desertion took place when he was domiciled in a country where no such ground of divorce was recognised. And it is immaterial that his motive in acquiring the domicile was to obtain a divorce.^ In an action of divorce raised by a wife against her husband residing abroad, the Court refused to ordain the defender to sist a mandatory, the jurisdiction of the Court being doubtful, and tlie defender being in embarrassed circumstances."' Voluntary Separation no Defence — It is no defence to tlie action that the parties had voluntarily agreed to separate. A contract of separation will not be enforced by the Court, and is revocable at pleasure by either spouse.'^ But desertion does not begin until the spouse who wishes to resume conjugal cohabitation has intimated this to the other. Prolonged absence is an element, though a certain amount of correspondence may have been kept up." The husband may be in desertion tiiough he continue to supply the wife with money. ~ • (lnw\. linhUug V. 7,'., 1888, IT) 1{. 1102, fcr Lord M'Laren, Onlinaiy. ^ CamnU v. ('., 18;,1, 8' R. 901'; Stcil,' V. ,s'., 1.S8S, 15 1!. 8I)(;. c ifKrmdi V. ifE., I.s82, !) R. (!.■)."). " .1.7,'. V. ('./>., 18:)3, 10 1). 111. ' Wnlmau v. )'., L.l?. 1 P. and J). 489. 1 i 1 .M*'l I I 1 fm il m I I 40 THE DISSOLUTION OF MAlUtlAGK. May Crufcity less in Degree than such as would Ground an Action for Judicial Separation, or amount to a good defence to an Action of Adherence, be pleaded successfully as a Defence to an Action of Divorce for Desertion? — Tliis point was mucli canvassed in the recent case of Macl:n\zie v. M} It was not found necessary to determine the question, as the majority of the Court was of opinion that in the cir- cumstances of that case the wife would have been successful if she had been defending an action of adherence. Ijui Lord Young, whose opinion on this head was concurred in by the Lord Justice-Clerk and Lord Trayner, observed : " It is no criterion of the validity of a defence to an action of divorce for desertion on the Act 1573, to inquire whether (jr not it Avould have been a good defence to an action of adherence at the common law," He pointed out that the latter action was in no sense final, and that the Court might ordain a spouse to adhere, with a view of making a trial of reunion, although the pursuer had been very gravely to blame for the separation. Divorce, on the other hand, was, under the Act, inflicted as a statutory penalty, and was iinal. Lord Tra3'ner said it was in every case a matter of circumstances, if the defender had been absent with "reasonable cause." Lord Jiutherfurd Clark, who dis.sented, said : "The defender has, I think, only one possible justification. She must show that she was not bound to adhere, or, in other words, that she had a good defence to an action of adherence. The Court must give decree of adherence unless a good defence is slated; and when a wife disobeys the decree, she must be in wilful and malicious desertion. For she is refusing to perform what the Court has determined to be her obligation as a wife." If the judgment implies that cruelty was proved, in the sense in which that term has been inter- preted by decisions, it is submitted that it carries the law to a point further than has been reached in any previous ease. ' 1R92, 30.S.L.R. 276. h !|| U n h CHAPTER VI. IJIVOIICE FOR ADULTERY. V>Y the Roman ('atliolic Church inaniagc has always been regarded as a sacrament, and therefore indissohible. The ecclesiastical courts were entitled u[)on certain grounds to pronounce decrees of divorce \)., 4.35. ' Query whether Lord Advocate is hound to insist in plea of condona- tion which has been stated by defender and afterwards withdrawn. lialston v. ,'.*., 3 R. .371. I ( T I'HOCEDUHE EVIDENCK OF PARTIES. 4:5 and rcsulent in Great Britain, and that any child or any one of the next-of-kin may appear and state defences.' It does not seem to have been decided in Scotland whether an action can be raised against a Innatic on the ground of adultery committed when sane. But such an action has been sustained in England. - Tilt! alleged /xtrttaps crhrdnis may be called as co-defunder, and found liable in all expenses.-' But where a pursuer virtually alleged that the defender was leadin;-' an abandoned life, a'ld did not aver that the co-defender knew she was married, the action against the latter was dismissed.' The particeps crhnhii^, though not called as a co-defender, may appe.Mr and defcnil himself ' Procedure. — The marriage must first be proved. It is usual to produce an extract register (which by 17 *^' 1>S Vict, c. SO, § .58, is now evidence), and to bring the minister or some other person or persons who were present at the marriage. If the marriage was irregulai', it must be proved by evidence of cohabitation and repute or of declaration, or promise tmbscqaoitc co/mla. If the irregular marriage has previously been registereil under IJ) iV- 20 Vict. c. J)G, § 2, a copy of the register will be evidence of maniage, but not in itself conclusive.''' It may be pleaded in defence that the marriage was null — e.g., on account of impotence of husband." A certificate of marriage by a notary not purporting to be a copy of an entry in the register of marriages kept by the law of that country but only containing a reference to the register, cannot be received as evidence of the marriage, although it would be evidence in the foreign country.** Evidence of Parties. — Since 37 .Iv: .*}8 Vict. c. G4, the pursuer and defender are competent and compellable witnesses. ' Suction 10. land also by reputation, Jiiud v. - Mtmldinit v. JMiiiicniff'r, L.R., /'irwcr, 17!)4, 1 Teake Ca. 231, or by ILL. 2 Sc. App., 374. ■^ 24 & 2.j Vict. c. 8(), 55 7. * MUhr v. Simjixon, 18G3, 2 M. 22."), a very sjtecial case ; SiC Kudd v. A'., Ihid., 1074. " U^ Whirhi-y. U'., 1889, 14 P.D. ir)7. " Marriage may be proved in Eiig- coliabitation, lUiUer, 114. ' Scivill v. ,s'., 1862,31 L.J., P. and M. 55. But it would be no defence to plead tliat the niarriai^e had never been consunnuated ; llroirn v. />'., 1848, 13 Jur. 370. ^ Finhni v. F., 1862, 31 L J., V. and M. 1 4!). 1 i- J 1 \ ■■ ■:■' ■i ■'i ''Sfi H I 44 i»i\('i;ci-: FOR AJ)i-];n:KV. No witness, however, ".sliull be liable to be asked or bound to answer any (lucstion tending to show that he or she has been guilty of adultery, unless such witness should have already given evidence in the same proceeding in disproof of his or her alleged adultery." The proper course is for the judge to ask the witness whether he wishes to give evidence which may have this tendency. If he declares his willingness to be examined, the question may be put. If the witness wisiies to avail himself of the statute, the jiulge must not allow the (juestion to be put.^ It goes without saying that if a wif-i'ss goes into the box and does not deny the Lliargc of adultery, but avails himself of the statutory right of taclLurnity, this fact cannot fad to att'ect the mind of the judge, and ci)iij)led with evidence, which, if standing alone, would be insulheicnt, may judicially satisfy him of the truth of the charge. The same remark applies also to the case of a party who seeks to evade the necessity of givinti evidence in circumstances in which an innocent person would be expected to hv anxious ti» have an opportunity of exculpating himself.- Proof of Adultery. — It is seldom that there is direct evi- dence as to the fact of adultery. It has Ljenerallv to be inferred from a chain of circumstances indicating an undue attachment between the parties, and opportunity fer gratifying unlawful passion. The nature of this evidence will vary in every pai't i- cular case. Much will depend on the \:\uk of the parties, and the state of manners prevailing at the time and place in (pies- tion, but decree will not be granted unlerss enough is proved to "lead the guarded discretion of a reasonable and just man to the conclusion " that adultery has been committed. The general rules on the subject are laid down by Lord Stowell in ' Ciwkv. r., 187(!, .1 II. 7M; /)'„,(- ,tiit>liti' v. 7)'., 188G, 13 I{. (Mi). - Tlie cross-L'.vaniiiiiitioii nf u wit- ness tfiidiii;; to slidw slu- had cmii- (livorcedii <;n)un(l of wife's ailiiltiiy. Sir Janu's irainieii lield tlnU (lues- liciiis (if tlic uatniv referred to were idv liarred in act' mis lii'(iii'4lil oii iiiitted adultery was allowed hv llie j,'rnniid of adullerv, and tliat tlu Hnnnen, President, in tlie loll,,\v- wife nii-Iit lie cro.v^-e.xann'iird in tl,,. in,!,' circumstances. Wife lirouj;lit suit foi' nullilv as to iier intimacy acliou for nullity of marriaw cm witli llie man' wlio was co-res|Hoi- ^'I'ound of liusliaml's imiiotemv. clcnt in tlie cross action. M.v.lK, llusbaml lirouj^'lit cross iiction for iss."), lo IM). IT"). i PKOOF OF ADLLTEKV. 45 tlie cases undernotcil.' Direct evidence that the parties Avere seen in the act of adultery will, from its intrinsic improbability, be regarded in most cases with suspicion.'-' lu (general it may be said that guilty intention and opportunity for committing the act must be ])roved before the Court will infer it. It is not necessary that theic be two witnesses to speak to any one act of adultery. One witness to one act is sufficiently corroborated b}' another witness to other acts, either committed with the same or another person." But the evidence of one witness, uncorroborated, is not enough, and the testimony of a boy of six was held inadmissible in corroboration.' The evidence of prostitutes that the defender has committed adultery with them will be received with caution. It is tibvious that an •.;nscrui)ulous pursuer, or an over-j:ealous private detective, would have little ditHculty in finding a woman of loose character willing, for a consideration, to give testimony of this kind. Lord Frascr in one case went so far as lo say : " No number of ])rostitutes will make up one credible witness, so as to outweiiih the denial uiven to them by the person accused." JJut this language was e.\|)ressly disapproved of by the Court, and it was laid down that such evidence must be carefully sifted, but might be so clear and c-^'dible as to enable the Court to act upon it, although not eorroboiated by any witness outride the brothel. ' Ante-nuptial inctjiitinence by the defender niivy be proved, if with the satni' person with whom it is alleged that adultery \va> conunitted, but not otherwise.' It is not competent to prove loose conduct of the alleged paramour with other women. "^ And where the defender otVercd to adduce medical evidence that the alleged para- mour was viiyo itiuivlo, this was held inadmissible, J]ut it was suggested in that case that there might be circum- ' Lnn,l,,i v. /.., ISiO, -1 ll;i,u'-. CM. -2 ; r,(,/r»/,n(. V, ('., ITSMI, -2 Ilagy. (M!. 1. - Si'pwlth V. >'., IS.->!), 4 S. iUMl T. '2\'A; Mr III siuiU' c'lli'i't li.P. lir^lis ill ll'olL,,- V. 11'., |s71,!i M. loi):> ; .■i1m> Mi.t,i„(h .• V. .1., ISdO, :>,<. ami T. 95. ■■■ Dicksdii. ?; ISQs, luiil Wlitjfc \. 11'., 11 1!. 710. I i;nl„,l.^ini V. /,'., 1H.S8, IT) J{. IdOl. ■ Tunxnil v. 7'., 1SS3, U) II. 1 1S7. " I'rrriii V. /'., 1S2:2, 1 Ad.l. 15 ; i:,,r,s V. /,'., IM3, :> I'liill,, at \K M7. • Klii'i V. K., isiJ, .1 I). JDi) 4 ! ''M i; .1 ■If;! li >i: w ! ■iG DIVORCE FOR ADULTERY. stances in wliich the Court might, on the defendev's motion, order a medical examination of the paramour by a neutral medical man.^ An ao-ent conducting a consistorial case is now a competent witness, except in an action of declarator, founded on promise auhsi'.q iten te co/ > iiloJ Evidence of Indecency. — Prouf of indecent familiarities with the 'pd.rticejys crimlnis either before or after the alleged acts of adulter}' will be admitted. ' The evidence of a woman that defender had committed adultery with her was held com- petently corroborated by evidence of indecent conduct of defender with another woman with whom adultery was not libelled.^ It is ^)j'/?U'' /Wc/^^ evidence of adultery if one spouse infect the other with venereal disease. •'' Where the adultery is inferred from the fact of the wife's preg- nancy at a time wlien it is alleged to be impossible that this could be the result of marital intercourse, the fact of the husband's non-access must be proved. In such cases it is not necessary to libel tlie name of the paramour or to specify acts of adultery." Presence in Houses of Ill-Fame. — The fact nf a husland iikia\. /'., 1 lid;-. ]•:.]{. 707 ; Collettv. <'., 183S, 1 Curt, Jit j.. (iSH ; King v. K., r, Notes .,(' Ciisos, 2.''i2 ; ami .sec MiiriilicHv. .l/,,ls(id. [,.!!., ] I'. aiMl I). 702. " Tiilliih v. 7'., isdi, ■2:] I), (i.-i!!. ■ .\.hii,.<„ii V. /,'., :2!» l,.J.,Mal. 17f ; (M!., at ].. :5ol : Unhiii^oii, supni. t'rairford v. <'., I^i^d, 1 1 IM). l.M). i /;»07/.'.« V. /;., IH17, ^ lla--. (Ml. '11 (!lm.. ]\'. and 1 Wni. 1\'. c. 2-2:\; Crnfl v. «',, IHIM, :j lla:^;,'. EM, iil>, .^ :)(>. i, , i •iS DIVORCE FOR ADULTERV. arc declarators of marriage, legitimacy, bastardy, nullity of marriao-e, and actions of divorce or separation. It was laid down in one case that "sufficient evidence" means sufficient evidence independent of the admissions of party. ' But this is too strongly stated. The Court will require cviderre in addition to admissions, but if enough be proved to exclude the suspicion of collusion, great weight will reasonably be given to the adniissions.- Defences. — It may be pleaded that the marriage was a nullity.-' But an impediment to intercourse supervening after marriage is no defence.-* In England, a wife negatived the charge of adultery, in support of which strong presumptive evidence existed, by proving that she was vir;jo iidacta^ Such evidence was once held incompetent in Scotland, but it may be doubted if the grounds for refusing it were satis- factory.'"' Condonation. — The pursuer in an action of divoroo, on the ground of adultery, will be barred from insisting in it, if it appear that he has condoned tlie adultery founded on. Con- donation cannot be conditional. In other words, the husband caimot take back his wife on condition that, if sho is after- wards guilty of impropriety, short of adultery, he shall ha\i' the right of obtaining divorce, on the ground of tlio condoned acts of adultery.' By the canon law, condonation ixv vcrha without return to cohabitation was sufficient to bar the right of action. Bank- ton'* and Fraser'' think that this is also the law of Scotland. But in a recent case this was doubted,'" and in Knghind noth- ing short of conjugal cohabitation amounts t(j enndonation. In the leading case Lord Chelmsford said : " Words, Iiowcmm- strong, can, at the highest, only bo regarded as imperfect ibr- givcness, and unless followed by something which amounts to a reconciliation, and to a reinstatement of the wife in the con- dition in which she was before she transyressed, it musi 1 Miilrhcad v. M., 184(i, H 1). 78(i. ^ Dickson, 1^ 2H4. :« Sirnll v..s'., 18(i2, 2 S. anil T. 422. •« M.v.M.Ami,lil L.J., 1'. 1111(1 M. '< l>((ri(l.< 18()(). 2-2 I). 74!>. 1(58. ('nlli„,v. ('., 1884, II 1!, II. I.. 1!> iliiiiktdii, I, "t, 2!>. Frascr, ii. ] I7(!. " llai^tnti V. 7.'., 1881. 8 W. ;JT1. UuHlw //., 18o(;, 1 iH'iuie 121. r CONDONATION BY WIFE. 49 remain incomplete.^ This does not, necessarily, imply a renewal of sexual intercourse." The fact that the hinocent spouse continued cohabitation will not support a plea of con- donation, unless ho had knowledge and not mere suspicions of the infidelity of the wife. III. — Husband who had condoned previous acts of adultery continued to cohabit with wife for two nights after he sus- pected her of renewed adultery, until he got legal advice. Opinions were expressed that he was not barred by condonation." It was observed, by Sir J. P. Wilde : " If the evidence lead the Court to the conclu.sion that the husband did not thoroughly believe that the wife had beep guilty, and, therefore, did not forgive her when he took her back, condonation is not estab- lished.'" It would, however, be condonation, if the husband's attitude of mind appear to have been one of determination to continue to c(»liabit with wife, whether she was guilty or not.^ When the husband and wife continue to roside in the same house, the presumption is that there is condonation. But this may be rebutted. ///. — Wife slept at husband's house the night after the last act of adultery charged (of which act he was cognisant). Held that the onus of showing that they did not sleep together that night lay on the hu.sband.'"' ///. — When husband, at the desire of the wife's friends, let her stay in the house, lur m-nl sleeping with her, the plea of condonation was repelled." Condonation by Wife. — The Court will be much slower in coming to tlie conclusit)n that a wife has condoned her hus- hand's adultery. This arises partly from the hardship of hold- ing that a wife, who has, peilia^js, no means of support, bars herself from obtainiiig relief, because she does not at once leave her hu.sband's house on discovering his infidelity. It is p.'irtly due also to social sentiment. Many persons, esjiecially men, would regard with a degree of contempt a husband who I K<'th V. A'., I s. iiii.l T., :5:'. I, i:. i. - ////(/. •' Kiitit, xiijirii. ■'i',>lll,i.'< V. r., 10 H. -jno, iiiiil 1 I '■ TinniiliKjs v. 7',, :) Ha;4i.,'. W?. i;. II.L.^ I!». •■ /...;•./ <'l,>„ci ■ •' >d," The plea has been stated by creditors. But it is 1 Pi>))Hil^ V. /'., 1 Hii,l;k hiirant v. I)., 1 llii-^'. Kocl. y.V(/// V. yi, ibid. 7!);3. - A mill'. V. A., 12 Jiir. .">l'"). •'ii. il7i). 'Collins, 11 R.Il.L. lUmpr, 1 S. ami 'I'. ■l!)2. As Id wiirlli.'i' l,.ii'.l .\(lvncaii' must in.si./.s V. ({., is(i;}. :v2 I...I., I*. and M. 78. m 52 DIVORCE FOR ADULTERY. she should return to her former course of life and deserted her, the plea of connivance was sustained.^ But where a similar suggestion was made in rixa, and not intended to be acted upon, and the wife's adultery was dis- connected in point of time from the suggestion, the plea was repelled." " To found the plea oi lenoclnlum, it must not only be proved that the husband used the expressions founded on seriously — that is to say, that he meant that his advice .'^hould be acted on — but that the wife understood that they were so meant, and that she acted on the advice."^ Connivance being of a criminal character, the evidence must be grave, and if the facts are equivocal it will not be presumed.' A husband who suspects his wife of inKdelity is not guilty of connivance because he causes her to be watched. But when his agent for this jDurpose attempts to combine the characters of detective and procurer, and causes the act of adultery to be brought about, the husband will be barred though the agent went beyond his instructions.^ It is not connivance to take a wife to a brothel, except with the intention of tempting her to commit adultery. E.ij. — It may be proved that the husband took the wife to a brothel to get drink,*' or to be identified by the brothel-keeper." Connivance may be pleaded against the wife, but will be less readily inferred than against the husband.^ III. — If a wife, though unwilling that her husband should live in adultery, ultimately con.sents, for the .sake of obtaining an allowance from him, this is connivance.'' Connivance may be inferred from long delay in taking pro- ceedings. It would perhaps be more correct to say that in such cases the pursuer is barred by mora and .acquiescence.'" Lord Stowell says : " The Court will bo indisposed to relieve a I Marshall v. M., 1881, 8 ]!. '' Donuhl w I)., 1m;3, 1 M. Til. "02. - ir- ?«//.-■-,■ V. \V., 1800, i M., ill ]). '•' HunUr v. 7/., 1883, 11 I{. 35!). (Ul.l ■' Ibid., at }). 3()7, lur h.V. ln<,'lis. - Turlnn v. 7'., 1830, 3 Hii^^'. E.i{. ^i'/ri7/t>v. Z'., 1844, 1 Hoi.. 144. 338. ^Pichii V. P., 1854, 34 L.J., \\ '■' Ross \. /.'., 180!), L.R., 1 \\ ,iii,l and M. 22; Uomr v. f/., 1872, I). 734. L.R., 2 P. ami D. 428 ; Stujij v. ,S'., i» Tnuv v. C, 1800, 3 Ila.uK. K.K., 18G1, 31 L.J., V. anil M. 41, ntit at )). 131 ; ,vu ca.^^L'.-^ m Mora, Infra, I'olloweil. p. 54_ f! COLLUSION. 53 party who appears to have slumbered in sufficient comfort " over the knowledge of his wrongs.^ It has been laid down that if a husband have once connived at his wife's adultery he is barred from suing for a divorce on the ground of any other act of adultery, cither with the same or another man. He cannot say " non omnibus dormio," or " non semper dorniio." - But this doctrine is doubted by Lord Fraser,-^ and is probably a question of circum- stances. Collusion. — This consists in the pciniitting of a false case to be substantiated or keeping back a just defence.* It is collusion if it be shown that the husband promised the wife he would commit adultery that she might get a divorce, and she has him watched to procure evidence.^ III. — The plea was sustained when it was proved that the iiusban. 18. ■' To',l,l V. 7'., I,s(;(;, li.l{., I I', uni D. 121. 18i)0, 1.") lM).,at p. 74. "Collusion nirans sonir, fraudulent agreement to present to the Court a falsity, or " /.'.0//.S V. /*'., 18(i7, 1 L.l*., 1'. keej) buck a truth," /nr Bramwell, and I), .wri. lUit .sn; Umham v. (/., B., in //. v. <'., 18i i: *; 'f ;;,'"! • I if ill -'I::' 7.,' KU' r 54 DIVORCE FOK ADULTERY. of the Scotch Courts, but in agreeing to forfeit money if he ^eltiu(>- up evidence in support of the divorce, even if the evidence be true.^ But the fact that the wife, the defender, gave tlie husband's solicitor a photograph of herself, and attended in Court to be identified, and for so doing received money from the solicitor, was not held to amount ti) collu- sion.^ Mom Long delay in bringing the action raises a presump- tion that the pursuer has acquiesced in the injury complained of, and unless satisfactorily explained will bar the .suit.'' III. — Husband ia 187^ obtained judicial separation on ground of wife's adultery. Wife continued to cohabit with the paramour. In 1882 husband iietitioned for (livoree. His suit was dismi.sscd on ground of delay. This judgment was reversed after evidence as to the cause of delay, which was poverty.^ ///. — Wife had waited eighteen years. Her reason was that theadultcry was with her si.ster, and to spare her mother's feelings she delayed raising the action till the death of her mother. Divorce granted.'' Misapprehension of the law may excuse mora.' A pursuer is not obnoxious to the plea of mora, who being absent from the country at the time of the adultery, raises the action as soon as he returns.*^ Adultery is also a Ground for Judicial Separation. — A pursuer who has preferred tlie niintn' remedy is not barred from subsequently suing for divorce for the same offence." ^Shnir V. (liiiilil, I8(i8, LI!., 3 11. ■' Ma.^iui v. .1/.. |ss;?, s I'.l). -21. of L. Ca., at p. 74. '■ X,K„iaii v. X, INTO, l-.H., -2 V. 'Mifhiiini V. ir,mii, \m\, ;iu I...I,, ;iua J), ri?. p. ami M., at ]>. i>\). ; f„ii, „„„./,, v. 7'., is.",!), | S. and •■' ll'irris V. //., 1802, 31 L..T., ^Fal. T. -y'u. *"'• J^^"- ^ JhHoi, V. //., 1,S73, II M. -I'm. M5ell",s rriii., ^ i:.;]] ; Jlinilln,;/ \. ■' (iril.'i \: U., ISr.d, |3 l).,at ]i. 33.3, /J., l.S(i4, 3 S. an.IT. 320; /',//,;-(■ V. and 1 Ma(.(|., at i-. 2(i7 : Kisk. i. -P., 18a!), I S. aiidT. .")r>3; :\7c/My/.so/( (j, K); ,s.,r ('imri v. (' , \X')\) 2!) V. N., 1873, L.lf., 3 1'. and 1). .^,3. L.J., 1>. „ud M. 30 and (i(». Tt? DAMAGES AGAINST I'AKAMOUK. 55 Action of Damages against the Paramour. — A husband is entitled to raise an action for damages against the seducer of his wife. Tlie ground is generally put as loss of her society — j)e-i' quod consortimn cAnlsit — but compensation is also due for the outrage done to his feelings.^ Damages may be sued for without divorce, or may be made an ancillary conclusion in divorce proceedings. In either case it is competent to send the question to a jury, but the practice is for the Court to decide both as to the divorce and the amount of damages. A husband who condones his wife's adultery is not thereby barred from suing the paramour for damages. - But a husband who had himself been guilty of adultery which his wife had condoned was held, in England, not entitled to damages from her paramour,'' but decree of divorce wa.s here refused. m How Damages are Assessed. — Sir James Hannen, in direct- ing a jury, said, in assessing damages against a co-resjoondent, the jury ought not to seek to punish him, but ought only to give compi'iisation for the loss which the husband had sus- tained, ;iii(l must consider whether tiiis loss was caused by the act of the co-respondent. Tliey might consider tlie fact that the hu.sband had allowed the wife to live apart and knew she iiad no means of support. The raeans of the co-respondent were not in any way to be considered as a measure of lamages. In mitigation it may he proved that the marriage was unhappy," that the hu.sband had shown indifference to the wife's reputation, '^ or had himself been guilty of adultery,' or other grounds stated for inferring that the husband set a low value on the wife's society. 'J'he low character of the wife may also be pleatled.'' [■'if;:i ) ' (lliiii y V. Sii III sail, IS.")!!. l,s 1). Siiiik. l!)l ; WiUi^ V. lUriinnK is:i2. (io<» ; lliiilln V. llnj.^nii, IMS, 1 Mur. s l!iii;j:. 37(;. .•517. '• CiilcniJI \. Iliiiljiiriiinjh, ISlil. 1 -' Miiuhniahl V. J/., Ins.-), \-1 W. <'. 1111(1 1'.. at p. :}0i. 1 ' ' V.Vll. • Ui-iiiiihii V. ll'iillaa, ISOi', -J i:>]>. ■■ Stiiiii V. N.. IShT, 12 I'.l). I'.Mi, 2:'.7 ; JUiilll,- V. Bri,s,ni, 181S. 1 Mur., at y. SMK * Keysc v. K., IMMO, | | I'.D. luo. ^ Miiiitiiii V. M., IS(),"),4 S. and '1'. ■' Tvilinni, 11 V. (\,l,iiuiiu ISIT, -' 1. ■)'.». 56 DIVORCE FOU ADULTERY. III. — It appeared that the wife, though cohabiting with licr husband, was leading an abandoned life when the co-iespoudunt made her acquaintance. Evidence made it, at least, probable that the husband was aware of her infidelity. No damages.^ Unless there is evidence that the co-defender knew the defender was a married woman he will not be found liable in damages." A co-respondent against whom heavy damages were claimed, was held entitled to recover letters between husband and wife, between certain dates, containing material information whieli would reduce damages.'^ The Court is not at liberty to recognise an agreement between the counsel for the husband and the paramour respectively, as to the amount of damages. ' ' Mantov V. .V,, 1865, 4 S. aii.l T. ^r. 1074. lo9. ■■ I'olhiiil V. /'., isd-l, .3 S. ;iii(l T. '^Teagle v. 7'., IS.VS, 1 S. and T. fil,3. 188 ; rruh- v. I>., ISfiO, 4 8. and T. ' (\di,rcll v. <'., ISdO. ;? S. ami T. 238 ; and sec Kydd v. K., 18(;4, 2 iT)!). i I I CHAPTEll VII. JI'DICIAI. SKl'Ar.ATlON. It is competent for tlio Court, for certain definite causes, to onluin that the spouses shall for the future cease cohabitation, although the clnralitm riKilrinioni I remains unsevcred. Public policy is strongly against increasing the number of persons living as if single, and yet not free to marry — hus- bands without wives, and wives without husbands. It is only grave and weighty causes, therefore, tliat the Court will find sufficient to justify the spouses in living apart. The grounds recognised by the law of Scotland are — (1) adultery, and (2) cruelty. As regards adultery, nothing need here be said. If the innocent spouse prefers the renu'dy of judicial separation to that of divorce, it is e(iually competent. The same defences may be pleaded — connivance, collusion, condonation. (2.) Cruelty or Saey/f/a. — Gross cruelty, indicted by cither spouse on the other, will ground the decree. The usual form of decree is the folhjwing: — " Finds it proved that the defender, A B, has been guilty of grossly abusing and maltreating C D, his wife; therefore finds that the said CD has full liberty and freedom to live separate from the said A 1>, her husband : Ordains the said A B to separate himself from the said C D, (I mensa ct thoro, in all time coming, and decerns." Lord Eraser maintains the opinion that it is competent for the Court which grants such a decree, to recall it " on being satisfied that the cause for which it is granted no longer exists : the wrongdoer having reformed his life, and bv a thorough repentance and reformation rendered it safe to cohabit with him." But this doctrine has been negatived in a recent case, and it has been held that a decree of separation is permanent, and cohabitation can only be reneweil by the 57 I ■ H ■ i i 1 ■ -i I ! ; ■ I m 1 % XI ill ( n ' f. 58 JUDICIAL SEPAUATIOX. consent of both spouses. A wife obtained decree of separation for cruelty. The cruelty was communication of syphilis. Five years after the husband raised a declaratory action that there was no longer any reason for the separation, and that the Court should recall the decree on the ground that iiis health was now completely restored, and his wife had no further danger to fear from cohabitation. The action was dismissed as incompetent.^ What is Cruelty?— (1.) By the husband. Crtielty is in each case a question of fact. T'k; issue before the Court is — Does the husband's violence imperil the wife's life or bodily health ? The ground of interference is not to punish the husband for the past, it is to protect the wife for the future. The question is always, " Whether the wife can with safety to life and health live with the husband now?"- Accordingly, the Court will decline to pronounce decree, even though considerable violence may have been used by the husbiind, if they are satisfied that there is no serious risk of its repetition. The following dictum of Lord Brougham in u well-known case ■" was cited by Lord President Inglis as the best exposi- tion of the law': — "Personal violence as assault upon the woman, threats of violence which inducu the fear of immedi- ate danger to her person, maltreatment of her person so as to injure her health; these are, both by the law of Scotland and England, a sutficient ground Inr divorce, a 'tneiisa. r divorce." The cases are infinitely vari(jus in their circum- stances, and the Court will review the whole history of tin; married life, and consider the position of the parties. There may be violence so gross as not to be justilied by provocation, however great or continued. On the other lian!)7. App., iit \>. :ir,:\. ■ I'er Lord I'lvsLlfiit lii-lis in • <;n>lm„i \: (1., INTn, .". hV, at p. 6'm/i liiisliaihl. Ill takiii- it, I'loiii licr li\ t'urci' slic sustains sli-lit iiijiu'ics. Not iTiirlly '(Hint- V. <>., IHU\, I I la--. CI!.', at ]>. :\:\). - Iii-. 1L':5. ■ flomlu, V. /'., l^iTO, '2'.] I-.T. •2(l(i ; I'oinr v. /'., 1m;:., 1 S. aihl T, \7'-\ ; (iroliiini \. '/., s^/xc ' //.-/,/,,/ V. //., I>sl0, I I la--. CI!., at p. laS; .fSnuilhnii'il \. .s',, IS(il,:> S. and T. :J!)7, (Msc wIk iv (Hic ait litdd iiisiitlii'iL'iit ; llnris v. It., isdj, :i S. and T. ilV.I: /'../»/.•/(( v, /'., 1 7!) I, I I la--. H.I!., at ).. 7(i8, ./.,/,,• (liil>i V. (/., I,S4S, (J Ndti's lit" CisL's, l:51 : Sham v. N., IS^:>, ID I!. \:\± rH ': 1 I' ' *- 'ii - ' C:::i' n ^k iiii i 60 JUDICIAL SEPARATION. of idle abuse and words of menace indicating a malignant intent, such as might reasonably make the wife apprehen- sive as to her future safety.^ Jll — Husband threatens to cut his wife's arm off and beat hor brains out with it, and to pull her out of bed and kick her up and down the room. He once seized a red-hot poker and threatened to run her through with it. Held that cruelty was relevantly averred. - Insults. — Insulting language, though carried to great lengths, is not cruelty. But there are indignities so gross as to be far more painful than blow.<. There are many dicta to the effect that spitting in a wife's face is legal cruelty. It is not likely that separation would be pronounced on proof of a single act of this kind, taken by itself, but in conjunction with other acts it will weigh heavily with the (,'ourt in estimating whether the cohabitation has become unbearable.^ III. — A husband an.xious to disembarrass himself of his wife's company took lier by the .shoulders in ii. street, pushed her against a wall, and with the use of tilthy language thrust his umbrella against her person. A man passing by took her for a prostitute and seized hold of her leg. Held cruelty.' Habitual coldness and neirlect does not amount to cruel t v. fll. — A husband atter four months of marriage ceases to speak to his wife, leaves her nearly all day, occu})ies a separate bedroom, and declares his determination to contimie in this coiu-se. Held not cruelty.'' III. — Husband treats wife with habitual neglect and aversion. Abstains from marital intercourse. She discovers that he is carrying on adulterous intercourse with a servant in the hou.se. Not cruelty.'' Perliaps the most difKcnIt class of cases is that in which the husband abstains from actual \iolence but exercises a course of studied and calculated tyr;inny. It is no ground for separation that the manitige is unhappy, that the temper and ' LfAgnlhtrx. //.|„ I7!M,I lla--. ' .!///„,,• v. .1/., 1S(||, l S. aii.l 'I'. K.U., at ]), TT") ; ()lir,r v. (>., 1S()|, | j lo. llji,U,L,'.(M{„at II. m\\ Chisniiiitl v.r lHr)4, 1 S| links, lit ]i. I!)S. /',(/, /'.. is.-.o, H'liilihll \. »r.. IS(1:>, :i S. aii.l T, \\>]K :{;)7 (ill ('. Ill .^. 1 1 I), k'l KM. V. i' IHIt, I S. ami I ■ 1 ■» ■»84. I , \\ CRUELTY — COURSE OF TYRANNY. Gl tastes of the spouses arc incompatible, or even that the husband is constantly in a state of degrading intoxication and in the habit of addressing his wife in terms of the grossest abuse.' But habitual intoxication is material in considering if the Avife's safety is endangered.-' And where there has been actual violence, it is no defence that it was committed in drunkenness.'' There is, however, a kind of case where something like a deliberate .system of cruel tyranny is carried out with the intention of breaking the wife's spirit. Body and mind are inextriciibly bound up in our constitution, and mental distress is one of the commonest causes of bodily derangement. A wife's health may be slightly endangered by knocking her down ; it may be shattered by years of misery and irritation. The Court will not grant decree because the marriage is so unhappy or the husband is so addicted to some vice that the wife's health is broken down by misery.' But where a husband, on the ground that his wife had conspired to prove him guilty of a heartless breach of trust (which aj)peared to be an unwarrantable inference from a letter of hers), ])ractised a system of tyranny to induce her to confess iier sin, which she denied having committed, decree wa.-^ given. The facts were these : The lady, who was over sixty, had been married twenty-seven years. To bring her to con- trition she was entirely deposed from her natural position as mistress of the house. She was debarred the use of money. Every article of dress, every triile which she re(juired, had to be put down on paper, and her husband provided it if he thought proper. At one time the doors were locked to ki-ep her in ; at another a man-.servant was deputed to follow her; at another the husband insisted on accompanying her hinj.self whenever she wanted to go out. lie spoke to her in the language appropriate to a woman guilty of adultery. lie took no meals with her, he occupied a separate bedroom, he passed no portion of the day, however small, in her society. Everybody she desireil to see was for- bidden the house. She was not allowed to post a letter ^ i'liiKonill, (,'iih, ('it.; (liiii;^t(iii - M'Odiiii v. Mu;., I.SHO, >s |{. iJT!). .Idt's not .4ate tlu' law too 4r(Piii,'Iy. ■ Fulton V. 7''., hsrx), iL' I), 1104. it Jl ' 'Hi ' '•). ! -I ■■^!;;'i I 1 1 ^1r .!';!•. m j 1 ' •hi ^^ ' 62 JUDICIAL SEI'AHATION. which ho had not read. Tlie care of the house was given to a woman wlio was told to take no orders from the wife. Her health was so broken that medical men said the result of continued cohabitation would probably be paralysis or madness. The full Divorce Court, affirming Lord Penzance, found this crueltv.^ And in a case where the harsh and irritating conduct of the husband seriously affected the wife's health, Butt, J., said: "Although I am not aware that there were any blows, still, if the conduct of the husband be such as to endanger the life or even the health of the wife, that is cruelty in every sense of the word, whether we talk of ' legal cruelty' or anything clse."- The case of Kelly was expressly followed very recently in the following state of facts. The husband occupied a separate room, professsed loathing for his wife, used violent language to her, and treated her with consistent neglect. He kept a mistress during the whole period of the marriage. ]\Iedical evidence was given as to the effect of his treatment on the wife's health.-' The case was practically undefended, and this fact was referred to in a subsequent case as weakening its authority.'* The facts oi JieanelcrJc'^ case were the following: The husband had at one time left his wife ami eloped with a woman with whom he spent some months. He subsequently returned to cohabitation. During cohabitation his conduct was openly proiligate, and he habitually told his wife of his amours. Theie was medical evidence that lier distress at his proHigacy led to great nervous exhaustion, long faint- ing fits, and weak irritable heart. Butt, J., held this did not amount to cruelty. Tlie Court of Appeal did not decide this question, dismissing the suit on the ground of tlu' wili''s delay of twenty years in bringing the suit. Lord .Justice Lindhjy .said : " I will assume that there has been such mis- conduct on the part of the husband as to have injured his wife's health to his knowledge, and I will assume that, not- withstanding that knowledge, he continued such miscon- tluct. If that was the true resnlt of the evidence, 1 think it would follow that a case of cruelty had been made out." ' Krlhn: /v.,1870, L.R., -2 1'. fiinl 1). ■)!). ^ Mijtion V, .U., 1880, 11 IM),, ill ]). I i:j. ■ liitlnnir V. /?. fl8!)|], P. LWi. ^ llrovrkri: v. /.', [1M!H], I', 18!). CRUELTY ATTEMPTED VIOLENCE. 63 And Lord Justice Lopes said he was not at all prepared to hold that the facts did not amount to legal cruelty. There appeared to be in this case some evidence of systematic intention on the part of the husband to injure the wife's health, or at least of reckless negligence about it, in narrating his profligate conduct to her after poi'cciving the injurious effect of these disclosures. But even if this bo so, the case indicates a disposition on the part of the Court to extend the principle of the case of Kelljj. It was suggested as a sound proposition in law that the Court would interfere in any case when a man with ingenuity makes his wife's life a l)urden to her, without causing her bodily pain oi' apprehension. This is inconsistent with the older decisions. E.ij. — Dr. Lush- ington says : " Mental anxiety, excitement, bodily illness, though occasioned to the wife by the conduct of the husband (and this was a case where a medical man said the wife's excitement bordered on insanity), does not constituie cruelty, except such conduct was accompanied with violence or threats of violence."' The case of Kelly was one of almost diabolical cruelty, perpetrated by a man of whose amendment there was little hope, because he evidently believed he was acting from a sense of duty. At present there is no decision in Scot- land which extends the law to tlie point indicated in lirfhune and Bcdudei'h, and it may be doubted whether the rule will be so far relaxed.-' In a case where a servant in the house gave birth to a child f)f which the husband admitted t'lie paternity, it was held that the wife was justified in non- adherence, the girl still remaining in the husband's house. But the ground of judgment, though not clearly stated in the report, seems to have been that adultery was proved, and not that the retaining of the girl was such an insult as to be legal cruelty.-' Attempted Violence. — Seeing that menaces, if serious, amount to cruelty, it follows that an attempt to commit an act of violence, though unsuccessful, may have the same weight. Tiie object of interference being to protect the wife, the (\jurt is not bound to w.thhold its aid till the wrong has actually been done. '<7«.s'.s',M(^', isr.l, 1 Siiiiiks.ut i». l!l!». - SiH', lidwcvcr, Miti'hiir:ii v. .1/., l.S!»'J, :ii) S,L.|{. iiTd. ■'As tn wllioll, >•('( /"y. .s's7(/ V. \(tini, \1\:>,\ l^)!'. Sii]>i». 8S0, and i'oioini v. ('., I8(.7., 4 S. and 'I'. KM ; l.ilham v. I'mrni, 18:2:5. -J ^. 2H|. H» M r 64 JUDICIAL SEPAIJATION. ///. A husband throws a firn-screen at his wife, intending to hit her, :ind with a violence v/uicli would liave made the blow dangerous. This is cruelty though it misses her.' It would seem to be cruelty to terrify a wife into leading a life of prostitution against her will. (See Coleman v. C, IHGG, LR. 1 P. and I). HI.) It is not cruelty to sleep in a separate bed.- Communicatiop ''* Disease. — The wilful communication of the itch has bo.i: • . > be cruelty, though perhaps not such — uclty as, stand iii^:, .«,....,, would justify tlie interference of llio Court.'' It would appear on principle that a husband sutVer- iu" from any infection^- diser-* ■ who maliciously or recklessly oonununicated the infection t'i I i; '•ife, would be guilty of cruelty. Ijiit such a case would be difficult of proof. E.;/. — A husband returns home after an absence, being aware tiiat he is in the early stage of an infectious fever. His wife believes him to be in good health. If in the.se circumstances ho occupies the .same bed with her, would that not be -^'ruelty of a more gross kind than if ho had struck her ?^ Communication of Venereal Disease.— It is stated by Lord Fraser that a husband is guilty of cruelty who wilfully and knowingly communicates venereal diseases to his wife. This doctrine was canvassed in a recent case in which all the authorities were reviewed. Lord Sliand thus states tin; law : " I am of opinion that if a husband has reason to believe that an act of connection would be attended with risk of communi- cating venereal disease to his wife, and he nevertheless reck- lessly has such connection, with the result of communicating disease, he is guilty t»f such cruelty as would warrant, decree of separation."'' This is in accordance with the principle that a man is presumed to intend the natural consequences of his act. If the husband shows that he hid reasonable* grounds for believing himself cured, this will be a good defence. 111. — A man contracts .'syphilis in November. Il(.' consults a ^ n\\>jinl,rr v. //.I., 17i)l, 1 (,).]'..l)., nt |>. .^)2. ■ .Strain v. X, IHSn, i;i i;.. ,it p. \'M'}. )Sm alsd Ji(iai(li)ii(ii v. /.'., iSCiCi, I I', and I). :i:j;j; M,r,,h,il v. .1/., Ihfi!), !-.!{., 1 I', and D. -()-l : i'nihif v. r., i,s;5,s, 1 Ciutcis' K.|{. (i78 ; lli'iuiui V, /;., iMi;,-). I I'. ,1,1.1 |». .1(1, lliij^l,'. E.ii. Sii]!])., al !>. "il^ ••i Patirxoii, 7 JJidl's Apji. 3H7, cit. ; D'Aijiiilar v. />'.!., ^iipnt, at \>. 77.'). •' (7i(^1.s».(//^ IS.-) 1, 1 Siiiiiks,at ]i.iiorj. * Sir lUcliim iif Hawkins, .1., in Tlu V'/..,( V. Chtnnv,, 1HH8, :>!> ^ COMMUNICATION OF DISEASE. 05 (jnack practitioner who treats liim for the complaint. In April lie is advised by this man that he is cured, and may safely marry, as he does. His wife contracts infection. Held cruelty.' The question of onus is sometimes difficult. When the wife contracts disease, is there any presumption of fact that she has been infected by her husband ? III. — A wife who has been married eight months is found to 1)0 suffering from the secondary symptoms of syphilis. The liusbond is at once inspected by medical men who say he is free from disease, and they would have expected to find traces of it if ho had been infected at or since the date of the marriage. The husband swoi-e that he never had .syphilis. The wife denied connection with any other man before or after marriage. There was no other evidence. It was found by a jury that the husband had been guilty of cruelty in communi- cating disease. The full divorce court (Willes, J., dissenting) held there was not sufficient evidence to support a verdict. - It would .seem to be settled by the case of Murphdi thiit there must be evidence that the husband was surt'eriu'- froiu disease. It will not be inferred from the state of the wife, for the wife might have contracted it by an adulterous con- nection or from illicit intercourse before marriage. Or she might have been infected in some other way than by sexual intercourse'. When the Husband is Infected with Disease at Marriage, but the Wife does not Contract it. — It was held by Di. Ijushiui'ton that in this case the charge of crueltv was not sustained. There nuist be actual conununication of the disease.'' It seems ditlieult to reconcile this with the general |irinciples of law. If it is cruelty to throw a fire-screen at a wife, though it does not hit her, it is ilitHcult to see why it should be loss so to wilfully expose her to the risk of a loathsome disease. Where the husband was suffering from disease, and the wife on that account refused to sleep with him, attempts by him to compel her to do so was held by Lord Stowell to be cruelty.' Confining wife to house. — It is said by Lor^l Fraser that I % \ , illi: ! I Slnilii v. N., IHSf), 115 1{. 132. - Moviilhll, b.lM I'.un.l l).7()2oit. •' Ciocciy. <'., IS.").'}, 1 S[iiiiks, at p. V.i-2. * i'opliii V. i'„ 17'.)4. in unto, 1 ll!Vj:4. bl.C, lit y. 7(;s. 1" i ,■ ,, ; GG .ITDICIAL SEPARATION. it is uot cruelty if the husband " confines his wife to the house, or at least directs her movements in such a manner as to pre- vent her going to places and engaging in pursuits of which he disapproves." But it is, to say the least, very questionable whether a husband who locks his wife in her room to prevent her going out — e.rj., to the theatre — would not be guilty of cruelty, in the recent case of Jiwhson it was said that a husband who met his wife on the stairs preparing to elope might be justified in restraining her by force. But this falls far short of the proposition of Lord Fraser.^ The refusal of necessaries to the wife is cruelty if the husbond is able to supply them. And in judging of the no defence to a charge of cruelty that the violence of the husband was provoked by the drunkenness of the wife. " If she comes drunk into his shop ho may take her by the shoulders and turn her out, but to follow after her and beat her is inexcusable : there is no law authorising a man to beat his drunkt'ii wife."'' Delirium Tremens. — So where the violence was done when the husband was sutfering from ddirhim tremens, the Court did not refuse decree on proof that the disorder was removed.^ Constructive Cruelty. — Cruelty to children in the presence of their mother, and for the purpose of causing her pain, has been held to be cruelty to her.'' But a strong case of this 1 Dijsinl V. />., 1 K(p1)., ;xt ]). IKi, iHiittftl witli iqiiu'dViil by Sir ('. ('resswcU in M. 107 ; also H'kltr V. H'., 18.M), 1 S. and T. f)!)!. - Ciirf!^ V. <'., 1858, 1 S. and T., at ]>. 213, a ('ase wliicli contains a vi'iy lull exposition of llie whole law as to cruelty. •' I'd- Hir Cresswell Cresswell, in r.nnnaii v. P., 18()0, 1 S. ami T. GOl. * M,ir.'. G4. ^ Kirknian v. 7v'., 1WI7, 1 Haj:,n. C.K. 40iJ; also l)7t/.V v. /!'., 185!J, 1 S. and T. .")'.) 1. ■' Fiirth v. F., 18(i7, ;3(; b.J., I', and M. 122; Prkhavd v. P., 18(J4, :i S. and T. 02;}; Fi'rlLir,ip. at p. 112 ; xn D'Afjnilar, 1794, 1 ^Iilg,l,^ E.K., at p. 781 ; Wilson v. ir., 1841), G Moore, P.O. 484 ; Bos- tock V. B., 1858, 27 L.J., Mat. 8G. -BiUucl.vk V. /;. [1S!)1], P. 18!) ; ,svc (lis,, Miilthnrs V. M., IS,-)!), I S. aii.l T. 4!)!). ^KcifiiKiii V. .v., 1870, 2 P. ami D. 57. MOli.i . 71 for her Imsband's refusal to let lier sec her childrei), she woulvl not liave broiight the action. But ii was helc'i that as she coiihl not safely return to coliabitation, she was not barred by havuig- delay Lc I action as Ioul; as shr> was allowed access t(j the ehiidri'n.' An action of separation and aiinaent at the instance of un insane wile with a curator , 11 I). 1217 ; and 6 M. 1125. see (iuardiansliii» df Infants Act, ''.S,r If 00(1 V. //., 1871, 9 M. 449. 1S8G, 1^ 9. 72 ^* I \ I FATHER S RIGHT TO CUSTODY. 73 I i !■ by way of separate petition.^ In the same case it was held that the statute conveyed no further or higher powers than those which at common h«w resided in the Court, except that the authority might be exercised in the process between the spouses. By the common law of Scotland the father has prima facie the right to the custody of a legitimate child during its pupillarity." III. — Husband, an engineer eiigaiicd abroat], leaver wife in Scotland with four young children. Subsequently he petitions the Court to ordain his wife to deliver the children into the custodv of his mother or any person named by him. Court grani.T ihu petition without requiring proof of any unfitness in the wife to have the custody. Slie is allowed access.'' It was laid down in the case of L(iv(j that tlie Court will not interfere with the father's right, unless it can be shown " that the children's health, life, or morals, will be endangered by their remaining in their father's custody." * III. — Wife who has obtained a judicial soi»aration on ground of cruelty, petitions for custody of two children aged seven and five respectively. Petition refused.'^ ///. — A wife left her husband on account of cruelty. Subsequently she gave birth to a child. Husband petitioned for custody of the child, then seven months old. Petition granted. The wife ottered to prove that he was unfit, but her averments were not admitted to proof, as they did not disclose any reason for a]>prehending dangei to the child from being in his custody." In considering whether children should be removed from the custody of their father against whom a decree of divorce ov of separation has been obtained, the fact that he has been guilty of adultery is material but not conclusive.'^ I \-'>i \-i '( ' -I Conjugal Rights Act The [louse of Lords in the leading case distinctly laid down the principle that each case must be judged of according to its circumstances. Lord Chancellor ' ^rtHjT V. /.., IHfi!), 7 M.445. '^ lhla,u\i, 188!», K; 1{. lU-.V '■^Vnijno'w J'., 188;}, 10 H. 1072. ^ /'( r ij. Jiuiilinliiii', lit ]t. -147. '' L(ti,(j, 180!), 7 M. 445 ; iHiil s.r nU) SI, iiovt V. N., 1870, 8 M. 821. " yicohon V. .v., 180!), 7 M. 1 1 18 ; also LiUcy V. L., 1877, 4 It. 3!)7. ^ As to the case oi' llu' divorced wifi', sev Jimnimii, 188:), 10 R. 1234. ii|:i ^ A Mil i' 7^ t'USTOUY OF AXD ACCESS TO CHILDKEX. Cairns said: "It was suggested that certaiuly in England the analogous provision to that which I have read (Conjugal Rights Act, {$ 9) had been acted upon in this way, that where a wife established her title either to a divorce or to a separation, it was either matter of course, or almost matter of course, that that shoultl carry with it for her the custody of the children ; and that having shown good cause for severing the conjugal tie, she, not being in fault herself, should not be amerced or punished by being deprived of the custody of her children. My Lords, I should greatly regret that any general rule, so sweeping and, as it appears to ine, so inconvenient in its working, should be laid down on a subject of tliis description. It appears to mo that the Act of Parliament has given the Court the widest and tlie most general discretion, and has jjurposely done so. It appears to me that it must have him a solitary being, and deprive him of tl'e most i)owerful inducement to amendmint of life. It is not tl\at he has committed faults, but that he teaejies, or is likely to teach, evil to them, and corrupt their moials, that can alone entitle u.s to interfere."'' In another ca.se the Court exercised its discretion with a different result, and deprived a ' Slimlntjton v. N., 187'., '2 II. -' //(/(/. (H.r..) 41, lit II. 43. :i lbi~l, I iv.87i. ■' Loiiij v. /.., IfCiK, 7 M. 11'). •' l.iUnjw /,., 4 l{. ;)!)7. '■' Sla,jh V. >'., 180.3, ;{oS.i-.i{. -r,-!. '' Dixdii (III " Divdi'ci'," 394. m'/.,- ami .s.. ItAUon v. />'.!., 1x7^, 4 IM)., remarks ol' Sir Jiuiies Haiiiu'U, at J). 88. •* Witt V. W. L18!>1], v. l(i;j. " i:,,,U, V. /;., 188!), KiH. (548. I s ft f \ 4 1 h t t ! RnS!' ' 1 ; 1 (B ( 1; , I' i t ■ i -. ■ 1 il V 33 111 1 '>:\ 70 CUSTODY OF AND ACCESS TO (HILDllEN, ll Access. — It is usual when the custody of children is given ■ to one of the spouses after separation, to make an order that the other spouse shall be allowed access to them at certain fixed times. And when the spouses are living apart without a decree of separation, it is competent to petition for access to children who are in the custody of the other spouse. But the Court does not regard with favour a de facto scjiaration of married persons, and will take into account the consideration that the love of their common offspring might be the means of bringing them again together, and that rather than be cut off from their children they might learn to practise greater tolerance towards each other.' The father's right of custody does not entitle him ar- bitrarily to refuse his wife access to her children. ///. — A husband sues for divorce on the ground of ndidti'iy. By a majority the Court finds the charge not established. He declines to take back liis wife or allow her to see the children. Held she was entitled to reasonable access.- But a wife who leaves her husband's house without legal ground is not entitled to access to children.'' It flows frc>in the principle that the welfare of the child is the primary consideration, that the Court woiUd not order a mother to deliver up a cbihl at the breast, altliough she might be compelled to do so as soon as it was weaned.^ A husband who has raised an action for divorce on the ground of adultery will not be compelled to allow his wife access to a child of the marriage, pending the action, unless there be undue delay or other sjjecial circumstances.'' When the wife has been divorced for adultery the Court will not, except in exceptional circumstances, interfere with the husband's tliscretion as to access. In the sjeneral case he is entitled to forbid all communication between the divorced wife and her children." But a petition for access by a wife divorced for adultery is ' Mnfhii:.i,:\. M., 1881. S ]{. r»74. " noinivm v. Untluim, 1883, 10 R. - M'LiVV. .1/'/., 18r)i),i'l 1). lion. 12114. Tliesanu'i.racti.viK l\illow..., 1847, 10 1). 22!». ACCESS. 4 t dH uot incompetent.' Access will certainly not bo allowed if she is leading an immoral lit'e.'- The following illustrations may be given of the regulations as to access which the Court is in the habit of making. In most cases the matter is arranged by an agreement of parties. 111. — The wi^'j was ordained to deliver to the husband the three boys under the condition that they should reside with her for one month during their autunni iiolidays, for one wei'k in April, and for one week at Christmas ; and under the further condition that once a-month every alternate fortnight during the remainder of the year the said children should spend a Saturday in the house of the wife. The two girls were left in the custody of the wife under the conditiun that once a-month, a fortnight after the monthly visit of the boys to their mother, the girls should spend a Saturday in their father's house, so tlmt all five chiKlren sliould sjjond the day together once a-month in their father's house. ' ///. — -The wife left her husband's house in consequence of unkind treatment. She siibsecpiently gave birth to a child. When the child was eight months old the husbaml petitioned for its custody. 1'he Court ordered the wife to give it up on the following CDudititJU. The husband and wife were in the same town. The husband was to send the child once a-week to the wife o\\ a day selected by her, to remain from 11 A.M. to (J P.M. 'J'he wife was also to be entitled, but without any attt'iidant, to visit the child in her husband's house without his being present, at any time she might desire.' At common law, on the death or insanity of the father, the mother is entitled to the custody of pupil children. And now, by the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), she is so entitled.— And, if the father has appointed a guardian, tlie mother may act jointly with him.'' And she does not lose her right by marrying again.' The Act providi's ({;} 7), " in any case where a decree f(»r judicial separa- '>7m/. ;■ V. ht.aoi, IS^.-), 1:2 1!. v. /;., 1s^l\ !t 1{. MM. loiu. ■• -l./i'., iN-)0. ii: 11. ii>:)7. ■'>'////( ('(( '/,(//.;/, M(//yw, IM77, I Ix. :J'.»7. !!. 7sl luul (inc. Till' Miiiir nnlff was iiiadr in />'/i' 'i * 'A 78 CUSTODY OF AXD ACCESS TO CHILDREN. tion or for divorce shall be pronounced, the Court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to bo a person unfit to liave the custody of the children (if any) of the marriage, and in such case the parent so declared to be unfit shall not, ui)on the death of the other parent, be entitled as of right to the custody or guardians] lip of such child." The mother of a bastard child is entitled to its custody. But her right is personal, and a person named by her in a testament as " tutor, curator, and guardian " to her child, has no title to sue for its custody.' ' ll.viidv. >%uu; ISSS, 15 K. 44!). I CHAPTER IX. h.'1 CONSENT IN FORM BUT NOT IN FACT. Consent is an agreement of two wills. No words, however solemn, will bind the parties in marriage if it be proved, to tiic satisfaction of the Court, that they never gave a real and genuine consent. As Swinburne, an old authority, says, mar- riage cannot be constituted by the exchange of words of con- sent uttered in "jeast or sport, for such wanton words arc not at all obligatory in so serious a matter as matrimony."' In an American case, a marriage gone through in jest was roiluced.'- Thcro does not appear in be any case in which a marriage regularly celebrated, in fdcie ('(rlesia;, has been set aside on tiie ground tiiat the parties never consented. And there are ilictd to the effect that the Court will not go behind a regular ceremony of marriage and find that, in spite of it, there was no real consent. It is said that parties must be conchidcd to mean what they have expressed in such a solemn manner.'' But it is submitted that Lord Fraser is right in thiid;ing that a case might arise in which a regular marriage should be set aside on this ground. Marriages celebrated in fucie i'cclcsi(.i iiave been fre([ueiith' avoided, on the ground of force, fraud, or error. And tliese aie oidy difl'erent ways of proving want of mutual consent.' No doubt, very clear evidence would be re([uired. Tlu; conduct of ]iarties, boih before and after the ceremony, would be narrowly looked at. For, although no conduct and no change of mind can undo a marriage once con- ' Swiiil*,, "SpDUsulM," ji. 105. ■ M-Clnnj V. Tirnj, cited )iy I'.islini., ,!< ;j:58 (I'M. 18!)1). '•'■ Sii jii r Lord Stowi'll, 2 Ha;.'!,'. ('.!{., at p. 10(1, ill IhflnjiitjiU; and Lnnl Di'as in liohcrt^on v. Sl8, ;) W. anil i<.,\>\\ 1S!>, 1!)0. Q \ \' '■' hi! 3 :\{ f'lr I *:i %' 82 rONSENT IX FORM BUT NOT IN FACT. attorney," c^'c. The lady was received in Scotland as Sir James' wife. But it was held that this document was not granted for a matrimonial purpose, and no marriage was constituted.' /// — A young man gave a woman, who was pregnant by him, a declaration in these terms: — "Mrs. Fairhairn, I hereby acknowledge that you are my lawful wife, and you may from this date use my name, though, for particular reasons, I wish our marriage kept private for some time, and always am, madam, your most obedient servant, Alex. Mohk, Aberdeen, 1st May, 1780," Addres.sed to "Airs. Captain Fairbairii, Aberdeen." The Coui't of Session held the production of this document was sutficient proi)f of marriage, but this was reversed by the House of Lords. They held it proved tliat the declaration was given and received, not to make marriage, but to enable the woman to lie-iu at the house of her brother, who would not have received her if he had not believed her married. - III. — The woman gave the man a writing as follows : — " I hereby solemnly declare you, Patrick Tayhjr, in JJirkcn- shaw, my just and lawful husbaiul, and remain your atl'oction- ate wife, Ag.\i:s Kkllo," She possessed £2000 ; he was on the eve of a second bankruptcy. It was proved tliat he had represented the declaration as not nu-aning more than an acknowledgment of her love and affection for him, and a promise of marriage at some future time, when her parents were satisfied. He also promised to return it if it did not serve its purjxi.se. There was no copula. A few days after- wards the girl wrote for a return of "that foolish line." He offered to give it back for £.")00. Subsetpiently Taylor pt-r- suaded her parents to allow banns to be proclaimed ; but they, after inquiry, sent a messenger to stop the proclamation. They had been proclaimed twice when he reached the church, but he stopped the third. For three years after all corres- pondence ceased. Then, on hearing that another man was paying his addresses to Agnes KcUo, Taylor raised an action of declarator. The Commissaries found for the marriage, and '^ '■■■ ' Sa^.on V, CampbtU, 1821, 3 S. 159. Tlie Court of Ses.xioii gavo aliment to the l;uly, but the IIou.si! (if Loril.> found ahi: had no ti'dit to til is, -JW. and S. IMK - M'liiiiis V. Mure, 17M, M. 12,()8;3 ; rover.>r V. K,Uo, ITHf!, M. 12,087; 17!) ; 18:^0, 14 8. 427; 1841, -2 RoL. rcvt'i'sud, H I'at. Apj). Gti. ^W- ^■^~- 2 Stewart v. Ma'tia, 1833, 12 S. II 84 CONSENT IN' FORM BUT NOT IX FACT. hold that the writing? was proved to have been grantctl for ji collateral purpose, and found there was no marriage.^ In a recent case an attempt was made unsncces-sfully to establish collateral purpose. The parties had interchaiiivcd declarations accoptiiio- each other as husband and wife. There was copula both before and after the declaration. It Avas averred that the declaration was given by the man when danger- ouslv ill, to enable the woman to receive the value of an insur- ance on his life. The Court held that the conduct of parties prior to, and subsequent to, the granting of the documents pointed to matrimonial consent, and found for the marriage. The rule laid down in Lockijcv v. H'lnchtn', that it is not enough to produce declarations of marriage, howevrr explicit, was accepted. Facts and circumstances must be shown con- sistent with the view that the parties gave serious consent. The pursuer cannot simply table the declaration and ask the Court to find for him.'- No serious Purpose. — J^ven where it is not jiossible to prove any collateral purpose as an explanation of an apparent con.sent to marriage, it may be shown that there was no such seriousness as the law requires. ///. — A man gave this document : "Gilkerscletigh, 2(jth (>/c), 1SG4. Dear Sir, — I bind and oblige myself to keep and sup- port that woman through life, I consi^- i 11 i.l WANT OF SERIOUS COXSiONT. 8-) explicit, and it would in other circumstances have been difficult to plead that they were intended not to make marriage, but to "stop people's mouths." The real ground of the judgment of the House of Lords which reversed that of a majority of the wiiolc Court of Sessh)n, was that the Court was not satis- fied that there had been any serious intention on the part of either when the alleged words were used. The man was in the course of drinking hiinsolf to death. The house in which tiie pursuer lived was of doubtful respectability, and the evi- dence of members of her family on which her case mainly rested, was open to grave suspicion. Moreover, the facts pointed to cojiula before, as well as after the alleged exchange of consent, and the conduct of parties after that event and until the man's death, li'd distinctly to the conclusion that they did not regard themselves as husband and wife.' (2.) Where copula has followed promise, it is competent to prove that it was not conceded on the faith of the piomise. " In Older to the constitution of marriage by promise siLhsciiticiile i'lipulii. the vitpnhi must be conceded by the woman on the I'aith of the promise'. This is the principle oi theory of our law on the subject. The relation of the coitula to the promise must be that of a concession or surrender of person by the woman in reliance that the mun's promise of marriage will bi; fultilled. In the ordinary case of copula. following on a promise of marriage, the natural and reasonable presumption is that the woman desired that the man should fultil his promise, that she relied upon his doing so, and that -he yielded her person on the faith of such fuUilment. That is a very natural presmiiption, and in the absence of evidence to the contrary, the law accepts the presumption as sufficiently instructing the required relation between the copuUi and the promise. But it is not a ])irsumpflo juris et (.lejurc."'- (.*}.) It two persons cohabited and were reputed married, the presumption that they were marrietl, might be redargued by proof that they had agreed to continue free. Repute will not DUike U: rriage against the consent of the parties. "The fact to be proved is, that the payties tlicmsi'lvefi did mean and intend to ^Sliinnt V. liohi rl^iiii, 1874, 1 15. v. Ihihxon, 8 M., at p. 3")4 ; ami .««; .1 ■ .?ip ^ft ! ^ ' Mil- 532 ; ivv. 1875, -2 IMI.L. 80. Morc's Notes to Stair, xiii., and ca.'St-.- /'()• Lord Arihnillan in M:i it he shoulil be allowed to ct»me to the Court to have the marriage set aside on the ground that his apparent consent was fraudulent." Lord Fraser quotes an opinion of L..I.C Ifope as conflict- ing with this tioctrine. liut in Lorh'i/ir v. ,Si m/idr, the case in (piestion, there was no ro/mhi. The words of L. .!.('. Hope are: "If at the time, and in regard to the object of interchanging what bear to be declarations of marriage, it is jn'oved that one of the parti^'s did not tinderstand that mar- riage was contracted between them, and did not intend thereby to marry, and did not give consent to actual and very marriage, it is the undoubted law, that in .such a case tlie bond of mar- ^ I.ii/islji V. ^';■/. /■.>■',„, ISl,", H I)., ;!7S. /'M- li.,).(', Hiijic, at p. -17. ■ Lciiil l'ruii;4liaiii in i\iiiii,h,ll v. - Miirrisiiii v. Ihifisiiii, siifini, in r Hl,„m, I'^.V.t, |;{ J!"hl>, |;j F.!,., l>:.}, Ilium'. lUris. Ml>iil(t h;is followed the alleged interchange of malrimonial consent, and parties show by their whole actings that they regard each other as free jiersons, the Court will retpiire the clearest evidence bef-ire arriving at the conclusion that mar- ri.igc has been constituted. Error, Force, and Fraud. — The gateway to the status of marriage biing a contract, as it is well expressed by Mr. I'.isliop, this contract may be rcscinde(l on proof that it was entered into under essential ernjr, or was induced by the fraud or t'oicc of one of the pai'ties. Error. — It may bi' safelv said that the only error which will be ri'g.ardcd by the Courts as essential so as to .mind the con- tract, is a mistake by one of the parties as to the personality of the otliei-. If, r.;/. , the face and form of the bride are con- cealecl, and the bridegroom, believing that the woman before 1. in is Mary to whom he is betiotlied, goes through the cere- mony with her, he will not be bound by his contract when he (liscovers that .lane has sul)stituted herself ir Mary's place. But Huch a case could hardly be figured into wliich the element ' l.iidij'f V. Siiiilin'r, H |)., ut [i. (Ujri, <|ii(iti'il liv h'nisiT, ;it y. i:J7. m I i i '■ r ^*^i I ,' -■i! 88 (■(iNSKXT IX FOUM l!UT NOT i:: I'ACT. of fraud did not also enter.' It is within the range of pohsi- bility that two persons returning from a masked l)all shouKl go through a form of marriage, eaeh of them bi'ing mistaken as to the identity of the other. In such a case it is clear there Avould be no marriage.-' There does not appear to be any case reported in Scothmd or England in which simple error has been the ground for annulling a marriage. Error as to Condition, Fortune, Name, &c. — No mistaki-, except as to itlentity, is relevant to be pleaded, Stair gives a, pointed instance: "Errors in qualities or circumstances vitiate not, as if one, supposing he had married a maid or a chaste woman, had married a whore."^ Persons about t(t marry are put on their inrpiiry, and must be presumed to have satisfied themselves on the matters with regard to each othi'r which tliey deem important. 'I'hey take eaeh other ianhi m have been combined with error in all the n-ported cases. Each ease depends on its own circumstances. 'I'he Court will have regard to the relative position of the parties, to disparity of ago, to evidence of weakness of will or intelligence on tlit^ one hand, or of domineering influence on the other. The ([uestieu always is, Was there genuine consent at iln^ tinu' f » Stair, i. U, !) ; i. 1, C. ; li;,l,;. Jithl V. Miivbiy, 1 I la;,'-. C.I{., at \k 398; Potliicr, "Tniite dii Coiitrat tie Mariai^e," >:= ;}0H. '■' .SV« reiiiarks l.y Liml ('aiii]ilii'll in ]:,. 2 is. y k KlU'OU FltAL'l). 89 ':§ Acquiescence and mora. — Unless thu muniage appears to liavo been challengud as soon as tliu error or fraud lias been discovered, or tlio coii'-'+'-aint removed, consent will be presumed to have been s;d)sc iitly given, anil the action fcjr nullity will be barred. lu Iiiiigland, where a ceremony is essential, and consent must accompany prescribed rites, it may not be clear that supervening consent can cure an initial defect of this kind. But in Scotland, where mutual consent, however expressed, is all that the law requires, it is obvious that matrimonial consent will readily be presumed if the marriag*; is not promptly eliallengeil.' Fraud on Persons of adult Age. — There does not seem to lie any case in the books in which a marriage has been set aside on the giound that an adult man or woman of average intilligence has been induced by fraud to enter into it. The case of Blidr v. Fidrlc,- which Lord Fraser quotes as an illustration, is not an instance of fraud inducing consent, but of a man bi'ing trajiped into pretending to cosisent. A woman takes a man into a secluded place, and on his seeking to have co/iulii, she says he must j)romise maiviage. lie does so, nevi^r meaning to perform the promise, as she well know... ('()/iii/ v. Miir(jit)i, 184H, W., \K !» ; r.i,-li<)i>, I'M. IH'.)!, ii,^ .-.J.-) -10 Aiii.T. D.ris. 417. iiiid U-2-li Slu'lfdi'd, .Mar. mid Kiv. - I'v. i. Kil. ll»7 ; l'i)yiitor, Mar. mid Div. l.'iC; ii II, i !)() CONSENT IN FOHM ]JUT NOT IN FACT. III. — Wife sues in England for restitution of conjui^al rights. Husband pleads that she was pregnant wlien ho married her, and that he had been induced to marry her on her false representation that he had seduced her. Plea held irrelevant.^ Lord Fraser treats the point as still open in Scotland, whether concealment of pregnancy by the woman is such fraud as will enabled the man who niairied her, believing her virgin, to have the marriage set aside. 'J'liere is American authority in favour of the affirmative.-' 'J'he ground is recognised by the Austrian code, and by the Protestant ecclesiastical law in German}'. There is, notwithstanding, small probability that such a plea would be sustained in dur Courts. It iloes not appear to have been raised either as a ground for annulling the marriage, or in an action of divorce of the wife by the husband as a defence iustifviii'j; non- adherence. Fraud committed on person weak from extreme youth, want of natural intelligence, or other cause. 111. — A .schoolmaster persuades one of his pupils, a girl just over twelve, entitled to 1*2. ')00, to go through r. ceremony of marriage. He has her dressed "as a woman with high- heeled shoes, and a toupi' and ornaments on her head," to make the minister think her older. Her mother discovering the affair the same day, carries her otf befoi-o cotisuiuniatinn, Allan, the schoolmaster, raises declarator. Defence of mi valid consent sustained.'' ///. — A nobleman of decidedly we.ak intellect, though not, to the point of indieciiity, is drawn into Miarrying tin; daiinliler of his solicitor. The .scjiicitor, who was also the Karl's trustee, had great ascendancy over him. Marriage set aside.* A very strong case must be made out. The following illustrations may l)e given of circumstances in wliicli the Court lias declined to set aside the; niarriaLri'. ' /'<(• Lonl I'cii/anc'c, (li;,n v. ^'., \m\ 21 b.T., N.S. 401,. 111,1 snli,.|,l in Aiiiciifii ; x,c Fohs v. K, 12 Alli'ii 2(1, citt'd by Jiislid]., Ed. jMDl, ij .|!)H. - luiiiioldx V. y.'., ;\ AIK'ii, (iO'i, whuri', however, tin- man was only cevonti'cn mid tlic Wdniiiii thirty ; imd Kw Uishoii, Kd. IW)1, |< ,i,s5^ ,,.,,/. • A I hill v. Ydiiiiij, 177;{, I'll;,'. ('nil. I{(|l., p. '.]7. ' I'lirtstiniiilh v. /'., isjs, 1 Ijji^';,'. K.C. ;!.V. ; irilLliii,,,, v. 11"., IH l.",, .| N.C. 2!).') ; and >.. Turin r v. .U.»/. rs, IHOM, 1 llacr- (M!. .Jll, wIkmv, Imw- '■vci', till- wciiiiaii's (iiily fraud wa> in niariyiiij,' a man i leails- iii>aiic. i ¥ , FRAUD. 91 III. — A man oi' twenty-one persuaded a girl of fifteen to go through a ceremony. Slic was of weak health in body and mind, and had sufii'ered from infancy from St. Titus's dance. He had made no proposal to her until the day before the marriage, and had already liad the banns put up. After the ceremony she returned home to her parents, and there was no consummation. M.T'riage sustained.^ Jll. — A young lady, eighteen, pos.<;essed of £1000 a year, is living in the house of her guardian. His brother, a retired butler of fifty-two, persuades her to marry him. No con- summation. Five days after, she runs away. Marriage sus- tained. - Ca.^es of error, force, and fraud slide very much into one another. In the casi'S atterwards mentioned the element of force is more prominent. Force and lear is a ground on which any contract in Scotland may be set aside. If it appear to the ('ourt that consent to niarriagi' was only given under the infiuence of terror caused by the vinjcncc or tiireats of any one, the marriage, if timeously ciiallengiMl, will be set aside. Much will depend on the age, )i(isition, and i-ducation of the parties. A weak and imagina- ti;e girl may be terrified by threats which a woman of robust mind would regard with contempt. 'J'he rule of the canonists that the degree of force used must be such as might have I'Mt'rced a jierson of average strength of will — '"viruni coii- sld iifciii"'' — cannot be said \o he now a practical guide. If the Court is satisfied that the one will was unduly domin- ated by the other iii such a way as to induce an unwilling con- sent, it will not decline to giant a remedy on the ground that a person of cooler tem|»er ami tinner jiurpose would not in the eireumstances have yielded. Consent to make a marriage valid must be fret' and spontaneoius. In cases of the kind under discussion there is consent indeed, but it is the consent which cho(»ses unwillingly tin; less of two evils. C'oacta I'dhi iiflil<,„ v. 7'//)M', 1S7:2, L.l{., -l and K., X.S. 48, mid oases cit. I', and I). IJO. •■'.s'.r (//Wifmliy r.iitt,.!., iiiNco^/ v. - Kiclds Mamaj,'c' Hill, |S|H, 2 ('. ,S,hrl I'.D., at \>. '24. I- , Mil " '.!). riiiiiuks us t(i capiK'ity in ^jctu'ral ; nff SlirDiKoii V. .s'., .Marcli, ISD.'J Jliiniid v. //., 18."»4, 1 K. iiinl .1., (bunl KjllaLliy), nut yt-l rt'iturteil. 4, where there are some valualjle FORCE AND FEAK, 93 Willi ii'uard to tho kind of threats wliicli have afforded evidence of force, the cases following may be referred to. 111. — Tho gtiardian of a girl, twelve and a-half j'ears old, persuadi's her to elope with him from school and go to France. At Boidognc she wishes to return, but he said if she did he would kill himself. Ceremonies of marriage are gone through at Ypres, and at Ahrensbnrgh in Denmark. It does not appear from the report if there was consummation. ^larriage set aside.' A eomjKirisou of the two most recent cases in England illustrati'S the amount of evidence which will be required. ///. — A, who was engaged to P>, a young lady, persuaded her to accept a numln'r of bills for him. 8he becomes anxious to break off the engagement. He does not meet the bills, and I) is tlireatened with bankru[)tcy iiioceedings. Her mother and other relations are ignorant of her difficulties. A informs her that he cannot e.vtricate her unless she marries him. He also .says that if she does not marry him he will "accuse her to her mother, and in every drawing-room in London, of having been seduced by him.''- She is taken uiiwittinglv to a r(\i afternoon service at St. J'aul's. lie taUes her to another church, and on arriving there .says : " Veu must cume into this churcli and many me, or I will blow nut my brains, and you will be responsible." They enti'f. everything has been ai'iaiiged by .\ for the cere- mony at that time, and 1> goes through it. lie takes Inr to her mother's afterwards. There is no consummation, and they do not see each other again. Marriage sustained. ' f^ I I > '-i M .'I ! i;f!, > t ! ) '^iU I Ihnfnnlw M.nris, 177(;, 2 lla-i;. ■-' Soil! v. N, //;•/;//,/, 1 ssi;, I l' r. 1 ). :] I . '■ (Wi^i. /• V. t'niiii:, IS!) I. 1'. .3(j;). N! CHAPTER X. ADHEnEXCE. ' It is tlie duty of the spouses to live toffctlicr, or, as it is ex- pressed in Scotland, to iulliere to each other until the nianiaj^c tic is severed by death. Tiie husband has the sole right of determining- where tiie homo is to be, and the wife is bound to accompany him to any place which he may choose.' P>ut this duty of mutual adherence is one which the Courts will not specifically enforce. 'I'lie action of adherence by which a decree is sought was formerly a necessary preliminary to an action of divorce on the ground of desertion. This necessity has now been removed by statute,-' and the action uf adherence, though still competent, is now in ])raiticc un- known, except when aliment is also conchuknl lor.' If the non-adherence is obstinately persisted in for four years, the remedy of the other .spouse is to obtain a divorce. What is Non-adherence ? — Non-adherence is the refusal by cither spou.se to live in family with the other. The liusbantl \\n<. it is said, the right of ordering his wife to leave liis house and take up ln'r residence in another which he has provided for her separate use.' But if ho continue to refuse to receive iier to liis own house for four years, he will be guilty of desertion unless he have a legal giound justifying non-adheienco. Nor will the Court interfere if he " take her by the shoulders " and turn her out of the hotise.'' But this, except for good cause, ' Stair, i. 4, 8. Sec the cautimis jiid-^'iUL'nt of Sir Jnlin Niclioll in Mdlouy v. M., 1824, 2 Add. 24!); but see dictum of L.J.C. MoiuMi'ill' in Mmr v..l/.,187!),(; I{.,at ]>. V.Vtl. 2 Conju^^al Jlit,dit.s Act, 18G1 (24 &25 Vi. l^T. ' r„I,i,ihnin, V. r., 1NJ4, M. ; A]iii.\. r. H Holland and Wile, No. 5. ■' U'lhstif v. M'liiliiri' (not re- ported), ([uoteil by l-'niser, i. 872, iiKire fully f*tated in Jouiiial of .hui.>^l). 22, 0(!1. N DEFENCES TO ADHEUENC E. 1)5 would bo legal cruelty. In a Shoritt-Court case which unfintu- uately was not carried liiglicr, a decree was obtained ordaining a wife to leave her husband's house and go to live in another which he undertook to supply for her. The wife at last went (piietly, otherwise it would have been the duty of the officers of Court to remove her by force.' It is submitted that this decision was erroneous. The utmost extent to which the law will lend a husband aid in such a case is that it will not interfere if he turns her out, and will leave her to work out her own remedy. -' Is it Non-adherence to refuse Sexual Intercourse ?— Lord Fiaser nuiintains that a spouse who refuses marital intercourse without good reason is guilty of desiTtion though continuing to share the comnu)M home. But this, it is res|iectfully sub- mitted, is a case n(.t contemplated by the statute of 1573, and cannot be considered as settled by the old case of Grahmiv' on wliieh he founds. The fact that there is no modern de- cision in its favotu" makes the proj)ositioii a very diflicidt one to maintain, and the authority of English law is against it, "There is no doubt," savs Sir -J. V. Wilde, "after the case of Onnc, '1 Add. .SSi, that althoU''li the ( 'ourt enforces conjuiial cohabitation,' it does not prdiMid tn enforce marital inter- course."' It has ])een held in Kngland, in a suit inr restitution of con- jugal rights at the instance of the wife, that it was no defence that .she was insane and pussessed l)y ;i in4titiitiou of euu- jii.L'.il ri;.,'lits is mt loiij,'i'r sjiuciticiilly c'lil'un'L'd in Kii,l;1iiiii1, Qiu-en Y.Jack- xou [IS! 11], 1 (^).J!. (171. •' l!»,r, V. /,'., 18(jr), 4 S. and T., id ]i. H);5, ami .tec sujini, \>. '.i4. '■' n,(>iiranl v. //., l8r)S, 1 S. anil T. 81 ; hut .SM Roilfunl v. /.'., 18U!», 20 l,.T., X.S. -27!). ■•i CI ;) |f."ii ill I- 96 ADHERKN'CE. spouse. The Court will not order a wife, r.f/., to return to a iiusband who has been guilty of adultery or cruelty. It is no defence tliat the pursuer was the first to desert if he is now willing to take back his wife. But if she have obtained a protection order under the Conjugal Rights Act, an action of adherence is not competent until the order has been recalled.' Of course it would be a good defence to plead that the niairiiige was null.'- Is any other Defence relevant ? — The question whether less niiscunduct than would ground a decree for judicial .separation will be sufiicient to justify non-adherence' is not free from difti- culty. Lord Fraser maintains that a less degree of cruelty would in tliis case suffice, ami that other misconduct — c.ij., the ante- nuptial incontinence of tlu' wife — would justify non-adherence though it would not support an action of separation or divorce. For this doctrine no Scotch authority can be adduced, and it seems cont/ary to principle. • It is the duty of married persons to adhere unless they can show some legal cause of separation. And the only reason for which the Court will pronounce tluiii I ntitled to live apart are adidtery, cruelt\, and desertion. It is a curious result, and one not lightly to be accepted, that a husband may say, "I am not bound to live with my wife, though she has given me no such gromid of offence as Would enable the Court to pronounce a decree of separation." Moie- ovi'r, there is at least one case in which tlu; contrary docirine was expressly laid down. The interlocutor of the Second Division in an action oi adherence at the instance of the hus- band contains these words : " Find that the .action can only be resisted on the ground that the pursuer so maltreated lii'r at .and \>\un- to the date of the contnact (there had been a voluntary contract of separation), that she woidd at said time have been entitled to insist on a judicial sej)arati(ai, and is therefore not bound now to adhere." In that c.a.se considerable cruelty by the husband wa.^ proved, and the argument was maintained that in defending an action of adlu'iciice, the wile was in a more favoural)le |)(jsition than if slu( had been juir- ' Coiiju^^iil Ki^lits Act, IWJl (24 :' It lias tlu' supiinit of i.nr.l & 2.") Vict. c. S(i), Si .'3. ^''>uii;4, Imt tlir (ijiiiiinii was uli.'i.r: - JlifhU^ v. ;.'., isnc, ;r, L..I., ,s7,, •,„.>■ v. N., ISSl, is .S.L.I}., at p. Milt. U-2. V,0± DEFENCES TO ADHEllENCL. 1)7 suing an action of separation.^ And altlioiigb tliero are con- flicting (Uctd to be found in the English cases, tiie law may be regarded as settled there in the same sense.- The case of Yeahaan v. Y., 1.S08, L.R., 1 P. and 1). 489, throws light on the source of confusicni in the English cases. It was there (at ]). 491) distinctly laid down by Lord Penzance that "nothing wouUl justify a man in refusing to receive his wife except the com- mission of some distinct matrimonial ott'ence, such as adultery or cruelty, upon which the Court could found a decree of judicial separation." The Engli.sh statute, 47 & 48 Vict. c. GS (Matrimonial Causes Act, 18S4), while it deprives the Court of enforcing spicitio performance of a decree of restitution of conjugal rights, (Kclares that disobedience to such a decree shall be treated as desertion, and the petitioner shall be entitled to petition tlie Court tor a jiulicial separation. And non-com- pliance with the decree has been repeatedly held to be e(piiva- leut to desertion for two years, i.e., the period necessary for judicial separation.'' This seems a clear recognition by the legislature that cohabitation is a legal duty, unless facts justify- ing judicial separation be proved. The learned writers of ji recent woik on Divorce adopt the view maintained by Lord Eraser that le.ss than this may be a good defence.' They sujipiirt this contention mainly on two cases, both also referred t(» by Lortl Eraser. Ft is sid)nutted that these cases, when e.\amiiied. all'onl no authority for the proposition, which can be conipari'd in weight with the authorities cited against it. The tirst was an action for restitution of conjugal rights broiiL^ht by the husband. Tht; wife pleaded that — (1) her husliand's domicile was in Ireland; and (2) that she was in very delicate health, and in the opinion »it her medical attend- ' .1 /; V. <' />, ls.'-.3, K; I)., lit ]). T. ;}0:5; .l/a/i;(//(,r/v. J/., lH7:i,rjIri.-li W'.i; iimi v< alsK (i|iiiii()ii nt' L.l'. Iii-hs ill I'iKilmers \. ('., ISC.S, (J M., iit p. r).".o. .V./>'. — hitliisciisi-'MfsiT- tidu" in tlit'Cdiiju^'iil Uij^'lits Act wa.-* liiiii;^ i'ciiistriU'(l,;uiil it nii,L;lit be that less wiiiiM Ikuv .'^utlice tlian wmilil he "iHviisidii" uiiiler Act 1.'>T3. - MiKMiuceii, 11. ami W., 1S8 ; and Sroll V. S., \H(\:,, 4 S. ami 'P. 1 la ; UnrroiKjItx v. /.'., l>s(jl, "2 S. ami |{i']i. 1m|. 417 ; si'i also liiiipiuijall V. /i'., ISTC, 24 W.i:. iMi7, wiiere it was held that a wife who had obsti- nately rel'iised to jiertoriii her coii- ju^'al duties was not barred i'roni siiin:4 I'oi' restitution of coiijuj^'al ri-hts. :' llhjirond V. />'., 1888, 13 r.D. 8!>. ' r.idwne and Powles on Divorce, 5tli !•:.!., J.. 13!). I 98 ADIIERKXCE. ants inciipable of removing to Ireland, or undertaking any con- sideri\bl>3 journey without imminent danger to her liealtli. I give the whole judgment, which is most cautiously expressed. "The Court over-ruled these objections — as not choosing, at present, to decide tliat the facts pleaded were wholly irrele- vant especially the wile's state of health and the husband's sole domicile in Irelaml, (i>i pleaded. Conscipiently, it admitted the wife's allegation to proof, but without pledging itself to the effect of the facts pleadeil as a bar, either wholly or in part, to the sentence prayi'(l, on behalf of the liusband, in the libel, at tlie final hearing of the cause." ^ The judge, in fact, allowed a proof, reserving the question of relevancy. The second case is incorrectly stated by Messrs. Browne and Powles, to have been a suit for restitution of conjugal rights." It was of the following nature : — A husband, about two years after his marriage, was informed that his wife had prior to marriage given birth to two illegiti- mate children by ditfercnt fathers. On being charged liy him with this she admitted lur guilt. He left her, and they lived apart for some time under a contract of separation. The husband then discovered she had ct)mmitted adultery, and raised his action for divorce. The statements as to the wife's anteiiujitial unchastity were objected to as irrelevant, and Sir John Nieholl ordered them to be .struck out. He wt'Ut on to .say : " If indeed the wife .should set up a case of desertion by the husband, without any provocation on her part, her ante- nuptial misconduct might be fairly pleaded in his justification. It might possibly, too, be fairly pleaded by the husband, responsively to the wife's libel, in a suit for restitution of conjugal rights." It will be observed that the dietumh quite obiter, and has never been followed in any judgment.-' A singular case, decided by the Privy Council, is also cited by Lord Fraser in this connection. The husband and wife were both Americans by birth. At the marriage in 1831, the hu.sband was rector of a Protestant Episcopal Church in the State of Mississippi. Subsequently they went to Rome in 1843, and both husband and wife joined the Roman Church. They took vows of chastity, and the husband became a Jesuit > Mnlony v. .V., 1824. 2 Add. 24!). •' J'crrui v. /'., 1822, 1 Add. 1. lUiL - "Divorce,' .'Jtli K.l,, p. 140. sec Barkc v. Jl, 1822, ilnd. .'JOS. 5 DKFKXCKS TO AIMIKHKXCE. 09 ]>iic.st, \vliilc tlic wife fiitt-rcd a religions lionso as a nun. In 1840 they canu; to England, the husband becoming a private cliaplain in a Cathdlie family, antl the wife the superior of a religious community. In IS+S the hu.sband recanted the Roman Catholic faith, became a Pr')testant, and, later, instituted a suit against his wife for restitution of eitnjugal rights. The wife pleaded that a rescript of the Pope which they had obtained, and the acts of the parties in Rome, had the force of a judicial separation. Sir H. Jenncr Fust rejected the allega- tion on the ground that the facts, if proved, would be no bar to the action by the husband. The judicial committee allowed pro(»f, on amendment of the libel, by pleading two facts — first, what was the law of Pennsylvania, if this suit had been brought there for adjudication ; and secondly, what was the domicile of the parties at the time the transaction took place at Rome. The judgment proceeds : " We pronounce no opinion whatever upon the facts tjf the case." ' It is submitted, therefore, that this case al.--\ - 18!)2, 3i) S.L.R. 270. Si ', f CHAPTER XI. ALLMENT AND EXPEXSIvS. A IIUSIUNI) is legally bound to supply Lis wife with neces- sary food aiul clothing. Faikire to do ?o is, ns has been seen, such cruelty as will ground an action of separation. But unless she has left his house in consequence of his cruelty, or adultery, or with his consent, he is not bound t(t aliment her while she is living apart from him. Mor will he then be liable to trades))eople for necessaries supplied to her. And during cohabita'Jon the wife's claim to maintenance is postponed to that of the husband's creditors — i.e., the husband cannot resist an action for a lawful debt on the ground that he must main- tain his wife. He may, by antenuptial contract,, make a pro- vision for her at his death, which wil! give her an ecpial claim with his other creditors. F V. JoIdisIoii, 18(i7, L.l!. 1 Sc. Apl). 10!>. CONTRACT OF SEPARATION. 101 have not revoked that agrccineut, or, the conduct of one of them has been such as to justify the other in non-adherence, and decree of separation has been granted, the Court will not pronounce an order for permanent aliment. If the agreement does not admit conduct which would justify judicial separa- tion, it is a sufficient answer if the husband offers to take his wife back, and aliment her in his own house.' 1. Where there has been a Contract of Voluntary Separation. — In this case the wife may sue for arrears of ali- ment under the contract, and for interim aliment fcjr the tuture, until the contract is revoked. With regard to the future no decree will l)e made against the husband if he judici- ally revoke the contract, and offer to take his wife back to ci-iiiibitation. But such an offer will be no defence if it appear to tlie Court to be without Jiona jhlcs.- IIL- Husband writes to say he is in C\'iiiada, and is going to the United States to find work. He offers to receive his wife and family if tliey will go out to the [ilace in Canada, and undertakes to pay their passage-ii ,ey. Held this was not such an offer as the wife was botiiii to acre|)t, it n wi/s v. 7'., m\-2, :>1 I). .'j<)i). f:! ■II I r I 4 'n li mmm w 102 ai-imi:nt anj) exi'i:nsi;s. 2. Conduct justifying non-adherence. — Whero the giouml on which aliiiKiit is sued for is not a cuutract or agroenit'iit, Itiit that the conchict of tlie dcfondur has been such as to justify the pursuer in nun-adherence, the Court will nut decree more than interim aliment, except as auxiliary to decree of separation.' Where separation is not asked, the conclusiini fur aliment sbouUl be limited to "so long as the defender shall refust' to receive and entertain the pursuer." And where not so stated in the conclusion these words were inserted in the decree.- In an action tor aliment at the instance "f a deserted wife it is unr. ^';ssary to K'ad evidence if the husluuid fails to appear.' I. Interim Aliment. -To what extent is an action for Aliment competent in the Sheriff-Court? — Wlu're no (pn-stion of status is raised such an action is competent. A'.,'/-, where the marriage is admitted and the parties are defucto separate. liiit the power of the Sheritl' is limited to making an interim award. It arises merely frcjm the cunsideratiuii that the wife must nut be allowed to starve pending her a[»plieation to the Court of Session, and aliment would not be granted if she were in pos.session of means or earning wages ade<|uate for her support. In the words of Lord President Inglis, " The moment it is necessary for the Sherilf to touch anything prujterly consistorial, the competency of the application is at an end. All that he can do is to provide for the maintenance of a wife in actual sci)aration pending the decision between the parties of the consistorial ([uestion of separation. Anything turiher is undoubtedly beyond his jurisdiction."' Accordingly in a cast; where the ground was cruelty, but the wife remained in her husband's house, though not occupy- ing the same bed, until after the raising of the action, it was hcl ! incompetent for the Sheritf to award interim aliment.'^ For the real (piestion to be rlctermiiird was whether she was justified in leaving the matrimonial home. ' ' Vi. i. 84:2. - irHliaiiisoi, \. II ., iMi'pO. ±2 I), ')<)!) ; SI,'. Cimtts V. ( '., i.sCiC,, 1 .M. S():i ; Crumble v. T., lH(is, fi M. 77<;. ^ ^^''><»l V. ir,, iss^, id s.i,.i!. C31,y»(/' Ijdi'd Iviiiiinir, Oidiiiiirv. ' Swith V. N., ISTI. I |;.,„| p. lol I ; al.-n //,(// V. //., issij. <» i;. (Wi: ■■' M-I)n,i;5, -ri .Inliiji. I'l .liii. 111. w i INTKIUM ALIMENT SHEIUFF-COUHT. 103 The onliiiary form of conclusion in siicli uciiun.s butoro tho Sliorirt' is that tho Court shall decree aliment, " aye ami until a permanent arrangement of the rights of the prirties shall be made hy a competent Court." But this, as pointed out by Lord Deas in the case of M'JJunahl, really supersedes the necessity of an application to the Court of Session, and makes it possible for the Sheriff to award permanent aliment, a result not conteuiplated by tho legislature. The more enrrect practice for the SherilV is to decree aliment lor a fixed period, which he deems reasonably suffit i"iiL to enable the parties to mak<) their application to the supreii. tourt.^ Lord Fraser asserts that if the alleged cruelty or desertion b.. d. nied, the Sheriff is bound at once to dismiss the petition in: liment and cannot allow a proof. It may be doubted whethc:' this is sound, and is not certainly sulHeienlly sup- ported b) the case of M'Jhnnihl on which he lounds.- It would 1)0 a hardship if a wife whoso life would be endangered if she returned to her husband's house, could not obtain from I lit.' Sheritf sutficient aliment to support her all she can obtain a decree of the Court of Se •siou. The case is dilVerent where the marriage itsi-If is d' nied. It is only in the character of a wife that she is entitled to alinniit, and it is clearly ineompeti'iit for the SheritV to lot's, al the t|ueslion whether she was lawfully married.'' Interim Aliment where Marriage is Denied in Supreme Court. The general rtde is that the woman is entitletl to iiitt'iini aliment, /r marriaj^.' — 1)V Sli. liir ( lark, Sivm v. .V., 1H77, /.«., a iiiaiiiii;.;i.' Cfniiiniiy -wlu'tliff •1\ .Inuni. iil'.liH'. U-l'.\. it luiiis (lilt iiivaliil cr iml, imi>t lie -'.S. .\iitn, xiijifi. I'lnvt'd iir adiuitti'd lii-rci ■ alilimiiv ■^ II, , I. -inn V. /;., IN,". I, If, I). .".;).■. i- lllintll'il. Siiiiilh V. >'., IHJJ, -2 ijlltl;^'liiflit 111" liiird Ciiwaii, Ordili- .\iM. J.")l; l.-niijinntliii v./.., \>H(i, lUT). II i'.il. s.-,. •'I ;ii 2 ; • •I m-'i m liability is ended. And if she gets decree against him, her claim is no longer for aliment, but for her ]>rovisions, as if he were ilead. J Jut if .she maintains the children of the marriiige she can claim alin 'Ut.'' III. — Husband is leather nieichnnt, with income of £2')0 a-year. ILis wife obtains divorce froi.i iiim, and takes two children with her. He has two children of anijther marriage to support. Ordered to pay .£20 a-year for aliment of each of the two children who were living" with their mother, till these res|)ectively attained the age of ten years. ///. — If it is admitted that wife is living with co- respondent, and is siippoited by him, .'^he cannt)t get aliment. Hut mere avi'rment that slu> is eohabitinx with co-resp(Uident is not enough. U must appear that he supports hei'.' ///. — Husband sues for divorce on ground of adulter}'. He is a lieutenant in navy, with )iay of (!s. a-day. Wife's father has been in habit of making her an allowance of .ClOO a-year. lie has always paid it in March. The Cotirt refused to grant alimony out of the husband's estate until it was seeii whether the father continued the allowance.'' I lioithirid- V. /;., ISIS, 11) I). P. aii.l 1). r.io. laid, unu: ■■• i:. 51. I'ut wlu'riMvilV' oarned 2"itt. T'^. a-diiy inii'crtain'.y 1)y iisli-curiiiu, ■' Ihiiiii V. Miillh(ir.<, 1842, l H. it was licltl tin's was not siicli supar- 4'>\. ato estate as to rclifvo luisliaiul of ' Mxiliiii V. ^[., ls((7, 'M L.J., P. lialiility I'er luT c.ijhiimk {Milne v. ami M. lo; ll„lt V. //., ISfis, i L.}}., .1/., issn, l.'i I{. :!0l). *^1fl ^^m 1 fifji i f.) c < < ^ •■ !l 100 ALIMENT AND EXPENSES. Aliment pending Appeal. — Wlicre the wifu has been suc- cessful, auil the husband is appealing either to the Inner House or the House of Lords, she is clearly entitled to aliment. In the case where a decree of tlivorce has been pronounced against her by a Lord Ordinary, she does not cease to be the wife until decree has been extracted, and therefore aliment will, in the general case, be granted her till the final judgment on her reclaiming note. Ihit the appeal must not a2)pear merely frivolous or vexatious.' Reduction of Decree. — As after Hnal decree she ceases to be the wife, her right to aliment is completely extinguished, and she cannot therefore^ obtain it pending the raising of an action of reduction. Lord Fraser states an opinion directly opposite,- and supports it by the authority of two old cases, in which aliment was given to a wife pending reduction of a decree of the commissaries.'' IJut it was pointeil out by the Court, in a case where a wife asked for expenses of an action of reduction, that De la Motlc and Allso/ip were not autlujii- ties in her favour, because reduction was one of tli(> ordinary modes of review of the commissaries' judgment, and the woman consequently retained her status as wife till decree in the reduction.* Wife presumed Innocent till Decree. — Although the wiles conduct of her case in which she is charged with adultery may seem to amount to a confession of guilt, this is no ground lor refusing her aVimeut j ion hntc lid.'' Wife in Gaol. — ^Aliment pendente lite has been given in England in spite of tlu; fact that the wife was being maintained at thi- expense of the countrv." For c»therwise a wife in iraol could not litigate. IJut a wife who is living with the co- respondent as his wife, and being supported by him, is not ' nUchir V. /;., 1H74, I I{. 82(1; 11 i! 171 (wIutl- u divurci'd wif.- //o.;?/ V. H., 18K:J, 11 i{. L>5 ; Dnmtid V. !>., IHfj;}, 1 M. 741. - KiasiT, i. .s'')4. •' />( hi Molt, v.Janliih, 17s!», M. 447; ail. I Allxoji/i v. .1., h-^:!!), ,S S. 1032. * SItwart V. ,S'„ lh(i;5, I M. | i;( ; x<( also llinrinidt V. (Irnlniin, 1(S84, wlin liad i^ot, ii sum i'ni' expeiiM's nf 11 ii'iiiictioii was fnuiid iialijc to n^iical wlu'ii Irt iictimi was iiiismcossriir. •' SmiUi v. .v., lsn:{, 4 S. iui.i T. 22M. '■ A'.//// v. /\.. Ih;:!. I S, and T. I f I I I HlsnANI) IMI'ECUNIors MIJJTV 107 entitled to aliment, though her right to it will revive when she ceases to be supported by the co-respoiuleut.' When Husband has no Funds. — Decree lor interim aliment was given where the wife was det'ender in an action of divorce for adultery, although the husband alleged he was ill destitute circumstances and applying for admission to the poor's roll." fills, however, was on the ground that as long as his funds held out he was liable to aliment his wife. It does not appear reasonable that where the ''^ourt is satisfied that the husband is completely impecunious, decree for interim aliment should be issued. And the law in England is settled tlitj other way. ///. — Husband, a pilot on leave of absence for si.K montlis without pay. He has no income, and has no property. Court refused to order aliment, i>eiidi'iifc lUe."' III. — Husband "ot for his work his board and lod-riiin- and 4s. a-\vei'k. Court refused to order aliment iifin/tiile litc^ 111. — Husband, a baker with income of £(J0 a-year. He had given his wife .C70 at the commencement of the suit, in lieu of a sum he had recei\t'd witli her at marriage. HeKl she ought not to receive aliment until this fund was I'xpeiidetl.'' In Declarator of Nullity.- -If she is pursuer, she can claim aliment if siie had ;4r(iiiiids lor relying on the validity of the marriage.'' If she is di'teiidtr, the man admits by the fact of raising the action that she has a i>ri nm I'mh' title to tlu' name of his wife, even wlu'if he charges her with having fraudulently procured the maniage. Hence in most cases she will get interim aliment.' Where the ground i-f nullity averred is Ijigamy, .Mr. Mackay suggests that if intirim aliment is awarded, the husliaiid should be entith'd, at!rr linal decree iu ills favour, to sue tor ' n«ll V. //.. iscs. I L.lt., r. ;iii.l iiM.l !>. L'is. 1). Clo. '■ S. r. 1!., iSSJ, 1) IM). SO; ami - /;.(./.,• v. /;., IM.".. 7 l>. (i:i!>. m. infnt, |). \-l\. ■• n,l,-h.r v. /•'., lH(i-J, -2 S. ii'.i.l T. ' ;'„il!,nihi,n v. /.'., JSCC,. | M. I!l|. -l.'M. 'i'llf l.lllil I'lVsilll'Ill S (|l)\lllt iUJM'S ' '''//'W/V/,-\-. «'., i^Cl, ;<;{ L..I.,.M,it. Iiuni llic ^lu'ciahy ot tliis casf, ilu- lU'i; .<•!■ alsii Hitiiiii V. />'., iSt;;;, -ihihh! nl (Ici'laialdf lifiii;^' llial tlir i S. aii'i T. li.")- ; lifii'iii \. />'.. lN(i;$, wiiiiiaii liail ln'oii ;.;iiilty nf lii^aiiiy.; 3 S. and T. lilT. .'^.niu' rule in Kii'.;lanil, I'tntsiiiiiulk " Cooiiihs V. ('., 1S»h;. I l,.|;., |-. V. /'.. lsw(i, ;j Aut the circumstances were very special, and some of the woman's (jwn averments wi're regarded as lending support to the defence that the writing was granted without a true matrimonial purpose. And the woman never had even ostensibly the status of wil'e, or avowedly cohabited with the man.'' In a less siis[)iei()us case such an aeknowk^dgnieiit wnuld probably have been suflicient. It would generally be enough to produce a certificate nf marriage.' In such a (piestion the ( 'nurt will be much less inclined to award intrriiu aliment or expenses where the woman has not been enjoying the status of wife. Amount of Interim Aliment. — This is entirely a matter for the discretion of the Court. As a rule, considerably less will be given than would be fi.xed as a suitable sum for permanent aliment after separation. In England the rule is to give one-fifth of the joint income of the spouses, unless the wife's own income is suflicient.'' As much as £1000 a-year was decreed as interim aliment when it ai)peared that the hu.sband's income was XSOOO.*' No such absolute rule has been recognised in our Courts, and it is seldom that more than a decent maintenance is given bv wav of interim aliment. ' Miickay, Pmctici', ii. .'")f)I. - lUachnorc v. MUh, IsijH, 18 L.T. .'■>S(). •' Brovoe v. JUinis, Isi;}, ."> ]). 1288; Flrmivff v. Corlid, 1858, 21 1). 170. * M'L.ud V. 7W/,r, 1S:20, Hume, p. 10. •■' Thom]i.io,i V. 7'., I8fi7, L.I!., 1 I'. ami 1). nh:i '' K(Iimr! admitted that the husband's income was now not less than £1700. The Court refused to give more than the £ tO agreed upon.' II. Permanent Aliment. — A husband is bound to support liis wife after decree of judicial separation, unless she is other- wise adeipiately providi.'d for, and this holds gootl even when the Separation has been obtained on the ground of her cruelty or adultery, for in spite of the decree she still retains the .status ol' his wife. Amount of Aliment granted. — This is a matter of discre- tion, and many circumstances may enter into consideration. The general rule will be that the wife is entitled to be sup- ported decently in the position wiiich she occupies in virtue of her husband's position. It would not be right that she should be reduced to a bare pittance, while her husband is living in allliienee. On the other hand, it is not desirable to put her in a better position as regards money than she was during colialiitation, for that would be to hold out an inducement to separation. And as during cohabitation a wife follows the >/Ww/(r/v./;.,lS(;3,;5.S.aiiaT.24!). > I'ouull v. P., 1873, L.K., 3 P. - Ilnl.urill v. //., ISCC, 30 L.J., im.l !)..■..'), and 1874, p. 18(1; .src iilso Milt. -J.-.l. U'ihn-y. 11'., 18.-)8, 1 S. uii.l T. 21!); •^ II, H, J V. //., ISS.'i, 11 1!. 2.".. contra, /M»(f/(; v. />., 18(32, 24D. -l!)!i. • H * ■ '"• I. {: f<« I, i 3 •a -OS 110 ALIMKNT AND KXPKNSKS. varying,' fortunes of \wr luisbaud, so the law docs not guarantee to a wife livin. 137 ; Sidnni V. .S'., lJ. 17!»; See \{',,ll„r. M. I(Ki7 ; S. and T. ,388. "' ll.ini^y. II., 18:28. I Ha--. K.(\ 351. '• (,'niflou V. (,'., 1872, 27 L.T. (N.S.) 708 ; also Hill V. IF., 18(14, 33 J...1. (Mat.) 104. ' llaide.i V. //., 1828, 1 Ha-L;. K.c;. r.2(j. »* I.oiusv. L, \m<;, I L.i{., I', and I). 230. =' Graham v. (/., 1878, 5 I!. 10!)3 : Thiniisnn V. 7'., JSIH), 17 H. lOUl. i Sl'M KIXKI) liY Sl'dlsKS. Ill and thc'ivfore it is siibmitted, in spite of the antlioiity of :iii Irisli Ciise, tliat the fact of the wife hi-inj^ of hiiinhK- origin is no reason for giving her less alinuMit.' Nor is the fact, that the husband has chosen to live on much less than his income, (luring the cohabitation, a ground for awarding a less sum to the wife. III. — Husband, a pawnbroker, had an income; of about €040. The spouses had liv(>d on about tloO. £140 given t(» the wife.- 1. Where Spouses have fixed on a sum themselves. — The Court will reailily be guided in fixing aliment by the fact that in a contract of voluntary separation or otherwise the spouses had themselves determined what sum they considered reasonable.' ///. Husband, a publican, makes a net jtrofit of £1,')0 a- ycar. l>y a deed of sepaiation the wife iiad agreed to take 17s. (Id. a-week as alinifiit. On this she had maintained luTscjlf and her mother i'or somi' years. She now asked for £7>> a-year. Court fixed 17s. ut aliment is not given for the wife to save out of. It is essentinlly for jiresent maintenance.'' Amount of Aliment.- The following illu.strations maybe useful on tile '., ISCa, 4 S. ami T. ;f :3' 9 ! M ^ If li i IMAGE EVALUATION TEST TARGET (MT-3) !? // y_ fc 1.0 U£|2^ 12.5 1^ IIIII2.2 I.I 11.25 1 1.4 1 1.6 2£ 1.8 -» V /l V Photographic Sciences Corporation 23 WIST MAIN STRUT WHSTIR.N.Y. MStO (716) •72-4503 > 112 ALIMENT AND EXPENSES. III. — Husband has a clear income frona heritage of £243. Wife has £30 of her own. He supports one daughter of the marriage. £55 a-year given. ^ III — Husband has income of £100 as master of a ship. £30 given.2 111. — Husband is a fruiterer who keeps no books. Wife saia the profits were about £300. An accountant judged from the turnover that husband's net income would be £10!). T'? 'ru-d Ordinary struck it at £200, but gave the wife £G.J, more -j n ^, quarter. This was adhered to.^ //'. — A husband who had deserted his wife had £30 a- year .f his own. His mother allowed him £.'>0 a-ycar. He had ?, ccnliniient right to the life-rent of a sum of £2.")00. £20 given.-* III. — Husband earns wages at the rate of £G a-moii'h. 6s. a-week given.''' The Amount originally fixed may be varied on proof of change of circumstances. — Power is sometimes oxptossly reserved to the parties in the decree to api)ly for variation of aliment on the ground <»f material cliange of circumstances.'' But this is unnecessary, as it is always implietl. III. — Wife obtains decree of separation ami aliment. The aliment is fixed at £40, the husband's income bi'ing £11.^. After the separation she gives birth to a legitimate eliild. She petitions for increase of aliment, ami is allowed £7 a-yt'ar in addition." III. — By joint minute in an action of separation husband agreed to pay wife £2.')() a-year as aliment for herself ami two children. Three years later he petitioned to have the amount restricted. The Court remitted to an accountant, and found the husband's income was £4.')(), and that the wile hatl no means. Aliment restricted to £1.')0.'^ (It is a peculiarity of this case that it was not shown that iiis income had .suffered any diminution. Ho explained that when ho originally con- 1 ]Vi>lhnpoi,n v. /!'., iHd!), 8 M. 81. 2 WUliammn v. ir., 1800, 22 1). B»!). ■^ Jnmcaoii \: J., 18HG, 23 S.L.R. 402. ' Ihrhji v. Sjime, \HIV.], 11 S. llu,. ■' <'nirpir V. r'., 18(i0, 23 1). OS. ^' SiiwiiiijIiHi, v. ,S'., !S71, 1 I{. 871. 7 //.(// V. y/., 1882, '.) n. (iOT. SSV, «•,(/•/ V. .v., 1887, 15 !?. 11.3. .1 w ])ILIGI;NX'E — SECURITY FOR ALIMENT. ll.S scnted to £250 ho was sanguine about an increase in bis business.) Diligence on the Dependence of an Action of Separation and Aliment. — Tbe general rule is, that in every action in which the payment of a sum of money is concluded for, it is competent to use diligence on the depondence nf tlie action for the enfoi'cement of the claim. IJiit wliere, as in an action for aliment, the debt is a future one, diligence is incompetent unless the husband is verijens ad Inop'mm, In iiieditdtlove fu'jd', or is putting away his funds.^ In this ease the proper practice is to proceed by bill setting out tlie special grounds for the ililigciice, to enable the defender to an-;\vtr tlie allega- tion.- ///. — On evidence that the husband was realising his estate with a \ iew to leaving the CDuntry, iiihii)itii)n used by the \\'\t\' on tlio dependenci' of an actimi of separation and alinu'nt was onlv leculled on caution tor >w4()00 being found. ' There may be Circumstances in which a Husband may be required to find Security for the Payment of Aliment.— WlnMo a, husbuml has only one source of income, such as, cj/., an annuity or a pension, the Court has in some cases ordered him to assign a portion of it in security of his wife's aliment. Ihit when his income is derived from business, the wife is not, in the ordinary case, to be placed in the position of a secured cri'ditor. She must still follow his I'ortunes.' Jjuti in I'xceptional circumstances diligence used by a wife will not 1)1' loosed except on caution or consignation." 111. — Wife obtained decree of separation and aliment at the rate of illi') a-year. Subseciuently the husband was convicted of setting lire to his property to defraud an insurance company, lie was a travelling hawker, and the wife averred she did not know where to find liini wlu-n the alime'it fell due. An ' Siiiiilinjii^ii V. S., IS7">, :{ K. i20r>. '^Ihiil.y ]K •207. Vnv (itlicrwisc, us ]iiiiiilt'il ciiil liy liiinl I'ri'sidi'Ht Iii.ulis \\\S;iiin'iiiiliiii,[\\v wilL' wiiiilil iiii'll'i't't lie ((invciliiv^ luT Inisliiiiid'.s dolitur into In r li\i-lcc williuiit Iiis coiisi'iit, ami L'diilil liiinn an iiimual aclion dl' I'uftliciiniiii;^' ;i;.:iiiii>t liiiii t'nr licr aliiHi'iit. 'Kiiiirti.< v. /.'., i>7!i, 7 It. anr). ' Siiiiiiinittiii, siijirn, at \i. iUl, ■' 1 1 II I'll", "iijir I. 1 (^^^! ('■■■I •1 :::: ; 1 u 1 t» ll ll \ > »ii ]{ 114 Al.lMEXT AND EXPENSES. arrestment iiiaile by lier was only recalled on consignation of Arrears not Claimable. — Aliment is for present mainten- ance, and if a wile has manM.ued to support herself without it, either by her own exertions or by the charity of otlirrs, she caimot sue for the arrears of aliment. If she has contracted debt for the jiurchasc <>f nec(^s.saries, the husband is directly liable to the persons nvIio have fin-nishcd these, and it is by suinf him, and not bv iiiiiucint"' the wife to sue for arrears of aliment, that the creditors tihoidd obtain payment.- On the same umund, if a wife ili>'s free from debt her executors camiot sue tliu lm>band for unpaiil aliment.'^ Thi; wife has nn claim for aliment against her husband's bankru]tt (>state, except umler a marriage contract. Liability of the Husband for the Wife's Legal Expenses.^— A wife is entitled to obtain legal assistance f^r the ])rotection of her safety or the vindication of her character. If she be possessed of separate estate, she must do this at lier own charges. If she has no separate estate hei' husband will bi' liable fir her legal expenses, ])recisely on the same grmnid as for f,()!. " II,i,L ' niii(ii:i(iu v. //., ISSS, 10 11. S-J. ■■M'Milhin v. M\M., Ih:],<) M. lofiT. ' StniiiS V. Ciitih, 1 s;),-,, s Sim. ',i2\, note; Fr. i. Hi:}; r,i>li,,i.. IM. lS!i|, .5; 1)1)8. ,.,M!!1 WIFES EXPENSES. 115 aiiotlior. F(ir convciucnce sake the main points decided witli reganl to her lei^al expenses generally, will be tirst mentioned. A wife living separate (Vom her hnsband with a fixed aliment, nnder a contract of separation, nuist litigate at her own L'X]:)tiis('.' Where she had no aliment and was justified in living ai)art, "she carried along with her a credit for whatever her i)re.servation and safety reiiuired. She might, therefore, charge her liushand for the necessary expense of this proceed- ing, as much as for necessary food and raiment." - A fortiori if she he judicially separated. It goes without saying, that if ill an action against the husband himself she be successful, she will got her expenses like any other litigant. A wife with separate estate is lial)le, though thi; action is witii her hushaiid's ('niicurrence, if the success of it would bring gain to the wife.-' I il.—\ witf and husband take various legal proceedings with a vii'w t<> establish the wife's legitimacy and consequent right to a ^ ccession. If the succession had been accpured she would have taken it exclusive of the jas mar'tti. Held that such proceedings were 'ni rem V('i'.- liiiuself a joint pursuer or defender. ///. — An agent conducted an action f(n a wife against her uusband for the custody of their children It was unsuccessful. He sued both her and her husband for expenses. Hold by Lord Meadowbank that there being no reasonable' ,;i'ound of action averred against the husband by tho wifo, and she having separate estate, he was not liable in her expenses.' IK. — A wife separate from her husband carries oW a child of the marriaoie. The husband obtains interdict against her. Held she was not liable to him in expenses, it uot being shown that she had separati' estate. - The English law is analogous, and the following illustrations may be given of legal expenses incurred l)y a wife ibr wliieh her husband has been found liable as being, in the circum- stances, "necessaries" for her. III. — A wife was turned out-of-doors by her liusl)and willi great violence. She exhibited articles of the peace against him (a proceeding similar to law-burrows). Held, thi;; being necessary, her husband was liable to the attorney in the expense.'' ///. — A wife is deserted by her husband. Trailesmeii press for accounts, and the landlord threatens to dis- train for rent. She takes legal advice as to what mea- sures she ought to adopt. Held husband is lialjle to the solicitor.'' In England, where the husband is liable for his wife'.s expenses, either of an action against a third party lulultiM'y, mill it was mliiiittfil tliiit Imt i'nr tin: arre.st- iiu'Ul till' Imsliand would have ro- iimwd all his runds beyond the jurisdiction. ■' Macforhui,, IS48, 10 1). 'JG2 ; Mihi,' V. M., 1871, L.R., 2 1'. and 1). 202. ' Mlhh \\ .1/,, ISS.-), V,) H. :5()4. ■' II mil, mil, v. //.,1.SSS, Hill. 84. " Miic/arloin v. .1/., 1S4H,101).!)G2. ' /'///" v. /'., 1M)2, 24 1). 1444. II ! If :< IT' 1 ,1 . Z t m 1 118 ALIMENT AND EXPENSES. able to prefer charges of the most serious and dauiagiui; character against his wife, and she were prevented by want of funds from employing agent and counsel i'ov her deieuce. Accordingly, it is a settled rule of practice, that a wife is always entitled to be put in funds by her husband to defend herself. A motion is commonly made in tn'dio I'dln for a sum in name of interim aliment and expenses, and {his is repeated as often as may be necessary. At the end she is entitled to her expenses, taxed on the principle already referred to, whether she has been successful or not in her defence. If the judg- ment of the Lord Ordinary be in her favour, and the husband reclaim, she is entitled to a sum to enable lur to ui)liold the judgment. And if In; ajtpeals to the House of Lords, the Court of Session will give her a sum lor her expense.s. ' AVhcn an order for a sum in name of aliment nn wished to defend an action of divoice or sepaialion should ' Sijmiurjlim v. .S'., 1874, 1 R. lOOG. - lUxoii v. IK, 1811, 3 1). 55!). ^ Ihhl * M'(hr>i(n-y. .V., 1841,3 D. ll!)l. •■' Sti'intrt V. S., \>t>.]. 1 M. 4-1:). '1 WIB^E AS IMUSUEl!. Hi) »f not be allowed an opportunity of doing so. Apparently none .such is recorded in the books. When Wife is Pursuer. — The rule of present practice is stated more accurately by Mr. jMackay ' than by Lord Fraser. In the Commissary Court the wife was bo.iud to make out a semt/dena prolmfio before she was awarded interim expenses or alinieut. But as pointed out by Lord Corehouse, the Com- missary Court sat (le die in diem. It would be a ercat hnnlship if a wife who had left lier husband's house and raiseil an action against him on the ground of his adultery or cruelty were to be presented with the alternntive of returning to her husband or being exposed to starvation before she had made out n S('ml/)Icna />roJ)atlo.- Should her ground of action chance to arise just before the commencement of the long vacation she migiit have to wait four months before obtaining a grant of aliment. In present practice, accordingly, the onus is oil the defender of showing that the action is vexatious or raised to extort money. Otherwise the Lord Ordinary w^U in the general case order a sum to be paid for interim aliment and expenses, unless the pursuer's averments seem to him to suggest a trumped-up case. It may l)e said of this, as of most rules with regard to expenses, that although it may guide it cannot control the absolute discretion of the Court. Where the Action is dismissed on the ground of want of Jurisdiction. — In an action by the wife tiie husband pleaded no jurisdiction, in respect he was not domiciled in Scothuid. The plea was sustained, but the wife was allowed her expenses." May the Wife reclaim at her Husband's Expense ? — It is entirely in the discretion of the Inner House whether they will allow expenses to a wife who has reclaimed against a decree divorcing her from her husband. They will generally do so if she has a fairly arguable case on the evidence, or has anything really material to urge by way of special defence.' !'!i i;;:. !;!;i *: I > 33' M I Mackiiy's I'mctico, ii. 5:.!); I'r. ii. \-2\y.]. Winrlr v. f'., 1S:].3, 12 S. 171. ■^ ,Stacert V. S., 1882, !) E. 51!). ' KIrl: V. K., 1875.3 ]!. 128; m: filsii Mimiiji'tiurij V. M.. hs8o, 8 E. 20. 1 120 ALIMENT AND EXPENSES. It will be an clement of consideration that the Court heard a full aro'ument and took the case to avizandum.^ But a wife who — e.g., does not argue in the Inner House the (juestion of adultery, but reclaiius on a special defence, such as condonation, in support of which she has a very slender argument, nmst not expect to get her expenses.- As a rule a wife who appeals unsuccessfully to the House of Lords will not get her expenses.'' Woman's Expanses in actions of declarator of marriage. — A woman raising an action of this nature may, if she has no funds, be awarded a sum for interim expenses if slie iiolds 'prima facie the status of wife. This is entirely a (piestion for the Court on the averments in the particular case. It is inexpedient to facilitate tlie raising of actions of declarater on shadowy grounds. The threat of such proceedings may easily l)e made an engine of blackmail by an unscrupulous woman. On the other hand, if the man by his own conduct has placed the woman in the position of his wife, there is no hardship in giving lier the advantages inciiU'iit to that position until she is dislodged from it. III. — Sir James Campbell, unable to return to Scotland on account of the war, gives a lady a power of attorney in which he styles her "my beloved wife." He also writi's letters introducing h.:r as his wife to his relations. The Court of Session held s.io was entitled to interim aliment in an action of declarator. ■* iJut on appeal this was reversed.'' Where tlk' woman has openly cohabited with the man in the ostensible character of wife, she will generally get an award. And this will also be the rule where, in a writing admittedly under his hand, he acknowledges the nuuriage, uidess her own conduct has bi"„ii inconsistent with the status she claims. 111. — Woman produces written acknowledgment of marriage to her. The writing is admitted. ]]ut she avers that the day after the writing she and the defender jjarted, and she has never seen or heard frf)m him since. During the .sidjscipient four years '//o,//v. 11., lS8t, 11 ]{. !)i).-). 170. - DnJijlchh v. />., isjs, .■> R. ' ,s',(.s'.sr» v. CniiplKll, Jan. 2o, 07'.). 181!), F.C. ■^ Berjfj v. Jl.. 18!)(). 1.-, Ap. Ca. M82(!, 2 \V. ami S. :iO!). P ll' I DECLAHATOKS OF NULLITY. 121 slie has never made any claim to position of wife. Interim aliment and expenses refused.^ III. — Man gives woman an acknowledgment of marriage. For seven years she makes no claim to rank of wife, and her two children are registered as illegitimate. Interim expenses refused. - Expenses in Inner House. — Where the Lord Ordinary has oranted the declarator of marriage, the woman has the status of wife, and will l)c awarded a sum for interim expenses to defend the judgment in the Inner House.'' In Actions of Declarator of Nullity. — In such an acti(jn, at the instance of the woman, .she will be entitled to interim expenses, if a ceremony is proved or admitted, or she h;ul other grouixis for suppusing the marriage valid.' When Woman is Defender. — She will generally be entitled to interim ^.xpenses as long as she has the jrrlmd, f((cie status of wife. There may be cases in which the Court will refuse them. l>ut, evrn when the man discovers that the woman has a previous husband living, she will, as a rule, be awarded a sum to dt.'fend an action of nullity. When the Loiil Ordinary has found against hei', she will ncjt, in general, Ix; awarded a sum to enable her to reclaim.'' After final ilecree of ntdlity, tlie woman, who has unsuccessiully defendcul, will not be allowed expenses. A wife who unsucci'ssfuUy brings an action of nullity may, if she has separate estate, be found liabh' in expenst-s." Where the ground of nullity is the woman's previous marriage, it is suggested by Mr. ^^ackay that the man might raise an action of repetition for the interim expenses paid by him. There appears to be no authority for this statement. He even thiid\s that caution to re[)eat might, perhaps, be re([uired before the award. But in many cases the wife would be as little able to find caution as to pay interim expenses. In an English case, where the wife, who petitioned » Brou-H, V. /.'(()■»>•, 18-13, ^) 1). 12H8. ■-' Flcmiiiff v. i'orhf, ISfiS, 'Jl D. 17!>. •' Forstii- v. F., 180!), 7 M. r)4{5. < S. v. Jl, IS84, !) IM). 80. •S'w LoKjn-orlhii v. /.., 1880, 11 P.D., at ).. SC! : Il!. firq. Mr. MiK'kiiy doiihts llii,-, ii. .^01. ^ ]ia1liue V. 11, 18(i0, 4 M. 494. « M.\. /*., 1872, L.K., 2 I'.aiHlD. 414. t 'J- ii' 1 '•" i u i 122 ALIMENT AND EXl'ENSKS, for decree of nullity, wis out of the jurisdiction, ii motion was made that she should give security for costs. The motion was refu.sed, but it appears that if she had been proved to possess separate estate, it would have been granted^ Reduction of Divorce. — A woman against uhom decree of divorce has been given is no longer a wife. If she raises a reduction, she must do so as an ordinary litigant, at her own charges. There may be exceptional cases in which the Court, after examining her allegations, may think they are such as she ought to have the opportunity of stating. In one case, a husband who had divorced his wife was ordered to make an interim award, sul)ject to a claim for repetition. In the result she was found liab'e in expenses, and ordered to repeat, the sums so achanced." Actions for Aliment, Custody, &c. — There is no geneial rule. Every case is in the discretion of the Court. Where the wife's case ajjpears to have been reasonably raiseil or defended by her, the husband may be ordered to make interim payments, or found liable in expenses.'' In a case where the husband petitioned for custody of a child, the wife lodged answers, and moved that the petition should be sisted, to await the issue of an action of separation at her instance. The petition was granted, but no expenses given. ' iVnd where a wife had forcibly abducted a child, she was ordered to deliver it back to the husband, and pay expenses.' Reponing. — In the general case a party who asks to be reponed must, if his crave be granted, pay the expenses up to date. But this rule is not aj)p]icable to cases between spouses, for, if the wife were reponed on conditi(»n of paying expenses, she might apply to the Court to order her husband to put her in fninls. The result is, therefore, the same if slu; be reponed slniii/ldtcr.'' ' M. V. De B.,lS7i>, 44 1...J., P. and M. 41. - Omham v. G., 1881, i{., .-327 ; and Boicman v. Graham, 1884, 11 R. 474. •' Tibhelf V. T., 18G2, 24 ]). .-;()!); Lniirj V. L., ISGi), 7 M., at p. 44tl ; LIIUH V. /.., 1877, 4 U. ;V.)7 ; />'/.>. v. y;., 1882, !) 1{. 8i)4. ' Ikatlky.JJ., 1883, 11 R. K,. •' Hulchisou v. y/., 189(1, Ls R. 2:57. « Strcdmau v. .S"., 1887, 14 R. 082. it ( '< »1'N lKR-AC'T[ONS ( '< )-I)h;FENDErv. 123 Counter-Actions of Divorce. — A counter-uetiou is in no (lit't'eiuut position from any utlicr action of divorce. Even wlieiu decree of divorce lias been i)r(jnoUM<'cd lyy a Lord Ordinary, a wife who has lodoed a Reclaiming X(jte may raise a counter- iiction of divorce at tlie husband's expense. For, pending' the appeal, she is still wif'e.^ Tn one case where she was fonnd li;ilil(' in tlie expenses of her counter-action, the husband was ;: I lowed to set <'t'f, /nv> tdn'o, the expenses due to him again.-,L those whinh he owed to li> r in the other action. Here she had alio, i-d her counter- action to be dtsmi.ssed, and the agent 1)y whose advice it was brought acted for her also in the action in which she was dcfcnder.-' Where Wife has separate Estate. — Expenses either interim or after decree are only awarded ti» a wife from her husl)and's funds, ex ncccssiltdtc. If she has separate estate she must take the i'ortune of war like another lidi'ant. If successful she will get her expenses, if unsuccessful she may have to pay her liusband's as well as her own." Co-defender's liability for Expenses. — 'I'lie Conjugd Rights Act, 18(il (24 & 2.') Vict. c. SG, ij 7), provides that die Court may decern against a man with whom a wife is proved to \\i\\v committed adulteiy for the whole or any part of the expenses. He must have been cited to defend. The expenses are taxed as between agent and client, and the co-defeniler may liave to pay the wife's expenses as well as his own.^ When he will not be liable. — it tlu; co-defender did not know the defender was a married woman at the time of the intci'course, he will not be liable in expenses.^ It is for the Im.sband to j)rove the co-defender's knowledge," but if there were circumstances which ought to have put him on his iii([uiry 'as to whether she was a married woman, he will not escape liabilitv on this head. But in the case wlieie the woman is a ' U'alhcr V. 11'., 1871, I) M. IGO. - Cndij V. '*., 18r)2, 14 1). 82ii. ■'■' Froht! V. /-'. (iiid Lidddl, 18S4, 22 S.L.H. 2l>, wheiv ^A^\■A M'Liir.'ii fdUowiMl Mihic V. M., 1871, L.R. 2 ?. aiul I). 202 ; iui.l Mllhr v. J/., l8Gl», t//('«/., p. 13. ^ Mmivo V. M., 1877, 4 R. 332. fl Tcmih v. 'i'., 18r)8, 1 S. uml T. 188 ; PvhU v. P., 18G0, 4 S. 1111.! T. 2:58. .St(. Kijdd v. K., 18G4, 2 M. 1074. « y/.un V. //., 18G7, 15 W.li. 498. ■ii, i- ' 124 ALIMENT AND L.'.rENSES. prostitute, a co-dcfemler will not be liable even though he knew lier to be married.' Where the husbaud has been guilty of gross carelessness in exposing his wife to temptation, ho may not be found entitled to expenses against the co-defender, ///. — Where the spouses, though living under the same roof, occupied separate rooms for years, and the husband was aware of the attentions his wife received from other men, the co-defender was not found liable in all the costs.- But the carelessness must be of a gross cliaractei-." Co-defender though assoilzied may be refused his expenses. — If the allegations against him are not proved, he is in the ordinary case entitled to his expenses, but when the condupt of the co-defender has been of a disgraceful character the Court may refuse him his expenses though the adultery be not proved. ///. — The co-dL'fen(h'r had taken the defendor to a house of ill-fame, she being ignorant of its character. Adidterv was not proved, but the co-defender was rel'used his expenses.'' ///. — A husband condones his wife's adultery with A Yi. A B has letters and a ring belonging to the' wife which he will not return. To get them back she meets him again secretly. Husband informed of this, raises action. Aihdtery imt }»idved, but co-defender's expenses refused.^ Co-defender's misconduct short of Adultery. — Co-defender seen walking at night with defender in a wooil in suspicious circumstances. Ho knew she was a married woman. Adultery not proved. (,.!o-defender left to pay his own expenses." A co-respondent against whom adidtery was not i)ro\c(l hail caused the ex])ense of a second trial by n.»t, explaining that certain clandestine visits were paid not to the wife but to her sister. He was refused expenses." ^ Xc1m)i v. X., 1S()8, L.K., I I'. ■•Collins V. ('. iiiid /•;,(■.,•,>■, Is'^J. .'uhI 1). 510. lo I!. L',-,0; s,',- tihn llauc'nft V. /;., -' ('o,l,-i,i!• soiiu' siiy Severn.", Savigny, iv. 181. < 1). 24, 1,32, i'r. 2f. 1S5 '1 1 ■• 1 u ;;i. J : > ID I < \'' III) r' i 7 ■■ 4 120 DONATIONS INTKR VIRVM KT CXoIl/JM. doubt runs back to the time when the [xiterfariiitids adminis- tered tlie estate of the wliole family, and neither wife nor chikl nor sLive had any jirivate funds. For a like reason gifts l)y one son to another, or by one slave to another, as long as both were in the family of the same /xi.ferfamiUiis, wore also prohi- bited.^ For persons in potcstatc had in the early stage of the law nothing of their own which they could give to another, and if the paterfdmilids gave anything to them it was pre- sumably for temporary enjoymiMit and not intended to pass out of the family. The law of Scotland has followed some- what closely the Roman law as to donations ])etween tlie spouses. Between whom does the rule exist ?-'rhe parties must be validly married. A deed by a man to his mistress could not be revoked on this lioail. 'I'ho Fniperor (.,'laudian allowed a woman who had married the son of her tutor, which was illegal, to revoke a gift made to him.- And Pdthier thinks donations between ;■( man and woman who cohabit shoidd be regarded as rexooable whether they be validly married or not.'' lint this is not the law of Scotland, It lias not, however, been decided whether such a donation could l»e revoked when the }»erson making it believed thai a valid marriage subsisted. Savigny urges that, in this case, the 'lonation would 1)0 revokable not so mueh because it v.as made by a person ignorant of the impidinu-nt to marriage, as on the ground that it was given in error, and in considera- tion of a marriage which did not exist.' lie limits this to cases where the im|)ediment is temporary — c.;/., watit of agi', and the parties, when that is removed, woidd be free to marrv. Where the tlonor, being ignorant that the marria-'e was invalid, made the donation, believing it to be revocable, and the douce received it understanding it to be subject to revocation, the argument would seem to deserve consideration that it should be treated as a donation between s})ouse-;, and revocable. • D. 24, ], .'3, IV. -2 ami ',i. tln' iiiiu'fiai;*' ; wlu'ii; tliuy know - Codr V, H), 7. they ail' hvin- in L'oiiculiiiiav'i' it ■' Traitc lics Don, i;i< ;3(), ;}1, 11."). Wduld hi' /^ imlidrsltconiUi-ioiniiDii Xoti'. — In tlie case ol' ]iei'H(iiis In- liuviiiL,' tluaust'lvcs luiurifd, tiiis woiiM bi! on tlio f^niuiiil tluit tlie ildiuUiiiii was in fuii^iiU'ratiiin nl' i/iii (li llijii, fiinl, and that it wmild lie (■o)ilrri> om ritrax nud rinionii /utiintar."' What is a revocable Donation? — A revocable donation is tlie voluntaiT transfer of some valuable property or I'ight, or the surrender of some valuable privilege by one spouse to the other, either gi'atuitously or for a consi(h>ration grossly inaileipuite. It is immaterial what form the transaction may take, or what attempts are made to disguise the fact that it is bi'tween spouses. Wherever the Court is satisfied that in substanci! it is a deed by which the one spouse greatly benefits I I ). J I, I , :i."). - Sic Ci-'ii'i v, Mo,ii,iili, if;si, M. 5810. ■' I). L>4, i,:5l, IV. s. ' I). 24, I, -JM, IV. -2. ■' Unit v. //.. ISI,-,, 7 1). 1081. '' Hilwnril V. Cltnnu; 1888, 15 «. Il.li. ;J7; Allan y. Hittrhi.'^on, 1S43, r> I). 40!). Sc: Tcnuiiil v. 7'., 188!), 1(5 R. 87G. ' 1). 24, 1,21, IV. 1 ■: -1. ? I ■V < II i 41 1 ;.: r-m Z ' ' •1,1 Z ^ .All II 1 ^^ "'Hi I. ' i ^ I i ; 128 DOXATIOXS INTER VIRVM ET UXOREM. at the expense of the otlier, th(! latter will be entitled to revoke. Non tantum autem per se marltus ct uxor . . . dare von jwssunt srd nee per iiiterj)ositnm pertionam.^ So if a deed were taken from the wife in favour of a third person and au assignation from the grantee to the husband followed thereon, the Court would revoke at the wife's instance. Rights of third parties. — An obligation by one spouse to ]my a debt of the other can be enforced by the creditor.- Revocation operates oidy between the spouses, and a riglit lawfully acquired by a tliird party will not be defeated in this way. IK. — A wife consents to a wadset of her life-rent lands, with a back-tack to the husband and his heirs. This was ftund valid as to the creditors, but revocable as to the husljand.'' The third person's interest must be separate. — It it is the other spouse who really taki's the benefit, it is the substance and not the form of the transaction which will be looked at. Where the effect of a destination is to give the property to the other spouse it can be revoked.' But a donation by a wife in favour of her husband's children is not revocable.^ The renunciation of a right, or the acceptance of a condition, may be a donation. — Thus, a wife who accepted provisions hy a post-nuptial contract has been held entitled to revoke on the head of donation because they were to be forfeited dU second niarriage.'"' And where tiie Court is (»f opinion that there is gross inequality they will not allow the deed to stand and merely relieve the widow froiu this cctudi- tion. The inequality will vitiate the whole deed.' Tlie kind of case which most frecpiently arises is where the rights of parties under an auto-nuptial marriage-contract are 1 1). 'J4, 1, :j, fr. 0. -Jlti^Uid v. Litidmii, IT)!)!, M. 6087; sec Standard I)iveMmcut Cc v, Cow,:, 1877, 4 ]\. (><)■}. ^ Arnold v. Scut, 1G73, M. (J091. * Firnk v. Vuhiuhonu'^ Trs., ]8r,4, 17 1). 2;J2 ; Jardiiic v. Cinru, L^30, 8 S. !);J7. * Minr V. Sllrlinfj, \(\(':.i, M. f;i(i7 ; J.diKj v. liniiDi, J8(i7, f) M. 78!) ; Siiinirrillcn Trs. v. JHchi^Dii, IH(]^), :} M. COi', iitr. I8f)7, .J M. ILL. ()!). "iU'.V.:/// V. .SV.r/'x 7V.S'., 1820, 8 S. 210; Mnrshall v. M'JJuirmid, 1820,4 S. .^SL '' J/'iV( (7/, Hiiprn. : f M .riH .- '■ INEQUALITY MUST BE GltOSS. 121) varied by a post-nuptial deed. The law is thus stated by Erskine : " Where the interest of the husband and wife have been settled by ante-nuptial contract, post-nuptial deeds are revocable in so far as they either add to or diminish the provisions of the first contract without a valuable consideration on the other part, for every such provision adding to the wife's prior settlement is a donation by the husband to her, and every deed by which the wife renounces the least share of her former provisions is a donation by her to her husband." ^ This is broadly stated, and must be taken with the following important limitation. Where there is value received, hinc inde, the inequality must be gross before the deed will be reduced. — The phrase of Lord Eldon in the leading case has been always quoted. The Court will not weigh "in nice scales" the value given and received.'- If there is anything like equality the deed will stand. But where the inequality is excessive the doctrine of donation is applied. III. — An ante-nuptial contract contained reasonable pro- visions to wife. By a post-nuptial mutual settlement the spouses disponed their whole estate to the survivor, fciiling issue. The husband had £10,000, the wife hail nothing but " expectations " from an uncle which ultimately realised less than £800. Held the provisions were so une(iual that husband could revoke.'' III. — By mutual settlement the spouses conveyed to trus- tees their whole estate for the survivor in life-rent, and the children of the mnrriage in fee. In the evout of the surviving spouse marrying again, his or her life-rent was to cease and the fee to become at once divisible among the children. The wife's whole estate consisted of £400. From this the hus- band's Jits iiKU'ltl was excluded, and by the settlement it went to the chihlren. The husband had £1000, and heritage yielding £.50 a-year. The wife predeceased, and the husband claimed to revoke except as regards the wife's £400. It was held he was entitled to do so. For here he had received • Ersk. i. (1, ;}(». R. 800. 2 JLtihurn v. Jiroini, 1S14, 2 Dow, :' i>V«///.'N Trs., 1884, 11 W. 84(). 342 ; Mitchell v. M.'s '/Vs., 1877, 4 K 1 pi ■I 1 i! !%■ I?) ; 4:. I 1: I;' i 'CI ■i^ "T i I 130 DOXATTONS INTER VIRUM ET UXOREM. nothino- in exchansfc. The wife's £400 was settled on the children, and he tlid not propose to interfere with it. Whereas he had divested himself of his whole estate, and would forfeit it entirely if he married again. ^ Donation depends upon intention. — Where the alleged donor expends money for the benefit of both spouses, this is not donation. fll_ — A husband rebuilds, at his own expense, a house on his wife's property. Held that this was not a donation so as to entitle him to revoke it and claim compensation froni his wife's heir-at-law.- Ke was presumed to have had his own advantage in view as much as his wife's, and was i' a similar position to a tenant or life-renter who cannot claim for iin[)rove- mcnts when his possession ceases. An accession of fortune to the wife, stantc nuifrhnov'io, will prevent the Court regarding as a donation an addition by the liusband to her ante-nuptial provisions.^ In estimating whether the Bargain was a reasonably fair one, the Value of the rights of each at the Dissolu- tion of the Marriage is to be looked at. — AltlKJugli at the date of the contract the consideration hhw indc might ix; fairly oipial, the circumstances of the parties might entirely change (luring the subsistence of the marriage. A wife might abandon her legal rights for £.50 a-year at a tinu; wdien, if her In) b'^:.-! (lied, she would receive less, rather than more, by clii" : ;i-.'r jus relldue and terce. But during the marriage tie lU .i. nd may become a millionaire. Is she then to be bound }irkmi, 1827, .') S. 2()(1, iifl'., 1831, 5 W. and S. A^^r,, iiii.l cases citud. ( REASONABLE PROVISIONS. 131 an aiinuit}' of £100 ; (2) life-rent of all husband's acqioi rendu. By a post-nuptial mutual trust-deed, she agreed to take an annuity of £300 a-year, which she would forfeit on second marriage. The husband's means greatly increased during the marriage, and he left more than £20,000. Held she could revoke and take the provisions in the ante-nuptial contract.^ > A Reasonable Provision is not a Donation Revocable. — Where the granter is under a natural obligation to provide for the grantee, a deed to this end is not revocable us a donation, if two conditions arc fulfilled. (1.) The granter must be solvent at the date of the deed. (2.) The provisions must be reasonable in amount — I.e., suitable to ''ie rank and fortunes of the parties. If they are excessive they will only be reduced quoad cxcessum.- And although a wife is not perhaps under a natural obliga- \'wu to provide for her husband, yet it can hardly be doubted that a post-nuptial settlement by her of her estate for behoof of her husband and children would be in most circumstances secure against revocation,'' In considering what is a reasonable provision, it is an important element that there is no ante-nuptial contract. ///. — No ante-nuptial contract. Husband insured his life and took policy in favour of his wife and her heirs. Shortly before his tleath he was sefpiestrated. The creditors claimed the value of the policy, and their claim was sustained by the Court of Session. ]]ut the House of Loi'ds reversed this judgment, and found that as the widow was not otherwise pro- vided for, and the sum in the policy was reasonable, it was not a dunalion revocable by the husbaiul, and the wife was entitled to it as a reasonable provision.' Where there has been an ante-nuptial contract, which is followed by a post-nuptial deed, the ([uestion of gain or loss is to bo determined by reference to the ante-nuptial contract. Marriage is the highest considcu'ation I Thow^nii V. 7'.. I^ns, K; S. (ill. 11 Milchell V. .U.'.s Trs., 1877, 4 K. S(' • ; M.lrUli v. .l/.'.s 7V.-'., ISTl), (J \-2>(l; ('ni!,j v. (I,ilhnnni, 1«G(>, s(10, Lord OnnidaU! and L.J.C. i!2 I). 1211, ruv. 1S(;1, 4 >hu'(i. ii(;7. .Miiiicn'iiri'XprcssL'd t]uM)i)ini(iii tliat ■' Krsk. i. (!, 150 ; Slirliinj v. Cnnr- Kross iiK'fuiality, citlicr at dato of /(//•(?, 17l(i, M. 6111 ; Fr. ii. '.)43; but 'Ic'imI or at ilis.si)liitiou, would lit' a sc' linili.'i v. Lonrii, IHTU, ^I. (ill?!. L;roiuul of ri'vocatioii. ' (Jrniij v. (ritlloivnii, >■((/)/•'(. ■'ilih^nn'!^ Trs. v. <)., 1S77, 4 H. '', i li 1 1 ■;:i :| 132 DOXATIOXS INTER VIRUM ET UXOREM. known to the law, and in the ante-nuptial contract jiarties have solemnly determined their mutual rights. Although, therefore, the wife may have, by an ante-nuptial contract, accepted £50 a-year in lieu of her legal rights, and the husband be a millionaire, any additional provision he may make for her by post-nuptial deed is a donation revocable.^ Mr. Montgomerie Bell says that the question is still open whether in estimating lesion the date of the contract, or the date of death, is the tem/nis insplcicndwni. But it is sub- mitted that the authorities sufficiently bear out the doctrine in the text.- And this has the authority of Lord Fraser.'' It is not possible to make a Provision Secure against the Husband's Creditors unless it is Secure against the Husband himself. — The doctrine of " reasonable provision " will not be applied unless the subject is placed outside tiie husband's cont"ol. III. — Husband took title to heritage in favour of himself, and his wife in conjunct life-rent, for her life-rent use allenarly, and children in fee, but reserving to himself power to sell, or burden, or even gratuitously dispone the subjects without wife's consent. He was then solvent, and his wife was otherwise unprovided for. The husband died insolvent, and the wife claimed the subjects as a reasonable provision. But it was held that by the destination, the husband remained sole pro- prietor, and as he could revoke, his creditors could do tho same.'* No Post-nuptial Provision to take Effect stante matri- monio, will be sustained in a Question with the Husband's Creditors. — It is an elementary principle of the law of bank- ruptcy that a man shall not be allowed to place his property 1 Ei>k. i. G, 30 ; Jiar v. Xi iLton, 1875, 2 II. 076 ; Jardluc v. Ciirrii', 1830, 8 S. 937 ; Maclarltlan v. M'at- snn, 18.3!t, 1 D. 1177; and .st'i Coojnr V. a, ISSr,, 12 R. 473; rev. on other -loiMuls, 1888, 15 Yl. ILL. 21. 2 Hviih r v. iJkhon, 1827, 5 S. 2()(i; aff. 5 W. and S. 455 ; M'NiUl v. attida Tr.<., 1829, 8 S. 210 ; Thomson v. 7'., 1838, 1(J S. (J41 ; JilaiHr v. Milne, 1838, 1 I). 18. lint ,svr Nisb, II V. iV.',s' 7Vs., 183.5, 13 S. 517. •■'Fr. ii. 928. Tlie nio.-it recent cases in which Uie point was argued is iVt7t7/( // V. .17. '.s 7'm., 1877,4 R. 80(». ' Honcyman ifi ll'ilson v. Jiobtrl- son, 188G, 14 R. 1G3. rUOVISIONS ST ANTE MATKIMoNIO. 133 I If 'II in such a position that he gets tlie benefit of it, and jet i'. is jDrotected from his creditors in the event of his bankruptcy. He cannot, by declaring his income alimentary or non-assign- able, or by any imaginable scheme, relieve himself from the legal obligation of applying his funds to pay his debts. ///. — A husband by post-nuptial deed conveyed to trustees £2G00 wliicli had come to his wife from her father. There was no ante-nuptial contract, and it fell under the jua mdvlti. He bound hit.. self to pay to the trustees from his own funds £2000. The purposes were to pay the life-rent to the husband, and after his death to the wife if she survived, and the fee to the children, luitix and '^lUiHcitiii'is. The provisions were declared alimentary. He was then solvent. He never implemented his obligation to pay the £2000, aninil2.^ !>. 1)42. •» ,S,,, ilh v. N.'.s Trs., 1884, 12 H. 1 sd. - Dickson on •' Eviilencc;,"' 5$ 104. liutsr. ir K. 1227. - J'O'nV.s Trs. v. J.'s T,:<., ISsT. 14 H. 411. ■'Smith, V. N.'.v res., 1S84, 12 K. J 80. |- DEPOSIT-RECEIPTS. 187 a bequest of money in favour of the persons in whose names it is conceived failing the deceased."' And the fact that a man was in the habit of adding to a deposit-receipt in fiivour of the alleged donee is not in itself sufficient corn )boi'at ion. - Nor is the endorsation and delivery of a deposit-receipt of much value as evidence of donation. For the presumption is that it was endorsed, and handed over merely to be cashed for the depositor.^ On the other hand, where there is other evidence of anhnuH donandi, it is not necessary to prove delivery of the deposit-receipt.^ The position of the parties, their relation to each other, and the circumstances of their life in general will all bo considered. ///. — A miller, earning 14s, Gd. a-week, lodged, in 18G2, £13 in a savings bank in name of himself and his wife "con- junctly and severally and the longest liver of them." He died in 1SS2. At this time the deposit had grown to £182. His wife had by his instructions taken care of the pass-book, and had lodged the additions and got the interest added from time to time. An account in another baidc had been always drawn upon for household expenses. This was the circumstantial evidence. In addition the wife deponed that the husband had alwoys said the money on deposit was to be hers. The wife's brother corroborated. Held the donation was proved.'' Still slighter corroboration may be sufficient where the husband has placed the money in bank in his wife's name. III. — Deposit-receipt in wife's name, and pass-book of a current account also in her name, are found after the hus- band's death in his repositories. She depones that he had placed these sums in bank for her after recovering from an illness in which she had nursed him. Slight corroborative evidence. Donation proved.^' Where the money in bank was the wife's before her marriage, and passed to the husband, ywre mariti. — In this ^ P,r Lord IVsiaoiit \\vj\U in 1!) H. i2()l. Croahirs 7Vs. v. U'ri(/ltt. 1880, 7 K, ' Croshie's Trs., .^iipm, at p. 828. at p. 82(). •' Jlljifh v. Curie, supra, 1885, 12 - IliiiL, .tu]>r<(. ; ami .fcc Jatnieson v. E. (!74. M'Lcod, 1880, 7 H. 1131. « Thomson's Executor v. T., 1882, ■^ Sharp v. Pato),, 1883, 10 E. R. 911. 1000; J)aH-snn v. M-f\(iir:ie, 1891, ■\ ■\i in s(t Jdcto, bring it under the jus mavitiS' This rests on presumed intention. In the absence of evidence to the contrary, the wife is not presumed to have meant to make a donation of her estate to her husband. It is more likely that her intention is to rein- vest it in heritage, and so retain it as her separate estate. But where her intention clearly is to allow the price to become the property of the hu.sband, this is a donation revocable, subject to tiie ([ualification that if she has allowed the husba'.io to apply the money in meeting ordinary household expenses she cannot revoke. But such part of the money as can be traced, and remains in the husband's hands, she can revoke. And if he has invested it or has applied it to any specitic purpose of his own, not being mere domestic expenditure, this can he 1 Gihaon. v. Jlidchinon, 1872, 10 M. 923. - Ul-i(j}t,Cs Executors v. C. <>/ G. Hank, 1880, 7 l{. 527. ■'Stair, ii. 1, 4; Fr. i. 70;}. 1 aURROGATUM. 139 /evoked by hci.^ The price of English land, the property of the wife of a domiciled Scotsman, appears to stand in a differ- ent position. ///. — Wife at marriage owned land in England. No marriage-contract. After marriage she sold it, and made a declaration in terms of 3 & 4 Wm. IV. c. 74, that she intended to give up her interest in the estate without receiving any provision from her husband in lieu thereof. The husband took the price, and applied it to his own uses. She sub- seqently executed a deed of revocation, and pleaded that the price of her English property was either aiivro'jatiwi, and so did not pass to her husband, or else if it did pass under the jus nuii'lti, was a donation revocable. The Court of Session atrnined this contention without determining whether the donation hail been made or not. If it was, the revocation was effectual, if not the price was surrufjo.tum. But the House of Lords reversed this judgment. The 'ratio on which the reversal proceeded, was (1.), that by the law of England, the real estate which was the wife's before marriage, became then an estate which belonged to both spouses. Their interests in it were undetermined, and depended on which of them sur- vived the other, and whether there was issue of the marriage. For on tiiis hing' ' the right of courtesy. (2.) Being heritable estate of the husband as well as of the wife, it could not bo sold without the concurrence of both. (3.) As the hu.sband could, if he liked, have pre\ented vhe sale, it was not a donation on tlu; wife's i)art, if he consented thereto on the condiiion that the price should go to him.- It is humbly tliought that this reasoning is unconvincing, because, although expressed in ditferent language, the rights of a Scottish hus- band in his wife's Scotch heritage are essentially the same. In Scotland, as well as in England, ii wife cannot at common law .sell her heritayi' without her husband's concurrence. But it has never been thought that this )>revcnted the price of it being a donation, if she let it fall under the ^it-s maritl. Donation by renunciation of jus mariti. — It is a donation ' lluichmni v. H., 1843, b D. - Wilvh v. Tciinent, 1891, 18 1{. lOi); Tuniotty. T:s Executors, IS!^[}, ILL. 72. It iiuust be runiembere.l 10 II. 87(i (,svi; L'8p. note "1' Lord tliiit, tlie subject liuiii;^' Eiij^'lish land, Fraser, Onliuary). the lux loci },n)verne(l. ' i /. ii 4(1 i"i lili :V{ 'i (•(4, m I 1 :l ; ; I m • v IE \ 140 DONATIONS INTER VIRUM KT UXOREM. if the husband, by a post-nuptial deed, renounce his jus mariti in his wife's estate. But if the wife has no other provision, and the sum is not excessive, the doctrine of reason- able provision will be applied and the renunciation will be irrevocable.^ Who may Revoke ? — The right of revocation is strictly personal to the donor. It does not transmit to his heirs or representatives. It may be exercised by the donor after the death of the donee.-' If a spouse liecomes insane and a cuivtor bonis is appointed, the rurdfor ma}' exercise the right of his ward, and revoke all prior donation.s."' At the donor's death, without revoking, the vck doudta beconu's the absolute pro- perty of the donee. To this there is oiio ([ualilication. Tiie donor's creditors can revoke after his death. Right of Creditors to Revoke. — The primary purpose of a man's estate is to pay his just debts. It would be manifestly unjust if a husband could remove part of liis fiunis bevond the reach of his creditors by giving it to his wife, and yet retaining power to ri'cover it at any time. Accordingly, wherever the donation is revocable and the donor insolvent, his creditors may exercise the right of revocation which be- longs to their debtor. They must first discuss his other property. But sequestration operates v'/jno fncfi) the revoca- tion of all donations by the debtor.'* It goes without saying that in cases in which the husband could not have revoked, his creditors have no higher right,'' Their right i^ co-exten- sive with his, and will be barred by showing that the alleged donation was in the circumstances a reasonable provision or was granted for adi'quate consideration, he being, in either case, solvent at the time of granting. The presumption is against Revocation. — W'heie a subsequent deed may be construed as impcu'ting ii'Vocatiou, but is at the same time consistent with the subsistence of the donation, the presum))tion, in iluhio, is that the donor inteiuled the gift to stand. Thus, if a man by deed conveys a house to '.S7/.70T*' V. Christlr, IslJ, ,", 1 ). :i ]llnll,li v.Mllin, is:is, I D. 18. \:V1; M'I'hirxinix Y. (,'r,ih,nu, ITaO, * K, nip \\ X'lpirr, \X\-2,A D. ."nH. M. G113 ; Vv. i. TiJU ami ii. !M8. ■'■ Cntlii v. (,',ill<>in'ii, isco. l>i> |). '-' li'i. V. Xiiisot,, 1ST.-., -I i;. (iTd, 1-jii. ivv. is(;i, t y\;v<[. I'd:. ' t 1 I SEQUESTRATION. 141 his wife, and subsequently executes a trust-disposition carrying all bis estate heritable and moveable to trustees, he will not be presumed to have meant revocation.^ So the fact that a man after making a donation of a hei'itable subject charges it witli a burden, is not held to imply revocatiuii. The donee will take it cum onerer This was also the law of Rome as laid down in a novel : Dona- tionem nou vidcrl revocatam, ex eo quod donator rem donatam Jnjpothccie aid pUjnorl dedevit.^ How Revocation may be made. — Revocation may be proved prout dejare. It may be by express recall, or it may be implied. Implied Revocation. — Sequestration, as already stated, operates revocation. But the mere contracting of debt sub- seipient to the donation has no such etfoct.^ Revocation is inqilietl by the subsequent granting of the res dowda to a third person.' xVnd any subsequent deed which is incon- sistent with the view that the donor intended the donation to subsist, effects revocation." And a decree of divorce fur adultery revokes all prior donations by the innocent spouse. It is even said by the older institutional writers that it is sufficient that the ilonor knew of the donee's adultery or, at anyrate, enough if he intended to raise a divorce though he (lied before doing so." But this has never been decided, and it is inq)robable that it would now be found to bo the law. Revocation need not be intimated to the donee/ Right to ilevoke may be barred by homologation. — If the donor luiuologate alter tlie dissolution (tf the marriage, ri'vocation will be barred. Homologation siontc matvimonio would be itself a donation and revocable. And when the marriage has been dissolved, the Court will require very clear and distinct evidence before nrriviiiu' at the conclusion that there ' Hr-k, i. (!, ;U ; .svc ll'dlLerx K.n'i^. V. If'., 1878, 5 K. 9G5. - iMsk. 1. c. •' NdV., I'lxii., c. 1 ; Kiidorh v. Ivilt, 1()71, M. ll,.34rj. ' Kr.-k. 1. c. * liordon v. SUp-Dnvijhk); 1G87, •2 Sui>i). 110. « llnnl csoh's 7V,s. v. Tnlloch, 183.3, [■2 S. 1,3,3. " Stiiir, i. 1, 18; I'rodie's Notes, j). 39 ; s.v Frasfi', ii. m^. •^ Er.sk. i. G, 31 ; Fr. ii. 951, aiul casus citeil. '"••I! ' , i 111 n ? '!] '■I T 142 DONATIONS INTEJi VIJiUM ET UXORfJM. head been liomologation. It must bo proved that the spouso, who is alleged to have homologated, was in full knowledge of the loss whicli ho would incur by liis action.' Jll — Three months after Imsband's death widow attended meetinsi of trustees. The will was read over to her and explained, and she elected to take under it and signed a minute to that effect. If she entered into a second marriage her whole interest was forfeited. She married again, and for three years signed receipts of interest for her children, and in other ways recognised the will. It was held that she was not barred by homologation and could still take her legal rights.- In most cases the plea of homologation will not be sustained, unless in making the election tlio party averring lesion had independent legal advice.'^ And this is especially necessary in a question with a woman or a person unskilled in business affairs. Revocation is not barred by Ratification nor Prescrip- tion.^ And a Clause declaring the Deed irrevocable has no Effect.'' The Right of the Donee during the Donor's Life. — The donee holds the res donatd subject to the resolutive condition that it may be revoked during the life of the donor. lie cannot give, even to an onerous third party, a higher right than his own. llcHolato anini jure dantis, n'Kolrltur jus acclpl- entisS' To this there is one exception. If the res , '.i-2 ; IiujUk v. l.mirii, l(!7(i, ]M. 1(),:2H4. " I'Hiir.s I'riii., 1017. " Krmp v. \ii;ilo; IS42, 4 1). iW LOANS P.Y WIFE TO HUSBAND. 143 can claim that it be restored to him free from the burdenJ If the donee improve it, the donor must compensate the donee.^ If it pcrisli without the fault of the donee, the loss is said to be the donor's.- And it is said that if the res donata have in good faith been consumed by the donee, ho is only bound to return the amount by which he is loruph'tlor at the revocation.^ It is not certain that these last propositions, which have Lord Fraser's authority, woidd be sustained. For they rest on rules of tiie Roman Law which were laid down at a time when donations between spouses were null and not merely revocable. In that case the donor remained the owner. Dut by our law it would appear that the property is transferred, subject to a resolutive condition. Advances by Wife to Husband. — A wife who out of estate sei)aiatt! by contract made advances to Iier hu.sband for his business, was held entitled to rank in his sequestration as an ordinary creditor. In this case, which was subsequent to the Act of 1881, it was said that donations by her for this purpose would have been revocable.'^ Section 1, sub-section 4, of this Act provides that where money or other estate of the wife has l)een lent or entrusted to the husband, or immixed with his luiids, she can only rank as a creditor after the other onerous creditors have been paid. This would seem not to extend to estate of the wife from wliich the Jus iinirilt has been excluded by contract.' An o: 'rous assignee of the wife is in no better position, and is not entitled to rank as an ordinary creditor.'' The section extends to furniture or other moveables which the wife has lent to the husband. A'.//., a husband seven months before his sequestration sold the I'urniture in the house to his wife conform to an inventory, and gave her a sale-note, narrat- ing that he owed her a sum of money, and that the furniture was in payment of his debt. The wife allowed the furniture to remain where it was. The Court held that, assuming the honaJidcH of the transaction, the furniture had been entrusted by the wife to the husband, and she was only entitled to a postponed I'anking.'' ' Ersk. i. (;, 32. - Fr. ii. !)(;i. •' LaiiUnw v. A.'s 'Ax, 1882, K; R. :)74. ' N«r ?; 8. <■' (Whraui: v. Lamont'n Trs., 1891, 18 R. 451. " Aiithrson v. .l.'s Trs., 1892, 19 1!. (1^1. I s ■Ir'.t I'V '"1 !9 dfi ■- p \ I III M I I V i I 4 i ' h^v ! 1 ■^ .i I ■ 'i |l ^ lil ji! \ i' i Ij CHAPTER XIII. Ji'S MARITI. By the common law of Scotland tho whole moveable estate of the wife passes at marriage by an implied universal assignation to the husband. His right to her personal estate is called his jus marU't. It extends not only to every moveable right vested in the wife at the date of the marriage, but also to all those to which she acquires right dante matrhnonlo. III. — A wife is entitled to a share of legltim which has vested, but is still in the hands of her father's trustees. She obtains a divorce on the ground of the husband's adultery. Held that the divorced husband can claim tho Injltlra. as having fallen within the Jith' mariti.^ Wife's Equity to a Settlement. — In one case Ijefore the Married Women's Property Act, an attempt had been made to soften the rigour of the conunon law by borrowing a rule of English equity. It was provided that, where a married woman succeeded to property or acquired right to it by donation or bequest, or any other means thati by her own industry, she might claim that it should not fall under the Jas marili, except on condition that the husband should make a reason- able- provision therefrom for her maintenance. But the claim needed to be made before the husband or any one in his right had obtained complete and lawful po.,sessiou of the property."' It seems uidikely that further (piostions can arise under this provision. 1 Firgnsoii v. Jack's Kcrs., 1877, 4 J\. :YXi. - Coiiju-al l{i,L,'lit.s Act, 1801, ):; 1(1. As to " rfasdiiiiblL'," .svc Somiicr v. S:x Tn., 1871, !) M. 5i)4 ; Taylor 144 v. 7'., 1871, 10 M. 23; Kiinic 40 & 41 Vict. c. 2!), 55 3. '^ 44 & 45 Vict. c. 21. 3 Jlorshriiyh v. Scott, 1889, IG R. 507. ■' Section 3, . Trs., 1883, 10 R. 731 ; Fr. i. 783. « H'jvV/A^'s Exccvtors v. C. of G. Hank, 1880, 7 II. 527- '"I r:;cj; "CiM; 1 I' i ' I 148 JUS MA HIT I. \ \ W '■ 'I r husband showed plainly by a course of condi .t tliat he did not lay claim to property to Avhicli he was entitled ex jure nnaiiti} But clear indication of intention will be required. And where a wife was an innkeeper before marriage, and the spouses separated, the fact that the husband left her for some years in the enjoyment of the stock and furniture of the inn, which had passed to him jure mariti, was held not sufficient to instruct that he liad made a donation of them by renouncing his marital right.- But in a case before the statutory pro- tection of a wife's earnings the facts were these. Tlic husband and wife lived separate for more tlian twenty-five years. During the whole of this period the wife supported licrself, and brought up the two children of the marriage, by her industry as a washerwoman. The husband never gave her any money. It was proved that he had occasionally borrowed small sums from her, which he had always repaid. At the wife's death she hail saved a sum of XOO which the husband claimed as falUng under the Jh.s mariti It was held that the fair inference from the facts was that the husband had tacitly renounced his jus mariti, and agreed that he would not claim his wife's earnings.-' And the fact that a Imsband ke])t an account under his wife's name in a private cish-book in which he credited her with the income of estate which hail been hers before niarritige, coupled with evidence that he had been in the habit of speaking of the balance in her favour, as her property, was held sufficiently to instruct renunciation df the jus luaritiJ Nature ot jus mariti — The ett'ect of the.yff.s //h^'V/ is t(« carry the estate which was the wife's to the husband. A husband, whose jus mariti and,/H.s' administration is are not excluded by convention or statute, may deal with his wife's move- able estate and the income of her heritage precisely as if she did not exist, and the property had been originally his own.'' 1 Wright's Exnrx. v. C. ofG. llanl; 1880, 7 R. 527. 2 llauhrmn v. IL, 1889, 17 R. 18. In tliis case it was a material fact that after the separation tlie husl)ancl refused a ])roposal to 1)riii|^f liis wife's estate under the Married WonieiiV Projierty Act, 1881, liv (Xccutin^ a deed in terms of ij 4. •' Ihiviihnn v. />., l^fJT, .^ M. 71(». ^ Smith v. .S'.'s '/Vs., 1884, 12 R. 180. * As to "equity to a settlement,'' .«(•(' sii]ir(<, ]>. 144. i n t s f t TW m COMMUNIO nONORUM. 149 Communio bonorum. — In tlie institutional writers the moveable estates of both spouses are said to form a coni- Tuunion in which both have an interest, but of which, stante matrimonio, the husband is the sole administrator. To Lord Fraser especially is due the credit of having pointed out that, wliatever may be the historical justification of the expression comnmnio hovoram, it is as regards the law of Scotland, em})ty and niish^ading.^ Tiie most recent writer on the sub- ject cliaracterises it roundly as a "lying phrase."" In the Avords of Lord Iviidoch, " It becomes obvious that no such thing has ever been denoted by the expression as a proper partner- ship or society between the spouses during the subsistence of the marriage. Emphatically the reverse has been again and again held. During the subsistence of the marriage the husband is not merely administrator, he is the doriuuiis or absolute proprietor of all tlie moveable estate belonging to both parties. Whatever is the wife's, passes to him by an implied legal assignation, and becomes his as much as what is primarily his own. He can dispose of it at pleasure without any accountability. It is all liable for his debts to the very last farthing. The wife has no right of disposal to the extent of one shilling, nor can she withdraw any part from her husband's power, nor in any way interfere with his absolute proprietary right. AH this is tritl juris. It is in vain, therefore, to say that (luring the subsistence of the marriage a society or partnership or anything resembling it, exists between the spouses. The wife is destitute of any right. The whole belongs to the husband. T(j call any part of the effects the wife's own during the sub- sistence of the niarriage is a legal solecism."^ Anil in the same case Lord President Inglis said : " I do not think it necessary, in giving judgment in this case, to trace with any minute and jealous accuracy the extent to which that doctrine has been adopted in our law. I shall only say that, in regard to its practical results, all we know of the rommunio hovorwin is that when the husband predeceases the wife, the wife is entitled jure rclictn', to one-third or one- half of that moveable estate, or of his free executry. . . . ::'!! ' Fr. i. (148, ,sv7/. - Dr. Diiviil Murray's " Property ol' MarriiMl Person?;,'' p. 12. ■^ F);isa' v. Walker, 1872, 10 M., iit JL 847. : I: t". <(>i 'H ::;i ?. ';!• rgt /l> 'I ■i; ' r 'K 'A. I? \ ; * 150 JL'S MARITI. The right of the executors of the wife liti.s bucu abulishctl by statute, whether she dies testate or intestate, and therefore, the only practical result of the coiimmnio boi'onim, if indeed it be a result of that at all, is the jus rellctw."^ What Subjects fall under Jus manci ?— Everything which belonged to the wife's moveable estate is carried by the jus marlti Whatever is heritable remains excluded therefrom. No attempt can here be made to state with fulness the law of heritable and moveable. In general it may be said that the following subjects are recognised as heritable : — 1. Lands, houses, mills, teinds, fishings. 2. Trees and natural fruits before se|)arated from the ground. But industrial crops arc moveable. And ])robably shi'ubs and plants in a nursery-garden being intended for sah', and forming a kind of artificial croj), would be held to be moveable as to succession. - 3. Heritable Securities.— It is to be borne in mind that heritable bonds, though now moveable quoad succession, remain heritable as to the rights of the spouses.'" Xo heritable security, whether granted before or after marriage, shall to any extent pertain to the husband Jitrc mur'itl, where the same is conceived in favour of thi.' wife, " unless the husband shall have right and interest th'jrein other\vi>e." This very clumsy expression is borrowed iVom the Act IGGl, e. '>2. It means merely that such a bond may fall to the husband in terms of a marriage-contract, or other deed and not at common law, jtire mavifi It makes no dilferenee that the wife is not the original creditor in the bond. Although it comes to her as moveable succession, it does not fall under the jus marlll of her husband.^ What Bonds are Heritable inter conjuges? — All bonds providing for payment of an annualrent, or with a clause of interest, which, in the language of the old lawyers, bear a tradus fiUuri temporis, were at common law heritable. Tiiey were made moveable by the Act IGGl, c. .32, except quoad the Hsk and irder conjuges. But sucli bonds were 1 JF^m,S(;?-v.ira/7.-cj-, lOM., atp. 843. Act, lH(i8, ;}1 & 32 Vict. c. 101, i; ^Bajhic V. Biiyil, 1837, 1(! S. 232. 117. 'Titles to Laud Consolidation ^ llodrji. v. 7/., 1S7!), 7 1{. 2")!). 1 i i IJERITABLE BOXDS. 151 always moveable until llic date at whicli the principal is pay- able.^ If a woman, in right of such a bond, marry before the date at which the principal is due, the bond falls within the jus onuriti. But if tlie interest is not only made to run, but is pay- able before the date of payment of the principal, the bond will be heritable after the first term at which the interest is due.- When the principal is payable at a distant or uncertain date. It was laid down in two old cases, that such a bond was heritable, even before the date at which interest or prin- cipal was payable. In the fcn'mer, the term of payment of the principal was " diverse years " after the date of the bond, and though the creditor died before the t'rst term's annual rent fell due, the bond was found heritable." In the latter, the principal was to bo paid at the first term after the death of a person living.' But these cases seem inconsistent with the decision in the case of Gniij v. Walker,'' in which it was held by Lord Neaves that a personal bond was moveable, which was payable on tlie death of a person living at its date, and l)ore interest after the term of payment. The debentures, bonds, and mortgages of public trusts and companies are heritable, apart from provision in the Private Act or some incorporated Clauses Act. So a mortgage by the Glasgow Water Works was found heritable quoad the widow, on reasoning which would seem to api»ly to the debenture of an ordinary joint-stock company." Such mortgages and deben- tures of companiL's mider the Companies Clauses Consolida- tion Acts are moveablu/ Bonds secludi'ig Executors.— Bunds taken payable to hen-s and assignees secluding executors are heritable dcstina- t'lonr, and such a bond carried by service to a married woman as an heir would not fall under the jus mariti. But a bond of this character, if assigned or cdiiveyed to a stranger 1 Dourjlaii, l(J2i), M. 5504. '-'Ersk. ii. 2, 1); Ramsay, 1G82, M. 4234 '•^Uriiij V. Gordon, ICfiC, M. ;}(;2:). ^ Falconer v. Ikat'u, lti27, M. 54G5. ^Ih5!), 21 D. 70i). ('Downic V. Christie, 18GG, 4 M. 10G7. ' S & n Vict. c. 17, ;5 40, ami 20 & 27 Vict. c. 118, i; 23. « ,1 « :' .'A. ;:l II IK; IN W\ i'N *» •' I rj 152 JUS MARITI. \ I I .1 ! I: f and his heirs, wouUl go to the stranger's executors. And so such a bond assigned to the father of a married woman, he not being the creditor's heir, and falling to the daughter, by succession, would not be excluded from the jus marit'i of her husband.^ Bonds taken to Heirs. — Where a bond is taken to A. B. and his heirs without mention of executors, this is understood as meanins: heirs in mobilibus, and such a bond woidd fall under _y'<(8 marlli- 4. Dung. — -The dung produced upon a farm is heritable dest'imdUnK', aliliough it has not yet been applied to the laiid.^ But this ratio would not be good unh.'ss the occupier was under a common law or conventional obligation to aj)ply to the farm the manure produced upon it. If the owner were also occupier, the (piestion would be one of intention t(i be gathered from previous practice and the custom of the district. 5. Building Materials. — When collected on the ground for the purpose of completing an unfinished luiilding they arc heritnble (Ic^iiKifionc. This seems contrary to the opinion of Erskine,' which is approved of by Lord M'Laren.'' lint the case founded on by the hitt.-r learned writer,'' lends, it is respectfully submitted, no support whatever to the doc- trine of the text that building-materials are not heritable until actiuvlly added to the building. That ease turned entirely upon the terms of a contract, and involved no (|ucs- tion of law. And it was heKl in an older case that window- frames, doors, and the like found within a house when a-building, but not yet fixed to their proper places Injong to the heir." The ease there did not recpiire to be put higher than that such spcciaPy constructed pieces of work >Ersk. Prill., isil, VA, ]-20. I.onl Frasur tliinks tlir (|iir>iiiiii i']irn, Fr. i. 722. - Krsk. I'riii. Ijo. S,,- /.,.Vw(0'/ \. H'al.ion'.t Jlvsiiltnl, 18(;2, i>l I). '2i>(). ~ JiihnMnn v. />.(/<»,, \~,H'.\, M. nil.'J; ami sk dirlnni nl' l,.P. Inch's in /i'« tiVn Exicntor^, ,s/(/»n/, at !.j 1 MONEY HERITABLE DESTINATWNE. 153 "I'l as window-frames made to fit a particular place in a build- ing must be regarded as already part of it dedinatione. But "some of the judges seemed to be of opinion, that even the simple collecting of materials for building might often denote the animus destinandi of the proprietor, so as to render them heritable. Others appeared to admit no other rule but the then actual state of the subjects. The opinion of the majority was, that in cases like the present where the will of the proprietor, so strongly marked, is actually carrying into execution by overt acts, such animus should have full effect."^ 6. Sum to be applied to Heritage. — A sum of money may be rendered heritable destinatione if it appear plainly that it was intendeil by the deceased to be applied to heritiige. Thus a man sold part of an estate which was sulject to a burden, and intimated to the creditor in the bond his intention to pay off the debt. The creditor was entitlctl to six months' notice, and the debtor invested the price of the bonds sold, amounting to ,£10,000, in the funds until this time had expired. Jjefore it had elapsed the debtor died, and it was held by the House of Lords that liis resitluary legatee was bound to relieve the heir and pay oti' the bond.'-' And where a man had commenced to build a house, and had accepted contracts for its construction, but died whi'U it was in building, it was held by Lord Ormidale, Ordinary, that the sura necessary to complete the house acennling to the plan of the deceased, even in excess of the coiitnicts, was heritable dcstlnaHoiic'' 7. Fixtures. — Acconling to tne biocard " qulcqahl plantatur siilo, solo cnilt,"-^ articles, in their own nature moveable, may become heritable by bi'ing attached to lands or buildings. 'J'he cases, it must always be remembered, tuin u[»on intention, and the '[ue.stions to be determineil are — (1) Was there physical annexation ? and (2) Was it the intention of the [H'l'son ]»utting up the fixture that it should remain per- ' J.ihiisliiii V. Ihihic, i^iipni, M., ;it 3;jij. I>. 5111. ' S,r .Tustiniini lust. ii. 1, SJi 29, - Mnit<>\. Hlli,il, ISJ.'), 1 W. and ;m ; I'.nMnn's Maxims, (Uli Ed. \). S. (ITS, ;j7(1. ■' Millnrh V. Ml...,n, ISCT, 5 M. 'I •'-1 '"I ~% . I!? 1 11 154 JUS MARITI. maneiuly anuexcil, or did he intend it to be removed when it had served a temporary purpose ? It is plain that a tenant or lessee has not usually the intention to make a donation to his landlord by annexing valuable fixtures to the property, except in so far as this may be necessary for the tenant's own enjoyment of the subjects. Accordingly he will in general be entitled to remove fixtures unless in so doing he injures the structure. The question as between heir and executor is different, and the Court will far more readily assume that the intention was to benefit the heritage.^ Trade-fixtures. — In questions between landlord and tenant, the leading rules to be extracted from the cases are that tlie fixtures may lie removed (1) unless there is a custom of tnule to the contrary;-' (2) if their removal does no material injury to the lands ;•' (.']j if the fixtures are movt'able siui nainra, and can be taken away without being destroyed or rendered useless. The founilalion of these rules is that traile would be discouKiLiud if a tenant could not erect machinerv or other fixtures for the purposes of carrying on bis business, without at the same time being compelled to make a present of them to his landlord. As between heir and executor such cases have but a slight and di.-^tant application. As between heir and executor trade-fixtures will go to the heir unless there is strong evidence of contrary intention, or tin; character of the annexation is such as to negative the idea that it was meant to be i)ermanent.' Where the fixtures ap])('ar intended less for carrying on trade than for making the most beneficial use of the land, the presumption in favour of the heir is even stronger. The rule is thus stated by Lord Blackburn :^ " Whenever the chattels have been anin'xed to land for the purpose of the better enjoying tiie land itself, the intention must clearly be presumed to be to anni'X the property in the chattels to the property in the laiul, but the nature of ' ElwcH v. M,im, ISOL', JJEasl. 38, ])er Lord EllunlMirdiv^li, ('..)., at y. )]. Ilnil, .'/ V. //.-/.. ISCl), L.ll Wnh' v. //,(//, 18S:}, K App. Ca. 1 !».■>. ^ IU-and\ 7V.S'. v. Ii:.^ 7V.s'., Is7(l. .'} 1{. ILL. 1(1, iuiil siinu'l, L^TN, .■) mi o Cli. \\\\), Lsu. 1 1! an I SI III. V. ir hi lUllllli rsiiii'tli Itinl. Co., Lso;}, :i-2 L.J. (• ll'iiL; V. //«//, lSs;j, S Ayy. (' al \t. ;511 ; at \>. lioj. i FIXTURES. 155 tlic annexation may be such as to show that the inicntion was to annex them only temporarily ; and there arc cases deciding that some chattels so annexed to the laud as to be, whilst not severed from it, part of the land, are removable by the executor as between him and the heir. Lord EUenborough in Ehces v. ^f(^we,^ says that those cases ' may be considered as decided mainly on the ground that where the fixed instrument, engine, or utensil (and the building covering the same falls within the same principle) was an accessory to a matter of a personal nature, that it should be itself considered as personalty.' Even in such a case the degree and nature of the annexation is an important element for consideration ; for where a chattel is so annexed that it cannot be removed without great damage to the land, it atfords a strong grouml for thinking that it was intended to be annexed in perpetuity to the land ; and, as Lord Hanlwicke said, in Lmdon v. Linvton," 'You siiall not destroy the principal thing by taking away the accessory to it;' and, therefore, as 1 think, even if the property in the chattel was not intended to be attached to the property in the land, tlu' amount of damage that would be done to the laiul by removing it, may be so great as lo prevent the removal."'' 8. Conversion. — The first principle of the law of testate succession is that where a testator has left a properly-executed will exjji'essing his testamentary intentions, eft'ect will be given to these if they are not unlawl'ul oi' impossible of execution. Accordingly, although tlu' testator'.s estate at death may be either heiitablc or moveable, he may impress upon all or part (if it an opposite character by a direction to trustees to turn heritage into money or money into heritage, as the case may be. Tills is known as constructive conversion. The question usually arises as a dispute between the heir and executor of a bt'iieticiary undfr the; will. If the beneficiary's right is to a heritable subject, it will transmit on his death intestate to his heir-at-law ; if his right is to moveables, it goes to his executors. ' .s'(//)?v(, at p. .'in, ami Smitli's ami TiTrard on " FixturL's,"3r(l Eil. ; Lc'iiiliii^' Cast's, !)tli Kil., at p. li)!-i. llankiiR! on " LaiuluwiRisliip," p. - 17fa, ;{ Atlv., at p. l.f). 108, Hiip •' I'^nr till' j^i'iu'ral law s nni'iins Ti Th 'ii)iitSS0, -' llosshorou(jh\i 7Vs. v. /;., 1888, 7 II. 107U. IG U. IT) 7. "2 I'.fll Com. 2. '^Cuthill V. lUirm, 18(;2, 21 D. " 3 lu.-k. 8, 17. 81!) ; AHhii V. Miinro, 188;i, 10 1{. »* 31 & \V1 Vid. c. 101, i; IHO. l(i!)7, 2'(''' biii'l M'Lui'ou, Onliiiaiy. f'l . ■V • m 11 lu 1" ' ' ■■;» •> ■•-,|;!i ,.1- ^1 CJ3'' ^ ::^ mt I [ I ' ■'! \\i i I 158 ■rrs MARiTi. Rights liaviiisf a ti'dcL of future time, such as annuities, are heritable.^ Patents- and copyrights'^ are moveable. And so it would appear is the goodwill of a business where it forms a separate item in the price of a going concern."* 11. Policies of Insurance. — A policy of insurance on a wife's life ill '' .' of her executors does not fall under the /wx md'i'iii ':- it is not due tttantc matrimonioJ' Policies cif'erted by a married woman on her own or her husbcin !'s life for her separate use arc now by statute exclusive of the ;/"•><' 1. 'v7/ • ' riiziit of administration.*' Property abroad. — Where the property is in a foreign country its character as heritable or moveal)le is determined by the law of that country. This, althougii dithcult to reconcile with principle, is now settled. It was forcibly contended by Lord Young that although the law of a foreign country might well decide wlio should succeed to laiids within its jurisdiction, there is no re;ison why reference should be made to the foreign law to determine the character of other rights. But it was held concluded by authority, and mortgages on English land being by the law of England moveable were held to be moveable in the succession of a domiciled Scotsman.' Wife's Earnings. — The earnings of a married woman as already stated are excluded ])oth from the _y'(t.s innrifl mikI riijfht of administration."^ If she had a stock-in-trade at marriage this was not earniiigN and passed to the husband ^iov imirili'^ But the fact that the trade was carried on in the husbanil's house, and the wife's earnings were put into a common purse ^ Lord Adi:AtiTY. Evidence of separate business. — The fact of the husband living in tlie house at the time the busines.s is carried on, if it appears that he did not interfere in the conduct of it, does not ili'prive the wife of the protection of the Act.* Mellor, J., says: " To take an instance from fiction, ^ladame Mantalini, as described in Nicholas Nickieby, might, in my opinion, come within the application of the Act. .Mr. Dickens makes her husband, although he lives in the house, do nothin'j; in anv way connected with her millinery business except consume her i)rofits."''' But where the husband rented a house in which liis wife let lodLjincjs it was held she was his auent." Evidence of separate trade. — Tlie mere evidence of the widow that a Itusiness carried on in her husl)and's house was really her separate business was lield in England to be not sufficient witliout corroboration." ' ]\[orn.t(iii v. TdW.^i's Excciitrix, IS8S, Hi H. '241. " M'dititij V. M'.Uiiiiii, 1802, li) I!. !)3.j. ■' Mit.'ioii v. MilrluU, ISfJf), 3 II. mill ( '. n^s. ' /.'-n//v. X'W-'-sHT^, -U'.IM). 7 ■' LaporL v. Cosfid; 1874,31 L.T., at i>. -j:57. '' liitl., ami N. (J I'x pnrli. Slieiilirnl, 187'.), lOCli. 1). r.73. ■■ In ,', \\l,;il,il:.r, 1882, 21 Cli. 1). (!,-)7. '"% •\^ ?t I ■1 I '! I il : i (I ' I: CHAPTER XIV. THE STATUS OF A MAEHII':D WOMAN. By the common l.-nv a wife lias no It'gal 2>crson((. It is merginl at marriage in the person of the husband. Erskine exi)ressL's the doctrine thus : " The husband acquires by the marriage a power over botli the jjcrson antl estate of the wife. Her person is in some sort sunk by tlie marriage, so tiiat she cannot act by or for herself And as for her estate, she has nothing that can be tndy called her own where mattei's are left to the disposi- tion of the law ; for not only her 2)c>'(^ona, but tlie rents ol' her Leritable estate and the interest of her bonds become the pio- perty of the husband. In consequence of this power, the husband can recover the person of his wife from all who shall withhold or withdraw it from him. Nay, her person, while she is vestitd vh'o, is free from all execution upon debts contracted by hcrself.which by her coverture she becomes disabled to pay." ' The rule of the English common law is the same. A married woman is styled feme covert because, as Blackstone puts it, she does every thing under the husband's " wing, pio- tection, and cover." Her ■persona is " incorporated and con- solidated into that of the husband."" The husband as the (Jignior jiersoiut is the head of the house. As his duty is to love and cherish Ins wife, so hers is to love and obey him. She comes under obligation to follow his fortunes, to live where he chooses, in all things lawful to obey him. And this headship of tho family is so inherent in the nature of marriage that an agreement by the husband to renounce it would be void. So where an action for divorce was compromised, the parties agreeing to a separation, and the hu.sband covenanted that the wife should have the custody and control (jf two of the children, it was held that such a .stipulation wo'dd not be » Ersk. i. 6, 19. '^ Black. 1, 15 ; (Kerr, 4tli l<1., p. 418). 160 ADIIEUEXCE NOT ENFOUCED. IGl . ■ ■ y 1 enforced by the Court, as being in derogation of the right inherent in a father to direct the bringing up of liis chiUlren.' It was sai(l in a leading case " to allow a partition of power between the husband and the wife, and a liberty of resistance of the latter to the will of the former in the regulation of the household, would induce perpetual discord, and prove destruc- tive i; ':i 'I It"— 'II ^- :i !■ >;i MF f V ili; i !•' 102 THE STATUS OF A MARRIED \ 'OMAN. It WU.S sutiU'C'stcd ill the case of Jdcksou that circnmstaiicos might be figured in which a husband luight have tlie right . 171 ami :yc. •' ]\'(it.-0 Vi.t. c. 27 j. S.'i- <'viL .SOlli .luiic, IslL', V.V. • i. 514. " Williams (111 I'^xccutors, Xn]. II., Mil Ed., p. i)(i7, and cases cited. i i ^ i WIFK AS EXEC'ITTRIX. 1G3 tion that the testator intciulcd her to act indepondently of her husband's concurrenco in her actings, and the fact tliat the liability is his, not hers, makes it reasonable that his consent should be re([uired, not only to her acceptance but to acts of administration. A married woman who l.i.s been nominated as an executrix may give up inventory, and crave confirmation without being- required to set forth the consent of her husband.^ But she will not be decerned as executrix dative, unless the petition avers that her husband coTisents. Where a wife had been deserted by her husband, his consent was dispensed with.- If a woman holiling the office of trustee subsequently marry, the consent itf her husband to her continuing to act will be presumed if he do not intimate that he does not consent. If lie make such an intimatin'., 188.% 11 Q.B.D. 831. ^ Wcmhall v. Mon/pted from the Jus marlti), granted a letter of guarantee ' for any yarn to bo furnished ' to her son of a former marriage, to the extent of Xl-iOO; and her husband subjoined, ' Tiie above is done with my consent.' In an action against her and the trust-disponccs of her husband after his ' 41 oc 15 \'ict. c. ^1, !i «. - Stair, i. 4, 22. 1(J5 r: y\ I '^ H'\ ■':':. M p. ! ' F t 1 i IGG THE CAPACITY OF A MAHIUKD WOMAN. death, tlio Court held — 1st, That the wife's obligation was uull and inefl'ectual against her person or estate; and, 2nd, That the husband, by merely consenting to the deed of his wife, did not incur responsibility as a principal guarantee." ^ But a heritable bond by a married woman over her separate estate, if granted with her husband's consent, will be effectual, though given in security of advances to be made to the hus- band.- The personal obligation in such a bond is worthless. Limitations on Incapacity of Married Women The personal obligation of a married woman will be sustained in the following cases, which will ])e separately considered. I. At Common Law. a. When the obligation is in rem vcrsvm. of the wife. />. When the husband is imprisoned, or clvllitcr mortaux. a. When the obli'^'ation is one dil /(tctum prdrstaiidiira. (I. When she is a trader, and the cnntraet is in the course of her trade. In addition, a married woman may personally bind herself in the following cases, if the obligation be one for necessaries for herself or Iii'r childron. e. When the husbaml is abroad, or the wife is living sejiarate, and has agreed to maintain luMself, or is su})plied with aliment by the husl)and, or the separation was by her fault — in short, in every case in which she has no mandate to bind lur iuisbund, II. Stati'tk. a. By the Conjugal Rights Act, 1 80 1, wiieii she has obtaini'd a decree of judicial sepnration or a protection order. h. By the Married Wonu n's Property Ad, I.S77, .--ho may deal as an unmarried v.-oman with her wages and earnings and the investments thereof, and her contracts biml these assets. But slie does not bind herself personally. c. By the Married Women's Property Act, iN.Sl, the rents of her heritage are not subject to the y'/'.s ma rill, or right of administration. 8he may therefore deal witli them as if .she were unmarried. As to the income (tf iier moveable estate, she receives no new capacity e.xeept that of granting a recei|)t for it. It must be observed that none of the statutes confers upon her the capacity to bind lu r,>elf personally, except wIumi she is judicially st-parated or has a protection order. ' Ltitiior V. Aiirliliicloss, 1S:>1, 1 S., liiid I'M. IK. ''' jiviiwii v. iic'hr,n lO Vtit.x, i8:w, '.) 8. i;j(;. !1 r V ^ IN REM VERSUM. 1G7 Obligations of a Wife binding as in rem uersum. —Th\H rule slides into the other one that, when a married wuniaii has separate estate, obligations entered into by her with reference to that estate will bind it though they will not ground per- sonal diligence against her. For furnishings made to the wife and family are not //( rem versavi of her, but of her husband, as he is bound to provide her and them with necessaries. '^ Lord Fraser says that the wife's debts, contracted before marriage, are dc in rem versu of her." But che old cases on which he founds are more naturally to be referred to the principle that a cvedit'jr may sue a marrietl woman and her h;isband for a debt contracted by her before '■'laniage, and may recover payment out of her separate estate,^ Contracts made by the wife with regard to the improvement of her ln'iitaiie or the investment of her luoveablus, if held exclusive i)f the jtt.s' nuirtfi and jus iuhniaistratlonis, are binding upon her estate.* And if engagi'd in trade with her separate estate she may grant bills ami incur other obligations arising out of her business, and in that case render her separate estate liable. But her obligations unconnected with her separate estate will lint liiud her.' It is iint necessary to show that the contract was actually advantagt'ous lor the wife ; it is enough that the gain, if any, would have accrued to her and not to her husband. Thus a married woman having estate, from which the ^((.s innrtti and _y'»s (i.diuiiiidrdt Idii is were exchuled, may invest it in a trading company and incur the risks incident to (lie holding of shares.'' In accordance with general rules of i'(|iiity, a niaiiied woman cannot approbate and reprobate a contract, or take prcjlit undi-r it, and yet jilead it is not bind- ing upMii her. " Her conscience, as well as that of her husbaiul, might be affected by personal frauds, so as to enable the Courts to adjuilLje what ollurwise would have been hers to the (leliaudi'il party. If property were gi\c'ii to her, on an express ill ' U',ill.,r V. Ilniii,, ls:27, C. S. i!0 I ; l:iiii:\. ■ 1 ■■ I •I'l 3!; 1 . ...1 ■; 1 " • 1 r »' 1* < -rf- 1G8 THE CAPACITY OF A MARRIED WOMAN. l I I, V'' I i 1 ' or implied condition, she might accept and sue for it, but she could not, any more than a person under no disability, at once accept the gift and reject the condition." ^ When a married woman is debtor before her marriage in an obligation, and after marriage the creditor discharges the old obligation and takes a new one in its place, tliis latter is )>ull, as granted by a married woman, and is not enforceable on the ground that it is in rem versum. This was so held \vhen a renewal bill was granted by the woman after marriage, the old bill having been discharged." And this case was recently fol- lowed when a new cash-credit bond was taken from a married woman in lieu of one in which she was liable before marriage.'^ When the Husband is ciuHiter mortuus, or in imprisonment. — The term "civil (hath" does not appear to have been used with much precision either in )Scothuid or England. Sir F. Pollock doubts if it was ever a term of art except "when a man entereth into ri'ligion and is professed," * — I.e., becomes a moidc. Ihit it is undoubted that the wife of a man who has ried from trial, or who is in penal servitude or imprisomnent, may bind herself by contract." But it Would appear tliat jiennl servitude or imprisonment for a long term of years would Ix' necessary, 'i'lie wile of a hus- band who is undergoing a short imprisonment docs not ac(iuire an unlimited contractiud capacity, though possibly hei- coutiacts for 7?feeN'.s'rnvV.s' may biml lier. Tn one case where the liushand had been attainted of high treason during tlu> relxllion of 1745, and was transported to tlie' plantations in Ameriea, the qrestion arose whether the rents of his wile's lu'ritage were forfeited to the eiown, or if she c^a\U\ take' them for hei'self The argunnMit was '^ustaincil "that a person who is l)ani>hed the realm for life, is considered as dead with regard to every benefit he enjoys by the Municipal law of his country, and his wife! is considered as a j'chVinc-.-iolt', and entitleil to her iointure." ^ ' ('■ilnll V. <'., 1SS:!,S Ajip. C;l., /„,■ Si'lliolllf, ii.L'., ;it \K lliO. - Kii'liiij V. J.iiihi Sh-iiiliiiiDn's 7V.S., 1831, 1) s'. :.,-.s. ' Ji:d\i()ii III' till' aiialii;jy ln'twi'cii li'aiisjiiirta- lioii ami "civil ilcntli," >■.-, AV /inrtc Frank-, |s|;?, 7 I'.iiiL,'. TCJ. " Fiirijulu'r V. I.iiril Ailr., IT'iH, M. ICC!). AD FACTUM PRAESTANltUM. 1G9 A wife's title to sue with a curator od litem was sustained where she had been appointed executor dative to her father, being designed "wife of A. G., now somewhere abroad," and it was proved that A. G. had been transported to Botany Bay.^ Lord Fraser says the wife of an alien enemy is in the same ))nsitioii. But this appears erroneous. During war neither she nor her husband can maintain an action. And Sir F. Bollock thinks she camiot be sued alone- — i.e., except in the cases where any woman living separate from her husband is liable. An obligation ad factum praestandum may be binding, and when it is so will ground personal diligence.— This does not mean that a married woman who has contracted to sing at a concert or to paint a picture will bo compeHed, uiider pain of imprisonment, to fulfil her obligation. Specific im- plement of a contract to perform ccitain work is not enforced, but failure grounds a claim of damages. But when she has bound herself to deliver an artielo or grant a deed, or do something of a like nature which it is entirely within her power to perform, and which cannot be validly performed by aiiotlicr, and decree ordaining her to perfoi'ni it has been ])ro- nounccd, she may be imjirisont.'d for I'ailure tcj imi)lement the decree.'* Obligations by married woman who is a Trader.— Tf a married woman is a mend)er of a lirni, or a shai'eholder in a company, she binds her se})aiate estate, but is not liable to jiersonal diligince.' But a contract unconnected with her s'parati' estn'e does not biiul her. Wife's right to become a Partner. PAirr.NKit. S(C WlI'K AS Obligations by a married woman living separate.— When tile lmsl)and is in anothei' country, or tin- wife has left his hiiiise in such circumstances as not to carry with her a man- ' AiuLrson v. Slumd, is;};}, 11 S. -^ Kr-k, i. (i, 1<) ; Fr. i. b't^^ ; .vu • i'''^. lei' siiMic rule ill KiiLiliuiil, Fly on -' I'r. i, .'■) IS ; Cdiitrarts, p, SO (M)^ ; ."Spccilic IVrl'oiiiiaiiue-, p. (IS!). .-M hi W'liliJ V. Urai'iii, |S,")(;, 1 11. I llli/ijiiii V. Cihi iif(ilas(ji'ii IliiiiL^ ■•11 Ml N. ITS. 1S71), UK. 170. 1 I h I: Ji:^.!i ■ r* ■ ■■;»• ,«M| •JCI rj f I I ■ ■I'P n ]70 THE CAPACnV OF A MARRIED WOMA>'. ,J t r il date to pledge his credit for necessaries, it is settled that she binds her sejjarate estate. But the contract must be for necessary furnishings for herself or her children. But when the husband is abroad, and the wife is a trader in Scotland, her contracts are as binding upon her as if she were unmarried, and so will be enforced by personal diligence.' The law as regards these points was early settled." 1. Where Husband is abroad. — " Adam Gairns pursues Elizabeth Arthur for the drugs furnished to her o.nd her children, at her desire ; it was alhijcd ab.solvitor, because she was and is clad with a husband, and the furniture could only oblige him, but not her. It was replied, that she had a peculiar estate left by her hither, wherefrom her husband was secluded, and which was appointed for her entertainment, that her Imsbaiid was at that time, and yet, out (if the country, anil hath no means. Tiie Lords found the reply relevant." ' And the same was found where a wife living separate had an aliment settleil upon her.' 2. Where a Wife whose Husband has Deserted her is a Trader. — Where "a weman and her husband having de- serted and dwelling sundry, and the wife keeping an open hostlerie diverse years, albeit her husband have served inhi- bition upon her," and had given her bond for flesh and fiu- nishings made to her house, it was held that the wile would be personally liable.' This case was folhtwed where the action was lur wines supplied to a deserted wite who kept an inn,'' and for comniodities to one who lodged boarders." In C/nirnHide v. Carrie, a century later, the further step was taken of linding that obligations by a married woman living separate and engaged in trade will ground pi r- sonal diligence.'' The report runs : " The husband of Janet ' (Inn, v. Ihjiors, lt>;33, [-2 S. 11!). ■-' fill' ii ilisciissidu 111' till' ca.-L'.s in wliii'li a wil'c liviii;4 sfjiaiult' hiiuls Inr hnshiiiid \iy ]\r». ' Jfo,/ V. Lillli. Kill, ^r. .M».M. '' /i'/(.ssi;// V. I'atu-.'iDii, ICii:), M. 5!).').'). '' I lay V. Conloviihiii, KKi;!, M. 5i)r)0. - 178!), M. OUh-'. 'WTT WIFK PRETENDING To l!E UNMAItlUED. 171 CuriiG having left Scotland in bankrupt circumstances, she entered into trade in order to maintain herself and her children. Being charged with horning fen* payment of a bill of exchange granted by her to James Currie, she offered a bill of suspc.ision, founded on the general rule of law, that a woman vrntifd vivo could not, by any contract, subject herself to personal diligence. This plea, however, was entirely dis- regarded, as inapplicable to a case like the present, where the debt had been contracted by a wife in her own name, while her husband was out of the kinmlom. To refuse the ordiuarv legal compulsatories, in such circumstances as these, would, it was observed, in the end prove hurtful to the women them- selves, by preventing them from gaining a liveliluM^l in trade, at a time when their husbands could not aiVord them any sup- port." And in the case of (h'mr v. Jilffors, CliarnHldv was expressly acceptcil as settling the law. Liability of Wife who has fraudulently held herself out as unmarried. — Lord Fiaser says in this ease she is liable if she positively rejjresented liersrlf as unmarried, or if the marriage was secret. When the other party, if he had shown ordinary pnidi'iicc, woukl have known be was dealing with a married woman, she is not bound.' The doctrine is supi)orted by iiaid.er case if the spouses return to cohabitation the property which in virtue of the act had been the wife's separate estate will continue to hold that character unless the husband and wife enter into a written agreement to another etVect. As regards such estate then, the wile h;is the power to bind it by her contracts. Jjut during the separa- tion her capacity is greater. It is provided that " the wife shall, whilo so st'parate, be capable of (.'iitering into obligations, and be liable for wrongs and injuries, and be capable of suing and being sued, as it' she were iKjt married." She niav, there- receipts shall be a good discliaigo. Jt will be seen that no general power of contract is lure conferred, as was done by the (.'onjugal Rights Act on a woman who had a Protection ( )i(1(T. or was judicially separateri,i- (Mi. N.S., liTiS ; I'lilldck (III Ciill- lion V. F,niinii: Act of ISSl is cari'ful ntjt to do this. It provides that th(,' moveable estate of the wife, where the Act ap[)lies, shall be vested in her as her separate estate, and shall not be sub- ject to the^'«.s VKirili. The addition of the W(trds or the jus (ulin!ii!sit'ntio))!s would have placed the married woman in ' lii(ifj(irt wCHij of (ildSfjoir Jimik, " I'lr li.P. Iii,i,'lis in lli'jijdrt v, ls7!), (J l{. 470. ^'llii of <;hi. hi ! r ! ■•.;:i» ■' "ii: . '^ r 1 1 I I' -\ i 174 THE CAPACITY OF A MAHRIED WOMAN. Scotland in a similar position of independence to that enjoyod 1)V a wife in England. Jus administrationis excluded to limited extent.— It is provided that the income of the wife's moveable estate shall be payable to her on her own receii:»t, and, as the rents of her heritage are declared to be no longer subject to the Jas mur'iti and right of administration of her husband, a wife's tenants will get a sufKcient discharge in a receipt signed by the wife alone. But tlie Act does not apply to the rents of heritage, the fee of which had already vested in the wiff jn'ior to its date.' JJoth provisions are confined to income, and the result is that a married woman may contract and l)ind the income of her estate by her contracts. It is, how- ever, expressly declared that she shall not be liable in personal diligence any further than formerly. As regards her herit- able property, or the capital of her moveable estate, her capacity remains unclianged. She cannot assign the prospec- tive income of it, or dispose of it in any way, without the husband's consent. A married woman living with her hus- band is only free to deal with capital when, by paction or otherwise, the )Us tuhnhiistrdtlonix as well as the/a.s inarUi have been effectually excluded ; or when the capital in (]ues- tion consists of earnings, or acciunulations of earnings, gaineil by her in a separate business, in the sense of the Act of ISTT; or of the savings of income, or, apparently, of the rents of her heritage. She is not jirohibited from assigning the prospi'c- tive rents of her heritage, and as the husband's light of administration is e.xc'luded as to the produce of lieritabh' estate, it would seem that she is free to assign or dispose' of such rents in advance.'-' Savings from income of Separate Estate.— It cannot be said to be settled l>y ;iny authority in Scotland whether such savings are separate estate in the wife, and, if so, whether she can dispose of tln'm without her husband's consent. Tin; fiist point is hardly doubtful. But it may be thought that accumulations of income accruing to capital become at once capital, on the ])r'\nc\\)\c (u-ccssorlam scqnitur lyi'UicijKilc, and that the intention ni' the Act of IScSl is to "ive the llnrs'.ni'ih v. Scolt, [SHi), 1(1 R. .■,07. .^2. r « SAVINOS husband's CONSENT DISPENSED WITH. 175 married woman no power of dealing with capital. In this view it mifjlit make a difference whether the wife allowed the income of her separate estate, or jiart of it, to accrcsce to the capital, as, ccj., if the annual interest were added to a deposit- receipt, or if, on the other hand, she drew the income as it became payable, and thus divided it from the capital. The only Scotch case which bears on the question was one in which the spouses lived separate for thirty years. The wife supported herself by her own exertions, and it was held on the evidence that the husband must be taken to have agreed that the wife's earniuiis and the savings thereof should belong to her, and not fall under the jus mHritl. The case was really one of fixct ; but it was observed that when a hus- band sfives an allowance in name of aliment to a wife livin" apart, he will be presumed to intend that any savings she may make out of it shall belong to her.^ It is, however, well settled ill England that the savings of a wife's separate estate are themselves separate estate. In an old ease a wife at mar- riage reserved power to dispose of her sepai'ate estate, and a question arose if this covered accumulations. The judgment of Lord-lvee[)er North is quaintly expressed thus : " It appears not that any other estate came afterwards to the lady, and, therefore, what she taken tc be the separate estate, or the produce of it, unless the contrary had been made appear; and as she had a power over the prin- cipal, she, conse(iuently, had it over the produce of it ; for the Kprov.t is to savour of the root, and to go the same way." -' Tliis case has rule., lS(i7, .'i M. 710. - (loir v. Kdi'/Iit 170.'), -2 Vi'iiicin, •' l)in>r,iu. V. ra.ihiti, 1875, L.l{. 10 ('.P. :>:,i. !■ I 17G Tin: CAPACITY OF A MARRIED WOMAN. , I ! Mi! i*'\ '» ■< the Court. It was held by Lord M'Lareii, Ordinary, that the fact that at the datu of the petition tlie wife was living in adultery was not an absolute bar. But the case was one where the husband luul deserted his wife a few months after the marriage, and liad made no provision for her maintenance. The wife's adultery was subseciuent to the desertion.^ A married woman living with her husband has not, any more than formerly, capacity to contract a personal obliga- tion.— Apart from the exceptional cases wliicii have been enumerated, e.;/., obligations granted by a wife whose husband is in penal servitude, or by a wife deserted, or engaged in trade, or obligations (id fadiLVi pnicstandum, tlie personal obligation of a married woman is still null. If she has estate separate in the full .sense from her husband — i.e., estate from which the jus marltl and right of administration have been excluded — and the earnings of separate trade and the rents of her heritage are now in the same position — she may deal with this as if unmarried, and is liable to the extent of such estate in obligations connected with the enjoyment and ail- ministration of it. A contract for neces.saries supplied to her does not bind her separate estate unless it is shown that she expressly pledged her own credit and not that of lier husbainl. And contracts purely personal, and not connected with her separate estate, are null.-' As to all this the Act of 18S1 lias made no change. A(.'cordingly, it has been held, since the Act, that a married woman who possessed estate IVom whieii both the ,yus Dmi'lti and right of administration were excluded had no capacity to grant a promissory note.'* And a married woman who had signed a diseharge of Ic'/ilrin, and accepteil a conventional provision, was foiaul entitled to repudiate tlie discharge and recur to her legal rights, on the ground that it was granted bv her without her husband's concurrence.' I>nt where a wife, having .separate estate, signed with her husband a promissory note, on the faith of which a bank made him an advance, it was held by Lord Kinnear, Ordinary, that the bank ^ Niveu, IVtr., 188;j, :20 S.1..K. '^ M'Laaw Annus lin:tlurs,iH!^7, 587. 14]{. 448. - Jiuj'jiiii y.Cilii t>f . ■' I'lijili, ., f! I!. 170 ; .<(! ifuts in lulviiiK'o, lint thinks slie has upininii of L.l', Innlis, at \k l.'^l ; uu urratLT power than iornifrly to MiiiH-'s XdtL's to Stall', p. xvii. ^raiU K'ascs. Llmsus, p. 22. - i. fi, 27; liiit.-M <'i)rl:ltiirii v. Ilnni, '' See siq»'a. HiTI), M. .")7'.)r) and .')!»:)S. '• Fr. i. SI!). ' l''r. i. 801. ' 172!), M. G't(>2 ' .Ml'. Itankiuc docs unt indicatf fl .jr. :%^ cy CM* i!: % l{\ ! M fj i If > » I I 180 THE CAPACITY OF A MAIIRIKO WOMAN. necessity of the case may support a doa] graiiled by tlic wife alone, affecting her heritage, if it be rational." ' The Court may now dispense with the luisband's consent, if the wife is deserted, or the si)ouses are living apart. - Capacity of Wife to grant an inter uiuos Deed not to take effect till her Death. — The question is still open whether an obligation by a wife is valid if payment is postponed until after her death. Erskine,'' Bell,' and ^lore think such a deed will be sustained. The point was much considered in MiV< I' V. Milne's TnisfiCf^,'' \\\\QVKi the case of ColqchotLii,' founded on by Erskine, was canvassed. Erskine appears to assimilate a deed of this kind to a legacy. But his language is hardly consistent. A j)ersonal obligation incurred by iiitrr vivos deed must be ci»nceived of as at once binding, and con- tinuing to bind her until her death, although the date of pay- ment is postponed. The analogy with testaments is misleat!- ing, for the.se have no etfect till the wife's death, when the husband's curatory falls. '^ The view that such an obligation is invalid is strongly put by Lord Deas. His opinion on the point was sliared by Lords Xeaves, Ivory, Cowan, ami Mackcn/if. Lord President M'Neill, Lords Ai'dmilian uid Currii'hill. and, more doubtfully, Lords Kinloch, Brnholi.ic, and Wool! were of the view tbr' it might be sustaineil. The Court found it unnecessary to iotcrmine the tpiestion, as, in the circumstances of that case, it was foui'd that tlu' obligation was personal to the grantee, and even if originally valid, ('(.uld not be insisted in by his representatives. Capacity of Wife to Test.— A married woman lias com- plete freetlom to dispose of ht'r movr;d)le estate by uiorlts caUKii i\{}(H\}^ As to heritage, a dilliculty was felt formtnly, from tlio fact that heritage coidd only be conveyed in dc [tru - senfl torm. Baidvton '" accordinulv tliou'-ht .she could not test > i. <;, 27 .///(. * ^rurrii'il Wuiin'iiV I'mjierty Ad (1881 \ !:; f). ^ Kisk. i. f), -iH ; Ki>k. I'liii. i. (;, m. ' r-cH's I'lin. Kil.'i Morii's Nnti's tit .Stair, ji. wiii. i. 271. luuiiliiis, 1720, M. ^>'.ii:i. ■■ Nm Mill, i; .M(y//V', iiliillinll< i,\' liiiiiU ( 'iiwaii aii'l .Maikcii/.ic, \k lix~. '■' Kr^k. i. t'l, 2S ; uiid .see niiiiiioli - ill Millir, siijirii ; .M'baivii nii Will-, I IMi), 21 1). li" I" I. .), III. "M,w WIFE S RIGHT OF ELECTION. 181 I < oil luT heritage, :i doctrine cited witli approval by Lord Deas.^ But Erskiiie was of a contrary opinion.-' As heritage can now he bequeathed by rnortls causa deed, this objection is removed, and she may, if major, test upon licr heritage.' Her estate is now subject to claims of jus relictl and leijitiin if her domicile at death was in Scotland.' Capacity of Wife to elect between legal and conven- tional provisions. — This is perhaps rather a question if right than capacit}' in the pro[)er sense. It is settled that where a married woman is entitled to pro- visions under her father' .s settlement from which the jus mariti is excluded, her husband cannot in every case compel her to repudiate the conventional provisions and claim legithnJ' It is a question of circumstances, and the Court will regard the wife's interest. The ([uestion will hardly come up again, for the husband would not, as formerly, ol)tain possession of the sum falling to his wife in name of Iciiltlhi. [For Cap;icity of Wife as Partnei', Capacity to Sue, see illfrd.] ' Milhr V. Mihh, siijif,!, ;U p. - V.vAi. i. fi, :is, iiiid St', (i)Miiii>iis ol l.oiils ("ill' icliill (]>. ;')!»'.)), Cdwan, ami .Miickrh/ic ip. UsT;, in MilUr, Ki'in-ii; Mfii/ir,-, Cniiv., p. :'.'.i. '■'■ Titli's to Lands Cunsoliilutiou Alt, 1M(J8, i^ 20. ' Marn'cilWdnu'n's Property Act, ISSl, Ji,^ (i, 7. ■'■ .S(j Milliii- V. /.'//■/■.//, lS7(j, -1 ]{. 87. :& ' il : hi r CHAPTER XVI. husband's LIAI'.ILITY FOH WIFK's CONTUACTS. Wife as pmeposita rebus domesticis. — There is a piv- siunption that the person wlio has charge uf a house is authorised by tlie master of it to order, on his aceount, such provisions and ordinary t'urnishiugs as may be neces- sary. Tlie pres.naption arises equally whether the domes- tic management is in the hands of a wife, a sister, n daughter, or a paid housekeeper.' Jt does not depend on the marriage relation, but is purely a question of agency. Coliabitation raises a presui.,ption of fact that the husband assents to contracts made by the wife for necessaries suitable to his degree and estate, or to the style- which he pernutted her to assume, if the circumstances are such that the wife would bo the natural j)ersoii to give tho order as agent for, and to pledge the credit of, the luisband.' In a recent case in the House of Lords it was laid down that the (piestion was always one of fact. Had tlu; wife authority in the circum- stances to ))ledge the husband's credit :' The mere fact of niarriayi' or cohabitation does not imply a, mandate,' (^Miifc othei w ise is the easi- of the wife who has bei'U (lesi;rtod, ov compelled by her husband's misconduct to leave him. ('on- sideratioiis of agency ai'e here inapplicable. As the husband is bound to maintain his wile, so, il" hi' fail to do so, any one who supplies her with necessarirs is entitled to relief from the hu.sband.^ ' V.vAi. i. '1, :2(! ; I llill'.- Cuiii. 'N-i //*//", ami tin' miiiic wniilil 4Tl». '^I'l'ly 'I Ini^liaml ^'.ivi' wil'i', wlm -' Mmilni y. Si-nit, -2 Siiiitir,-- Lfiul- \va- culiiiMl in- witli liiiii, im iiidiify illK C'ftfcs, !»lli I'M., ji. Kid. \n liiiy I'ikmI (,]■ cli'tlies, yi. c I'laiii- ^ Ihhntlnitii V. M,lln„, M^^O, f! well, L..1., in I >, l„ „li,n,i, 1HM), .^> App. ("a. -21 g.b.l)., at p. U'.IS 1B2 wm I u. IMIKSUMPTION f)F AGENCY. 188 The Husband may rebut the Presumption that the Wife was contracting as his Agent. He may .sliow that liu mado lier a saffic' '■. allowance, and had not as a fact authorised or acquiesced . . the contract in dispute.' The husband, accoril- ing to the ordinary piinciples of agency, will be barred if lie has sanctioned a course of dealing — e.g., by payment of previous accounts, and has not notified to the tradesman that he was not to give credit to the wife in future." In l)('f)('u/i Inn-and.^ In a e.ise where the (piestion was whether certain tilings were " necessaries" for an infant, Baron Paike saiil : " All such things as are [jiuely ornamental are not m-cessary, and an; to be rejected, becausi; they cannot be recpiisitt^ for any one, and for such matti'rs, therefore, an infant cannot be made respon- .silile. But if they are not strictly of this description, then the (luestion arises whether thev were bou<'ht for the necessarv use of the party in order to support himself properly in the degree, stati", and station of life in which he moveil."'' l>y thi' same canons will be deternuned what are neces.saries for a wife, but it must always be kept in vii'W that it is for the ' l;, II,, lit,- V. T,,iU,, ls.-,;i, s Kx. (; C.P. ;5s ; Ihn-rlson v. (inubj, K) . 17 ; r/,„/,y,/, . (',.,, i„i; IHll, i:! .M. ;iim1 W., at i^. l'."i^. •' 1SS0, .'-.(,>. I !.!)., Ill p. :v.)s. ' I'liilliii^iHi V. lhnjt,i\ l^To, b.lv. 9 ! >• K 'A, ' .I'l 'I* : !i !} 1 ■ 1 1 1 . '1 ' i , ( > » » * Iri ' 9 [ prcM'Ut the presumi)ti(ii) arising, that in buying necessaries she is doing so as agent for her husband.'' It will, however, lie a eircumstance to regard in considering whether the tradesman gave credit to the wilt.' or to the husband. For if it a|)pears that lie Kioked to the wile for payment, tiie liusbaml will not be liable." Where the goods are not necessaries agency is not presumed. ///. — Wife of clergvman buys foreign biids to value »tf .£()()(). Accounts made out in her name. She accepts bills ol exchange drawn on herself Jleld credit was givi'U to her.^ ///, — Jewels purcha.se. ' M,latlj'< v. ,s7((or, isl 1, ;! Caiiili. '2-2 ; Jiirshuiji \. .\> nlidhl, Is."i7, :!.. r,i„ii, \ I ^. '.Vuk ^ l''m.ttnii, \. Iliilrlni; 1 S lU, It ('. iiml I', (i j:j. '•' T i; II- v. isTit. 1 .M. M all' iinjiiii V, ir)i ; Clnl 1 ii'iliii aiK .|',.|)., at \>. '.VM M< >i'il III, mill •ii ; Srliiiiillnriid v. isMi, (I /;,(/.-./•, r^'C.T, n; l,.'l'. N.s. ;}.v.». .ii I !: til I ISG 1IUSI!AXI»S I.IAr.lI.ri'Y I'oll WIFKS COXTRAl'TS. disapprobation will be evidoiicu on the ((ucstion whether the wife had his aiithoii*^y to make the contract.' III. — Wife in habit of buying meat on husband's credit. Husband is lost at sea. His wife did not hear of his death for some time, and during this period the butcher supplied meat as usual. Held wife was not liable. - Law Expenses.— &'(' infra. When Husband and Wife are living apart.^Upon ([uitr different grounds, a husband may be liable for the price of necessaries supplied to his wife when they are living apart. His liability does not here depend on any j)resumed authority, »)r implied mandate to the wife to contract as his agent. It rests on his obligation, as husband, to maintain his wife. If his con- duct has bei/n such as to justify his wife in leaviuij- him, or if he has consented to the separation, his obligation to main- tain her continues, unless she has sutlicieiit means nf su{)port. Accordingly, anyone who supplies her with necessaries is pre- sumed to do so as ayent for the husband, and mav recover from him. ■ " Wlieu husband and wife live sejjarate," says liord Manstield, " the j)erson who gives credit to tlu; wife is to be consideit'd ;is standing in her place inasmuch as the husband is bound to maintain her." ' Tin' (piestion, in all such eases, is whether the wife is justilied in living apart. If she is, or if the husband has consented to it, antl the wile is without means, the husband's liability is absolute. He cannot escape from it by advertising that he will not be icsponsible for hei' debts, or by warning individual traile.snieii not to look to him for payment.^ The o/^'.s' lies ujjou the creditor to show that the wife was justified in living separate, and that the articles su))))lii'd were necessaries in the sense of reasonabli\'' The measure of what is reasonable is the position ami style ol liviii'' of the husband. ('iirnuuil, l^;}7, 7 ('. 1' ' , I //,///>■ \. 1111(1 I'. 7")(i. ■-' Simirl \. ///;./■//, ISIl'. lO M. immI W. I. ■■ Vv. i. cijs ; /;,,,/ v. .l/..(./r, ls:}L', "i (", ainl I'. 1^00; JiihiistuK V, Sinn- n,r, IH.-.M, ;} II. ami N. ilC.l. ^it-.diil v. Ihinifiiiil, Sl'Iw. Ni.-i 1 111,- '.■2\i. ■■' //«o//.> \. M(,ni~, I -oj, 1 l';-.ji., "SA'A'. II ; l>;,nH V. //,//•,.//, IS'JS, s ('. ami I'., al \>. 7i!t : Hnllmi v, I'niili'r,, 171."), i Slia. Il'1 I. " Miilinnirnni \. l.isli,, i'-l'd, '2 < '. ami I'. ."lOT : i:,hr.,nl.< \. Tfinls, IHV.L :, .M. ami C. (iill, ^m WHKN SPOUSES AHE LIVING Al'ART. 187 t \i When is the Wife justified in living apart ? 1. It" the husband be guilty of gross misconduct or cruelty to the wife,' or it' .she iiave a leasunable appreliension of ill- trcatnient,'- she is entitled to live apart. 2. If he brings a prostitute to tliu liousc, or if the wife discovers tiiat lie has been guilty of adultery." ."). If he has deserted her.' For this purpose it would not be necessary to prove deliberate intention not to resume cohabi- tation. Even if the abandiinment wurc for a short time, the wife nuist be su[)[)orte(I, and, if necessary, at the husband's expensL'. When the Separation is by Mutual Consent.— In the absence of special agreenu'nt, tho husband will be liable, tudess the wife has aile(]uate means. IJut the parties may make their own terms. And if the wife agrees to live apart on condition that tlie husband pay her ;in allowance, she cannot pledge his ciiilit on the ground that thi,' nllowancc was insntiicient. Nor could she do so if she had agreed to live upon thc^ income of her separate estate. For in the words of Ijush, J., " Siie cannot avail heiself of her husband's consent to the separation, which alone justilies her in living apart from him, and re- pudiate the conditiuu upon whi(^h that consent was given. "^ I)Ut the husband must prove that he paid the allowance, if this was the condition of separation.'' If he lias donc^ so, it is immaterial whether the tiadt'sman knew that tlu- wife had an allowance." If he does not know the terms of the separation, he supplies the wife at his peril. It do(\s not appear to have been decided by what standard the (.'ourt will determine what are necessaries for a wife if the husljand has stipulated to pay her an allowance, and has failed to do so. 7i.,'/i '' -^ husliand witli an income of C2()()0 agrees, on separation, to pay the wife CloO a-year, and fails to ' //(»///,,< V. //., ITild, I K>ii. Ill; I'lii. I.")!; ,/,/<././ v. Mnvrix, 18(;i, lli, V. Sniitli, iMi"), ;j I'.ill;.'. ;'. 1 ).!■'. and . I. I.'i. 127; llmin, v. .Ic/.c-i//,/, 18.")(i, ."> iv ■ H^r^lhnnl v, lUnrhdl, 1S7S, :? am! I'.. Sl!l; Tiiiiii'iini \. IhiLnrill, (^).]!.l).. at p. \:W. IS.-.S 1 F. all,! F. l:!S.' '■ //„„/ V. Ih llhu^^r,;,;, 1S2!), 5 -' .l/i//.< V. ('Iiiii'iiiitii, Siilw. Ni.-i I'.iii;4, "I'lO. I'lius, :;:ii'. • .1/;-., ,( v. /'/./,, isas, ;? M. ami :' Fr. i. (ilo. \V. ISI ; IIhhI v. />, />7((.y(oV)r, yik(ux v. ,Si>iill .M. 4 K.. 41. r)s:j; irilsoii v. Funl, isfi.s, L.i;., ;} '^ Atlijii.i V. /'..o-iv, K^oT, -2 A. and H. 7.".'); . II!), 1 :2:i ; Hill i,,„is v. row- Jolt nstiiu v. Mdini'uiij, iMio, liJ Ir. /, )■, jKi',"), Macid(d. and \ . 2(11). C.I..|{. I4H; Kl,ij'.nni.<, 1711, .M. '■■ Toiilor v. Il,iilst,.,u, IsSi', 17 r)88:J. L.T. 410. INHiniTION OF WIFK. 189 that her authority is withdrawn.' And a ;^ciu'ial advertise- ment that he will nut be responsible for her debts is not sufficient, unless it be proved to have come to the knowledge of the tradesman, -' Inhibition. — The husband may f«»imally recall the wife's authority to bind his credit, by executing letters of inhibition against her. The procedure is idmtical with that employed in ordinary inhibitions by creditors.'' No reason needs to be given, and the bill is passed as matter of course. Tf registered in the General Register of Inhibitions, no other publication is necessary.' The inhibition prohibits the wife from contract- ing debt, and forbids others to give her credit to the husband's prejudice. It is ctfectual though the tradesman prove that he had no knowledge of it.'' But as the husband can by no means relieve himself of his alimentary duty to maintniu his wife and famil}', the wife may bind him, in spite of the inhi- bition, if he do not supply her with neccssarii's.'"' And by ratification or acquiescence in the wife's contracts he may bar himself from pleading the inhibition." The onus of proving that he supplied liei- with necessaries allunilf, lies on the hu.sband.'' I h,h,iilik. i. (i, 2(i ; A nrhinlick v. /i',,.S 18r.}, 1") (Mi. N.S., at ]i. C.JO. M<,nl, iUi, M. aSTli (KiT.")) ; t'.nuphdl - Ilo.l.jr V. Ciopa; ISII, lo !<..). . v. I':i,il. ,i.^\. r>^7i) I \V>7(y) \ Conhui v. C.P. :21k'. ,s', ii,i>ill, M. App. r. Ilusl.. and Wife, ■•• .lurid. Styl.'s, iii. -280. 4 (177C.). ' m f<. ;{2 Vict. r. CI, i; k;. " K,r v. llldsm,, IToi), M. (i()o;3. •' Tiijihdin V. Miirshiill, \\\. Ajip. m 1 if !i '■y '13 •"'•If I t .^•! n ! 1 1 ii ' f ^' I ' -: i ' CHAPTER XVII. LIABILITY OF msBANl) Foil WIFKS AXTK-NrPTIAL DEBTS, AM) FKAIDS ON .MABITAL BIGHTS. At connnou law ii hu.sbaiid was liable //; solblam for his wife's moveable debts contracted before marriage/ but the Married Women's Property Act, l!S77,-' greatly limited the liability of the husband under this head. It euacLs that ill any marriage which takes place after 1st January, 187•, jsTi) •1 - 40.^ 11 \'i ■t. c. l'I), >■ L c.r .1). •M\± li)0 WIFE AS SHAUEHOLDEH. 1!)1 his wife.' Section 78 of the Companies Act, 1HG2, provides : " If any female contributory marries, either before or after slie has been placed on the list of contributorics, her husband shall, during the continuance of the marriage, be liable to contribute to the assets of the company the same sum as she would have been liable to contribute if she had not been uiarrit'il, and he shall be deemed to bo a contributory accord- ingly." It was held in the case of Wlslmrt v. City of Glax(jow Jidiik,- that a wife's obligation as a contributory, in resi)ect of shares held by her before her marriage, was one which was contracted when she became a i)artncr of the company, though not prestable till the liquidation. On this ground it was decided that it was an " ante-nuptial debt " in the sense of the Act of 1877, and that the husband's liability was limited to tlie amount by which he was lucnitui^ by the marriage. But iu a later case in England, Fry, J., construed Section 78, taken in connection with Section 75, of the Comi)anies Act, 18G2, as meaning that the husband is to be regarded as having become! at the marriage a debtor and not merely the husband of a debtor, and held that his name, as well as his wife's, should be placed upon the list as a contributory with no limita- tion of his liability."' In the case of Jlill v. (!Hij of Glasijoiu Hank,* where a wife was [jlaced on the list of contributorics, her husband's name was put on as a contributor also. In this case the eft'ect of the Married Women's Property Act, 1877, was not considered, as the marriage was prior to the Act. But it appears that the husband's liability under Section 78 of the Companies Acts was n-ganled as that of a. proper contributory. Tiie etfect of this is that he is liable /;/ sidlilam, and cannot relieve himseli' of further indebtedness by surrendering the property he iias received through llie marriage. The case of ]Vi>;liiir( V. Ctfu of Glas'jow Bunk- may be thought to be ovenided so far as deciding that the husband's liability to con- tril)uti^ is merely as for an "ante-nuptial debt" of his wife, for which he is bound only /"/( qiuintuni luci'dlus. Notwithstand- ing, it is open to argument that the husband only incurs this ilil m , 'if I ill*' : I :y I II l!^7!t, (i U. S-S.\. 'artiicr. /, l\- l>.n-l> lloli ls7:i' IJ Cli. D. ■1^1 ; sec liiu'kloy nn ("uniiiatiit'; Acl.-, (itli Ivl., p. -2^. ' IS7!», 7 1{. Cn r I :)■; 192 LIABILITY <»F HUSBAND Fdll WIFE'.S ANTK-NUPTTAL UKBTS. uiilimituil liability if .'i company in which liis wife is a .share- holder is being- wound up, and that his liability on calls on her shares is in any event limited to the amount by which he was hwrdfux^ bv the marria*40. A husband has now no liability to aliment his wife's indi- gent rc'atives unless he has been Inrratus by the nianiage. and his liability is in any event limited to that amoinit.-' It does not appear to have been decided whether the Husband's Liability as limited by the Act ceases on the Dissolution of the marriage. -In Knglatul the ([uestion is also open, but the better opinion seems to be that he con- tinues liable to the limitrd extent after the wife's death.' And this, it is pretty certain, would be held in Scotland, as under the old law the husband at the clissolut ion of the marriage continui'd liable for his wife's ante-nujjtial debts sn far as he was luruiifrfior by the marriage,' Tt was formerly held that a husband who had received 't. !„J,-«, " WilV iis I'artiifiv' wlurc the .sulijt'ct is iiiorc fully ilcalt witli. - M'Allai, v. .\l,.,^n>,lrr, 1S88, \r, ■' St'( ^laciiui'C'ii, "Hii.s1»aii(l and \Vif.v'3i'd Ed.,].. 7(i. * Er.sk. i. a, 17 : Stair, i. I. 17 ; M 'Quail v. M 'Mi I In, I, l()7(i, -M. .'■)S7I; Willi,' V. Sl,ir„rt, 1(!7S, M. r)87() ; l!,,hirl.foii v. /.;/»(/, I8l>1, 1 S. 47. ■■' Er.-k. i. (!, 17. J 11 17 ; M. M. S. COMMON LAW. 1 D.S his wife's inovoablo debts coiitractcil before marriage. And it is no defence that he was not hio'dtun by the marriage. Tlie debts must be of such a kind as, if they liad been due to her instead of by her, would liave fallen within thv jus marlti. If a woman at the time of her marriage holds the office of executrix or trustee, and lier husband consents to her continuing to act in that capacity, he will be liable for obligations incurred by her in that character after the marriage.' And he will, in any event, be liable for those incurred before it. Her natural obligations to aliment her indigent parents or her ihildren by a I'ormer marriage are ante-nuptial delits in this sense, though they may not have become prestable until after the marriage." So also is her liability to aliment an illegiti- mate child born before marriage.' So a husband married after the Act of 1S77, and not hicnitufi, is not bound to aliment his wife's mother.'' Furnishings made to the wife before marriage, when she was living in her father's house, will in general be presumed to liave been made in reliance on his credit. For such accounts, therefore, the father, and not the husband, will be liable. It was foinxl in two old cases'' that a husband was liable for the price of iiis wife's wedding clotiies, on the grounil that these furnishings were /}( vein I'rrsunt of the husbaml. The debt was therel^ore regarded as not ])roperly an ante-nuptial debt of the wife, but as a liability of the liusband's own. For this reason he could be sued for it even alter the dissolution of the marriage.'' It is to be borne in mind that the husliaiid is not the true debtor in respect of his wile's nnt(>-nuptial debts. If she has separate estate this is primarily liable. And if the husband pays the debt he has relief against the wife's separate estate. And he mny re([uire that her estate be lirst discus.sed." The aeti,i v. I'l,!llj>, l(;so, M. loss. (i007. '■' Althiix. A,iihi:, the husband's liability at once ceases^ even thoUf,di f marria'je bccoiuing public bv pio- ' I'r. 1. U\V^\ Kr.sk. i.(i, |(;;iii,i IT. ■ Mn„,„ \. M,irl.,„l^ |m);i, llninc, - U '(//,■/, V. .sVmooV. KITS, .M..-,s{ Is; :>!.-, : aii\S-2, }>l. C.o:):.' ; ami avj^w iiiiiit ill lll't!r v. M'llliich, 177(), .M . ."iS|r,, .11 |.. ."is |s ' Ailijinilii-!; \ . ll'iU ill iiKdil, llICiT, .M. (iici;}. •■■ I'riii. ii. !.V')1. '■ i. I, 1). ' Sh-illlniH'll V. Il'in;.-;, ITS!), Wliilc ami TmleiV L.< '., i. 171. ■ (;,,iiii,iril V. >',(<(('', ; ■^l:(;, i itnss. is.-, ; i,ui <;. , .^'^ (t ovij, V. ir »/,(•, is;)?,, 1 M. Mi.l K. i;i(). ■' Nm Craw lf\ , 11. ami W., y. .")7. I " i'.rll'.- I'lill. I.e. (iMlitul's UuUO. , i I i i\' 1 .1 1 !ili I I • H I :i li CHAPTER XVIII. TJiK EFKKUTS (>!" IJIVOKCE ON I'UOl'KUTV. Ox divorce the innocent spouse is at once entitled to claim legiil iii,dits, iis if the guilty spouse had died at the date of the decree. And conventional j)rovisions pay.'ible to the surviving spouse by the guilty one, or any one on his or her bidialf, become at once exigible. Thus, where tin- husband's father had contracted to pay an annuit}' to his son's wile in the event of her .survivance, it was held on the sons divorce for adultery that she was entitled to demand immediate payment.' But this does not apply to testamentary j)r(ivisii>ns minh; for the innocent spouse by his or her own relations in the event of survivance, unh'ss this appears to have been intended.-' /i'.;/., A wife was eiititlo'l under lu'r lather's will to certain subjects in the event of her surviving In r husband. She divorced her husband for desertion, and called , if innocent, is entitlei! to claim her terci' and /"".f vcliclii.^ The husband, if innocent, is entitled to el;iim his courtesy if the other cniiditions attaching to that right iiave been fulfilled.''' And it would appear that ho is now entitled U)ju» re/ic/i.'' There is no ditference in re-idt whether the ground nf ^ Jdliii .loin -lliitti' \. Ji)hiiiilitiii y ■• l' ; .St.iii'. i. 1S(!7, .^ M. :U0. 1, -JO; i'r, ii. 1217; UflfH ('cm., ■ S'otl (iinlolh, ,-.>•, iStli .inly, ls<):5, t,[]\ Ivl. cai. not vet ivpDi'ttd. '' Vv. ii. IJIH; Pdl's C'dni. ihiil. =' .1 /■".-•"„ \. I'„(,fi;,.< 7',,., ls7>s, C. « M.iM'ii-il Wiuiu'ii'.-^ "rn|i.Tty Act, H. ;5T IHHI [.Jl&l.'i Vi.l, I. 21], ij C. I'.id I TOCHEl!. 197 r-'.il divorce be adultery or desertion,' with one doubtful excep- tion. Where the Ground of Divorce is the Husband's Adultery, is he bound to re-:ore the Tocher? — The statute, 1573, c. ')o, provides that in divorce for desertion " the party oti'end- iiig shall lose the tocher and the do nat tunes itrupter nuptias." The patrimonial crtucts of divorce for adultery do not rest upon statute, and altlunigli it is now settled that as regards le<3fal and (iiuventional ri<;lits they are the same as where the ground is desertion, this has not been d'.'cided with regard to restitution i .he tueher. There is an old authority to the contrary which is !ip})roved of by Lord Frascr.'-' But it may well be doubted whetJK'r, if the (piestion arose again, this authority woidd be fallowed. ■ Guilty Spouse Linkrupt. Where tht- guilty spouse is liMiikiupt at the date of decree, the innoceiil spouse may rank for eoMveutioiial provi; ions if they urc such as to give a /"(us credit!.'^ There can bi' of course no I'anlcing with onerous ireditors for h'gal riglits oi' for jtrovisions which oidy amount to a K/X's siLvrrssnni Is. Divorce has no retroactive Effect. -If the right has vested ill the guihy spouse prior to decree, the divorce will not bar him or lur from claiming it. Thus a husband who had been divorced was fouml entitled to claim a sum which had vested in the wife sltinlc nin! rihtaii louat ions made by tiiu innocent sj)ouse are revoUeil //'.so I'tii'lo by decree of divorce, and those made by the uuillv becohu' iiri'Vocable." It was held in an old case that when adulter} was i'ol'owed by ilivoive, a reNdcation by the ' 77...,,/ V. 7'., Is.VJ. 11 l». SCI ; Hell's i'liii., ,^ ICiIl', an. I Noton ; .l/'.l/,'.s7.r V. .UM., 1S,-,|, L'ti S..I. I'mU's ('..III,, :,lli K.l. i. (;;n ; 1111.1 N..: .'"ill"; .7(l/,,(^•^,«< -/'..'",. , l.'^nS, (■> M. ,liih)l.-^l"ih -I'n'dtlii; siijini. '.VX\: Uavvnj v. I'',nniiliii i\ ISTO, 8 ' li.ll, >„/.,„ ; I'r. ii. \'I2:u M, !)7i, iiM. IsTl'. HI .M. il.l.. -Jii. '' r,nji(s,n, v. 7'/i. „„.<.,«, 1877, \ - .fi'.;5.' I'f. ii. li'-j:». '■■ Ki-k. i. (; ;<1 ; Vi. ii. 1224. • I'li-k. i (!, IS, ,iii.l iIk' N..t.'> ; .' '' i : I t IDS THE LKFIXTS OF I)IVf)RCK ON IMJOIMIRTV. guilty spouse nrLcr the adultiry, but befoio the dociiH'. was inetVt'ctiial.' Mutual Divorces. — Wlien- thciv •■iro countor-nctioiis, mikI both spouses arc divorced, neither has any claim upon the property of the other. Tlie ctiect is tiu- same as it' botii liad died at the tlate of tlecree.'- Heritage of Divorced Wife. — .\ wife divorced lor adultcrv who marries or openly cohabits with the [)aranioiir, camidt alienate her lu^rita'^e to any jicrson in pr(>judice of the issue of the dissolved marriage, or failin;^ tliem, of lirr lawl'id heirs. '• Effects in England. — In Kn-land a decree of divorce dtxs not in itsill' operate any elVect. on the pioperty of the spouses. But by till' Divorce Act' the Court has powiT to vaiy setlic- ments, so as to di\ide the joint income of tlie spou>es as >liall seem jtist. Ainl wjiere a Scot.swonian marrit'd an Eii;j;lisiinian umlei- an anti-nu|itial contract in Scdtch form, ami was divnrced for adultery, it was held by Sir Jame.^ ilaniu'ii, that he had ])ower to \ary the Scoti'h settlement.' A wife divorced lor adidtery will be awarded permanent alimony il she is iiidi^eul.'' ' MniKiii V. I.irliiijxii.ii, ir.Ti;. .M. ' -jij \ j;5 \'i,t. .,•. ci^ 5' .'■). .'Jl's. ■ \n,nnli,t V. .v.. IS'JO, !.") I'.jt - /•'/■-(..,/■ V. ir, c. It!) ; {•'r. ii. JiJJl : u,f,;i. Etsk. ii. ;i. k;. ^■■i n Law,' CllAPTKll XIX. TKItCH Ti'.urr: is mic of tlic two Ic_l;;i1 lil't'-rciits known to our law. Tho otlur is (iiiiilisy. Tcrci: is otlicrwi^c caliiil in the books, l!( !■'<' /iit to |iruvc her niania_n'e. And this was declared at an eaily pei'iod by statnte. The Act i'jOS, (,'. 77 (e. -•'). ed. Thonison), |trovides: "It is statnte and oidaiiii'd amiit tlu' iMriit ions |i!'o|ioiird a^nainst widowes, persfwaiid and followand thiir briev<'s of teii'cr or tlu' ]>iofit.e of their teiree (|nlulk is ofiinies jiroponod against thay widowes that thi'y wcic not lanehfnl wives to the pi'rsones, their hus- bands be (|ulioi(ie they follow their said teiret- ; that, there- fore, ([tdiair tho niati inionio was not aeeused in their lifetiinos, and that the woman askand ibis teiree, biand iv|nite and haldiii as his lainliful wile in his lifetime, sal! be teiieed and bruik hrr teirei>, but ony impediment oi' exceptions to be j)r<)- poned a'^ainst Iior av ami ipihil it l>e clearly decerni'd and sentiiieo L;i\oii that seho was not his lauchfnl wile, and that scho suld Hot ha\o anr lauehfid teirci' therefori'." ' .Sf Staii' ii. . II; I'm 11'- CoMi . li-Ii ihrn;,; imt tu In' cuni'dUiKKd Titli I'M. i. ."i7 : I'.fir- I'liii. ii. I."i'.t,"i: w illi (/i))''c// = tn(lii".'. •1. II. I07'.». I Silt ! ■l J 200 TERCE. i ill iii ■ t ■■: i: Tlu^ heir who disputes the torcf on the ground of the in- validity of the marriage cannot take tliis objection at the in(|U('St on the brieve unless the chiiniant was not reputed thu wife of the deceased. He must raise a dechiracor, or bring the (|uestion in some other competent form before the Court of Session. In a recent ease the alh'gcd widow had obtained a brieve, and the Sheritf liad fixed a diet for tlie inquist. At this stage the heir-at-law tenchred a minute craving that the process should be sisted on the ground (1) that he was about to raise a declarator of the invalidity of the marringe, and (2) that the lady had accepted a conventional provision. Held that the lieir was not entitled to a sist in respect of the Act loOn, c. 77.' Prior t(j the Intestate IMoveable Succession Act (18 Vict. c. 23, vi} 7), there was no right to terce if the marriage had been dissolveil within year and day without the birth of a child wdiicli had been heard to cry. And I'ornierly an alien wife was excluded, but this was remedied by the Naturalisation Act (88 Vict. r. 14, ^ij 10). Divorce. — A woman who has obtainecj a divoree on the ground of her husband's adultery or desertion is, ■•ipart from contract, entitled to terce just as if he weri' (h'ad.- Nature of Terce. — The wiilow does imt take her ti'ree in the character of a creditor, a disponee, or an heii-, 1 In- right Hows fr((m the law, entirely inde|ii'iident of her husband'^ volition. Her title to the third part rests upon her husband's Sasine. Hei I'ight cannot be det'eated except liy lierself. What subjects are liable to Terce? Then' are two prim iry conditions (I), ilu' subjects must he Jieritable, (2) the husband must die infeft in them as of fee. 1. Terce is due from lands and houses. — <') MnH two mansion-houses the widow is not entitled to one of them, and {'2) that in this case there were not truly two mansion-houses. The husband would not have built tlu' new house close to the old one, if be had not inti'uded to pull the old one down er convert it into ofhces. The re[)ort bears: "The C.'ouit \sent (lu the specialty, tin which they were clear that Lady llannay's claim was groundless. Some of the judges, however, e.\j»ressed groat doubts whether, even independent of the s[)ecialty, it had any foundation in law." It may be ri'gardeil. nevertheless, as certain that th(> decision in Minilhi' v. IhiiUlr would not br repented, and that from a mansion-house and the gardi'U, and other pertinents thereto, the widow is not I'lititled to terce. This rests on the principle that the mansion-lmusi' is not a nMit-prochuMug sid)- ject, and, mi>i vovei', being indivisible it goes to the heir whose duty it now is to represent the family, and not to the widow. Where Heir does not Live in Mansion-House.- It is stated by Lr.skine that if the heir ehoose to I'eside elsewhere, the widow may claim th(> mansjen-hoiise preferably to any otliei' tenant " upon payment to him of a reasona\ile rent for liis two-thirds."' This appe.-iis to me;in on |iaymeiit ot two- tliirds nl' the lent which wnuld be piiid by ;inother tenant. As boitl Kraser points o.it, the ease of Lin/tin, on which J']rsl.'il>. to ihr law win it tliciv is niily mic - ii. lO'.lT, \l<'\r '". Tllr JU'I^ IlKlllsinn-lMillM'. imiil '.|' thr >lii'iitl'liiat llir l.i.ly had ■• ,~'.h;, .M. |:i,s7M, iiii daiiii ii|iiiM I'itlicr (il llir lumm s ' Ki>k, ii, !», IS. WHS sM-taiii'.'il, liiit iiiiihiii^ is saiil nr* u 1 !lSi 202 TEUCE. foiiiuls, (Iocs not support tho proposition. The liouso tliLTc was tlio (Iwelliiii^-house of a skipper in Lcith, a kind of subjccl clearly liable U) terce.^ It is prohahle, therefore, that no snch right in the widow would now 1)L' sustained where the subject is the proper mansinn-liiiusc of an I'state. Where the House is Let. — Tf the heir, instead of n'siding in the house chotjses to let it for a wut, there seems no reason why the widow should not ho entitled to ;i terce of the rent. This has the atithmity of Hell," but- is unsup[)orted by decision, except the lojlowing : ('eitain " urass-yards," orchards, Xt., .'uljoininii' the l^an^ion-llouse were let at. a rent. The widow- claimed terce. The heir objected on the L;iwn-house is not a. mansioii-house. Nor is a villa or dwelling- hou.se ill the country to which no estate pertains. Where there are two Mansion-Houses. -It is said by Erskine that in this case the widow is entitled to the second or worse of the two.' This was doubteil in Miinl v. Sf! uli'n . sii/n'ii, and there is no decision in support of it. JJell thinks shi' would get a terce of one.'' ' /,-/.sii. Siiii. ,")07, ail. I M. |.'>.NtL'. f'l. ii. ' la-k. ii. H. IS. 10H7. •■• Kisk., il,„l. ■ I'riii. I.")!)S: Vv. ii. ioiC. " I'rin. \:<<.\^. •' Moncricf \. Tiiiiiiil.t of Xinlmi, there was of subject, the widow he proper • f residing iio reason r the rent. y decision, ards, X'o,, I'lu' widow that tin V liahlc to dK'i;cd or anor-itiaic for profit, y ho second Sii'i iihin . ell thilds> SLIJJKCTS NOT Ti;i!(i;.\l!l,i:. 203 Terce of Servitudes and Fishings. Where the lands enjoy a servitude, tlie widow will be entitleil to her proportional share of its use. Where it is divisible, as a right of pasturage, she will have the third of lu'r husband's privilege, and the heir will have the n-niaining two-thirds.' Where it is indivisible, as a right of way, she is entitled to all reasonable exercise of the servitude. Where the hu.sband dies infeft in fishings, it would a[>peai' that his widow is entitlecl to a terce in tlieni.- Heritable Securities. Heritable securities, tlK)ugh now iiiu\eable, (iiio'id succession, remain heritable as between the spouses, and are liable to terce.'' Teinds — Terce is not due in the ordinary ease from teinds. It is only where tiny are held by a separate title from the stock that they are liable to teice.' And the widow has no right if the hu.sband's title was merely personal and he had not been infeft in them.' Wii.vT Si r„ii:(T.s .\i!i; not m.mim-: to Ti:uci:. 1. Real Burdens by Reservation.- A husband who has (lis[)oncd lands subjei't to a real burd( n cannot be? saiil to l)e inl'el'l in the burden. Jt is tlu' sasine of thi' dispoiiee on which his right rests. Professor l!ell at lirst e.xpres.sed the opinion that, notwithstanding, terce was due, on the ground that the sasine of the dispouee wa^ the sasine of the disponer." Hut the soiuulne.-s of this \iew he afterwards doubted, 'i'liere appi-ai's to be no other authority on the point. Looking to the strict- ni'ss with which the Court regards the husband's sasine as the measure of the terce, it is not likely that a widow's claim would now be sustained. 2. Superiorities. It was veiy early settled that terce is not due from sujieriorit ies.' and the rule has been i'\tended to ' V. .l/'A'w.;,, If.'.'s, M. KISS. ir.,s;{S. ■■■ r. .|,7/y/^//,M/7, ISO.-, ; lliiiilr, JDl. -' l''r. ii. lOs'.). '' I I'h'11, :>'.), ,-.. NmI,' ill Sli;i\v"s ■■ :U ^^ :{:; Vict. <•. lOl, j; IIT. K.l., p. so: ; aiul ilrlls i'liii. 1,V.)S, * 1,(1, III I III II fi mil i III V. //( /• Sim, \\]\i'\r imlc (. ) is liv tho authnr KlliS, M. 15,810; Monnlij' v.Ti minis liiin-vlf. of X.irliiii, \{\ru, M. li),Sll; Ki-k. ' (;i,iiha-r'i, \. Lnss, ]:>ll, M. ii, I), IS ; Itcll',- i'lill. I.V.tS ; Vv, \\. 1 .-,,,S:{.-.. 7™ !1 '"ft • \ I f| * 11 ■,iil ^^ ll I ! I. 204 TERCE. :Vl fou-chities.' Casualties being uuoortain were never fit subjects for terce.- ///. — Ifiisband shortly before his death feueil out by one transaction the greater part of his estate of Dean, ailjoining Edinbuigh, at a fen-(hity of £2000, much exceeding its agricultural value. Held the widow had no right to terce.'' It is impossible not to feel the force of the argument of Lords Moncreiti' and Medwyn, who dissented from the Judgment, but the Court held the question was concluded by authority. 3. Rights of Reversion, &C. — Such rights are not liable to terce on tiie ground that, not being certain or regular pay- ments, they are unsuitable for terce, which is essentially ali- mentary.' And the same rule applie.. ls()l, M. f. Tcirc, .App. 1 ; Er.-k. ii. !), -1!». ■' Ims1<. //;/(/. '' n>}.H'hl,r V. .Mnjl.il, 177'.), M. ir),S03 ; Liidji l.. \± ' Ludfi Lii iin'iii/toii, Kiipni j' Iflcl'svii V. /'., isi'M, -2 S. ir.ii (\.K. i;js) ; /). V, Ihich. I hKf.itf RiiiliK I'/lii ,]\) .h\U., ISU", !•".(". ; liaiikiiii- (III l.aii(lii\\iuT- -liiji, i>. (■.:)!); 1 I'h'11, ")!» ; aii'l s,, Ctniphill V. U'anlhi"; ISS.'i, 10 I!. ILL. 05. 'T HUSBAND MUST 15i; INFKl'T. 200 sonic great storm lias swept down liuge numbers of trees. And she may cut coppice-wood — silvti cadaa — tor this is of the nature of a crop being wont to be cut at regular intervals.^ 6. Leases. — Leases are not feudal, and consequently the leaser's widow has no terce.- 7. Burgage. — For reasons sufticiently obscure lands held burgage were never terceable.' This was remedied by the Conjugal Rights Act, IJSOI.^ And by ji later Act all distinction between burgage and feudal tenures was re- moved.' 8. Personal Bonds. — Personal bonds bearing interest, and bonds secluding executors are not liabK' in terce, because thoimh heritable thev are not feudal, and the condition of terce is that the husband must have been susitun nf .';: ;5S Vict. c. IJ t, .i- -^r,. '' Vv. ii. lO'.K). ' Kisk. ii. !), 17 ; i''r. ii. 1 100. "•r 1 i I . ; r ! I ■: L i ..^... IMAGE EVALUATION TEST TARGET (MT-3) tit ^SSS> Si ^tiO M> ^^ 1.0 1.1 L^ 12^ |2.5 1^ 1^ 12.2 2.0 1.8 1:25 |||||_^ 1^ ^ V ^Vj>^^ Photographic Sciences Corporation 23 WIST MAIN STRUT WUSTIR.N.Y. MSIO (716) •73-4503 1 M ^ 200 TKRCE. session, but was nut infof't, it was held that tlie widow must have her terce.^ Erskino says : " The husband's sasine is the measure of the wife's tcrce ; . . . thus neither an heritable bond nor a disjiosition of lands grunted by the husband, if death has prevented him from giving seisin to the creditor or disponee, can hurt the terce."- This language was expressly made the grc ,11'' of judgment in Cu mphdlv. C:' A ;•' 'tior'i, if the husband has sold, but m)t disponed, the widov,'''- leroe is not exchidi'd. Ejj., a bondholder infeft sold the « . niicv subjects, but died before granting a disposition. Held uic widow was not entitled to jus relictcv. out of the price on the ground of conversion. Her hu.sband died infeft in the subject, and lier right was to terce.'* But there are certain cases in which the Coui t will look behind the records, viz. : — Where the Husband's Infeftment is only Nominal.— When the husband was only a nominal tiar, or held as a Lrustee, his widow has no tcrcc III. — A father takes a title to lands in favour of himself in life-rent, and his son in fee. He reserves to himself power to contract debt or sell without the son's consent. The sou's widow claimed terce. Held that the substantial property was in the father. As the son's fee was nominal, his widow liad no terce.'' Oases where terce is due though the Husband did not die Infeft. -When the father alienates gi'atiiitously in favour of his heir or a third iiaity, reserving his liferent. Ill the case of Cu m mi inj the father obviuusly retaimnl all the powers of a proprietor. For a person who I'c.serves a life-rent with power to burden or dispone the subjects has I'cally conveyed nothing but a S7»c>.' siu'Cf's.sion/n to the disponee, who will take if the dispouer dies without having exercised his ])ower of defeaiing the deed. iJiit there may bo cases in which ;v father absolutely divests himself of the fee in favour of his son or heir. When such a deed is gratuitous, and no provision has been > M,ir<'„llorli v. MiiUhnal, 1788, ■• llos.^horoinjh'.^ TiK. V. /.'., 1888, .M, l.'),8(l(i. K; 1{. 157. - Krslc. 2, !», .Hi. ■' 177(1, 5 lit'. Siipp. r>-21. •' (hmniiiiKj v. Kiiiifs Adrncatc, i7r)(j, I\I. ir),8r).i. M V ,'(iur leu INFKFT.MENT MUST NOT I5K XOMIXAI,. 207 made for tlic wiilow aliunde, there is a, prosuniptiuu that the father's deed was a frauduleii^ device to escape the obligation (if tcrce. Slie may accordingly bring an action to be found iMititled to her terce in spite of the disposition.' But her right is personal, and will not avail against creditors or singu- lar successors. Where a Father has Contracted in his Son's Marriage- Contract to Irfeft him in Lands, and has failed to fulfil his Obligation. — In this ease tlu' son's widow has also a personal claim for her terce against ln'r father-in-law, or his represen- tatives.- Where the Husband has Fraudulently delayed to take Infeftment, in order to defeat the Widow's Rights.— In this ease the widow would have a claim ii'she could prove the fraud.'* j)Ut il.oliif< non 'pnu'saiiiiiar, il calim caret qui j an' siio utUar, nalllqur fccif Injuruiui. hi one case a husband had lain out of part of tin- hinds lifteen years, and had declared that his wife should never ha\(' anything l»y his death that he cnidd keep from liei'. But tho Lords " found no terce due in lands wherein the husband was not infeft, ami that it would be too arbitrary to go upon piesumptioiis and designs that he lay out III' purpose to deprive hci." ' Where the Husband was Infeft at Death, but his Title is afterwards Reduced. In this cast', if the husband had the radical right to tiio lands, and it is merely the titles that are hlundere(.l, the widow will he entitled to terce as against his representatives or gratuitous disponees.'' Kusband took by servict' as heir-male wliere he should have served as heir simply. The mdical right was in him. His service was set aside ;is inept by a reduction brought after his death l)y the lieir-of-linc. Held this did not exchule the widow's terce." ' I'lrsk. -2, It. K; ; St;iir, -2, (!, K; ; l''i'. ii. l(i!»l ; Miiiij. Ill' Aiiiiiiiiiliili V. Srot, 171 1, M. I "..MIS. - Stair, Hr.^k. i.e. ; lllnir \. llumH' Inn, ir)(ii, y\. ir.,H:{(;, ■' SiW aV'^. ill Mmij. of Aintiiiiihili \. Sl'ol, KllltVll. ' i'lirnillii i:-< v. Joli iislmi, ITo.'i, M. 2-2'>-2 and 1.">,SJ(;. Tlu' t\v.. reports sJKUild lie (■(nuiiaivd. ■■ liclTs I'riii. i< in!)8. '■' liiisi V. /'V ^ 208 TERCE. The objection that he was not infeft was one which the husband could not have taken, and was therefore not open to his representatives. But in a question with the husband's creditors the widow's claim to terce will not be sustained if there is a Haw in his title of such a nature as to vitiate his infeftment. III. — Where the instrument bore that sasine had been granted in the year one thousand eight hundred and three, and the word three was written on an erasure, the widow was held, in a question with creditors, to be excluded from terce. And this though the date was clear from the year of the kinfj's reim being fjiven.^ A widow whose terce has been lost by the blunder of the agent in making up her husband's title may have a claim for damages against the agent. But if there is no ground for thinking that the husband desired the widow to have torct.', and would have rectified the blunder if he had been aware of it, her action against the agent will fail. III. — In the case of Gol'lie v. G., the husband's sasine was taken four 3'ears before his marriage. By a post-nuptial contract he had made a provision for his widow and she had renounced her legal rights. On the ground that in these circumstances he did not intend her terce to stand, it was held she had no claim of reparation against the agent who blundered the title.- When the Husband has disponed the lands in trust or for security. — If the right to the lands is really in the husband, and is merely burdened with debt, the wiilow is entitled to terce although the trustee or creditoi- is infeft. Siie is in that case liable for one-third of the interest. ///. — Husband disponed lands redeemable on payment of debts. Creditor took infeftment. Held the widow could claim a terce of the free rents alter interest on the debt had been paid.'' III. — Husband disponed lands by a disposition (i»' fdcie absolute, but qualified by a back-bond, and truly granted in ' Horiijiiii V. I!, I till, I, lH;}r), 13 S. 4()1 ; ail'. 1 I{(i1)ins()ii, 173. •■TrWf^V V. (f., 1842,4 1). USD. ■^ llil.^clilrr V. Mnjl'iil, 177!), M. ir),s(i;j ; lint .-■. ' (nifihjii, V. R'lijid till III:, IS,')!, 1,3 1). !)lJ,'.'sii. Jit p. !»]:.'. ^B COMPLETED IXFEFTMENT. 201) Jdcm I'd in 71). M. Ivnlill security. Widow's claim to tercc after payment of interest was sustained.^ But it would appear that the widow's claim would have been excluded if the disponeo instead of holding base of the dispuner had entered with tho superior. The question, how- ever, was not raised with the widow.- Where the Trust did not flow from the Husband and he was never infeft — Where a third party has disponed to trustees for behoof of the husband and he was never infeft, but had only a right to call on tho trustees to denude in his favour, his widow cannot claim terce.^ When was Husband's infeftment completed ? — The widow of a proprietor whose title is still personal has no claim to teroe. A resignation in favovem being virtually a mere authority to the superior i > make a new grant did not divest the resigner of the fee. It was his widow and not the widow of the disponeo in whose favour the new grant was to be made who was entitled to terce. But entry by resignation is now abolished.' Resignation (ul rcmanentlarii stood on a different footing. It reinvested the superior in the dominiiDa utile and merged the two estates. When the vassal conveys the property to the superior, the latter now makes up his title by recording the disposition, and by a minute of consolidation. •'' If the vassid were to die before the disposition had been recorded his widow would take her terce. Similarly, in the ease of adjudication of lands, if the decree or abbreviate has not been recorded, tlH> debtor's widow is not excluded from her terce.-' Terce opens at Husband's death The widow's right connnences at tho death of her husband. She is entitleil to her third of the rents payable at the term after his death." ' lldi-tht V. IliichnuKii, Fel). -21, 1811, RC. '■^ Vr. ii. 10!):2 ; (iio-ilnin, ./ I'Jiixl, !■ 0;yA. 17-'.-),M.l."),8.Jl. " ll,hclil,r V. MoJi(t, 1771). M. ir),8G3 ; Fr. ii. 10S:2. r^ ' ! 210 TERCE. How Terce is excluded. — (((.) By direct discharge. In t'ud marri<((je-contr(tct. — A woman who contracts, before her marriage, to take a provision on her husband's death, and in respect of such provision discharges her legal rights, is bound by lier contract. He may leave large estates and she may have contracted to take £50 a-yoar, but she has made her bargain and must stand by it. If she were a minor at the date of the deed she may reduce it on proof of ciiorm lesion. It has been held that enorin lesion means positive loss ard not merely the loss of contingent gain, so that a woin' without fortune at marriage cainiot successfully urge this plea. III. — A girl, eighteen years old, agrees to take ,^80 in lieu of legal rights. Husband at marriage had income from business of over £2000 a-year. At his death Ins estate was worth £50,000. Held, diss. Lord Rutherfurd Clark, that she had not sustained enorin lesion.^ (h.) By 'post -nil] )ti(d deed. — A wife may renounce her terce and y^.s relictae, stante matrimonio. H" her renunciation was gratuitous, or for a consideration grossly inade(juate, she may revoke it as a ilonation.- ((,'.) Jiy (lecepfancc of y the old law, uidess a jn'ovisitju for a widow exiM'essly bore to be in discliarge of her legal rights, she could claim both. I (\wpci- V. r., issr., 12 I!. 47;3, rev. - >Vy/)w, p. liJS. on uroiiiiil tliat ii,-- slu' was ;ui li'isli '^ Kilir,inl v. Chiinir, ISSs, 15 iiiiiiiii' liiT ciiiili'aL't. was voiilaMr !{. ILL. .'i,'} ; Iml .s-n; /'/•('/(;//(;',>■ /','.'vr»- witli.iiil iiiddl' (it k'sidii, l«ss, 1;-) IL trli;.'<, LSTO, « ^L OJi'. ILL. lii. trcssly . bolli. WHEN EXCLUSION PRESUMED. 211 This was remedied in consequence of a case in which the report runs : " The Lords delayed to give interlocutor till they saw if the Parliament in June would make any statute anent terces." ^ The same year an Act was passed, providing : " That in time coming where there shall be a particular provision granted by an husband in favours of his wife, either in a contract of marriage, or some other writ before or after the marriage ; that the wife shall be thereby secluded from a terce out of any lands or annual rents belonging to her husband, unless it be expressly provided in the contract of marriage, or other writ containing the said provision that the wife shall have right to a terce by and attor r the particular provision conceived in her ftivours. - The Act only shifts the onus. If it appears from the deed that the husband's intention was not to exclude terce, the widow will take it in addition to the couv^entional provisions. III. — Husband makes a settlement, giving his wife an annuity out of Russian estates, and directs his trustees to sell an estate in Scotland and give her the life-rent of the price. This last part of the settlement failed from informality. The widow claimed terce of tlie Scots heritage, and it was held that as he meant her to have a life-rent of the price of the whole, it was clearly not his intention to make the other pro- visions a bar to terce. ^ III. — ITusband conveys to his wife, by separate deeds, estates both in England and Scotland. The deeds disponing tlie Scotch estates are ri'tluced on ground of incapacity and informality. Widow, by House of Lords reversing Court of Session, found entitled to terce, on ground that his inten- tion was that she should have much more than a terce of his Scotch estate in addition to the land in England.' A distinction has been made in the House of Lords between unilateral and bilateral deeds as affected by this Act. It was said that the Act applies only to contracts or other bilateral ' <'r<(l'iln'tli V. I'ri!,s-jr). ' 7i'.),« V. Afjll, nihil, I7i)7, M. 4(531, '-1081, c. 10 (c. \-2, Tliomson's i\r. khIi. inuii. Lowfltidii v. Vi'o.s's, I'M.). IT'.tT, 3 l';it. iM. ■' J'tiik'i.L^la V. Ainlcrsou, ITIJI, M. i «i r" •* >'»>^ 1 . I I i 1 212 TERCE. writs. 1 But this distinction does not seem to have been followed in later cases. In general, if a widow is left the life-rent of the whole estate, this will be presumed to be in lieu of all legal rights.- Acceptance to be valid must be made in full and fair knowledge of her legal rights. — Even when the widow has expressly accepted the conventional provision and discharged her legal rights, she will bo entitled to fall back upon them, if she can show that she was not fairly put in possession of all material facts, and thereby placed in a position to judge wliicli course would be more fur her advantage. And the Court will be slow to think she was fairly put in this position where her choice was clearly against her interest, and she had no separate agent to advise her. In one case a widow attended a meeting of trustees and signed a minute accepting conventional provisions in lieu of legal rights. For some years she received interest from the trustees. By the will she forfeited all provisions on second marriage, which occurred. On proof that she was never informed that her second marriage would not have deprived her of her legal rights, and that she had no independent legal advice, she was held not to be barred from repudiating the will.'* It would appear that thei'c may be circumstances in which the widow is allowed to acknowledge the will for a limited time or purpose and yet keep open her right to repudiate it and recur to her legal rigiits. III. — A widow by the will was entitled to the life-rent of a house and to the furniture, and to the right of carrying on the husband's business as long as she remained unmarried. She signed a deed accepting the provisions as in satisfaction of her legal rights, " so long as I continue to carry on said business." On her desiring to marry again she wa« lield entitled to repudiate the will.' In deciding whether the right to repudiate is still open the Court may consider whether injury has been done by the ' Lowlhimi, i^njird, 1.*? 1?. 0(57. •M'^rsk. iii. ;j, 30. ' M:l-iHhjrii v. J/'i'Vs !):■<., IBSii, ' Donahlsonv. Tainsh's Tr.-i., 188G, 10 R. 285. them, legal WIDOWS ACCEPTAN'CE IMPLIED. 213 delay or prejuJicc would bo caused by allowing the widow to clect.^ Implied acceptance. — Where no minute or deed of accept- ance has been signed by the widow her consent to take under the will and renounce her legal rights may be inferred from her actings. But these actings must ati'ord clear and un- equivocal evidence of her intention to make this choice. And, however clearly proved, her election will not bind her unless she made it with a clear knowledge and understanding of what her legal rights were." A widow attended meetings of trustees. She married again within a year. By so doing she forfeited all benefit for her- self, but received from the trustees an annuity for the board and etlucation of the children. After ten years she was found entitled to repudiate." A wife who signs her husband's will in token of her consent will not necessarily be presumed to have consented to the whole deed. But if it includes a life-rent to her of tlie whole estate this nece.ssiirily implies a renunciation of legal rights. If she survive and die without revoking her consent as a donation, her representatives camiot claim to take legal rights and repuiliate the will.^ Terce barred by entail.— A husband cannot by making an entail (jf his estates dcleat his widow's right to terce. But a third party granting an entail is in a diiferent position. As the giver of a donation he may dictate the terms of it. Precisely as a person giving proi)erty to a wife may exclude the JHs maritl and jus (((lmlni4r<(tio')}is of her husband, so an entailer may direct that ihe wido\\s of the heirs of entail shall not enjoy terce.' And tliis is a clause in all entails. It is immaterial that the entail fails to fulfil the statutory requirements as, <>.(/., by not containing clauses irritant and resolutivo. And it need not have been recorded. The principle upon which it is a good exclusion of terce is simply ' ^VFatJiji ii, !ii, l.s.'i;}, ] ■_' S. -I-l^ ■^ lliixt.r'x Trs. V. />'.'s Kcoiloi; ISSl, II |{. DUO; all'., Hdiranl v. Chriim; 1888, 15 IJ. ILL. 33 ; m: Er>k. iii. 3, .30. ' G'ihso,, V. J!c! ami 5S!)1; II, dj Anvton v. II. N., 18(17, .") M. 105(1, ad'., 1870, L.U., 2 Sc. Apj). 13. ( \%; :-Ji\ :.i m* 214 TERCE. 't (■ that it makes a gift subject to a condition and is accepted with the condition by the donee. ^ Conviction of High Treason.— As the effect of conviction divests tlie criminal of all property and carries it to the Crown, the widow has no tcrce. But crimes involving life-rent escheat do not bar terce." Terce barred by Divorce.— The guilty spouse on divorce for adultery or desertion loses all claim to terce.^ How Widow's Right is made Effectual— The old pio- cedure is by the two steps of service and kenning. This is still competent, though very rarely resorted to.* Service. — The procedure commences with a note to Chan- cery asking for a brieve for serving the widow to bo kenned to her terce. The brieve obtained is directed to the Sheriff of the county or counties :•> which the lands lit.'. When tliey lie in different sheriffdoms, it would seem that the brieve should be directed to the Sheriff of Edinburgh.''* The brieve is presented to tiie Sheriff or Sheriff-Substitute, with a petition praying him to appoint an inquest and onler service. The brieve is pro- claimed at tiio Market Cross of the head burgh of the county, and is servud on the heir-at-law and next-of-kin of the deceased. The Sheriff fixes a diet of proof, and summons a jury of fifteen. The widow lays l)efore them a claim of ser- vice describing the lands out of which she claims terce. Tiny hear proof on the two points — (1) That the widow w;.s wife to the deceased ; and (2j That he died infeft in the lands mentioned in the claim. As to (I) it is ei'ough that the woman was habite and repute wife f and as to (2) the proof is satisfied by production of the deceased's .sasine. Tiie plea may bo taken that the widow has accepted a conventional provision, and the int^uest • //('// Xcirtdii, tiiijirii, fit p. 1071. - Stair, L', ('), 17 ; I'r. ii. IIIL'. ^ Ei>k. i. C, 4{; ; Fr. ii. 1:217; ami set; .s((/*/-((,"Kiructs (if lJivnrc(.',''p, 171. •» Craik V. I'mmj, 1W>1, V.i H. 339 ; Juriil. ytjles, i. 342, scq.] Er.-k. ii. 9, nO; Fr. ii. 1101. •' lu'liV I'liii. ii. KiOJ, Note (a) ; M'liai\'ii,\Vills,i.,i). 107; Fr. ii. llol; Nicolsdii'.s Xdtc til F2i>iv. ii. !), TjO ; 1 & -2 Co. IV. c. ;38, i? 11. " Act 1503, c. 77. WIDOW .S RIGHT BEFORE SERVICE. 215 may hear evidence, and return a finding on that point. ^ If the evidence is sufficient, the inquest pronounce a verdict serving the widow to just and reasonable tercc of the said lands, and finding that her right commenced at the first term after her husband's death. The Sheriff interpones his autho- rity, and decerns. Appeal. — The proceedings under a Brieve of Terce may be appealed to the Court of Session at any time before the trial. It is probable even that such an appeal is compe- tent after the verdict, but before extract. For the restrictions imposed on the former right of advocation of causes from an inferior court, at any stage in the process, seem never to have been extended to this procedure by Brieve. But the safer course after verdict would be to raise a reduction.'- Nature of Widow's Right before Service.— The right of the widow before service is involved in considerable obscurity. The cases and the dicta of text writers are dubious and conflict- ing. Professor More expresses one view thus : " The widow's right of terce is founded solely on her husband's seisin ; and her service merely declares, but does not constitute, her right like the service of an heir."^ This statement, however sound, is quite unsupported by the case cited by More."* It was held in an old case that a widow, although not served to her terce, had a title to sue tenants for rents.^ But in this case the widow liad taken the unusual course of bringing against the heir an action of declarator of her right to terce. Otborwise it may be considered clear that a widow who has not served has no active title, and could not therefore sue tenants for rents or removing. Lord Fraser says there would be no cuiidicfio indebiti if rents had been paid to her.'^' And this is in accordance with principle, for there is no condidio when the creditor has an equitable, though not a legal, right to the sum paid. Does the Right of a Widow unserved Transmit to her Representatives ?— This question was answered in the • r/vnV; V. /'(i)Uii/, 18!)1, 1!)R. 33!), ' Yonwni v. Ollphant, UJCO, M. pur L. ^['Liuoii at p. 343. 15,843. ■•! lhi,i " Fc'i- V. 7'/v/*7, 1731, M. 10,115. ^ Mdivi's Stair, ccxvii. ° Fr. ii. 1107. ! 1 1 1 (1 'I III r.i'. "W 21 (J TERCE. negative in one case.^ But it arose with a singular suc- cessor. III. — Husband died infeft in a house. Widow not served to terce. Heir sold to A, who knew of widow's possible claim. A sold to B, who had no such notioe. The widow died, and her representatives sued B for one-third of the rent for the twentj-niue years of her viduity. The Court decided that the defender was not liable. They put their judgment on the ground tliat the widow's right not having i)ecn vested in her by service, did not transmit. The plea which was taken of frwjcs bona fuh pcrcejttdc ct con- sumptac would appear to have been sufficient for the disposal of the case. Professor More remarks on M'Lclxh, that " this matter would retiuire to be seriously reconsidered." And his doubt is approved of by Bell.- In a later case it was found unnecessary to decide the point. But Lord President Inglis remarked : " If it were not for these special circumstances, questions of great gen(>ral importance and difficulty would arise in this case regarding the steps which it is necessary for a widow to take during her viduity in order that the terce may vest in her person, and be capable of transmission to her representatives ; and it is a great relief to me to find, in the circumstances of this sjiecial ease, ample grounds for judgment without entering into any consideration of these very difficult questions."^ Efifect of Service. — Service gives the widow a iiro inJirlt^D right jointly with the heir. It is as yet unascertained wliat part of the lands is hers. But her claim to one-third thereof is fixed and transmissible. She has a title to sue for rents to the extent of one-third. But it wovdd appear that .she cannot sue a removing or prevent the heir from so doing.' Service operates retro, — Service docs not constitute the widow's right. This rests on the husband's infeftmcnt, and opens Ijt.'^o jure at his death. Consequently by service the 1 M'LcUh V. Rmnic, 182G, 4 S. 485. 2 13,'11's Prii). lfX.2 ; .More',-^ Notes on Stiiir, ccxviii. 3 7 V('/((//.;'.s^ iiVccH'rm,?, 1870, 8 i]. G22, at Y. (J2.j. ■> Fi'.ii.UOS. Tln> is 11(1(1, )iilit law, but in tlie Ccafe of yvor/t'?/ v.Nco/, 1(17 "), M. ir),844, fdundeil on by lidid Fraser, th(j widdw IkuI not b('(.'ii ^ii-vid. Sec Dirleton's Ivcpoit, M. 15,8 J-). It AGAINST HKIll AND SINGULAll SUCCESSOR. 217 widow's right draws back to the husband's death, and fixes her right to a third of the rents from that period. And this right is good against singular successors, but with a difference. With Heir. 111. — Husband's heir sells part of lands for X240. More than twenty years after widow raises an action against him to have it found that she was entitled to t^y- inteicst of ;uie- tbird of £240 as having been disappoint',// V. llaUiihy, 1825,4 S. 280, -' U'diiiphmy, IfJG!), 2 Br. Supp. 440. ■' Milne v. Wood, 1770, il. I r),Sr)8 ; iuul .si't; M'Letsh v. Iloinic, 182G, 4 S. 485. m :i il m^i *.!! ll ]:: *• i jl ;:i :;»« :! ;:!i \ I i' ,1 >! 1 ■1 * 218 TERCE. The Coui't fouud him entitled to retain " a part of the price." The report does not give the proportion.^ A purcliaser who had paid the price witlaout knowledge of the latent claim to terce, would have an action of relief against the seller. Kenning to Terce. — As the service fixes the widow's right to a ^9V'o indiviso third of the lands, the kenning is the pro- cess by which her third is divided from the two-thirds which belong to the heir. The old procedure, now very rarely resorted to, is as follows: — The Sheriff either goes himself to the lauds or grants a precept to a " Sheritf in that part" to do so. Lots are cast whether the widow or the heir is to have the " sunny side." J]y this is meant the eastmost side. If the widow gets the "sunny" and the heir the "shady" sidO; the Sheriff gives the first acre of the estate on the east to the widow, and the two next to the heir, and so on. The alternate lots are called "kavels."- Lord Fraser says the casting of the lots was to determine whether the division should be commenced on the cast or west side of the estate. In either case the heir got the two first acres, and the widow the third. But this, with submission, seems erroneous. Fron a comparison of Craig ii. 22, 32 witli Stair ii. G, 14, it would appc.'ar that the lot was to decide if the widow was to get the " sun " or the " shade," — i.e., if her alternate kavels were to lie east or west of those of the heir. Stair's language is ambiguous, l)ut Craig says : — " VlcecoDU's sov^es in urnai)i conjlelt (luf aliqiio dllo moilo sort'wnOl utitiiv, utriim triev)^ xohivh an iiiahraUx cuiija;/! debcdtur." If Lord Frascr's interpretation is correct, it :.; hard to see why the fact that the division was to commence on the east or west of the estate should make the widow's third "sunny" or "shady." But the matter is clear if we understand that, at whichever side of the estate the casting begins, it is the more easterly of the two shares first set apart which is the " sunny " side. Where subjects are indivisible. — Houses and buildings which cannot be divided are valued, and a third of the yearly value given to the widow.'' 1 llojid V. HamilloH, 1805, M. .w r,'/v((/v./.'/V/«/)v/.1), 2 15r. 8npp. Vu-2. !| ^Sli :wi . I- I, , ; : a! • ' ■•I i t t] \ 1! ' \t ,) i i 5 i CHAPTER XX. JUS BELICTAE AND JUS RELICTI. On the death of tlie husband, or on his being divorced, the wife is entitled at common law to one-third of his free move- able estate, if he leave lawful children of that or a previous marriage, or one-half, if no such child or children survive. And by the Married Women's Property Act, IS 81, a corres- ponding right is given to a surviving husband. The Act provides, section G: "Afi^r the passing of this Act the husband of any woman who may die, domiciled in Scotland, shall take, by operation of law, the same share and interest in her moveable estate, which is taken by a widow in her deceased husband's moveable estate according to the law and jDractice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interef^fc, and the exclusion, discharge, or satisfaction thereof, as the case may be." The case of divorce is not mentioned, but as the theory is that the innocent spouse shall take the same share in the estate of the guilty spouse as if the latter were naturally dead, there can be no doubt that the innocent husband who has divorced his wife can claim ;/«« relidl. It is now settled that this section applies where tlic marriage was contracted before the Act, and that the husband is entitled to his half or third of the whole moveable estate of the wife, whether she acquired it before or after the Act.^ And it applies to a wife's moveable estate from which the jiia mdvill has been excluded by ante-nuptial marriage-contract,- provided that the contract leaves the wife absolute control of her estate. It may accordingly be assumed that the two rights are co-equal and co-extensive, and in the sequel where any point is men- v. Poc, 1883, 10 rJ! ' J'(it( ;vo)/.-i 11. ILL. T.i. :220 - Fnthrliujham'^i Trs, v. 7-'., 188!), 10 1{. 87.1 ■f NATURE VEST 1 NG. 221 tioucd as decided with regard to jus relidae, it will be equally true oi jus relief l. The husband will not be decerned executor- dative to his wife before her next-of-kin, for the wife's nght to jus relidae was never held to entitle her to be preferred to his next-of-kin in competition for the office of executor-dative.^ Nature of Right — It has been disputed if jus relictue is more iitly regarded as a right of succession or as a right of divi- sion. Stair- and Erskine'^ speak of it as a right of division of the property over which the husband had during the marriage the absolute right of disposal. The language of the older writers is coloured by tlie now antiquated theory of a comraunio hon- arum of which the husband was the administrator. The Court, in a recent case, found it unnecessary to determine the specu- lative nature of the right.* For practical purposes it is probably sufficiently defined as a legal right, opening to the wife by the death of the husband, and not capable of being defeated by any testamentary or revocable deed. In one aspect it may be said to be a claim of debt against the husband's trustee or executor, which may be made effectual by action against him. But it is not a debt which can compete with onerous claims. If the estate was insolvent at the death there will be no jus relidae. The widow is a creditor among heirs, an heir among creditors, to use an old phrase as applicable to her as to persons having a spes successlonis in ubliijatione. "Vestmg of Jus Relictae. — Jus relidae vests ipso jure at the death of the husband, and transmits to the widow's repre- sentatives, although confirmation to the husband's estate has not been granted.'"' ]jut the widow has no active title until cither she or some one else has taken out confirmation. She may retain her husband's goods which are in her hands for her third, but she cannot pursue his debtors for payment to her of one-third of the debts duo by them.'' She is entitled in the general case to interest on her jus relidae from the death. Her claim is, however, limited to the interest which the 1 i'ampbill V. Falconer, 1892, 1!) Ilu4. R. 5G3. ■■i ill. 8, 43. ^ iii. !), 20. ' Tait's Tis. V. Lt\' 18.SG, 13 R Ihniihiff V. Craiijii', 1G12, M. 384:j ; M'Aidiuj v. Bdl, 1712, M. 384^. " Diiudnff, suimu • \ 1 m , ,,1 ,;, HI? Iii I !• i 1 ■) 222 JUS RELICTAE AND JUS RELICTI. husband's funds actually yield, and may be met by the defence that they were in whole or part unproductive. E.g., if his capital was locked up in a business, or otherwise invested in such a way as to be incapable of realisation without delay, and yielding no interest, this would be a good plea in the mouth of the executors against a widow's claim for interest on her jm rdldae.^ How Jus Relictae may be defeated.— The husband's estate is, during his lifetime, completely under his control, and he may squander it or give it away at his pleasure. He may also make his investments in such a form as to lessen the fund available for jus relictae. Death-bed. — A curious question was raised by Lord Frascr on this brand 1 of the law. The Act 34 & So Vict. c. 81, provides "that no deed, instrument, or writing, made by any person who shall die after the passing of this Act (IGth August, 1871) shall be liable to challenge or reduction ex capite lectin Lord Fraser suggests that these words do not cover every form of transaction formerly reducible as done on death-bed. E.g., if a man hand over a sum of money or lend out money on a heritable bond, would it be competent for the widow still to plead that the fund from which \\KiV jus relictae was payable could not thus be diminished?" Lord Fraser is of opinion that this is still within her right. ^ But the better opinion seems to be that the words of the Act are sufficiently wide to abolish the whole law of death-bed. The preamble of the Act runs : — " Whereas it is expedient to abolish all challenges and reductions in Scotland ex capite Iccti," In the Laudenlah Peerage Case * the cpiestion was if a marriage on death-bod otfectcd legitimation of children previously born. It was pleaded that the rights of the jierson who would have been the heir but for the alleged legitimation could not be pre- judiced by any act on death-bed. Lord Watson says : "That is a very remarkable plea, because from the time when Sir Thomas Craig wrote his Jus Feudale, until it was abolished ' M'lHtipr. V. M.'.< 7'/'x., ISf).-., 3:\r. editor of l^ell's IViiicii.les. (lli'U's 1074. Prill, ii. ins.'j.) 2 Vv. ii. lOOS, and ii. lOoO. •' IHsr), 10 A])]!. Ca. (;02. P.iit .s'.y •' Fra.sor h followed by tlie luariied Jlaij v. Vuiitis' 7V.s'., l.S!)0, 18 K. 244. DEKDS IN FRAUDEM. 223 by Act of Parliament in 1871, the law of death-bed was according to all the autboritics limited in its application to deeds, instruments, or writings, executed in lecto to the pre- judice of the heir alloqaln succcssarus." ^ Deeds in fraud of Jus Relictae.—U is now well settled that if the husband's deed bo irrevocable, and completely divest him, it will not be reducible as in fraudem of jits relictae or hyitlm, although expressly declared to be for the purpose of diminishing those rights. The following statement of the law by Bell is approved of by Lord Frasor : — "Leijifhn" (and the proposition is equally true of jus relictae) " is diminished by every deed of the father inter vivos and in llrf/e 2^oustie disposing of his moveable funds, provided it be not fraudulently contrived in order to disappoint the children witiiout touching the father's own right during his life." - The fact that a husband has suddenly converted his move- able estate into heritage with a view to lessen the jus relictae is not fraudulent.^ Provided the transaction bo real the Court will not enquire into the motive by which it was prompted. But there is a ditferent class of cases in which an attempt is made to defeat the jas relictae or the cognate right of lefjitim by a simulate deed which does not, in fact, divest the grantor. This is the only kind of deed which the Court will reduce as in fraudem oi' jus relictae. 111. — A father, anxious to exclude one of his sons from leijlt'nn, handed £1000, nearly the whole of his moveable estate, to his eldest son. lie took from this son three I.O.U.'s for £400, £.'H)0, and £300, respectively, in favour of his other children, excluding A. These I.O.U.'s the father retained in his posses.sion till bis death. In an action by A for Icgit'nn it was hold that the transaction was simulate and that the fund formed part of the personal estate of the father at the time of his death.'' III. — Father convoyed his whole estate to his only son under burden of an annuity of £100 a-year. Father and .son ' At]). 754. -r.i'U's I'rin. ii.iriSl ; Ff. ii. 1010. ' Lutiltlai v. Jlnj, isoj, l I'iir. ',^1, p, r Lo. (1 Kldiiii, at p. 023. ' liiichaiiini v. />'., 1870, 3 R. T.nO. 224 jrs RELICT AE AND JUS RELICT I. were partners in business. After the deed the effects of the co-partuery were never regularly delivered by inventory to the son. At a later date a submission was entered into with a daughter on the narrative that no settlement had been made upon her, and that she had not discharged her le-'t-niiptlal Deed. — The wife may discharge her^ws relidac, dante huili'lmonlo, in a separate deed, a mutual settle- ment, or any other writing. Where a wife signed her husband's will, and the testing clause said that she did so " in token of her consent to and approval of the foregoing settlement," she was held to have validly renounced her jus relidac, though in the body of the deed she was not mentioned as a cousuiiting party.^ But such discharge, if gratuitous or for a consideration gros.-ly inadequate, may be revoked by her as a donation.'' 111. — Husband by his will gave Ids wife the life-rent of his whole estate. He directed his trustees " after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed this deed)" to pay over a large number of legacies. I\rany of these legacies were to the wife's relatives. The wife signed the deed. It was held that although the jus rclidae was not mentioned, it was clearly her intention to renounce it, and effect nuist be given to this intention." •S. Ihj Acceptance of a Gonvcntiooial Pruvision. — The Act, ' Cooper V. ('., 1888, 15 K. H.L. 21. - Sec htfra, " Aliment to indigent .survivor.'' a Er.'^k. ;\ !), 1() ; Fr. ii. KXiO ; JJiirrant Slcitorfs '/Vs. v. Durrani SU'.aarU 18!JI, 18 U. 1114. ' Keith's '/Vs. V. /v., 1857, 1!) 1). 10-10. •'■ Duidoji V. (Ircaihi SA Trs., 1865, a ]\r. ILL. 4(i. 'vS'o; snpni, "Dimatiuns inter virum d uxoron.'' ' EihcartI v. Chciinc, 188S, 15 1{. ILL. a:i (in ('. (if 8., Jhixtcrs Trs., Licc i.'sjte'ciallyopinions of Loril Kiiiiieiir and Lonl Crai.u'liill in 0. .)f S,, 1 1 H. t)0(i ; Jiiddd v. JJaltnn, 1781, M. G157. ' So lairt hy Lord Kyllacliy in a caso as to jtm rdirti, ('linhiurs v. i,'riim>n, fitli .Ahuili, 1R!)3 (imt yot repni'ted). And Kee Si)i>nii's Tin. v. .V'/7,sv)», 1H!)0. 18 1?. 135. ' Fr. ii. lOG!), 1021; Hells Piin. ii. 15'.)1. ELECTION INFERRED — MOliA. 227 clear from the husband's testamentary writings tliat he did .'^ot intend her to take both legal and conventional provisions, she is put to her election between these. Election may be inferred from conduct. — The proper course is for the husband's trustees to obtain from the widow a discharge of her legal rights in consideration of her conven- tional provision. But when this has been omitted, her consent may be inferred ^rom a course of conduct, clearly pointing to her having elected to take under the settlement. Whether her acceptance be express or implied it may be repudiated by her, if she can show that she had not a full and fair knowledge of her legal rights.^ Delay is no bar. — In such cases it is frequently pleaded that the action is barred by taciturnity and mora. Mere delay short of the forty years' prescription is not a bar, but only throws on the party against whom it is pleaded, the duty of explaining his inaction. Taciturnity is of no value as a plea, unless it can be shown that the party who lay by was in full knowledge of his right of action. It is only where the pursuer took no action for a long period during which he must have been in full knowledge of the facts, and can give no explanation of his inactivity, that effect may be given to these pleas. The circumstances must point distinctly to the right having been abandoned, and the plea of mora merges in that of acquicscence.- lU. — Thirty years after a father's death, a settlement by him was found in an old trunk. Legatees claimed agahist the lather's representatives. It was held that they were not barred by taciturnity and monL'^ III. — A widow who survived her husband for ten years, neither accepted her conventional provisions nor claimed her legal rights. Although repeatedly called on by the trustees to elect, she made no sign, and in an action of multiplepoinding to have the estate disposed of at the sight of the Court, she ^ ThiiiildMiiv. Tninsh^iiTrs.,lH8G, -See opinimi of Li)i'(l Deas in V.i\i.\m7 ; M'Fadnenx.M'F.'^Trs., Jlohso)i v. r>!iw^siira. When the wife was alioqain successiira, but took infeftment on a disposition in iier favour to save the expense of a service, this was held to be prae- ccpt'ione hacreditatis, and the lands found liable to courtesy.' And this case has been approved of,^ Where a father divided various heritable subjects aniontr four daughters, it was held that the husband of one of tlicni was only entitled to courtesy out of the one-tourth part of the estate given to her to which she might have served herself heir-portioner.^ Constitution of Courtesy. — Where the legal condition., alreatly enumerated are present, courtesy arises /y)s'o jnrc on the deatli of the wife. N(i service or other form of making up a title is recpiired.' Courtesy is personal to the husband. — Where a husband had neglected to claim his courtesy, the argument was suslaiiiud " that this courtesy is only personal, and died with the persiui of the said relict, who having neglected it .all his lifrtiuu', his executors can claim no ri<'ht thereunto after his decease ; I'veii as in a lady tercer, who albeit she had never so good right to a terce, yet if she be not kenned to it in her own time, in vain .should her executors sue for it." '' Husband enjoying courtesy is liable for the interest of Wife's Personal Debts. — A tercer is not liable lor any (l( l)ts except such as are heritable and afYect the lands sulijci't to the terce. This is reasonable, because the tereo extends over but a third of the lands. But as courtesy covers the whole lands, and the husband during his enjoyment of the right is, in a certain sense, the wife's representative, it is right that he slioidd not allow the interest on her debts to accunudate dur- ing his life-rent, lie is not liable in the principal sums, and only for the interest to the amount by which he is hicraf ashy the courtesy. " The Lords found that the hu.sband in [jossl's- ' ^Iiifcs Xoti's, ('('xi\., I'riiiirniic. V. t'r'iicfnril, yi. nici: ( 'durti'sy, A\<\k 1, filso ri']iorti"l ill lliiilis, i. .4,")S, - Kn!'/lil v. i:<,hlnsoH, 1780, ]M. HS15; \'\: ii. 11:2:^ :' ir./'/.-i v. ll'ilUn, iss:,. i:{ I!. !]1S. * Kr.-k. ii. •), r>-2 \ Vv. li. 1121. •.)\\2. WHERE llUSIiAND HAD NO JUS MARITI. 233 sion of the courtesy was liable in the payment of the current annual-rents, of personal as well as real debts, to the value of the rents he enjoyed by the courtesy, reserving to him relief against executors or other heirs or successors to any other part of the wife's estate, heritable or moveable, which he did not enjoy by virtue of the courtesy." ^ By ancient law husband enjoyed during his life all the hononrs and dignities belonging to the wife. — It appears that in virtue of the^'u8 maritl, during the wife's lifetime, and of the courtesy after her death, the husband of a peeress Illicit take the title of his wife and sit in Parliamcut and in the I'rivy (Jouncil in her stead. Thus John Maxwell, of Tcrrcgles, MVes, after manying Lady Herries, a peeress, styled himself Johannes Doniinus Herries, and sat in Pailia- nicnt as Lord Horries.- Right to Vote. — See Eli:ctiox Law. Is courtesy demandable from lands from which the jus mariti and jus administrationis are excluded ?— Lord Fiascr sufjuests that this is doubtful, but it is tliouijht tliat tlie (|uestion must be answered in the afllrniative. On the theory thai courtesy is tlic extension of the ju.s VKd'iti, il may be ditlicult to see wliy r rtesy sliould arise where the husband has had iio^;;-.' 'iiKirili. Lut as ahtvuly shown in Clivton and HV//.S', tlie ('(lint in ([urstions of courtesy is little moved by considerations of le^al principle, and no doubt as to the husband's riglit to courtesy, although he had no jiia mariti, appears i > have been started by the older writers. In England it is settled that the fact of the wife's estate being held for her separate use does not affect the courtesy.-' The ]\Iarried Women's Property Act, 1881, has not impaired the right to conrti'sy. How courtesy is excluded. — Courtesy is barred by being renounced or discharged by the husband, and this is conmionly ilone in marriau'e-contracts. The acceptance of a conventional provision is not an ^ Mn,il. :ili \. Ilcr Xoir,.k. ii. 1», :>'> ; IVcmi^a. Law, p. 110. Fr. ii. ll-JI). :' r„()/irc v. Mwilnm,!,}, 1S77, 7 ■' lU'iiii's reei'a;,'e Cliiiiii, IS-IS, 3 Cli. I). 2S8, /-. r .lussul, M.U. Miici|. 585 ; sec iiri,'. in MonlC'th, w ■I 11^ i ": "* "1 ill i I I (1 ' M i 1 1 \h 234 COURTESY, implied discharge of courtesy.^ — In this courtesy differs from terce, not being included in the Act, 1G81, c. 10. An alien husband is not entitled to courtesy. — By statute the wife of a natural born or naturalized subject has all the privileges of a natural born subject, and is entillud to terce.- But an alien husband, if not naturalized, would have no claim to courtesy,^ Caution may be demanded on cause shown. — The hus- band in right of courtesy may, like other liferenters, be required to find caution under the Acts 1491, c. 2.5, and 1535, c. 15, if ground be shown for suspecting that he is deteriorating the subjects. But otherwise caution will not be exacted in his case any niore tluin in that of a tcrcer.' 1 r.eir.sConi., fltli Ed. i. 030; Priiw ^ .MoiVs Loctuns, i., j). 74. rnxe v. Crawford, 1771, as in ITailus, ' Jidhton v. Liitcli, 1S0;J, IIuiuu's i. 45S. Douis. 2i);}; Krsk. ii. J), Ti!) ; .sv« - 7 & 8 Vict. c. OG, j; 10 ; 33 Vict. y.'o;/, ,:^ v. Scntt, l>s(i7, T) M. 1()7S. c. 14, § 10. I ^^m diffe rs CHAPTER XXII. ■ 'PI WIFE AS rAl'.TXEU IN A FIl!M, Oil SirAREHOLDEl! IX A JOINT-STOCK COMTANY. 1. Partner.— Can a Wife, who is a Partner in a Firm at the date of the Marriage, continue to be a member of the Firm? — At coinmou law the contract of partnership may be tlis- solved by a material change in the status or condition of one oi the partners, as — e.g., if he become insane. And the marriage of a female partner is, in like manner, held to affect so materi- ally hur power to fultil her duties as a partner, as to involve tlic dissolution of the i)artner.ship.' In addition to the reason given by Bell, the dissolution of partnership by the marriage of a female partner, may be referred to the principle that this is introducing a new member into the firm without the con- sent of the other ])artners. It is on this ground that bank- ruptcy is a gromid of dissolution, for otherwise the bankrupt partner's trustee would be let into the firm." In the words of liord President Inglis : "The dissolution of a business, by the marriage of a fenuile partner, has the same cftl'ct as if it had lieen dissolved by thi' death of a partner. The female partner iln)ps out of the fiini just as if she were dead, because she is incapacitated from continuing. She cannot continue in the business without her husband, and she cannot bring liim in."'' There is no case since the Act of ISSI deciding that the marriage of a female partner, subs('(pient to that date, dissolves the tiini. It appears that this is no longer the law of England. Jiut this rests on the Married Women's Property Act, 18(S2, s:;s:} I and '2, which give full contractual capacity ' IVll'.s Cdiii., mil Hd. ii. (;:m. I'M. ns;}, ci!). - LimlK'v un l'artin.i>liii), r)tli ' lins/all v. Ji, IN71, '2\l. It:3. : K'i 230 WIFE AS rAKTNKR IN A FIRM. t i i r ) 1 as to separate estate.^ It is to bo observed that a private firm differs from a joint-stock company in this, that there is a delectus personarv'ni exercised in the firm, which does not exist in the joint-stock company. Tlic success of the firm depends on the capacity of the individual part- ners. It may be ruined by the negligence or ignorance of one of them. In the joint-stock company, as tlie actual management is delegated to a small number, who are selected presumably for their business aptitude, there is no objection to having niany partners who are ignorant of affairs, and the fact that the marriage of a female partner may mean the introducing of her husband as a shareholder, is not of such importance as to dissolve the company. Can a Wife become a Partner without her Husband's consent ? — At common law it is clear that she cannot, and it is^hought that the JMarried Women's Property Acts, of 1877 and 1881, have nut given her any power to do so. In a case which arose uuder the Act of 1877, it was remarked by Lord President Inglis : "It is to be observed that, altiiough a wife inay carry on a separate business from her husband, it clearly cannot be contended that she may do so without the consent of her husband. Supposing the husband is of opinion that it is not consistent with his wife's health, or her morals, that she should engage in any separate trade, is it to be said that the curatorial power of tin; husband is to be abolished, and that the wife is to bo allowed to do as she desires, against her husband's wishes?"- If she becomes a partner, with her hus- band's consent, her separate estate will be liable, but lur husband incurs no liability.' Can a Wife enter into a trading partnership with her Husband? — Jt seems to have been assumed, as a eonse(iuence of the doctrine of unity of person, that a husband ■ nd wife cannot enter into a trading partnership with each other, although the wife possesses separate estate. 'J'his was decidetl I ,s'f-: Limllcy on Partiicrsliip, p. v. Ontrdiii, 1877, 5 Cli. Div. :i2H. .'")S3 ; PdHiii^Iv oh I'iU'tnuislii]), otli wlim; it is iissmiiLMl that tl:c Inis- ]'M., i>. SO, /(')/.. liainl's cf)iiM'nt is in'cussaiv to tlic - !■', njii^tiii'n VV.-f. V. n'(7/(.s', I'^'^JJ, wife's cari'viiiL; on !i s('iiarati' traiU'. 11 1!., at ]i. 20^; iiml see Aahwurfh ■' LiuilK-y on Partnuisliip, 78. in wf In m: m WIFE AS SHAREHOLDEU. 237 ill one case by Lord Ivory, Ordinary, and on appeal the point was not argued.^ The doctrine is approved of by Lord Fraser.- Iii England, a contrary result would, probably, bo arrived at.''' As the Married Women's Property Acts confer upon a married woman no greater capacity to contract than was for- merly enjoyed by a wife in dealing with estate from which the jiif^ maritl and jits (uhninlKtratloni'< were excluded, it would seem that she cannot, any more than before, become a partner in business with lier husband. And this is supported by section ,r L.r. Iii,-lis,at p. Gil. " Ihld. .*t ;i :'i : K'i :::-li -hr i '[ I I. ;i 238 WIFE AS SHAREHOLDER. ' :l M at although the wife's name appears upon the register as holder of the shares exclusive of the just raariti, if in fact they were purchased with the husband's funds. Nor are the terms of the transfers conclusive on this latter point. The Court will, if necessary, go behind thcni, and inquire into the reality of the transaction. III. — Shares wei'o entered in the stock-ledger of a company in the name of " Mrs. A, exclusive of the jfts niariti and right of administration of her husband." The transfers bore that the money was paid by Mrs. A " out of her own special funds and estate." The dividend warrants were sent to the wife and signed by her. But on proof that the shares were actually bought with the husband's money, and that the dividends had been used by him for his own purposes, it was held that he, and not his wife, was the shareholder, and, in the winding-up of the company, that his name, and not hers, should be placed on the list of contributories.- Nor will the husband escape liability by proving that he intended the purchase of the shares to be a donation, at least if his liability as a contri- butory would be of such amount as to render him insolvcnt." And even when the donation to the wife might be irrevocable by the husband, as being intended as a " reasonable provision," it would appear that the husband is still the shareholder. For the husliaud cannot put his funds beyond the reach of his creditors during liis lifetime. The doctrine of " reasonable provision " cannot secure the wife in an income during her husband's lifetime. It merely gives her a contingent right to a capital sum in the event of her survivorship. During the marriage, although the husband cannot revoke the provision, it remains his property subject to the wife's claim if she l)c the survivor. Consecpuntly, if the company be wound-up, i^tanie raatriinonio the hu.sband and not the wife will be regarded as the shareholder.* But a donation, inter virnm cf I'xorcni, becomes irrevocable on the death of the donor without revoking. Accordingly, where the etfect of the evidence was ^ StcciJmnv v. Citji of (IJifujtttr Wrif]hf>^ Exnrs. v. TiV;/ of Gla.tfjoir Hank, 187i), 7 l{. Ill ; r,triiilrh,i.l /.'-(/(/.■, 18S0, 7 K., fit p. n3r). V. Citji nf lihisijnir. I!n„l, IM;;), 7 H. ■' Thoiwi.'i v. ('. nf({. Jlinl; 187'.), 118. (I ]{., pur L.r. Iii;^li.-<, at p. Gil. - Sfc Loril Shaiid's oiiinion in • I SHARES BOUGHT FOR WIFE BY HUSBAND. 239 that the husband inteiided certain shares, bought by a wife with money which liad vested in him jure rndrltl, as a donation to her, and he died without revoking, it was hold that the wife was the partner, and that the husband's executors were not to be placed on the list of contributories. And in this case there was no written proof of donation. The money had been originally the wife's. It fell under the jus wariti, and the intention to make a donation of it to the wife was inferred from facts and circumstances.^ In England this matter has been differently regarded by the Court. Where the company accepted the wife as a share- holder' without any misrepresentation or concealment on the part of the husband, it was held by Hall, V.-C, that the name of the wife, and not that of the husband, must be placed on the list of contributories. In thi:i case, as in Steechnan, the shares were truly purchased with the husband's funds, and he had drawn the dividends and dealt with the shares as his own.- It rests on the principle recognised in various cases that where a company accepts a new shareholder and agrees to allot shares to him, they cannot claim to have the name of another person put on the register on the ground that the shareholder they took was a "man of straw," whom the other employed to screen himself from liability. — AV/., A. bought shares in a company. On discovering that the vendor was a director, A. gave as the name of the transferee a foreman in his employ- ment, earning weekly wages of two guineas. In the transfer the foreman was described as " gentleman," and his address given at the works where A. carried on business. Tiic company being wound-up, an application was made to place A. on the li.st of contributories. ]}ut Jessel, M.R., refused the applica- tion, and said " A. was never a shareholder. He had entered into no contract with the company. He made no bargain with the company to undertake any of their liabilities. A trustee for him had, and that trustee is the shareholder. . . . Neither directly nor indirectly had A. anything to do with the com- pany."^' It does not seem easy to reconcile these cases with the ' Wri^jht, ^iipr ' ) ti ^ I : I'' , 1 ■ 't < ^ .1 242 WIFE AS SIIAREHOLDEll. (.Iocs it not of necessity t'oUow tliat she must have bound herself?"^ Tlie force of this reasoning is, however, greatly woakeneii if a married woman by taking shares exposes her husband to the risk of himself being placed on the list of contributories in terms of section 78 of the Companies Act, 18G2, a question dealt with immediately. Should this bo held to be the law, it would seem reasonable that a husband should be able to prevent his wife from investing her funds in joint-stock com- panies. It would be most inequitable that a married woman possessing £5, exclusive of the jus mnriti, should have it in her power to invest it in a share of a bubble company, and thereby render her husband's \vh(jle estate liable in the winding-up of the company. Right of Administration not excluded. — A married woman cannot without lier husband's consent invest in the shares of a company funds from which the right of administration has not been excluded as well as the jus uiti/rlti. The husband's right of administration, as explained in the chapter dealing with the capacity of a wife to contract, has not been taken away except to a strictly limited extent. It is excluded from funds which belonu to the wife in virtue of a dcctl bv which the husband's right of administration is excluded, or which consist of her earnings, oi' iit' the rents of her heritage, or of the income of lier moveables, n\\ lastly, when she has a protection order, or has been judicially sepaiated, from her funds acquired after the ilecree or the date- of the order. Kven in these cases the liabilitv whicli inav attach to the husband under section 7S of the Comjianies Act makes it. for the reasons stated .above, not froi; from doubt whether the wife can invest her funds in shares against his consent. As regards the cor/>(/..s of her movi'able estate, which in virtue of the Married Women's Property Act is now vested in her exclusive of the /'//>• ruariti, it is clear that she has no power to invest it without her husband's consent. - Husband's liability as Contributory. — When a married wouian holds shares which by convention or statute are ' ti J{., ;it p. 481. •-' 44 & 45 Vict. c.-2i,^2. HUSBAND S LIABILITY AS CONTRIBUTORY 243 * -.1 lie lias a I'om Ikt e order. i(» the OS it. for thor the lit. As II virtue in her has no \ cxclusivo of the jas marltl, is hor husband liable as a contributory in tlie winding-up of the company ? This question is at present involved in much obscurity. The Companies Act, 1802, slj 78, provides: "If any female contributory marries, either before or after she has been placed on the list of contributories, her husband shall, during the continuance of the marriage, be liable to contribute to the assets of the company the same sum as .she would have been liable to contribute if she had not married, and he shall be deemed to be a contributory accordingly." It is worthy of arsiument that this section means if a woman marries after the winding-up has commenced. Before then .she is a share- holder, but not a contributory. Section 74 is ambiguous : " The term ' contributory ' shall mean every person liable to contribute to the assets of a company under this Act in the tivent of the same being wound-up." The view that " con- tributory " is a tenn having no meaning luitil the company is wound-up is supported by a Jlcfnrn of L.J.C. Inglis, who says : " The term contributory is therefore not identical with the term shareholder of the company. Many people may be con- tributories who arc not shareholders, ajid there may be share- holders who are not contributories. A contributory is a person liable to make contributions to the assets of the com- pany when it is being wound-up, for the purpose of paying the debts of the company." ^ But an opposite view was taken ill England by Fry, J. A woman holding bank shares, which l)clonged to lier ab.solutely, married. By settlement before the niarriag(; the shares were assigned to a trustee for the wife for her separate use. Six months after the marriage the bank was wound up. The names of both the husband and the wife were placed on the list of eoiitributorics. the husband being entered "as a member or contributory in his own right." The husband ajjplii'd to have his name removed from the list. It was argui.'d for him that in any event he was only liable to the extent of the property he had received through the marriage, a husband's liability for his wife's ante-nuptial debts being thus limiteil by the Act (tf 1874 then in force. But Fry, J., held, on the construction of sections 78 and 75 of the III i n ! ft ■ ( i u: :i ' Mitch, II, \m:i, 1 M., ,it 1). ms ; Acts, (Uli Ed. 1-. 207. ;mil >M P.iioklev mi the ( "niiiiiaiiies 1 t !i <: i 244 wiTE AS siiAi;i:ii(»i.i)Ei:. Companies Acts, that thu husband's; liability was in his dwu right and could not be thus limited. " He i:;," said that learned judge, " in the position of a debtor, and not meruly the husband of a debtor. Ho is a vontributory himself, and not merely the husband of a contributory, and that liability tu contribute, which is made equal to a debt of his own, cannot bo affected by the Act of 1S74, which only deals with the husband's liability in respect of his wife's debts. Therefore it does not touch the husband's own liability to contribute."' And in the case of Il'dl v. C'du of GLikijoiv Bdiil; where an unmarried woman held shares as a trustee, and nianied, the names of both her husband and herself were placcil upon the list.- There is perhajjs n(j conllict between these cases and those of B i (jiji i. rt "^ und J/y-N. Matlln'Vman.* And it is submitted as a sound proposition in law that if a woman wluj is already married invest part of her estate, which she IujULs exclusive of the jus raar'dl and right of administration, in the shares of a company, and the comjiany accept her as the shareholder, her separate estate will be liable to contribute, and her husband does not incur any liability.'' And the same result would follow if .she so invested funds held ])y her iu virtue of the Married Women's Property Act, and her husband consented to the investment, i'or section 7 8 of tiie Com- panies Act appears to apj.ily july to women who were share- holders before marriage. It was enacted to prevent the mani- fest injustice of permitting a woman, who had already incurred certain liabilities to the company, to escape these liabilities by marrying. I5ut if a company admit as a partner a woman who is already married, equity demands that she shall be c(tn- sidcred as contracting on her own behalf, and as binding hei separate estate, but not her husband. The hardship of such a case as ex parte Hatcher, has been remedied in England by an express enactment limiting the liability of a husband, married after the Act, in respect of his wife's obligations as a shareholder entered into before her marriage, " to the extent of • Ex parte Hatcher, 1870, 12 Ch. 1). 284. ■^ 1879, 7 K. G8. 3 6 II. 470, supra. * L.R. 3 Eij. 781, Kvpra. * Biijijiirt, (> IJ. 47o, sujiiii J- Fmics v. Citiiofaiiisiioic Jiank, 1879, (> R. 1122; Limlk'V on Cciuiiiuiv Law, li. -11. I HUSr.AXl) AS CONTRIBUTORY. 24,5 all property whatsoever belonging to liis wife which he shall have acquired, or become entitled to, from or through his wife."' No such provision occurs in the Scottish Act, and, accord- inrrjy, if tlio reasoning of Fry, J., in ex jxirh' Ilatrhcr be sound, the man wlio marries a woman who is a shareholder makes himself liable In sulldivm as a contributory, in the event of the company being wound-up. The question (Iocs not appear to have been argued in II ill's case, which is further distinguishable from ex parte llatehev, in this important respect that in Hill there was no marriage- contract, and tlie wife's shares passed to her husband on her marriage, whereas in rx jxiiic IFdIchcr the shares were sepa- rate estate of the wife. But in the case of Ilill it does not appear, from the report, that the wife's obligation to contribute was trented as an ante-nuptial debt, or that the husband's liability was limited to the amount by which he \\as locratas by the marriage. On the other hand, in the previous case of WisJui/rt V. Cifjj of Ghi.xgoiv Bank," it was distinctly laid down that a husband married after 1.S77 was entitled to have his n.uiu' removed from the list of contributories, on surren'lering any ])roperty which he had accjuired through his wife. It is to be observed that the husband's liability, under section 78, is expressly limited to the continuance of the marriage. ' MiU'rifd Wonu'iiV I'rnpLTty Art, wlutlier he is not liiil)le in soU'lmn. 1882, 15 14, ."('c ^ 13 ; Imt Lnid 'I'lniiiij; nn Coiiqwiiie.^, p. "^7. Tliiiuj^ lliiiiks it (jvcu .-till upuu - 1879, (5 K. 823. ""l n If u I, !( ,1 1 il, Ni • 4 i CHAPTER XXlli. wiFEs iii:i;rrAiiLK i-ntatk. 1. Where the jus maiiti and right of administration are both excluded In this cu.^r ii wife may deal with Ihi- lie)i- tayc, in all icsiK'Cts, as if she were; uinnarriod.' This wns doubted in one case,- but it underlies the judgniei.t in Bijjijaii, and is stated expressly, by Lord fJilibrd, in a recent deci;iioii.'' Ac(,'ordin■,. .\h<\v>' Xotus, xvii.. mill Vv. i. M 1. '• l\, 11,11 ihi v. U'ldsini, ls4S, il 1 1. 171 EFFECT OF HUSBANDS BANKllUI'TCY. 247 administration.' And he may assign the rents for the same period. The Husband's right to the Rents may be attached by his Creditors, and passes to the Trustee in his Sequestration. — The HJiture of the liusband's right has been disputed, and the (question raised whether it is heritable, and, therefore, a proper subject of adjudication, or moveable, and to be attached by arrestment, Rut it is now settled that the right, being one which bears trade ill ftifari fr'ni/ioris, is to be adjudged.- The view that the husband's right is not continuous, but is merely a rigiit to draw certain moveable funds when they fall due, is expressed in a ni<>re I'ccent case, by Lord FuUerton.^' But such an adjudication, to be effectual, must expressly include the ju-^ mdi'itl. III. — A creditor of the husband led an adjudication against certain hinds, as being his property, "with all right, title, and interest which the said defender has, or can claim thereto." It was afterwards found that the lands belonged to the debtor's wile, and it was held that the adjudi- cation, with this general clause, had not competently attached the liusbamrs right to the futnre rents.' The husband's right being adjudgeable, passes to the trus- tee for creditors, by the general adjudication of the bankrupt statute.^ And where a wife granted a bond and disposition of hrr heritage, in security of her husband's debt, to which the husband was a party, "for all right or interest which I (husband) have, or can pretend in or to the s;iid subjects, jure iiiiirlti or otherwise," it 'vas held that this was a valid assignation of his right to future rents, and that the creditor in tlie bond must value and deduct this right, before being entitled to a ranking." It was contended in an old case that a wife was entitled to aliment out of the rents of her heritage in the event of hei' ^//•/m, V. /')•;//;//,', 1 7!»7,M.r)!).-)l ; r,,hhr v. Side, l!)tli Nov., 1S18, lifll's I'riii. i. I isl ; Mciiv's Notes, 1\('. ; Krsk. ii. 1-2, (', ; Fi. i. TOl. XX.; Fr. i. S12 ; HaukiiiL" nil Li'iisL's, '■ r.. 1)7. - Aitkni!^ V. <)n\ ISOi>. M. Kl.l |(). '< Sir infni, " h'al itic.il mn." •' .!/'< '((//;/ V. i/«;///.s 1H21. I .^. ()!». • (llli.'k. i.e., :J7 ; Vv. i. S04 ; .iikI .stc !".('. .iiijirii, )). I 7'\ 1 imist (1.1 EVIDENCE OF HUSBAND S CONSENT. 249 to restitution than aii miniarricd woman being a minor with curators. The argmnent was thus stated : " A father is likely to appoint, and even a minor to chvise, curators, more fit for the discharge of that duty than the husband who has been the choice of a girl under age."' ■ 1i Husband can consent to Deed in his own favour. — A major uife may execute a deed in favour of her husband which will 1)0 sustained, but may be revocable as a donation. To such a deed the husband may give his formal consent. But if the deed be a direct donation to him, his acce})tance of it will lie sufficient evidence of his consent." When the wife is minor, Erskine suggests that tht-rc may be a ditliculty in respect that the husband is then curator to a minor, and ihat no curator can be (it'cior in rrm siKimr Eut ])robably the wife is sufficiently protected by the fact that she can revoke n dona- tion, or avail herself of the plea of minority and lesion. Proof of Husband's Consent. — As already stated, his con- sent to a dei'd in his own favour is presumed. It is not sufficii'ut evidence of the husband's consent that the deed was in favour of the trustee for his creditors.' Nor that it was in I'avour of his relations. In one case, the spouses had mutually ceiiveycd their estate to the survivor, " reserving power to alter, at any time of our life, as either of us shall think Ht." The day before the hu.sband's death, the wife executed a deed conveying part of the estate, under burden of her life-rent, to her husljand's relations. The dvvi] proceeded on the narrative that it was gianted by her, from a desire to fulfil his wish. J)Ut it was held to be null, for want of his concurrence as a party.'' Tt would apjx'ar that a husbanil's consent to his wife's deed may be proved, irl)ns ijisls (t facfis. ]hit whore the transaction is one to which writing is essi'utial, it is as neces- sary that his consent should be in wiitiiig, as that of the wife herself Kor ln'r deed, without his concurrenci', is not valid ' (,'ih.-2-2. ■ IVU'sl'iiti. ii ICiiO : Kr-k. i.(;.:2:5. ■' lirnwul,, v. \\'a.U},ll, ls:51, loS. ' Ihi,}. ;}!). -I •'] ' I' -il!!' Ilti ii I ■ ; i I H 250 WIFES HERITABLE ESTATE. to any efl'ect.^ If, liowever, a case were piGSciited, in which a wife was averred to have made a verbal contract as to heri- tage, wliich had been validated by rcl intervcntiis, it is still unsettled if the husband's consent might not bo established by reference to the oath of the husband and wife.- It was held in an old case, where a husband had written a disposition by his wife of her lands, and had subscribed it as a witness, that this was sufficient evidence of his consent.'' Even wliere he merely subscribes as witness, there is a pre- sumption arising from his relation to the grantor that he knew and appro\ed of the contents of the deed. But this presumption may be rebutted.* A Deed null for lack of Husband's concurrence may be homologated by the woman, when sui juris. — Thus, where a wife liad granted a personal bond, upon which she paid interest aftei' her husband's death, it was found that this pay- ment, during viduity, amounted to homologation of the null bond.'' Will the Husband's subsequent consent Validate the Deed? — 'I'his is still undetermined. The negative was found in an old case.'' But in a later case an op|iosite decision was given.' 'I'he (pustion was touched in another case. Ihit there the ratification 1)\ the husband was after the wife's death. It was held, in a (piestion with her heir-at-law, that the deed was not validated.'' But where a married woman raise'd letters of horning in her own name, and without the concurrence of her husband, undir which she executed a poinding, it was held that tlie poinding was validated by the consent of her husband, suljsequently interposed." 'IMie (|ues- tion was mentioned bv Lord Kinloch in a modern case as still )pen. 10 ' Diclcxoti V. llhiii; If^Tl, 10 M. 41. -' Ihul. '■' Ui>hhn V. ,sVo/. I7-'S, M. ,-,(;si. ' Ifi jihuiii V. Klrl,i'i,ii(l, ICiSd, M. .')fi."0: Ibilijhiii'loii v. //., \(m\, M. 5G7") ; JiihuMDiii \\ lUii-ij. ITiJ."), M. 5(i.-)7 ; Dickson, i. )< SCl'. '' MitcluJI v. ('niniiiiijhitiii, ICTl'. M. r)711. Iliinilltnii, 1<;'.)S, M. I!,ni,n, 17!):5, M. '' Ihiiihar V. (Uliil. " ( 'crlini II v. (;0;)|. ' rmlliiiiis V '■' lioiiln'ud- V. (Innil, lSi>lt. 7 S. Il'O. I" /^'r/.-sM,, V. lihnr. 1s71, lO.M.. iit ^l^H HUSBAND CIVILLY DEAD OK INSANE. 251 ivhicli lieri- .s still vd bv the Husband ciuiliter mortuus, or Insane. — Tlicre is some obscurity as to what amuunts to civil deatb, and the proposi- tion that a woman, whose husband is civlliter 'mortims, may (leal with her heritage as if unmarried, does not seem to be supported by any authority. At anyrate, it is thought the doctrine would not be extended beyond that laid down by Erskine. Ho says: " Where the husband is, from furiosity or other disability, rendoreil incapable of interposing his consent as curator,^ the necessity of the case may support a deed (^ranted by the wife alone, all'ecting her heritage, if it be rational,"-' The case of Bold v. MonUjoincric''' is open to the remark made by Lord Fraser that the insane husband's rights were reserved in the deed found valid. Even in this moilitied form the statement is not otherwise supported, and is very questiunablo. iSankton sa^s : " The wife cannot subscribe deeds, infer clvos, wiiliout the husband's concourse to authorise her, ovon though they respoct only her own heritage, to take effect al'tor dissolution of the marriayu : hut, if the husband is furious, or absent out of the kingdom, such deeds relating to her own interest, to be eti'ectual after the mairiage is dissolved, will be good, though the husband docs not s\d)scribe consenter, the necessity of the case making- way for this exception. The like will hold, upon the super- vening (if his forfeiture, or any other disability."' The other institutional writers are silent on the point. Lord Fraser thiid;s the husband's subsecpient ratilication, stanlc indfriiiioiiiu, woidd validate tlie wife's deed.''' When Husband's Consent may be dispensed with.— A wife judicially separated, or with a protection order, may (leal as if unmarried with her heritage acquired aft(M' the decree, or tlu' presenting of the petition for the order, stdiject in the latter case to the restriction that the protection shall not extend to i)roi)erty of which the husband has before that date obtained lawfid possession, or against which a creditor of his has done diligence.'' Lord Fraser thinks that a wife whose husband was abroad ' Sic Vv. i. SI!). '■' i. (i, '27, ml Jill. ■' 172!), M. (i(Mii>. •• Baiikldii, i. 5, ()7. '' i. 80(i, ,s'M' prcvidus p.i.u'o. '■' ('iiiiju,u;al IJi'i^lits Aiiicinhiii'iit Act, ISfil, !^!< 4, 5, (;. 1 i 'Yt si > )[S s '- ,H ;'i^ III H 25 2 WIPES HERITAliLE ESTA'J'E. might validly alienate or burden her heritage if that wore necessary for her support.^ But this appears to be contrary to the case of Boyle. There the husband had emigrated to America, leaving his wife destitute. She alienated "certain coal " for £30, reserving a power of redemption to her husband. In an action of reduction at the instance of the spouses, t'n' Court found the deed null.'- If Lord Fraser's vicv. bo ■'. the plea that the deed was good as granted to raise nc . i liliment shuidd have been sustained. Court may dispense with Husband's Consent. — P.ut a wife in this pos: J mi .. j now take advantage of the Married Women's Pioperty ^Vct, 1S81, wh.ich provides (5^ 5) : " When a wife is deserted by her husband, or is living apart fmm him with his consent, a judge of the Court of Session or Sheiifl- Court, on petition addressed to the Court, may dispense with the husband's consent to any deed relating to her estate." The jus inariti and right of administration are not excluded from the Income of Heritage of which the fee vested in the Wife prior to the Act. — Tlds was held in a case where tliere was a life-rent interposed, and the wife who was the tiai' did not become entitled to the rents till alter the Act.'' 3. Rights of Spouses in Wife's Heritage to which the Act applies. — The Act provides (sl^ 2): "When a marriage is contracted after the passing of this Act, the rents and produce of heritable property in Scotland belonging to the wife shall no longer be subject to the /v.>< iiKirlti and right of adminis- tration of the husband." Its application is not limited as is section 1, which deals with moveables, to the case in which tlir husband's domicile was in Scotland at the time of the marriage. The tenants of a Scotswoman who marries a foreigner will therefore be in safety in paying rents to her on ln-r individual receipt. It applies to heritage ac([uired by the wife after the Act, unless the husband " have, before the passing thereof, by iri'e vocable deed or deeds, made a reasonabh^ pro\isioii for his wife in the event of her sui'viving him."' IJut not to hei'itage ■ Ifor.-ilo-iKjh V. ,SV/)//, issn, ](', ]{. 1 i. 817. - Bojile v. Cniirfonl, |S2-', I .S. HI -2 (N.K. ;i.-)n). .)0, ' SiM'liuU ;5, Sull-SL'C. I. WIFES POWERS. 253 vested in the wife prior to the Act/ unless where the parties have by mutual deed declareil that the wife's whole estate shall come under the Act, and have complied with tlic condi- tions therein set forth." The husband having now no right to the rents of the wife's heritage, it follows that he cannot, as formerly, sue for them, or give a receipt to tenants, or grant a lease, or in any other way exercise the powers of a proprietor. But the exclusion of the husband's rights is limited to the rents and produce, and the wife cannot any more than formerly sell or burden the corj^c^'. She may grant a receipt for rents, and it would appear, but is not settled, that she may assign prospective rents.-' It is also possible, though more doubtful, that her right would be sustained to grant a lease or e.x.erciso other acts of administration not affecting the cui'jni.fi^ 1 llurahriKjh, .mpra. ' Mr. Daviil ^Murray tliinks she '^ Section 4. liiis no sncli jiower. '" l^rojierty of ^ See fiijirii, p. ITS. Married Per.--ons,'' ]>. 07. m ' V i nn \ I ^ I i i ii CHAPTEli XXIV. JUDICIAL KATIFICATION OF V. IFE'S DEEDS. It was very early felt to be necessary ti) protect persons dealing witli a niarrietl woman iVom the risk of a reduction, at her instance, based upon the grouni] that she had been compelled by her husbanil to grant the deed in dispute. The somewhat unusual course was taken of converting a (h'cision in a particular case into a statutory enactment. The title of the Act, 1481, c, f ^larcli, the zeir of God 14 Si /A'ires, Robert Daniclstoun, was persewed be a wonian called Glen, before the Lords of Councel, and scho wald liav(; cummin against her aith, that scho maid in judgement before the Official of Glasgow, and there was schawin ano Instrument under the seale of the .said <)ffieial, that scho ccnisented to the alienation (jf sik lands, and swore that scho suld never cum in the' contrail' hereof, and waulil have the saidis landes, alleageand that it was hur coiijunct-feftment, and maid revocation after her husbaiidis decease, sayand that he compelled her thereto. The action was delivered against this woman." ' Present Practice. — The wife ap[iears before any justice of peace, usually at his private house, and there, outwith the presence of her husband, declares on oath that the deed was freely granted by her. Her declaration is commonly endorsed on the deed to be ratified, but may merely refer to this deed. The old form of preparing a notarial instrument setting forth the ratification is now obsolete. The ratification is siiiilcientlv I JMsk. I. <;, ;{;} ; Fr. i. si^o. 254 FORM OF RATIFICATIOX. 255 attested by the subscription of the wife and the justice of peace, without witnesses, the act being of a judicial nature.^ The usual form is the following : — At , the day of , l.S , in presence of F, one of Her Majesty's Justices of the Peace for , compeared personally B, wife of A, and, in absence of her said husband, ratified and approved of the within disposition (if the ratification be separate from the disposition, say of a disposition, dated , granted by her said husband for himself, with consent of her the said B, and by her for liorself with consent of her said husband, and by them both with joint consent and assent, in favour of D, of tiie lands of E, and others therein specitiod), and that in the whole articles and clauses thereof; and declared that she was no ways coacted, compelled, or seduced to grant or concur in the same, but that she did so of her own free will and motive; and she gave her great oath that she shotdd never quarrel or impugn the same, directly or indirectly, in any manner of way, in time coming, as she should answer to God, Sec. (Sujned) B. V J P If the ratification be separate from the disposition, a docquet should be endorsed on the latter, stating that it is the dis- position referred to in the ratification. The doccpiet should be signed by the wife and the justice of peace,- Tho ratification is of no value unless made in the absence of the husband, and this fact must be expressly stated.^ It was formerly doubted if a simple declaration was not sufticient, but it is now fixed by statute that the wife's oath is necessary.' Ratification not essential. — It is statetl by Mr. Ik-ll that deeds of alienation by a wife of her own pnjperty are presumed to proceed from the husband's undue influence, the presumption being counteracted })y her judicial ratification. But this appears somewhat too strongly laid down, and is not supported by the passages in Erskine cited by hini.' Such a deed ' M. Pn'iiv(;,.iiv., i. i;^4. -Juriil. Stylus, i. '.)(>. ■i Krsk. i. (i, .3;?. ■'0&7 Will. IV. r. 13. •"■ Pidl's Trill, ii. IC.ir>, and SM-Eivk. Prill, i. (), 1!) (l.stii I'M.) ; and lust, i. n, 34 and 30. I '■ 2oG JUDICIAL llATIFrCATIOX OF Wll- (£ S DEEDS. ,! ■'■' ^h givantcd by a wife i.s valid although not ratified, unless .she prove that it was extorted from her ex vi aid mctu, or qnalifv some other good ground of re(hiction.^ But where ratification has been asked and refused, very slight evidence of undue influence by the husband would l)e sufficient. - III. — A husband liad by antenuptial marriage-contract conveyed certain heritage to his wife in life-rent. Being in embarrassed circumstances, he obtained her concurrence to a disposition of the property liferented by her. She averred that he came into her bedroom when she was unwell and toM her that he was threatened with ruin by the bank if she did not grant the deed. She had had no previous intimation, and at first refused, but he threatened that if she did not sign it lie would flee the country to escape imprisonment, and leave her and her children to do as they best might. At this juncture the bank agent came with the deed prepared. Without read- ing it or having it explained to her, she signed it. The deed was not ratified. In a reduction by her, on the head of force and fear, fraud and essential error, it was held that the averments as to force, fear, and fraud were not relevant. Lord Deas said, " Here the only fear alleged is fear of conse- quences, which it was quite lawful for the bank to hold out, and equally lawful for the husband to communicate to his wife, as well as to tell her what he himself might thereupon feel constrained to do in order to avoid inqnisonment and gain a livelihood ; and when the wife, to avoid the consequences thus impending, agreed to sign the deed, it would be more correct to say that she acted from affection than that she acted from fear ; and although afliection may no doubt induce i'ear for the person who is its object, yet if the fear so induced be merely the fear of, or in other words, thti desire to avoid such consequences as are stated here, all which might have ensued without illegality on the part of anybody, this is not the sort of fear which we can hold relevant to avoid a formal aut might be set asitlc. Actid- ingly, if she can prove that she was induced to grant it by fraud, even of her husband, or by force exercised by a third party, or that there was essential error, she will be successful in a reduction.^ May the Wife plead that the Ratification itself was extorted ex ui aut metu ? — It is quite settled that ratifica- tion is an absolute bar to challenye on the ground of the husband's undue influence, even although the wife should make the most specific averments." But the question is not ' I'rItMiull V. Jliitclie.<0)i, \Ku, 1!) D., at p. ."iUO. -' Jiuclnin, ttiijini. •' Staitdard Co., supra, jh r L(jr(l (iillonl, at p. 701. ' IhiiL And Eisk. i. 0, 3:>. ■' Ersk. i. (>, ;!,') : Vv. i. iS23. " Ersk. i. G, 3-1 ; 1 Bull Com., Otli Eel, 143. S i! ! ■ I I -■! r; ■li If 258 JUDICIAL IIATIFICATION OF WIFE.S DEEDS. 11 1 » I . I- i'l ;» ,/ ;» i free from doubt whether a reduction might not be sustained on proof that the ratification was extorted by force as well as the deed ratified. 'J'ho atifirmative view has the authority of Erskinc.^ It is also supported by Professor Menzies, who refers to the case of M'Xcill v. Steel's Trustees - as an example of a deed reduced at the instance of a wife, though ratified hy her. Ijut that c;>se was not a reduction ex cii/nte met as, but a claim to revoke on the ground that the deed was a donation between the spouses. In sucli a question ratification is immaterial. Professor Alontgomerie Bell also thinks ratifica- tion would not absolutely exclude reduction.'' But the dppo- site doctrine was expressly determined in an old case,' and i supported by Bell, who thinks that pnxjf that the ratificatio was extorted would not be admissible " unless the i)arty taking benefit by the deed should be proved to have been participant in the violence, or at least to have had notice of the compulsion nnder which the deed was granted and the ratification made."^ Lord Fraser expresses no clear opinion, but rather seems to think ratification an absolute bar.'' He cites Bankton " as in favour of that view, but all that is there said is that "a ratification upon oath excludes the wife's reduction npon the head of force, though she was actually compelled." It does not appear that IJankton licre considers the point whether averments would be competent that the ratification itself was extorted. And the same remark applies to the passage in ^lackenzie's Institutes,'' also cited by Fraser. But the doctrine seems to be supported by Craig.'' The ques- tion must bo considered open. No doubt, very clear evidence of force and fear woultl be required behn-e the Court would reduce a ratified deed. But the i)rinciple that any deeil granted without genuine consent is inUl, is one so dee|)ly founded in our law, that it is hard to think plain proof would 1)G excluded tliat the ratification was extorted. This is the opinicm of the learned editor of the last edition of Erskine's " Princii)les." ID 1 i. (•>, 34. '■^ 1829, 8 S. 210 ; Mciizios, p. 11. ^ Couv. i. l.'5.j. •> (irant, 1(;42. M. KMs;}. ^ 1 Comni., nth I'M., 1 i;5. '■ i. 822. ' i. ."). :;». ■i. (I, 11. Mil,- Fnuliik', ii. 22, U! I" i. >'], and remained, therefore, the scjjarate estate of the wife. The law is thus stated in the Code, in a decree by the Emperors Theodosius and Valentinian : — " Hac lege dcccrnimus, ut vir in his rebus (pias extra dotcm mulier habet, ('(lias Gneci 'pavdphevna dicunt, nullam uxore prohibente habeat commuiiionem, nee alicpiani ei necessitatem iniponat."^ Its meaning has, however, been greatly restricted in our law, ,'uid is now limited to the wife's dress and ornaments, and such articles of furniture as are suitable for keeping these things, and have been appropriated to that purpose. Nothing is para])hernal except the wife's clothes, and things •'quae sunt do mundo muliebri."- Paraphernalia do not fall under the^'u.s marlti, and if given by the husband to the wife are nut revocable like other gifts. ^ Nor are they affcctable bv the husband's debts.^ The leading case is Dicks v. Massie,^ where " the Lords fonntl that, under the paraphernalia peculiarly belonging to the wife, and no ways entering into the communion of goods betwixt the husband antl her, are comprehended the mundus or vrstitus midichris — viz., all the body-cloaths belonging to the wife, acquired by her at any time, whether in this or any prior marriage, or in virginity or viduity ; and whatever other ornaments or other things were peculiar to her person, and not proper for men's use or wearing, as necklaces, earrings, breast- jewels, gold chains, bracelets, &c., and that under child-bed >C(Mle5, 14, S. '^ Cmig v. Montcith, 1684, M. ' .lf(',s7)v,s-s of Gray v. riie }ristn; 5819 ; Er.sk. i. (i, la. ir)82, M. 5S0i>. ' ■' I hi.}. •■ M. ,-S21 OC""")). 25a 1 I I i TTTT 2G0 rAl!Ariir.l!XALIA AND PIX Mo.NKV. : I ill :3 ! ■ linens as paraphernal and proper to the wife, arc to he under- stood only the linen on the wife's person in child-hed, hut not the linens on the child itself, nor on the hed or room, which are to be reckoned as moveahles, and, therefore, found the child's spoon, porringer and whistle, are n^t paraphernal, hat fall under the communion of goods, but that ribbons, cut or uncut, are paraphernal and belong to the wife unless the lius- band were a merchant; and found that all the other articles arc of their own nature of promiscuous and common use, cither to men or women are not paraphernal, but fall under the com- munion of goods, uidess they become peculiar and jxiraphernal by the gift and appropriation of the husband to her, such as a marriage-watch, rings, jewels, and ir.odals, &c. But found that a purse of gold or other moveables, that by the gift of a former husband became properly the wife's goods and parapher- nal, exclusive of the husband, arc only to be reckoned as common moveables quoad a second husl)and, unless they be of now gifted and appropriated by him to the wife again: And found that such gii'ts and presents as one gives to his bride before or on the day of the marriage are paraphernal and irrevocable by the husband during that marriage, and belong only to the wife nnd her executors, but found any gifts given by the husljund t(i the wife after the nianiage-day are revoc- able, either by the husband's making use of them himself or taking them back iluring the marriage,' Imt if the wile hi- in possession of them during the marriage, or ;it her death, tlu' same arc not revocable by the husband theii'after. And found cabinets, cotters, and other alleg(Ml accessories for iudding the paraphernalia are not paraphernal, but fall under the eomniun- ion of goods.'- Some of tiie Lords were foi- making anything given the nijxt morning after the marriage paraphernal, called the morning gift'' in our law, but the Lords esteemed tlieiu man and wife then, and so revocable." It was at out; tinu' common for the bridegroom to present the bride with a purse containing anticpie or curious coins or medals. These so-called " ptirse-pennies " were paraphernal. This would not bo thi' ' 7.1'., il'tlicv ]iv nut lunin'ily jiara- lliTi'v). ph( riiul in cliaiiicter. Ih'sk. i. (!, I.") ; '■' lint, .'•c cnxlra l'il<'und the •I'lial, bat IS, cut or the hus- •r articles ■se, eitlier the coni- ■ai)hcnial such as ;t ut found gift of a jurapht'r- koned as it-'y be of >in: And lis bride nial and id belonLf fts given re revoc- lUScIf 01 iff be in ■atb, ihe nd found diii,i;' the 'oniiHiui- in3'thini;- d, eall.'il ■d thfiii Jiie time a purse ■:o-call('d be the •it iru V. inil Ciiin- \..\l.-21H. nan Law. IMIKSKXTS TO UriinEOROOM. 2G1 case if the coins bad been such as were in common currency. But, c.r implied gift, if they are not out of keeping with the rank of the recipient. It is with the iirst branch only that we have to do hero. It is admitted that the wife's clothes are adapted for her own, and not for promiscuous use. It seems naturally to follow that she must have some place to put them in. If this wardrobe had been used by her alone from the beginning there couM not have been the slightest doubt. Tiie only room for doubt arises from the fact that it was used liy lioth for the first three months. But it does not appear tliat at first the husband bad any place to put his clothes in, and I do not think that this partial use by him for the first tlir«'i' months is sutlioient to alier the legal character of the article. It is not suggested that it is inconsistent with the r.ink of the s[)ouses." - Although presents made by the bride- grodui to the bride at or before marriage are inter inivaijhcr- Viillii — though they may be aitieles of promiscuous use, such as, ('.(/., a watcli — this is not the case with wedding presents made by others to her, unless paraphernal in their nature.^ JSed and table linen though marked with the wife's initials are not jiaraphernal.* ' L'tihi lliil, V. '/'/(.• Hurl, 1711. M. in SIiltIH' C'lmit, litincau v. Ctrranl, Ti^L' I ; K.mntiiinliiill, ii., p. 7 1 I. l^SS, -1 S.C.K. •21(1, and M'htto^h v. ■ ( iiiiwrn)! V, ,1/-/. I '/(/, .]M.ai' to 1m' til,' tni Strain v. N., 18S(i, 2 S.C.K. lOH. wiles si'paviitt state siM''t! tlic Mai'- lliinit V. ]l'i)i)iJ, ISOU, IIiuiiu's U. ) i t i ( riuil \Vi)Micn"s I't'opcrty Act. Soheld Decisiniis, 210. ! 262 PARAPHERNALIA AND PIN MOXEV. Articles such as a mirror/ a lady's dressiiig-platc,- a tea- service,^ have been held uot paraphernal. Although parapher- nalia do uot fall under the jus rnariti, yet the right of achniii- istration prevents the wife from being able to sell or pledge them -without the husband's consent.' If, however, the impignoration be in security of the husband's debts his consent will be implied.'' Lord Fraser doubts the authority of the case of Gemmil,'^ but it is in accordance with an anonymotis case decided in 17o4(." In an earlier case " the Lords by a scrimp plurality found wives had the sole administration of thuir jewels, when in straits to raise money, and therefore sustained the Lady Ivirkhouse's impignoration, though done without hor husband's consent. Some merrily said this was too great an in- terlocutor in favours of women." '^ A wife can test on her para- phernalia,^ and on her intestacy they descend to her next-of-kin. "' The Married Women's Property Act has, in marriages to which it applies, placed the wifu's whole moveable estate very much in the position of her paraphernalia under the oM law. But the law of paraphenialia may still be of importance in (picstions as to diamonds or other valuables given by the husband to the wife. Such donations, as explained, are, being paraphernal, not revocable by the husl)and or his creditors. It has not been decided whether tlie husband's jus rd'uil extends to paraphernalia, and it would appear that the expres- sion "moveable estate," in sij G, means such estate of the wife as was formerly subject to the Jus' indriti. The English law on the sultject was different. The husband coidd di.'^pose of the Avife's paraphernalin, whether by sale or gift, and they were liable for his debts. IJut he could not dispose of them by will. During the husband's life the wife could not alienate her paraphernalia. The leading idea in the English cases is that para])hernalia are to be limited to jewels, &c., given by the husband to the wife for her to wear. He does not intend her to sell them or use them as a fund of - /.'((/'/ iri'/hul V, /,.',7;/ FIcillili;/. 171S, m'. nTTJ. ■^ <>', iiniiil V. l'('/(, I7.'5">. Kii'liiis rnri'. lliisl)jiiiil ainl W'itc, Nu. -1. ami M. r)!)!)7. * I hi, I. '■' V.v-k. i. (), 27. '■ i. .'^ot;. " .") lil'iiwii's Slllip. Nil. '•l'rin'jh.< V. Irriii,, 1711. M. .V.)72. ■' Vn-,„/V. IIV/;//,/. If^sO, 7 I!. 7(ii>. '" Ki>k. i. (I, 11 ; l"i'. i. sod. I'lN MOXEV. 2(i:3 pledge rer, the consent :iii, credit.^ But such articles given to a wife by a, third part\- wore presumed to be givevi to her for lier separate use, and she liad full power over them.'- In England property of any kind, including things which would formerly have been reckoned paraphernalia, arc now the wife's separate property if accpiired after 1st January, 1883. Pin Money. — This is a term of Engli.sh law which occasion- ally occurs in Scotch marriage-contracts. There does not sreni to be any authority on the subject in the Scotch books, and the Courts would no doubt give it the effect which it would receive in England. It denotes an allowance settled by the husband upon the wife before marriage for her pocket- money and to buy dress suitable to the rank and position of the husband. If t'ne hu.sband himself pay for the articles in respect t)f which pin-money is provided, he may deduct what ho has paid from the allowance. If the wile do not dress as becomes her station it would appear that the hu.sband might refuse to pay the pin-money. If the husl)and pay for his wife's dress and other personal expenses, and it does not apjx'ar that she domauded her pin-money, she cannot claim arrears after his death. And it was so held where tlie wife was ;i lunatic and the doctrine of ac(iuiescence inai>plicable. When she has been in the habit of receiving her pin-money but has allowed it to run in arrear, she caiuiot, on the husband's death claim for mort; than one year's arrears.'' And her exiH'ulors have no claim at all, the ])in-money being essentially for tlie wife's ]»ersonal exj)i'iises. For if the husband were bound to pay ane;irs of pin-money to the wile's ri'presentatives this would not r"'i,'ve him of his c(>mmi)n-law liability for her debts, .so that he would have to pay twice over.' It was ludd in a very special case where a wife h;id from time to time claimed her pin-money, and the husband liad promiseil to pay it, that she was entitled to all the arrears dui' at the death of the husband.'' ' W'liitr and 'riiilur, \>. (\-2\ ; T',j>l>'ni.l V. 7'., I r. WilliaiM^, 7i.",». - (ii- V. Loii'ldiiili rnj, I7H1, ;{ Atk. :J!)3. •' r.nrhr V. /•'., a 1\ Wilis. ;).-.-. ; hnnll V. lliiii;iu '2 I'. Wins. Ml ; Tliidiiji \. llnniKdi, IHUl, ',i M. iiiul K. .-)i;t. ' Tlie law el liill-lllolU'V is L'X- ]ilaiiUMl with ^'icat I'liliu'ss liy l/urd r)ii>iiL:liaiii in ll'iicidil v. Jhijliii, ls:n. 2 CI. an. I K. (i:{l. I'.iit .vMj Ma('i|Ui.'i'ii, 11. ami \V., .'inl Ivl., \k ■' lUdiiitl \. Liirix, 17!3s, 1 Alk. iJf'.lt. m: .f ,1 IK I ni 1 !| MP • # F< li CHAPTER XXVI. LIAl'.ILITY OF WFFK TO COXTltlBUTE TO TFIH KXPEXSKSi OF THK HOUSEHOLD Oil TO ALIMENT AX IXDKIEXT HUSIiAXl). It is tlio duty of tlic husband to defray the expenses of the household, and to maintain and eihicate the chiUh'en of tlie mari'iago. He is the head of the family, and the administrator i)0th of his own and of his wife's funds.' Where the husband is indigent, is a wife with separate estate bound to contribute ? — This has never been expressly decided. Baiikton says, "If the wife has a subject exclusive of the husband's right, she must contribute proportionally towards the maintenance of their common children, and in default of the father she is simply liable." - It is undoubted law that when the father is dead, the mother is bound to aliment the children of the marriage,^ But there does not appear to be any reported case where it was held that a wife IS bound to maintain the children during the husband's lift'timc if he is unable to do .so. The doctrine, however, has the support of Erskine,' of Mr. i\I<»re,'' and of Lord Eraser.*^ The last writer refers to Stair" and Bankton,^ but the languam' of these authorities is consistent with the view that it is only after the husljand's death that the wife's liability emerges. It would probably be held that a wife who is al>le to maintain her children must do so if her husband is incapable, subject to any chiim she may have against him for relief This woidd > Ki'.-k. i. fl, 11), anil nc. 2i. (I, If). ■' h\iirgriiVis v. Jlnidi r.''o}i, iss.'i, i:i 1!. i)H : liiichnii V. II., inco, .M. 411 ; Mai-'ln„nJ, ")'J. ' i. (I, .")(» (.sV(! )i'. r; i ; ! i ' I i I I ! ;i i. 2GG WIFE TO CONTRIBUTE TO EXPENSES OF HOUSEHOLD. Wife not liable to aliment indigent husband. — It caiuKjt be rcgai'ded us settled that a wife is bound to support her children during her husband's lifetime, although she may be in a position to do so. There is, as above shown, some authority for this proposition. But it seems pretty clear that she cannot be held liable to aliment her husband although lie be incapable of supporting himself In a recent case,^ in the Outer House, Lord Kyllachy expressed an opinion that at common law no such liability attached to a wife with separate estate, and tliat the j\Iarried Women's Property Act had made no change. Tlie opinion was, however, not necessary for the decision in that case. ' Fui'f.lis V. /•'., ISUO, 28 S.L.i;. *:. ill i 'f 'H can nut )ort IiLT ly b(j ill uthority ! cannot icnpablo llousu, law no nil that Tlii3 iu that CHArTER XX VI]. KKIHT 01' SL'llVlVoi; TO ALIMENT — WIDOW's MOUKNIXGS. M :Ml1 i : ■ i 'f -J ?'■; «l ■■ Aliment to indigent surviving Spouse from Estate of Predeceaser. — It' one spouse die leaviny estate, it is consonant with equity that the survivor should hv. entitled, it' otherwise unprovided for, to aliment out of this estate. Stich a right cannot conipeto with creditors. It is only after payment of all the deceased's debts that a claim may be made.^ At common law a husband hatl no yu.s nl'idi, and his right to courtesy was conditional on tlie birth of a living child. The husband of an heiress might accordingly be left iienniless by his wife's death. Similarly the character of the husband's investments might be of such a nature as to yiekl no tercc to the widow, and yet not to swuli the jus rclictdr. This would be the case if he left heritage iu which he was not infeft, or personal bonds bearing interest, or, formerly, burgage. In such cases reasonable aliment will bo awarded subject to such conditions as may seem to the Court expedient. III. — Husband leaves heritable estate worth £240 a-ycar. He was only iid'eft iu so much of it as gave the widow a terce of £40. Iti an action against the heir, her pupil son, the Court gave the widow an additional aliment of £'20 a-year, " for nineteen years, or until the same is recalled or altered by authority of the Court."- ///. — Husband died within vear and dav of marriage. By old law wife had not tiien terce or Jc.s reHctd.r. She claimed aliment. "A majority of the Court considered the ' l'"r. ii. !)71. ■ TlioiifioH V. ^['<'nllocl^, I77f<, M. i:51 ; iilso in llailis, ii. T'.tT. 2(17 in ;i I ' « *>♦ H 2G8 RIGHT OF SURVIVOR TO ALIMENT — WlDOW's MOUUNIXGS. claim of iiu indigent widow for aliment from the heir of her opulent husband as deeply founded in nature."^ III. — Husband died possessed of burgage which was worth £80 a-year, but liable to annual charges of £20. The burgage was not terceable, and the widow otherwise tuipro- vided for. Court granted her interim aliment of £20 a-yoar.- III. — Husband left heritage worth £240 a-ycar. His sister succeeded as heir-at-law. The Court found widow entitled to an annuity of £G0 " to continue until the same be recalled or altered by the authority of the Court." ^ It would appear that an indigent husband has the same claim.'' Claim barred by Ante-nuptial Contract. — The acceptance of a small provision in an ante-nuptial marriage-contract will bar the right to claim additional aliment. It was held in one case that such a contract settles irrevocably the rights of parties. The case, however, was not one in which the surviving spouse was indigent, the conventional provision, 700 Louis d'ors per annum, being adequate for maintenance though small relatively to the husband's estate/' If the provision was quite insutiicient to support the widow — say £5 a-ycar — and considerable funds were left, it may be doubted whether the Court would not grant further aliment. Widow's Mournings and Aliment to first term after husband's death. — A widow has a legal claim lor mournings suitable to her husband's quality. This is a privileged debt, and preferable even against ordinary creditors.'' As against the husband's representatives, but not in com- petition with his creditors, she is entitled to aliment from his ' Loirther v. jlf />at»r, 178G, M. 435; Hailes, ii. 1012. Lonl Hailes adds an anuisiii!.,' iiute : "Some of tlie judges who carried llii.s (jUe.stioii told iiif that tlicy did not mean that Mrs. M'Laine should have any ali- ment in case she marrietl iv^iun : it so, they have shown little favour to a handsome young woman of irre- lU'uachable cliaracter.'' - ll'inlev. II., I>^2W, ()S. 114). ■■' Jlohh.i v. /.'<((■)■ ; S(v also L,,: v. Il,tte.<, lft-l(», 3 D. :n7. * LDwthtrySiijird; llailes, ii. 10115, l„r ],. I'.raxlield ; Vv. ii. iXi!). '' ^())(/(^.s■.s• I hit: of Siiijiild v. The E.irl, 8 Ffl.., 1H14, kc. ;" Xicolson's Nttte to Krsk. i. (i, 41. <^ Slu'ilhiil, 1802, M. 118,^.^; r.ell's Com., -)Lii Ivl. ii. 157; Vi. ii. DOS. same lis (lcl)t, WHEX RENOUNCED. 2G9 (loath to the first term at which her provisions, whether legal or conventional, are payable. And the measure of such aliment is the husband's position, and not the amount of her [)rovisions.^ Where the husband's representatives have kept uj) his house and establishment for her till the term, she will not bo given aliment in addition. The claim tlocs not rest on necessity. A widow who broke up her husband's establishment and went to live with her father, the Duke of Gortlon, was still held entitled to aliment till her jointure conunenced.- But the fact that she (lid not keep up the house will allect the amount. In one case it was said that she was not entitled if she had separate estate. But this was unnecessary to the decision, the husband's estate being insufficient to pay debts.'' The right will not be held to be renounced by a general clause accepting provisions in lieu of all legal rights. ' — But where a widow was entitled to the liferent of the whole residue it was held she had implicitly renounced this right to aliment.^ The claim was even allowed when made fifteen years after the husband's death.*' It would hardly be granted if brought by a wife's representatives, she not having made any claim. ^ 1 Ersk. i. n, 41 ; M' hit in; v. .U.'x Trx., l.^(!r), 3 M. 1071. - J'dlnur V. Sinclair, -27 Jiinu, LSII, F.C. ^' JincIuDian v. Firrin; ISiii.', 1 .S. :V22 (X.K. -li)'.),. * I'uhiii r, siijii-d ,■ licnnic v. Wallc' i\ ISOO, M. r. I'n'suiiqilioii, App. Nil. 4. ■'' I>i Ulniiai/ V. t>.mDi)Vo Wilson':^ "Slurill'C^aut I'ractice," p. :];)]. - Tar ahull, ISGt, 2 M. 102. ;j ^±M . ii '1- ili I* 272 PllOTECTIOX OUDEIIS UXOKR CONJlViAL llIfiHTS ACT. and of loose conduct, it wasliekl that this was not '" reasonahlu cause" for the husband's desertion, and doubted if any cause would be sufficient which would not be a good defence to au action of atlherence.' An otVer to return to cohabitation will, in f,a'neral, prevent a protection order being granted. But such an offer will be disregarded if it api ear to the Court to be without Itoaa fuh^. III. — Husband had left his wife for ten years, and contri- buted nothing to her sup))ort. She is injured in a railway accident, and has a prospect of getting compensation. She applies for an order, whereupon he offers to return to cohabita- tion. Order granted, and offer disregarded.- Effect of Order. — The order has the effect of a decree of separation n iiiensd d thoro in regard to the property, rights, and oliligations of the husbaml and of the wift\ and in regard to the wife's capacity to sue and be sued.'' In itarticnlar, it bars an action of adherence by the husband. If the wife die intestate, her estate goes to her heirs. Property exempt from Order. — The order will not pro- tect — (1) property of which the husband, before the date of the petition, had obtained full and complete lawful possession; (2) property which any creditor of the husband has before that date attached by arrestment, followed by a di'cree of fur i- coming ; fo) property which such a creditor has 1" ' date duly poinded, and of which he has carried t reported a sale.' • rimbthvs V. <'., 1^<(J^, (J -M. '.17. •' .5; '.. - Ckalmcrs, suiint. ' .5; \. it and CHAPTER XXIX. wife's DKLICTS and (2r.lS/-DELICTS. A wiFH has IK) imiiiuiiity against penalties for breach of the law, and must sutVcr tlie legal consequences of her act. For \\vv delicts and gu*?.s/-delicts her husband is not responsible, unless it apjjear that they were connnitted in pursuance of his instructions, or thai he was accessory to tliem. In other cases, the rule obtains calpit tenet suos aiLctures. Wiierc a wife hail unlawfully executed a poinding in her husband's name, he being out of the country, an action was brought against both spouses for wrongous intromission. The judgment runs : " No action found against t'le hu.sband for any fact done by vhe wife, albeit civilly pursued, no nvire than lie could be convened for a debt contracted by her, or for bonds or obligati(»ns made by her without his consent." ^ And so a husband is not liable for his wife's slander.- Ijut in accordance with the general law of agency, where a husband who wished to sell a business allowed his wife to give false information as to the profits, he was held liable for her fraudulent representations.-' Ihit where a wife was in charge of her husband's shop, and it was alleged that she had malici- ou>iy caused a .saleswoman to be apprehended on a falsi' charge of theft, it was held the husband could not be made liable on the ground that the wife acted as his agent.'* In certain cases execution is suspended stante matri- munio. '\ • Ncn/ V. Ilii't:^, 1(;2S, M. (H)\:> '■' Taijlui v. C'/k /(, 1S37, 8 C. ami (Dinii'-s Uciiuit). P. ;]HJ. -Millie v. Smiihs, ISic', 20 U. ' 3/*(//. vv. T(7/*7,, 18S1, IS S.L.II. !)."); I'.nr V. Xntg::,is, IMJS, (J .M. 41)3. (15 1 . •213 T m li r< I ' :i ! - ♦ i i •274 WIFES DELICTS AND QUAHJ-DKIACTH. Imprisonment. — Where the scnteucc is one of iinprison- ment in modum iwemic, it will be carried out c' gainst a married woman. ^ Where a Sentence of pecuniary fine is imposed. — In this case execution will pass at once against any seitarate estate a wife may have.- But if she have no separate estate execution is suspended. The tine remains a debt against her, but it is not enforceable stantc matrlmonlo. On tiie dissolution of the marriage it may be recovered by any competent diligence.'' Arrestment in meditatione fugae. — A married woman not being, as a rule, liable to personal diligence, cannot be arrested as in meditatione fufjae. But where the obligation is one arising tvj ddirfo,^ or is granted in such circumstances as to render her personally liable,'' she is liable to l)e arrested under a fiKjae warrant, but only in the rare case where the debt is one for non-payment of whicli imprisonment may follow. It is now settled that a warrant can in no case be issued against a person as being in nwditationc fio/'ii'. unless imprisonment can follow for non-[)ayn\ent." Husband must be called. — The hu.sband must b>' eidlcd for his interest, as his wife'.s curator. IJut he will not ln' found liable in expenses unK . . they have been caused by his wrongful or vexatio\is maniie. of conduetinij- the dcfeuce." ' Ersk. i. (), 24 ; Fr. i. .■jf)?. - Ibid.; liarr v. Niilsons, isdS, (I M. 651. ' Jidir, lit., pu- L.l'. Iiil;!!.--. < Tiinihij V. n'.'t./'y//i/, [1. I ()(). ' llidt v. . I /((/( c.s'o/t'.s- 7V.S., IS U. Ifi!). Si, Art, isso [i:^ v^- 11 Vi,i. .■. ;!l]. ■ 11,1 HI :, V tVinhnn-f, I7i»l, :i I'll. -JCJ : Miliii v. Siitilliii, .oi/'ni. iSilO, Di'litni's (^^Vtitlaiid) CHAPTER XXX. CltlMES AND HVIDENUK OF SPOUSES IN CRIMINAL AND (2i/^15/-CRIMINAL I'KOCEEDINOS. n '■,., iSilO, ;-M'ntlauil ITlil. :i Foil ii wife's crimes or delicts, and (jHasi-delicts, hor husband is never liable, unless; it appear that her act was performed in obedience to him. A wife convicted of a crime involving the penalty of imprisonment or penal servitude, must sutler the penalty in the same way as an unmarried WH)mnn. Presumption that a Crime committed by a Wife, in presence of her Husband, was under compulsion. — Tn KiiL;land tln-rt; is a presumption of law that crime committed hy a marrie 1 woman, while her husband ifi present, is done under coercion by him. The presumption may l)e rebutted, and it does not extend to cases of murder, treason, and, pro- bably, robbery, nr lo misdemeanours.^ It does not ajipear that this presumption has ever been admitted in our law.- llut ITiune sui^gests that " where thieats or violence have b'^on I'Uipltiyed by the husband to coerce her, a lower ilegree of terror shall excuse thi' submission of tlie wife, who is habitu- ally subject to his power, and has not the same means as a stranger of escape from his resentment." He thinks a wife luiglit, perhaps, successfully plead coercion by her husband as an excuse for tin; conunission of " venial trespasses and petty critnos," and in mitigation of punishment for more serious iitVcnccs.'' Ami there is no doubt th:it leniency will be shown to a wife wliere the [)resumption is that she was constrained, ' Sec tlu' suliji'i't clis(Mi.f thi' jiaiirl is inadmissible. Evidence in the prisoner's favour wouM clearly be open to grave sus})icion, while evidi'uce against hiui might be prompted by secret enmity. This is the ground for the rule stated by Hume.'' It might be rested also on this, that it woidd be to impose an unfair .strain u[m)|i the conscience of a wife to give her the alternative of committing pi'rjury, or of ])eing the in>.irunient of her hu.sband's conviction, and tliat a prisoner convicted on such evidence would be certain to clu'iish a violent animosity against the witness, so that the peace of families might he destroyed. But, whatever the ground, tlie rule is firndy established. Divorced Spouse. — It wouhl a|.pear tliat a spouse, whose marriage with tlu> panel lias been severeil by divorce, would still be inadmissible as to any i'acts which are .:iaid to jiave ' lliirr>< /iii.>'i /(?/( /•;/ (Dill Ali'hii! Ri,snil»ni, ISliJ, 1 l'.ii>uii, .'JCT. - Mai'iloiiiild's C.'iiiiiiiial Law, \<. in ; 1 Alison, (5G8 ; Bl-UV Ni)ti.'s to Hunu', ]i. 7. "' 1 Iliniir, -v.) ; 1 Ali-.,ii, r,(\'.). ■• J nil II lliiiiiiltiin iti.il M'lry linnUhii, II. r. |si:i, .1. Shaw. 1 10. '' 1 AhsiMi, 3;}^ and fiTtV '• J iluiuc, :U!). tlif act. eio l)otli JClltCUCOll ( fi)!' two 0(1 uikIlt sumption I'^ual, (ir t-'d uf her luse she not give as stdleii ,ii"nilty uf licr lius- biit take bear th(.' n Crimi- lii' ]iaii('| ir WdiiM iiist liiia roiuitl I'.ir II iinposo litT tin; struiiiciit 'icfcd (111 luiiiKtsily iiiylit lie is liiiuly <(', \vll(IS(^ •f, Wdlllll t(i liavf 1, Ci'i:). ml Miiry >Iiaw. 1 i:). PEXURIA TESTIUM. 277 occuncil (.luring the marriage, but admis.siblo as to facts after the divorce.^ Where tl e are two or more Prisoners. — It has beeu licld id England tliat where several prisoners arc on trial for the same crime, it is incompetent to call the wife of one of them as a witness for or against another prisoner, for her evidence would tend to the conviction or acquittal of her husband. So where three prisoners were indicted for bur- glary, and one of them called the wife of andther to prove an alUii, her evidence was rejected. The ground stated by Little- dale, .)., was that "though she only came to speak as to Dmper being in one place, which had nothing t(j do with Sniitli. (her husband) being concerned in the offence, yet her evidence would go to show that the witness for the proisccu- tion was TuistaUen as to Draper, and tlien, if he was mistaken as to line, it would weaken his evidence altogether, and by that means the witness proposed to be called by Draper might benefit her husband." The »|iiestion was reserved, and all the judges, with two dissentients, thought the ruling right.- And the same was held where the wile's evidence was tendered against the prisoners, not including her husband.^ There does not appear to be any Scotch authority. Penuria Testium. — The lule is not .so absolute as to suffer no e.\ec[)ti(in. Where the fact in dispute is so occult that without the testimony of the spouse of the prisoner it cauuot by possibility be jn'oved, this evidence may be admitted. ///. — A husband charged with murder alleged in defence that he (li.^covered the deceased in the act of adultery with his wife and killed him. lie was allowed to call his wife to prine that he caught them in the act.^ Without her evidence this could not possibly have been proved, and as Mr. Dickson points out, she was not likely to make a false confession of ^ /;. V. \\',U, 3 UiiJ'scll, .'itli Ell. ' iVirhtic, 1731, M;u;liuuiii's("riin. Ci. (;32; 2 iliuue, 100 ; .-(V renuirks 111' li. 1'. lii^'lia on tliii "use in Snrtces V. U\,ihii:- ; li. v. Jrllliman, 183S, 8 C. luul \\ C04. ' >'m Mi)iiroc v. TirlJitoiif IViiko A. 1.1. Ca. :;!!• ; O'Comior v. Mttjori- hit.ih, \S\-2, -1 Maiiii. .111(1 (JraiiL,'. ■i;jr) ; i!,,,:.2. ' Will. ('ciiimirliii,l)miirrii's, 183n, 1 Swiiitnii, 21)1, wliere AIi.-"ii'> (>|iiiii(iii til tliu cinitniiy was inisiu'- I'ts^fnlly wWvA mi, 2 Alisini, •1()2 ; ami .-11 Miinliiiiali], ]>. 172, « /•;///../ Mllhn; 1H47, Arkl.'y,:jr.:.. ' /'.;/((// mid 1 1 mil', 1841), J. Sliaw, 2fll. lUGAMV. 27f) (lencc was adniittcd.^ And whore the charge was of conspiracy to cany off and marry an heiress, Hullock, B., was of opinion that, even assuming the lady was now the lawful wife of one of the defendants, her evidence was admissible.'- On the ground that the charge was not one involving personal wrong, a wife's evidence was rejected where the husband was charged with the statutory otfence (in England) of leaving her charge- able to the parish.-' And so was that of the hu.sband on an indictment against the wife, a prostitute, for conspiring with other.s in procuring the marriage with him.* Bigamy. — It might well have seemed that bigamy was of the nature of a personal wrong to the innocent spouse of the lawful marriage. And, accordingly, Alison ' thinks the evidence of such a person ought to be received. But the law is settled the other way. And this was held in a case where the Crown had no chance of a conviction without the wife's testimony, iind gave up tlu> prosecution on its being ruled inadmissible.'' The rule as to inuiicrhi lestiam, explained by Lord Pre- sident Inglis in ISarlecs v. Wvtiu i'ioon,' iloes not mean that the evidence in ipiestion sliouKl be received, because it would lie highly valuable for the case of the ])arty seeking to .uUluce it. In an carlior ease Lord J.(!. Hope had indicated an opinion ill favour of admitting the wifi', l)ut the witness was withdi'awn and the point not \\ the ground <>\' /xnurtd trsfltrin.'' * Ali.<(iii, ii. lfi;{. 2'P,iylnr, ii. IKil. ■' llnjc; 1844, 2 I'.muii, Hi). ' DicksDii, ii., jj l.JTO. " Mon-lsoii V. ,1/., 1HS7, 14 H., .I.e. :2M. CKIMIXATINO EVIDEN'CE. 281 Evidence Tending to Criminate other Spouse. — It may liappc'ii th;it a witiifss is asked a (|Ucstiuii jxjiiiting at criminal conduct i)U the part of lier husband, although no prosecution lias been directed against him. ///. — The Settlement of A., a female pauper, turned on the validity of her marriage with C. If .she was his wife, she would derivu lier settlement from him. The evidence of a woman 15. was tendered to prove that she was C.'s lawful wife, and that xV.'s marriage with him was bigamous. This was ndnutted, though tending to render C. liable to a charge of l)i-amy.^ I»ut the wife's evidence and the decision of the Court would not have been evidence against him, if tried for that crime, being altogrther res hitrr allof< acta. The law was tlius stated by EUenborough, C.J. : — "If we were to determine witiiout regard to the form of proceeding, whether the husband was implicated in it or not, that the wife is an incompetent witness as to every fact which may possibly have a tendency to triininate her husband, or which, connected with other facts, may perhaps go to form a link in a compli- cated chain of evidence against him, such a decision, as I think, would go beyond all bounds ; and there is not any autJKn'ity to sustain it, uidess indeed what has been laid down, as it seems to me, somewhat too largi'ly in Rex v. Cliviijer," may be sup- posed to do so."'' But it was thought by Bayley, J., that the witness, altiiough competent, might decline to answer a question tending to criminate her luisband, and throw herself on the protection of the Court. Where the husband (or wife) of the witness has already been tried for the crime, and acquitted or condenmetl, (he ground of privilege no longer exists. III. — A. tried for sheep stealing. Proposed to call the wife of B. to prove that A. and B. had stolen the sheep jointly. B. had previously been convicted. Held his wife was a, com- petent witness. ' Tiie Act of 1N53 abolished the general incompetency of husbands and wives to give evidence for or against each other I < :': i'\ ' /;. v. .1// .v„;„r,, ironv,s7,r, 1S17, v. Jlalhirld; IS3I, 2 Run. mid Ad. (1 Maul.' and S. Ii)4. <>:}!). -L'T.I!. :i(>:5. ^ liaj.w I/',///-!//*-, IsiJS, 8 C. ami •'7;. V. .1// S. lit'.). Im.1Iiiwi.'i1 in li. If i I ■a \ I" I i 9 - 1 !||il 282 CRIMES AND EVIDENX'E OF SPOUSES. in civil causes, but preserved tlic common law as to their incompctouco iu criminal proceedings, and provided that nothing herein contained " shall in any proceeding render any husband competent or compellable to give against his wife evidence of any matter communicated by her to him during the marriage," ana vice irrt^a. Evidence of Spouses admissible by certain Statutes. — Various statutory exceptions to the common law rule have been made in recent Acts. The following list may not ho exhaustive. The husband or wife of the person accused of the statutory ofTence, is a competent and compellable witness lUKkT these Acts : — The Cons])iracy and Protection of IVoperty Act, IST') (38 & 39 Vict. c. «('), § 11), where the charge is of nuili- ciously breaking a contract of service, whereby the inhabitants of a place arc deprived of gas or water ; or whereby injury is caused to persons or property, \5§ 4 and ') ; or where a master, legally bound to provide a servant or apprentice with uicessavy food, clothing, I'^cc, has neglected to do so, to the danger of the servant's health, {j G. 40 Vict. c. 14, where the charge is for non-repair of a public highway or bridge, or nuisance to a public highway, river, or bridge; or where any (2Hf'.s'/-criminal proet-eding is institutnl for trying or enforcing a civil right only. The Army Act, 1881 (44 & 45 Vict, c 58, § 15G, sub- section 3). The husband or wife of the accused is a competent witne.s' mar'dl and right of administration.'-' In Knghind, by the common law, a husband and wife cannot steal from one another.-' But an exception has Itcen in(i'()ihice, .^.^ iL' k; IT' I if 284 CRIMES AND EVIDENCE OF SPOUSES. with gonoiT]ia3a.^ It is, however, supported by several dicta in that casc.'- Assault. — Husband and wife may be guilty of assault upon each other. Great provocation by the wife will not justify the husband in assaulting hov, and if the injury be serious, it will haidly weigh in mitigation of sentence.^ A husband will be justified in an assault upon a third person so far as it was necessary to protect his wife from violence, and vice versa.^ 1 H. V. Clannci, 1S88, 22 Q.B.D., at p. 40. ^ I\r Will?, J., p. 33 ; ]',r Iltnvkiiis, J., p. 52, but sfc p. 51 ; 2'tr Fi(.'lil, J., p. 57. In tlii^; ciniti'xt it may bu iiotL-d tluit it is now rape to have cuiuiectiuu with a manied wunian by personating lier husband, Ciiminal Law Anicndnient Act, 1885 (48 & 4!) Vict. c. m, ^ 4). ^ Hell's Notes, p. !)1 ; Macdonald, p. 1.')"). ' Archbold, 21st Ed., p. 7G0. dicta i •I' j i 01 1 ! 1 i h\\ CHAPTER XXXI. HRKACH OF PROMISE OF MAIUIIAGE. ALTiioroTi tile Courts will not compel parties to impleiucnt their ap;Teen»ent to marry each other, yet breach of the contract without suflicient gr(jun(ls iountls an action of damages. The issue in such an action is, "whether the defender promised and agreed to marry the pursuer, and whether he (or she) wrong- fully failed to perform said proiuisc," The law is thus stated hy Erskine: "Uy the custom of Scotland all promises of marriage, whether private or more solenni, containeil in written CMitracts, may, in the general case, be resiled from, which proceeds from our close adherence to the rule, matrimonia dehcnt esse libera, and from the consideration of the fatal consequences which often attend forced marriages. But if we suppose matters not entire, that is, anything tlonc in consequence of the pronuse, whereby damage arises to any of the parties from the non- performance, the party refusing to fulfil, though ho cannot be compelled to celebrate the marriage, may be condemned to pay the damage sustained by the other party." ^ ]]ut as early as the year 1085, a woman liaving proved that she had expended jC.SO Scots in entertaining the man's friends and " taking otr bridal cloaths, &c.," "The Lords, at tlie advising for that expense, and for her loss of the market, modified £100 against him, in regard especially that he could give no rational ground why he gave over the bargain." " This decision," says Fountainhall, "seems equitable, though it be new."- And in addition to claims for real damage and loss of market it has long been settled that compensation is due as solatium )V wounded feolin ii-s.' There is no doubt that the action is ' i. 0, .3. '^ Gmhnwrv. /."-'/•//, HJ^."., >r. S 172. ^ Ilo'fj V. Golf, 27 :\ray, 1812, F.C. 285 i i ' ■ ,1 ll T I IM i . i i 280 I'.UKACH OF I'UOMISK OF MAKIUAGE. competent at the instance of tlio man, although the amount of damages wliich a jury would award to him mi^dlt alTord but a sliglit fioliitiitm.^ The Promise. — The promises to marry must be reciprocal. But if the parties have conducted themselves as eiigngcd persons, the promises will in most circumstances be presumed to have 'been iuterchang^ed, and n fortiori, if it be proved that the man promised to marry the woman, her acceptance will in general be pre>umed Irom her conduct. So in an old case, Lord Robert.son says, " There was a courtship in order to marriage, and though there was no express promise, the parties so conducted themselves to each uther as to create a reasonable belief that it was the intention both of the one and ot the other to marry. "- And in a more recent case it was observed by Lord President M'Neill : "'('here is a clear distinction between the proof necessary to establish a promise of marriage, which i.s to be made the foundation of a declarator of marriage, and a promise which is to be nmde the foundation of a claim of damages. The former must be direct :ind specific. The latter may ([uite competently be infernal from a course of conduct and toricspondejice, and it is not inconsistent with this that in this case the correspondence should of itself establish the pronii>e."'' Tn Kngland the same rule ha-; long been settled. If there is evidence of the man's offer, ' there is no necessity to prove an actual ])romisc on the woman's part; it is .sutlicient to show that she couiit V.V at p. (i'lS. Man: w'.n. ill, ;i Salk. 1(1, M ; llidni v. ISI C, Ir. C.L 20 Mnrnni v. .Xnpi,,; IHOl, -23 I). vihiiiIi v. r 1801, 1 I'. .S: 124:3. I'. :mi. « /'.*• Unit, (' IM llnll i>ll V. CONDITIOXAJ- i'l{(»MlSi;. 287 ]>r(iiiiLsccl and ongayvd to tiiarry the pursiUT."' In a more lucent case a latitude of a year and a-hali' was allowed.- An averment tliat on the f'ailli of the promise the pursuer ])erniitted copula is not bad in an action for breacli-of-proniiso and seduction on the ground that it would be relevant to found an action of (o vti JM'innentoS' The promise need not be unconditional. It may he quali- fied by any reasonable condition, and if the promise be to marry on the happening of a certain event — r.cj., the death of the defender's father, there will V)e no l^'cac'' till that event occurs. Ijiit if before then one of the parties lias repudiated the contract, or if by marrying somebody olsc he has })ut it out of his i)ower to keep his promise, the right of action at once arises, and tlu; pursuer does not need to wait till the time originally stipulated for.' In a case where a man had married another woman it was unsuccessfully contended that he had not broken his promise because his wife might die in time for him to fulfil his prior contract without unreasonable delay.'' Where a man j)romised a woman to marry her if she would go to bed with him, the (juestion was I'aised but not decided whethe'r the plea of Ivi'i'hi cdnsd would be good. Lord Mansfield indicated an opinion that this defence would not be sustained.'' Such a defence would be clearly bad in Scotland." An e.xpiessioii by a man to a third [)arty of an intention to mairy a woman is not a promise unless made in the presence of the woman herself, or unless the third party be authoiised to communicate it to hor.^ Breach. — It is not necessary to prove that the defender e.Kpressly declined to fulfil the contract. Even where a man never refused to marry, nay, professed his willingness to do I jfender ' Murray v. Xajiirr, snjtni. ■■ ('ainri^ v. Smith, 18-1(1, 15 M. and - ^[,)or V. Olirrr, 1S(J8, f) S.li.tl. W. IS'J. licL, II V. "(Oit. '•Morion v. Fum, 1783, ;j Douj;. -•..■.7 ;' 20 •' Fnrbrs v. M'jVso,;, 18C.8, (1 M. 77u. 211. *Colc V. Cotfiwjham, 1S37, 8 ('. ■ Sec I'lilon V. Ih-mlic, 1857, 20 D. 1 1'. .*^ lUiil 1'. 7"); Frost V. Kiiuihl, h.W., 258. 1872, 7 I''\. Ill ; lionnijltiir v. Mai- ■ ('ill,' V. Cni'iiif/havi, 8 C. ami »•/(«//, :32 I... I. :}10. P. 75. 'I J I ' ^ ? ■; ■ ;■ ' 'I I m \\\ 288 r.UEACli OF IM'.oMISK uF .MAHKIAGi:. SO, it was lieltl tliat liis coiulnct showed a fixed dctornunu- tion to constiain the woman to break otY tho inarrlacic, and that ho was liable in damages.' So where a man wrote to a woman saying ho had ceased to love her, Imt would marry her if she liked, it was held a (juestion for the jury to say it' lliis amountetl to breach.- I'.ut rudt' and unmannerly cnnduct by the defender to the pursuer does not amount to breach mdess it appears t'l the jury that it was intended to tbrce the pursuer to give up the cnutract.'' Where the defemler had twice fixed a day for tlu marriagi' and then postponed it, ami had afterwards mentioned aiiolher day on which he failed to ai)pear, il was held there was evidence o| breach.'' When the action is already commcnci'd it is tim late to profess a willing- ness to fulfil the coniracl.' It has l)een decided in England that where the cmitrnct niid the l)reach were both abroad, the action cnuld not l)e ni;iin- tained in the English Court.'' St;ci>.< win re though the Contract was made abroad, the breach (>ceun\d in Knglaii s;iy whether the fact, that prier \i< the aeti.iii tlie parties had heM im (•iimm>iiiieatiun with each ell.er tnr tu,i years, was sullicient (.'videlice that the wninan 1 ad ae(|uiesi'eil in breaking off the engagement.^ Defences. — Tt may perhajts be said that the only ab-oliito defences are — (1) that the wnman has beiii uiieli;iste, ;iiiil tiiat either b 'ibn' er after the jn'omise, provideil her uiichastity was uidviiowii to the defender when lie proiui-ed ; (2) that ^(',iU,„'trh V. n'thiiisim, ISGI, -2 7 <,>. P.. :)7:5. M. 8:ji). • Ihirhfii,, v. Ny..)ic.. I'-To, |,.|;. 'Thill, (') lv\. ICi ; '7i, r/" fiii'l />i///i■'(, 1S70, s M. mainly eii ilic ceiistiuftion el' :, Oi:}. statiit.', l.iit tlic la-t jiart nf tl, ' Ciirrii \. (liithrii, \>1\, \-l iu(I;-;niciit in the luninr cji^e siiji- S.L.1{. 7."). I'lirls tile ]iiM]M,H)i(iii in tlie l.-xt. ■■ lUiniis V. M-Knizi', •2\ I. ..I. - I >.,,■;.< V. l\,<„ih'i;K isc.o. c, jl. :JG3. aihl N. :^i:., « Vhrnj v, TImiiipsnH, \--7-2, \..\l DEFENCES — EHAUD. iicS!) either of the parties is impotent at the time ef the broach ; (.*}) that the i)rc)mise was procured by fraud. ///. — Tlic mail discovered the woman had been unchaste alter (hate- of pri)mise. He was held ju.stitied in breakiny liis contract.' ///. — The same result was arrived at where the uuchastity liad been prior to promise and unknown to the defender at till- time of tiie |)romise.'- It is an implied condition of the mans promise that the woman shall be a virs^in at the niarrian'e, unless circumstances show tliat he is aware she has lost her virg! :ity. Probably this stattnu'Ut would inthl gocjd in the case wliieh dot's not appi'ar to have occurri'd of a wiilow passing as a single wonuvn and eoiiciabng her prior marriage."' As till' impotence of either would bo a ground for avoiding the coiitr.iet after the marriage ceremony, it would be absurd to hold the promisor bound to go on after discovery of the other's incapacity. It is pr bable, however, that if the potent party wrre willing to go oi .11 knowledge of the other's con- dition, this Would be within his option — r.//., a woman woidd he eiitill.d to say : '• I jjrefer to hold the iv.uk and [losition of the dit'ciidi r"s wit'e, and am willing to foreL;o the chance ot having ihildirii." In such a cast! there so;, (is no reason why tlu- man it he bro.iks the contract should not be liable in damages. Fraud. - ilriaeh of the contract ol betrolii'mnt will not found ai\ action of damages if it be proved that the contract was iniluccd by fraud. ///.- W'lieic the laily had concealed i'rom the Man that she hail I'o'nH'ily been a barmaid, and had lived at another time with a Woman of bad characti'r, in circumstances oi' suspicion, this was held a good defence.' Tn this ease, Abbott, v"..I., lei't it to the jury to say whether the defendant was indueecl to make this jironiise, or to I Irrlu'j \. (inuiinxxl, ISiil, 1 ('. iHiO. MI. HI. iiinl I'",). Titd; ainl J!,il.a- and I'. ;i">0. v. (\ni,rri.i}tl, IsCI, 10 V.W. X.S. ■' /•7.^7,M• V, fow,,^ ISTS, (! \\.W.^\ 1:2 i. /.'.*i.7i v. .1/. //■(■<■/., IS-l-l, 1 C. and K. ' llliarin,, \. J.uri.-', 18:21. 1 ( '. •l(l;i. and P. r>-2'.K '■'•Sic dirtii in III III III)! v. Didiih, U I '' I Si m K i li IH I I I 'ii! 200 lillEACir OF PROMISE OF MAIiPJAfn:. continue tliis connection by false representations or \\\\\'\\] suppressions of the trutli ; for if he was inchu.vd to contimic the connection ))v niisreproscnitation or wilful sujiprcssion nf the real state of tiie circumstances of the family ant' prcvimis life of the plaintiff, it was a i^ood dcfenci' to this action, and the defendant was entitled to thoir verdict. It is al\va\ question of ciri'umstaiHH's whether the facl-< misreprt'scntcd ni concealed are sutlicicutly material to warrant tlu^ hrracli. It is not enou'jh for the (h.fender to say, " If 1 had known so- and-so I woidd iKit have i^'ivcn the jiromisc." lie would not be entitled to break his contract on discovcriu'^— '../.. that the lady won^ a wii;' or had false teeth. Anroniis.' suffered .; ureat loss of character, as — c/., Iiy conviction troy the chance of obt.unin^' more th;in noniinal damaei-s, e\en it the jury foiiuil for the pursuer. ///. — The wom.aii found the man had an abscess in his hreast. Held hy Loril ivenyou she was entitled to leluse to many iiim.'' It niay, however, hapjien that it is the ilefcnder wlmwisln's ' 7;.(/.. /• \. <\(,hrr;,jhl, |,s(;i, lo A.M. C.i. I'a:i. Lur.i K.ii_\(iii. (\V. X.S, Il'1. ■ Ihtil. ■ .Mrhuisiiii y. Iliilii; I'TDT, I'eakc's 01' wilful ) Continue I'l'ssion (if ' I'lcvicpiis ctitiii, ami ulwa\ sriitcd ni cafii. It niiwn s(i- VduM nut ''.//.. tliat was ( Veil •L'aird tlic r inontlis lies may I'm til 1)1- t cliaii-c (if cillici- 111' Cilll!- iikI liy a his |Miiiil •s actions I'l'ji'vanl. IS |)l'ilV('(| inisc till' nd siicii lll'I'cii il .; ,1 Clinic, V (li'sti'oy , >'\ I'll it ■;s in liis refuse til HP wisiu's (111. y a liare majoi'ity, decidee which docs not pt'iniit me to enter into the state of niarriag;e without tlie risk of iiijiiring my health, as if I become con.sumptive " (" pulnioni- (|ue "). The general rule of the law of contracts is against tliis\iew. In the leading I'iiiglish 'ase n\' I'tiiuidi hc v. ./(«))<',- it is stated thus; — " Where the law creates a duty lU' charge, and the jiarty is disabled to perform it without any deiaiilt in liiiii. and hath no remedy over, then the law will e\cu--e him. Ilut, when the party liy his ,v,vn contract creates a duty or I'liarge upon himself, he is lioiind to icr.ke it ^ond if he may, iiotw ithstanding any accident, by inevitable necessity hecause he might have pro\ ided against it by his contract." Sir I'reilericis Pollock ■ (piestions the authority of llti/l v. Wi'hjJit on the ground that in a contract so highly [)ersonal, it is Hot unreasonable to think that it is always made subji'ct to the implied condition that the jUdiniser shall be excaised from pi rformanct' if he be in a state of h(>altli imtitting him fur marriage. The case i.s one imt very likely to recur, lev wouK'n Wiiuld raise an action a'^ainst a man whose defence was ' //.(// V. Wr'fjht, js.v.t, f:.|!. iiihl - Al.'Vii. :i(i. K. 7l(i. • ('iiiitraci<, •"nji I'M., p. lu.'i. n !''■ 1 ,' u i^ ! \- f M \ < 1- l;'JI ■ \<'\ ! ' i'l t 1 \ Hit ■i : t!: I j I i 1 : I ill'- !l :,' i 29:2 lUlEACIl OF rUOMISi: OF MAllRIAGl'. that ill his cuiulition inarriugo would ciiclaugci' his life, aiul juries AViiuid luA iu such ii case be apt to award more tiuin nominal danian'cs. It is ui»t a dcfcncu that the man has discovered that the woman was engaged to another person at the thite of his promise to her, an.l eoncealed that fact from him.' Nor tliat the defender was married when he gave the pronuse, unless the |)ursucr knew it. For this would be to allow him tu found on his own fraud. - Defence of Mora. — The claim must be made within a reasonable time if intimacy cease. And it would apjiear that mei'o intimation that the claim is not departed from, will not keep it alive indetinitely. It must be insisted in.'' Whether Action competent by or against Executors.- — Iii England it w;is settled by i^ord Kllenlmrough tiiat an aclimi for damages for breach of [iromise eoidd not be brought, In the executors of a deceased person unK'ss they could show that his estate had sustained actual ilamage by the breach. In this case the claim would be limited to the ajuount of such special damage. "The general ride of law is, ach'o jk I'soual !s iiiorilar cuiii 2nr,. Chi II, Inst, in (,•• 3 Coiri,* y.JohimtiDii, Is'.IO, 1,'> i;. I'..l>. \U[. m t TAX KXKCUTOKS SUE OR HE srED. 293 ifo, and lore tli;iu that till) xi of his Nor that se, unless him to within a pear that , will 111)1 tors. — 111 n actiiiii ou_L;hL In ^liow that aeh. Ill t of .SUtll 'Itur cum ir injuries the repn- icbts ami 3e|)l when ' jH'i'soiial cNeeulers It was extent to iL,'U;!v;'e of elaiiM to to eease, . eoiiijiiii- L'otly iVuin 'I illiinii'. the breach or within the contemplation of ])oth parties at the (late of the promise, anel in an action against executors such a temporal loss, if it is alleget], must be tested according to the ordinary rules as to remoteness as applied to the special facts of tlie case." Lord Esher. M.li., even doubted whether the action would lie if special damage was alleged, and says, "1 can li.ardly conceive of a case where such special damage could arise as would support the action." There would appear to bo no direct autliority in Scotland to the effect that tlu- action is incompetent by or against txeciitors. The authoritv of the English cases is weakened hy the consideration that I*]iiglish hiw ajiplies the maxim, "() p'TSowins morihii- cuni jiev.^onc," with niucli greater rigour than has been done in our Couits. No action in Eng- land can be brought by a man's executors ftu" damages on the ground of any injury done to his person, feelings or reputation — as <•.(| had herself tnarried aft(n' the dis- appearance of her supposi.'d iirst husband, and could not qualify any patrimonial loss which she had sustained by ' .|7(/,/ v. Shiin-i', ISTI, 2 1?. 1!)1 ; ls-2.-), i;}Sori,'cinitiiml l?;i\vU' (IViin.), Sli'hiiltis V. I'dhiirr, \X-2-2, 1 ri.k.T- IS:). iii'-'(Mas>*.), 71 ; Jjii:.iii>iyv.>!iiin,h)ii.i, • Hr,ni.i v. Stool, 1SS,5, 12 R. 1295. t I ■ lit'" l»rf - * \ 1 -1 J • •♦ )• * 2f)4 lUlKACH OF PHOMIsr, (»F MARIUAGK. her cuhubitatioii with him. In an action of danrngcs broiiylit by her and her husband against the widow and executrix of the sailor, it was held that the liability had not bnn extinguished by his death. This was a very strong ease, fur it was treated by all the judges as clear that tlic woman had \u)t suffered either patrimonial loss ur injury to reputation. Ifer only ground of claim was that her feelings and those of her husband had Iteen wounded by the discovciy that, sixteen years before, she had brcn the victim of this deception. Tiie question was ex[)ressly kept opm, wliLthtr the claim would have transmitted to her executors as well as against the executors of the wrong-doer, Lut in a vi'iy recent case Aidd v. iiliniri> was juhtilicd on the ground that patrimonial loss was there averreil. And il may be riganlcij as settled, that where this is not the case, the tith' of executors to sue an action for breach of promise will not be sustained.' Measure of Damages. — As has been said, compinsarKin is given not only for loss of the )»articular marriage and diminished chance of marriage at all, or, ;is it is (piaintly expressed, loss of market, but also in so/all iim fer the W(jund inflicted on the sensibility of the pursuer. The language of Mr, Sedgwick has been (iU'>te(l by a very eminent judge with ai)proval.'-' "In this action, though in form u: coiiti'dcl (I , yet it being impo.ssible from the nature of the case to lix any rate or measure of damages, the jury are alhiwed t<> take into tlieir consideration all the circumstances ; ami, provided their conduct is not marked by pnjiidice, passien, nr corruption, they are permitted t(j ext.'rcise an absolute di.scretinn over the amount of compensation." The Court will be slow to interfoH' with the verdict of a jury in these ca.s'js. The rule is thus stated by iJanip Hullock ; "The principle which governs the (Auirts in cases of this description is not whether they think the damages too large, but whether they be so large as to satisfy the Court that the verdict was perverse, and the result of gross error, misconception, or untlue motives." Chitty .says of the English authorities, " In no reported case ^ liirn V. ^f. .141», cited liy Willc's .].. in Swllli v, Wou.Iji,,,, lsr<7, I (.'.15. N.S. (i(iO, s bn)iiL;ht executrix nut luca n\y; case, tliat tlic injury to ' tt'L'lillns tliscovt'iy I of til is wlictlur s Well as a very und that regard I'll executors tained.' )eiisali(in lage and e llowcd to ,'.S mill issioii, (ir liseretioii .' slow to Tile rule e wliicli whether so largo and the notives." ■ted case Sill ilk V. s. ouo. MKANS or DEFEN'DEll. 295 has a new trial been granted for excess of damages, and in many cases has it been refused,'' Evidence as to the amount of tiie defender's means is a(hnissil)le, and usual.- The pursuer's loss is the gn^ater if she would have gained by the marriage position and the c'lijoN iiieiit of wealth.-' And damages for seduction, if this is allegcil, may be obtained in tlie same action. Aeiions for Breach of Promise are among the causes api)roi)riate for jury trial, and will b(! .sent to a Jury unless special cause is shown why this should not be done.' The fact that in the same action there is a conclusion for aliment I'or an illegitimate child is not sucli "special cau.se.'' ' ' Ci.utiMcts, IJtli I'M. {i±2. - StiiiUi V. ll'iiiiiljiiii , ■o]\ Inr by aitfiil persuasion to allow liini to liave eanial inteironrse with lier. The woman consents, or the act would he raj)e, l)ut sho has been beguileil into eoii^enlint;. A frefjuent case is where tlie act occiu's in the cours(.' of a courtshi|», the woman bi'lieviiiL; that the man intends to marry her, and perhaps relyinu on an express promise. In a ease of this hind the Court a[i[)ointe(l the following issue: "Whether in the course of the period betwixt May, 1S7G, and Oeiober, I.S77, the defender courted the pursuer and jirofessed honourable intentions towards her; and whethei', by means of such couitship and protessioiis. (he defender seduced (he ])ursucr, and prevailed upon her to permit him to have carnal connection wi(h her, (o her loss, injury, and d.aning(>." ' It is not necessary in the issue (o say more than, "whether during tht; [leriod of . . . the defender did simIucc the pursuer, and did prevail on her to permit him to have carnal connection with her, to her loss, injuiy, and damage." -' In the older cases it was usual to say, "(he ptu'suer being of virtuous conduct, and of untainted character," or words to that effect, but it has been settUnl that this is not necessary.-' Although the seductive arts set forth in the cojidescendence consist usually in averments that the defender professed honourabhi love, and the intention to marry the pursuer, this clement is by no means essential. It is none the less seduction ' AMAi;ES. 2!»7 if the man by giadiially intlamiiig tlic pa.^.sions of a previou.'dy virtuon.s girl, and, after repeated solicitations, finally overcomes her resistance, although marriage between them be never thought of.' Ijut some element of deceit or stratagem must he set out on record, or, at anyrate, it must a))pear that the woman did not yield at once.- More carnal intercoursi' is not seduction. If it ajtpear that the woman liiri'd the nuiu on, or that the connection was the result of equal desire in both, there is no gi'ound of action. It would be unjust to mak(^ the man liable in damages for an act of simple I'ornication not brought about by any wiles on the part of either. It is I'lioiigb that ho is bound to contribute to the support of a child born of the connection. 'i'lie action for damages for seduction is frequently combined with one tor breach of ))r()inise. It may also be alternative to a conclusion in an aftioii of declarator of marriage by ])romise siihsapiciifi' i'<>j>ii/(i. If this be done, it will not b(; dealt with till the qu(\stion of marriage is disposed of, and will not bo allowed to prejudice that ([Uestion."' The claim will lie against the heirs or repre- sentatives of the seducer.' Married Woman. — A wife may obtain damages against a paramour if she pro\(' that he overcame her viriiie by seduc- tive wiles. Ihit th(> husband's actii)ii against his wife's para- mour is not for seducti(jn in the sense above indicated. It exists whether she was artfullv seduced or williii'dv consented, Nor is liis action barred by condonatiou of her adultery.'' Damages. — Tiie amount will vary with the infinite diversity of circumstance's. The age and position of the parties, their relation to each other, the amount of artifice t'lnployed. the previous character of each, will be elements for the con- siileration of the j\U'y in each case. The law of Kngland is ditferent. It is there held that a woman has no action against her seducer for volenti mm lit I Liiiiiiiiij v. JIttmiltoii, 174'^, M. ];!,'••"!>; liiichitiiiin v. Miinmh, \7x:t, M. 1:5,!I18; Stiimrfy. Minr.i.'i,l8:i7, 1.') S, I IDS, air. IS 11, :> IJol.iii. 547. -' !; Fvihsv. (r;/..,//,isns,f; ^1.770, ' /\'-(;/ v. ini.onr, '/'/v., ]-2\). sin. •'' ^f,('c,^o,lald v. .U., ISSn, 1-2 1?. 1,']:27. And .-m' l',iln:-2ii; and Jhullirv. Unj. s'l//, 1S18, I Murray, .33 1. And .scu y 1 , : ) \9 » f •» • 3 '." : 2!)8 SEUrCTK »x. injuria. The action can hu brought only l)y a iKuxiit or master, and conchule fur damages per quod Kcrcitiuiu dmisil. Uut wliere the daughter resides in fninWui, that is sutlicieiit proof of scrvici', anil if the action is brought by a ])arent, tlie jury are entitled to lake into account tlie shanu; and grief brought upon the plaintitf as well as loss of service.' In a recent case, where the seduction complained of was alleged to have taken placi> in Kngland and the defender had subseipiently come to Scotland, it was held that the action here was not relevant, there being no loss of service averred. It was laid down that as the woman would have had ntt action in England she could have none here, on the ground that by the law of Scotland no action can be maintained on account of a wrongful act connnitted within the jurisdiction of a foreign country, uidess the act was wrongful by the law (tf the country wliere it was committed, as well as by tlu; law of Scotland. ' ' llilfov.l V. M-K" ''<'../", ISC.C, li.i;. 1 ('.!'. -' /.*„.,■.>• v. Si,ih}i'. 1S!»I. !:» IJ. :!1. ;j;}l ; Tirrij x. Hvkltin^ini, 1S(JS, y\ yricf CIIAITKR XXXIII. Till-: i;i:(iisii;Ai'i(>x (»!' mai;i;i.\<;i;s. lli;(irLAi; inaniam's must hv nyistcrrd iiudi r statutoiy pciial- tiu.s in case ot" failiirc, and irrfL;id;ii- nnniaucs may be n'^ds- ti-'i'od on c'nm|>liancr with cortain conditions. (V/rtilird t'.\tract.s of entries in the register book.s are athnissihle evidciico of the facts they record,' but arc not pvohallo jtriilnitti of them, and may bo clialK'nifed on tlic ground that tiie marriage was invalid from force, pupillarity, want of cajiacity, nearness of kin, or othcruisr, or tiiat the register itself is erroneous or has been vitiated.-' The i-ssential validity of the marriage dejiend.s on the proof i.f interchange of matrinn)nial consent, and in no degree rests on registration or the want of it. Itegistralion is merely an adminick' of evidence which may be more or less im})ortant. The provisions as to registration of marriages arc contained in certain sections of four Acts.'' Regular Marriages. — When tin- maniagt" has been per- formed by a minister, or a per.son appointed to celebrate marriage by the Jews or Quakers, after publication of banns, or notice under the Marriage Notice Act,' Schedule C, appended to tlio Act 17 v^ 18 \'ict. c. SO, as amended by the llegistrar-CJeiieral,^ must be transmitted within three day.s after the marriage to the registrar of the parish in which the marriage was solemnised. Failure to comply renders the hu.sband, and failing him the wife, lial)le in a penalty not exceeding £10.^ Provision i.s made, when the parties desire it, for the attendance of the registrar at the ceremony." 1 17 & IS Viit. c. 80, J< SS. - Dickson on KviikMico, ii. 1:204. •' 17 & 18 Vict. e. SO : IS Vict. c. 'J!) ; li.'J & -lA Vict. c. S,") ; 4:2 Vict. c. S. Ml & 42 Vict. c. 4;{. •'' ^M Appeinlix. '■' .!? 40. ■ .55 47. ■2i»!) I. . 1 t iiii' t \ ll: I ,- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |2£ |U ■"IS IL25 i 1.4 A (/a m Photographic Sciences Corporation 23 WIST MAIN STRHT WIBSTH.N.Y. 14580 (716) •73-4503 300 THE REGISTllATION OF MARRIAGES. Irregular Marriages. — Parties appearing before a justice of the peace or magistrate may, on a somewhat iictitious coinphiiut at the instance of tlie procnrator-tiscal, liave them- selves convicted on their own confession of having contractt'd an irregular marriage. But proof, otlior than the acknowledg- ment of parties, must now be adduced tliat one of them had at the date thereof his usual residence in Scotland or had lived there d'lring the twenty-one days preceding tlie marriag(\ Tlie remslr. 's forbidden to record the marringe unless the extract of coil , J i-M bears that such proof was adduced.^ A simpler vaoOo is provided by tlic same Act.'-' 'JMic parties, Avithin three '.:o;ii.:is after they have contracted an irreguhir mai'riage, may p.'csent a joint application to the sherili' or sheriff-substitute of the county in Scotland in whicli it was contracted. On jjroof (]) of the marriage, and ('2) that one of them had his or her usual residence in Scotland, or had lived there for twenty-one days preceding it, the sherift" will grant a warrant to tlie ri'gistrar to record tlu' marriage. The registrar's fee is in this case tive shillings.'' Where Marriage is established by Action of Declara- tor. — Tiie clerk of Court is bound under pt-nalty of forty shillings to transmit a notice of the decree to the registrar of the pari.sh of the domicile or usual ii'sidence of the parties. If they belong to different parislies it should be transmitted to the registrars of l)oth.' Foreign Marriages. -- 1 f the marriage of a Scottish subject, which has been celebrated abroad, be intimated within twelve months, to the registrar-giMieial, and certilied by tlie Diitish Consul of the eoui>tr\' or district within which it has taken place, such marriage will be enter(>d in a book called "The Foreign Register."' I'l'ovision has ])vvn made by a more recent Act for the registration of marriages ceK'brated abroad by otKcers and soldiers of Her Majesty's land forces or mem- bers of tlieir i'amilies who are with the re'dment." I 1!) & 20 Vict, c !)r;, ,:< ;5. 'I'lw Hf^istrar is ciititlfil tn a tfc nf twiinty sliilliiiL,'s, 17 «Jc IS N'ict. c 80, .^ '}8. '^2. •' ImH' tllc usual i'ol'IU (if lU'dCcril- ini^'f, .s'((! A]iiH'nili.\. ' 17 & IK Vict. c. 80, S 4!). ■'■ j;i iS: :J-1 Vict. c. 85, !^ 10. " 42 Vict. c. 8, § 2. ■iS itico ions (MH- ctrd o had ; I •_;■('. the CHAPTER XXXIV. THE MAi;i;iKD women's rOLICIES OF A.S.slTiANCE (SOOT- LANO) ACT, 1S80 [43 & 44 VICT. c. 20]. This Act, which comniencod on tlio 2Gth August, 1880, provides — 1. A married woman may et!ect a policy of assurance on her own life or on the life of her husband. In either case, if it is expressed to l)e for her separate use, it vests in lier and is jjayable to her and her heirs, executors, and assignees, excluding the jus marill and right of administration. It may he assigned by her inter vivos or mortis causa without her husband's consent.^ 2. A policy of assurance taken by a marrierms ol' tlu; policy, a married woman may dispose t^hnitc viatri monio of her interest on a policy taken by her husband on his life for her benefit. Ill an E; glish case an opposite conclusion was reached, but ' TIic stiitnle in Kn-liuid is TIic Miinicil WdiiKn's I'liqu-rty A<'t, ISM2, J^ 11, which ri'-L'iiacls, with siiiiie ii /•.; Snjtoii, 1SS7, ;M (,'1i. D. .'.II " //-.// v. I'j-.r.ill, l.s7(; (('. A.), •2i'h. I), -im. ~ Holt V. Vw'i ;■'(//, siijir't. I SUllHEXDEU. 303 the judgment is expressly founded on tlio terms of the policy.^ The policy may be surrendered. — A policy effected by a. husband on his own life for l)ohoof of his wife in terms of sect. 2 does not constitute a trust for the wife's protection, which cannot be revoked even fit her own request, on the principle of Torry Anderson's case. The trustee may sur- render it at any time for its surrender value. And it does not appear that he needs the wife's concurrence. Probably, even where the husband is himself the trustee he may sur- render the policy at his own hand, and if the Insurance Com- pany had no notice of any contemplated breach of trust, they would not be entitled to withhold payment.- Foreign Husband. — A husband domiciled abroad may effect a policy under the Act.' > Khi.j V. Lura^; IS<" (C A.), F/n»'?, 1880, 1.3 11. 078. :;;', cii. i). 7l-_'. ■ ^'"'''• - Scliiiinnitii V. ScotliftJh Wiiloir.'i'' :\ i i, i I CHAPTER XXXV. il ! ELECTION LAW. \ » Pi hi !« Parliamentary Franchise. — It is quite sc. lod that wonuMi, whether married or unmarried, are not entitled to tlic parlio ■ mentary francliise. In rejecting a claim made by a woman to vote, the Court rested thc'r decision upon the fact that there was a long and uninterrupted custom in Scotland limiting the franchise to males. The claim was made under section f] nt' the Reform Act of ISGS,^ on the ground that "every man" jjossessing the qualification included woman. But it Avas held that section oG, which saved all existing laws and customs relating to the franchise, was applicable to this case, and decisive against the claim.'-' Husband's Right to Vote in Respect of Wife's Herit- age. — It is provided by the Reform Act of 1SG8 that " husbands shall be entitled to he registered and to vote in respect of lands and heritages (of the recpiisite value) belong- ing, whether in fee or in liferent, to their wives, or owned or possessed by such iiu.sbands after the death of their wives by the courtesy of Scotland." •' 5ut where a married woman was entitled to the occupation of a house as a schoolmistress, it was held that this did not confer on her iiusband the right to vote in respect of such occupation. There must be an actual right of property in the liferentrix to entitle her iiusband to be put on the roll.' It is not necessary that the liferentrix shoiild have made ' 31 & 32 Vict. c. 48. (liscu.^siou of tlie liislury dl' llio miI)- - lifdWit. V. Ingrdm, 18G8, 7 M. jcct. 2aL And 80 lield m Eii.u'laiul, •'' i; 14. Vhorlhu V. Liiigs, 18G8, L.I!. 4 ^ liuiili v. MU,',nmii, 1877, n IL C.P. 374, wliLTo there is u luuriK'il 10. 304 : ; t M HUSBAND VOTING IN IIIGHT OF WIFE. 305 up her title,^ nor that there should have been a conveyance to trustees to hold for her. III. — A wife's father bound himself in her marriage-contract to give her the " free liferent, use, and possession " of certain lands during his own life, and at his death to convey them to the marriage-contract trustees for his daughter in liferent and her children in fee. It was held that the daughter was life- rentrix even during her father's lifetime, nnd that her husband was entitled to be put on the roll.- Where trustees liolding moveable funds for a wife, with a power to conv'jrt and invest in heritage, exercised the power during this marriage, it was held that this made tiie wife a proprietor of heritage, and that her husband was entitled to vote.-' But this was ji\ the footiny- that the investment was permanent, and it dues not seem that the same result would be reached where tmstees were, in carrying out the purposes of the trust, entitled at once to realise the estate and divide.' Wliere trustees holding heritage had a pov 3r of sale which they had not exercised, and the trust-purposes were all fultilled except that of division, wiiich was to be accomplished witliout a sale, the husband of one of the beneficiaries was held entitled to a vote.'' If liie feudal title is in trustees who are merely directed to pay the rents to a certain person^ this does not constitute a liturcnt in the sense retpiired. For there is here no right of ownership in the person to whom the rents are to l)e paid. He lias only a personal claim against the trustees.'' The husband does not lose his claim to vote in respect of his wife's iieritage on account of his jiis inar'itl being exciudiid. ~ The husband's right to be admitted to the roll rests on the principle that he shall vote where she would herself have been entitled to do so but for her sex. Accordingly, where the jtw muritl had not been excluded and the husband was under seijuestration, it was held that he was not entitled to vote. I 2 & 3 AVill. IV. c. or), ij 7. - ForlKS V. Hiilliij, 1882, In H. 4. ■' lilachoiml v. Vntcli, 187S, (j l\. 63. * See llllsitu V. ('.»/•((/(, 18G8, 7 M. 299. ■'Stewart v. Vamphdl, i8(i9, 8 M. 13. ^Martin v. M'Lurg, 18G8, 7 M. 299. " Blackwood V. Veitch, supi'it, iuul cases cited i'm Swintou's Digest, p. 62. ! ■■■■ ! 1 I I'l 306 ELECTION LAW. For the right to the fruits of the wife's heritage was then vested in the trustee for the husband's creditors.^ AVhere a tercer marries again, it would appear that the second husband can vote, provided of course the terce lands are of sufficient value.- The husband of a tenant is not entitled to vote in respect of his wife's tenancy.'^ Municipal Franchise. — The Municipal Elections Amend- ment (Scotland) Act, 1S81, provides that where in the previous Acts prescribing the qualifications of voters at municii)al elections in Scotland, " words occur which import the mascu- line gender, the same shall be held for all purposes connected with and having reference to the right to vote in the election of town councillors, and also to nominate candidates for election to the said office, to inclu eS: .^3 Vict. c. HO], i< :2S. suli.-scc. iJ. " 7//*W., i:^ !). ' 35 & 30 Vicl. >'. iVI. m SCHOOL AND PAllOCHIAL BOARDS. 807 t'! inasmuch as they aio under the curatory of their husbands." ' An opposite conckision was reached by Sheriff (afterwards Lord) Fraser.-' The ground of judgment adopted by the last- named learned judge was that the exclusion of women from the parliamentary franchise rested on custom, whereas in school board elections there was a contrary custom, women having by common consent been admitted to vote, and to be elected as members of school boards. This reason has become much stronger in the sixteen years since the judgment was pronounced. j\Iany married women have sat upon school boards without question, and it seems unlikely that their right will be made the subject of further dispute. Parochial Board. — The Poor Law Act of 1845- enacts that " in all meetings and matters under this Act, the husbands of owners of lands and heritages shall be entitled to vote and act in right of their wives." The question does not seem to have been raised whether a married woman not living with her liusband might not be entitled to vote, but it is probable that such a claim would be rejected. Married women have been elected as members of j)arocliial boards, and allowed to sit without question. Lord Fraser thinks they are eligible.' ' Citcil ill Srlhu'V Eihu;;ition Actn, sth Kd, ]). 138. - Loi-liirin)iiicli Case, :iO .Jumiial ot' Jur. 483. And .sic Fr. i. 'jIs. ■' 8 & 9 Vict. c. 83, ^ 20. ' Fr. i. r)18. \l ii; "I i( ll it CHAPTER XXXVI. PKACTICK. Title to Sue. — By the general rule of the common law a married woman is not entitled to raise an action in her owi name alone. To make the instance good it is necessary that her husband be conjoined with her as her administrator-in-Uiw. Where he is unable or unwilling to concur, the Court niav allow the action to proceed after appointing a curator dd lltern. to the wife.^ Titl<^ to sue has its foundation in interest, and the necessity for tie husband's concurrence in actions by the wife appears not fo much to depend on the doctrine that her persona is sunk \\ that of her husband, so that she is by mar- riage placed in a p>.>sition analogous to that of a minor, as on the fact that, where the common law operates, it is the hu.sband and not the wife Avho has the real pecuniary interest in the suit. For if the wife's incapacity to sue alii V. 1877, 4 R. ;5!)3. - Sticoisoa V. JIdiiiilloii, 18:58, 1 1). 181 ; iuul ,sw Millar v. Birnll, 1876, 4 R. 87. ■■' Aitkins V. Orv, 1802, M. 1G,140. ' Conjivmil Ri-lits Act, 18G1 [24 & ■2-} Vict. c. 8(i], g 16. ■' See supra, p. 247. " AitJdns V. <>rr, supra. ill: i. . 1 ? i! ■ ( 11 I H ■i li; \0: ^ : :. 310 PIJACTICE. serving her as heir to hor father, the action was (hsr.iissud.' And where a husband entered into a submission as to his wife's right to a heritable subject, the decree-arbitral was reduced on the ground that the wife had not been a party to the submission.'-' Where Husband refuses to concur. — Where tJie subject of the action was a sum which would, if recovered, fall under the jus marltl, the action was entirely in the dis- cretion of the husband. For the ground upon which he was held entitled to sue in such a case against his wife's wish was simply that he and not his wife had the true interest.^ From which it followed that if he did not choose to raise the action she had no right to complain. But where the subject of the suit was something which would belong to the wife exclusive of the jus marltl, the husband could not prevent the raising of the action merely by arbitrarily refusing to concur in it.'' The Court would appoint a curator ail litem. III. — A woman raised an action in her own name as an heir-portioncr, concluding for count and reckoning as to the price and rents of certain heritage belonging to her late father, alleged to have been adjudged and sold by heritable creditors. After closing the record it was discovered that the pursuer was a married woman. Her husband declined to concur. It was held that, in so far as the conclusions related to heritage or its surrogatum, the pursuer was entitled to insist in the action, and a curator ad litem was sisted.'' III. — In an old case, where a wife as an heir-portioner of her father brought a reduction ex eaplte Icdl of a deed granted by him, " the Lords found that the husband behoved to be in processu, but if he refused concourse, the Lords would authorise the wife to insist to reduce the right, in so far as the hu.sband had no interest further than his Jus marltl and the courtesy."" III. — A wife raised an action <»f damages against her trustees ^ Ferguson v. Cowan, ISID, Huiiie, 222 ; lint lie.st reported in a note td Mardutiijal v. Wilaoii, 20 1)., at p. 6G2. ■^ M'CaUy v. /,/f//(.s 1821, 1 S. (I!) [X.E. 70]; anil .svr Kontcdii v. Watson, 1848, 11 1). 171. ^ Maalougnl v. IFil.'ion, 1858,20 1). f).')8. ' Stair, i. 4, 1.") ; Er:-k. i. (I, 21 ; I'r. i. mi). ■ lll'iir V. J!i(r,is, 182!), 8 S. 2(i4. " Ifdd.l V. (lorihvi, l(i7:5. M. G().3!>. 1 WIFES TITLE TO SUE. 311 lus.scd. ' wifo'.s led need Ito the iubjoct k fall |ic (lis- 10 was |s wish XTCSt.'* |isc the subject e wife ■lit, tllL' ictir ill for having lent a sum on a heritable bond without a search, which would have revealed prior incumbrances. The money was vested in the wife in liferent, secluding the jus mdviti, and in her children in fee. The land upon which the trust- money was lent belonged to the pursuer's husband. He did not concur, but it was pleaded that as the pursnor was living in family with him the action must be presumeti to bo with his concurrence, and as the loss was occasioned by liis fraud in concealing the prior burdens, restitution cou^'; not 1io claimed. The wife's title to sue was sustained.^ Title to Sue since Act of 1881. — A marricl w(jman's title to sue without lier husband's concurrence when she is residinji' with him in family, and he is capable of consenting but refuses, has not been judicially considered suice the Act of 1881. Where the subject of the action was heritage, her title was su.stained at common law, as already shown, in eases where the husband showed no good reason for refusing his consent. It is submitted that the principle of these cases would now be extended to suits by a married woman in which the conclusion is for payment of a sum of money or delivery of a moveable subject. For this sum or subject would no longer fall under the jus inariti, and the wife's interest would appear to give her a title. It seems that where the husband's inter- vention is only necessary as her curator, she will not be barred by his arbitrary refusal to concur. The appointment of a curatov ad lUciii serves the double purpose of making up the deficiency in the wife's capacity, and of protecting any interest the absent husband may have in the action. A married woman suing since the Act, is in a similar position to a wife who sued before its date for a sum or subject which would not, if recovered, have fallen nnder the Jas maritl ; but as to which the right of administration had not been excluded. In two cases where a charge had been given l)y a married woman without her husband's con- 1 Graham \: Jlimt.rs 7V,s'., 1831, !) S. 543. Scr Mack;iy',s Piiicticu, i. .30!). I havii referred to the set^sion- papers, ami tiiul tliat the ri^^llt of administration was imt e.xcluded in tliis case. The point does not appear to have heen noticed. It should be observed, however, that the husband was himself a defender as one of the trustees. I ■ i 1 - ^ til 'I I ft M I. i .1 I !i I ill ilL 312 PRACTICE. currence, a bill of suspension was passed simpUcite); although the husband's _;m,s mariti was excluded.^ On the other hand, in a case already noticed a wife's title to sue was sustained though the right of administration was not barred.- This case was followed by Lord Mure in an Outer-House judgment.'^ The case of Gralidra is not to be regarded as an authority for dispensing with a curatoi' when the jilh maritl is excluded from the suhji'ct of the action, but the right of administration subsists. For there the husband was called as a defender, and the [loint was not raiswl. But in no case does it appear to be laid down tliat a husband whose _yH.s' nvi.rit! is excluded can by his mere ipi^c ilnr/t prevent his wife from raising an action. The Court, nnU?ss satisfied that the action is an un- reasonable one, will, if the husband lefuses his concurrence, appoint a runifor (r Loi'il Prc.-^. in flrmni v. Giultim, lSi'!>, 1 .lur. .')»). '■' Fr. i. 57(1. " [bid, i. .")71. " Kisk. i. (), 111. ■^ /'.((// V. (;il,s,n,, 1834, 12 S. 4.31, air. 7 W. aiul S. M'd. '■' Jlnni V. Sinohr^oii, 1872, 10 M. 21)5. 314 PRACTICE. the suit the Oourt appointed u curator/ but this seems to be inconsistent with the more recent authority of Horn v. Sanderson. Where tlie husband is abroad, or cannot bo found, and the wife can show urgency, she will be allowed to sue with a c^nitor lul Utem.- Tho absence of the husband would not relieve the wife from the necessity of ol»taining his concurrence if he were within the reach of ordinary communication. In one case the husband had gone to sea and was reputed dead, and altliougli the defender alleged that tlie husband " within this month was seen at Air," " the Lords, in respect both parties acknow'ledged that the husband had been a great while absent, found the action competent to the wife."-' In another case a married woman sued for aliment of a child born durinsj the marriage, but alleged to be the fruit of illicit intei'couise with the defender i)i'ior to that date. The husband was a sailor. He had deserted the wife and otdd not be found. Siie was allowed to sue with a curator.' Ihit in a case of a like characti'r, where a wife had given birth to a child three years after she had been deserted by her hu.sband, opinions were expressed that the wife had no title to sue. No curator hail, however, been a[)pointed in this casi'.'' And in a more I'ecent case where a wife proved that her husbanil had hvvw absent for seven yi'ars, anil that she liail made all reasonable endeavours to find him, but unsuccessfully, her title to sue was sustained Her counsel intimated he was willing to have a caratny ad Illciii sisted, and this was done." Nothing was said in this case with reganl to the Act ot 1881, but it is thought that the fact that the money recovered wotdd not now fall under the jv.s nmrill should give her a sufficient title to sue a claim of this nature at least with a curator. When the Action is one of Damages. — It is settled by a series of decisions that a wife may sue an action of damages ' M'/V/oy V. F.inilK lsi!», 1 1 I >. 1200. - Ersk. i. (I, 21 ; V\. i. ."iCiSt. '^Gardimr v. ('(/////, KiGT, y\. ' Ji'hs,,,, V. /.',/(/. 18;}2, 10 s. ;i;)i. ■'■ il'ilLiii^nii w lliiiti, 18S0, s I;. :57r). M'(^)Hiii,ii> v. Snuth, isi)2. r.» ];. V. fo t'roiii ! within ise the ltli((U''h indiitli parties while another < mariti. Husband's subsequent Concurrence. — -Where the instance is l)ad from want of the husband's concurrence, the defect may be cured by his intimating his concurrence at a later stage. ^ This lie will, of course, be allowed to do in the general case oidv on conditions. ' i s ' iiv a 11) When Husband must be cited as Defender. — In actions against a married wt)man it is necessary ti- cik> her liusband. This is usually done by calling him " as her curator and administrator-in-law." But it is sufficient if hi; be called "for his interest." The husbantl need not be called in actions against a wife who is judicially se[)arated, or lias a protection order, or if she bo carrying on a separate trade, and the action relate thereto. » (r'((/. V. llunutt, IS.')?, 1!) 1». ' Lijl^' V. Madvji, ISli), 11 I). (iOri ; Siiilth V. Slodildti, IHoO, 12 D. -10 J, overriiliiij; Knpiiv v. lioUock, 118"). M. (i047. *Vi; Ji^trtkolomciu v. - Otile, siijir I. .lliiii-toii, J.s>si, US S.L.i;. ."lOS, wheru ■■Mihir V. (lauld'a 7V.v., KS-U, W llu' AutlMvilios aii' r(vic\vi.!(l in ti I). ;m,"), Jiul-iiK'iit \>\ Li'nl I'^iiiMT. ) i* ■'' 31G PHACriCE. And it would appear to bu ui'iiccessary on principle to cite him where the action relates to estate of the wife's from which the _y'as raarlti and light of administration have been excluded. But in practice the husband is cited oh miijorcm caiLtelara. And even where the wife's estate is only separate in virtue of the Act of 18S1, it is not certain that the husband must be called, though in practice this is invariably done.^ Where the husband has a separate interest of his own he must be called as an individual. If a woman who is defender in an action marry pendente jirocessa, her husband nnist be sisted. It is not settled whether this may be done by letters of dili- gence, or if it is necessary to raise a supplementary sunnnons. Lord Eraser thinks a supplementary action the proper procedure, seeing that the husband has a material interest.- It is poss'ble that, since the Act of 1881, it would be sufhcient to obtain letters of diligence. Where the wife has an interest to defend, and the husband refuses to apj)ear, the Couit will appoint a earator s:3(i, !) S. ^ Murnnj v. I'liUji, 18-13, (J 1). 1')!). ■■ C"oiiju-al I{i-,'lit8 Act, 18(]1 [24 & liS Vict. c. 8(i], vi 1!». >' 11 (U'u. IV. ,111(1 iWill. IV.c. (W. i^i? 33 anil 30. SERVICE. 317 i'l I. ActJ So where a defender admitted on record that he had left his lioine, had refused to live with his wife, and did not intend to resume cohabitation, the pursuer craved decree with- out leading evidence. But the plea was rejected.- Signing of Summons. — The summons in a consistorial cause may be signed either by a cleric of the Court of Session or by a writer to the signet.^ Service. — It is provided by the Conjugal Rights Act, § 10, that " in every consistorial action the summons shall bo served upon the defender personally, when he is not resident in Scotland: provided always that if it be shown to the satisfaction of the Court that the defender cannot he found, edictal citation shall be deemed sufficient ; but in every case where the citation is edictal, the pursuer shall also serve the summons on the children of the marriage, if any, and on one or more of the next-of-kin of the defender, exclusive of the children of the marriage, when the said children and next-of-kin arc known and resident within the United Kingdom, and such children and next-of-kin, whether cited or so resident or not, may appear ami state defences to the action."'* Such personal service nnist be by the delivery of the summons to the defender personally by a person duly authorised l)y the pursuer for that purpose. It need not be by a messenger- at-arms or other officer of the law.^ The person serving the summons shall return a certificate that delivery of it has been made. And the Lord Ordinary, if not satisfied, may call for further evidence of service.'"' Proof that the defender could not be found is not alwavs led. An affidavit to that effect by the pursuer's agent has been accepted as sufficient." If the defender have had a known address abroad, a registered letter should be addressed to him there, and the envelope of the letter if returned should be produced. And where there is no evidence tliat the defender is furth of Scotland, but it is shown that attempts » 13 & 14 Vict. c. :W, i^ 1(J. •» 24 & 25 Vict. c. 8G, .§ 10. '- Slilgh v. ,S'., 24tli May, 1893, per ■' 31 & 32 Vict. c. 100,^ 100. '' i !• Lonl Welhvood (not reported). ■'^ Ser 13 & 14 Vict. c. 30, .:^ IT); 31 i7. - Camphdl V. ('., 18.-)-l, 17 D. nil. ■^ jy Ernest i V. D'PJ., 1>^82, !) R. * Tlic form (if (latli is : At Ediu- l)in'ii;]i, the; iliiy of , In presmict' of the iron, bonl , conipuarud the innviiur , who he'lii^ solemnly sworn and examiiii'il dr cnhdiniid, depones that he (or she) lias jusi cause to insist in the jnesent at'tioii of divorce against the defender (liis spouse or her hushand), hecause he (or she) hidievesshe (or he) haslieen The oath may be taken to lie ;_;uill y of ailultery (or that she (or he) lias wilfully deserted him (or her)), and that the facts stated in his (or liei') liliel, which has lieen read over to him (or her) are true. IX'pom^s that there has lieen no concert or collusion between him (or her) and the said defender in raising,' this action in order to olaain a divorce, nor does he ((jr sIk') know, helieve, or suspect that there has heen any coucei't or a,^reement lietween any otlu'r person nn his (or her) hehalf, and the defender oi' any other person on her (or his) hehalf with the view or for tlu' purpose of oljtaininjj; such :'l ivi : ( f I 320 PRACTICE. ill retentis if the loursuer is going ubroad. And tliis may bo done akliough the summons has not yet been called.^ Where the pursuer is abroad and unable to attend, a commission m;iv be granted to take the oath of cahimny.- Identification of Defender. — Where the action is unde- fended, it may be necessary fur the pursuer's case to have the defender present in order to be identified by witnesses. And an order may be pronounced commanding his attendance. '■' The Lord Ordinary appoints the defender to appear at the proof on the day of next, for identification." A defender disobeying such an order may be compelled to attend by letters of second diligence, and may be appre- hended and brought in custody. In one case where such an order had been disobeyed, counsel for the pursuer proposed to show a photograph of the defender to the witnesses. This was objected to as secondary evidence, and the objection was sustained by Lord Fraser.'' Uut in a later case Lord Traynur declined to follow this preeodi'ut, and pointed out that it would be unjust to the pursuer to adjourn the proof at the last moment, and that the defender could not object to the use of secondary evidence, seeing the necessity foi' its use arose from his own fault.'' Res Judicata. — It was a rule of the canon law that a judgment against the validity of a marriage never becanii.' final. "Id in matrimonium speciale est, ut sententia in e(jii- (livurce. All wliicli i.- liutli, as the (leprnR'iit .^liall lUiswei' to God. (Signed liy imrsiKT and judge.) TIio (latli 111' ciluiiiny was tuniicrly adnuuistfieil in iion-cnnsistorial causes, and advocates had to swear to their Ijelief in tlie goodness ol their case hotli in i'act and law, a severe strain on tlie professional conscience. Anil the -Vet, 142!), cap. 125, enacts : " And gif tlu; principal partie he absent, tlie advocate sail sweare in the .saule of liini, after tis is contained in thir meters : " Illud jurctur, quod lis sibi justa videtiu'. Kt si (piarivtur veruni, non iiili- cietur. Nil pmniittetur, nee falsa pro- hatio detur. Ut lis tardetui', dilalio nulln l)etetnr.'' These mediaeval mnemonics are mis- printed in I'll III V. Laiiiij, 17 i). ()04, a case in which the liistury of the oatii of cahuuny may be studied. ^ Scott, ]8()(), 4 M. 110.3. '■^ Orih V. Miumn, 1840, 8 1). ry.ib. •' Grieve V. ({., 1885, 12 K. !)Gt). ' L. V. /.., 181)0, 17 It. 754. that a beciuue in coii- iioii inti- , s 1). r):3j. H. !)Gi). rni. '"^r CRUELTY r.EDUCTIOX. 321 jugali causa lata . . . uunquam transeat in rem judiei.+ai\."^ The reason appears to liave been that the spiritual Court would be encouraging a sin if it compolled two persons to live apart whose marriage might be proved to be lawful in spite of a former decision. The Church Court was concerned witli the spiritual weal of the parties, and its decisions were jn'O salute anbnac. This rule was not adopted by our law, or, at anyrate, was not recognised after the transfer of jurisdiction in consistorial Cinises to a purely civil tribunal.'- It is settled by the case of Lochycr that a decree in a consistorial cause is res jad'tcata, and stands until reduced. Cruelty found a good defence to an action of divorce for desertion, is not res judicata as a ground of separa- tion and aliment. — In an action of divorce by a husband on the ground of desertion, his wife successfully pleaded that she was not bound to adhere on account of his cruelty. She consequently raised an action for separation and aliment, and maintained that it was unnecessary for her to lead evidence as to her husband's cruelty, that being res judicata in the action for divorce at his instance. But this plea was repelled by Lord Frasor, whose judgment was adhered to.^ One of the crrounds assiyned was that the res was not the same, because less cruelty would justify non-adherence than would ground an action of separation. This, it is humbly thought, is doubtful, though su])[)orted by (Jicta in tlu' recent case of Maclcemie v. Miieheiizh'.^ But another ground given seems clear — viz.. that the defender in such a case should have an opportunity, if h(.' thiidc fit, of adducing other evidence than that which he produced in the previous case. Reduction. — The fact that evidence must be led for the pursuer in consistorial causes even where no defences are lodged does not prevent the decree being regarded in that event as a decree in absence. It may be set aside by a reduction, at anyrate within year and day.^ Lord Fraser ' Sanuliez, lib. 7, Di.qt. 100 ; Buri^c's Coinraentarics, i. liS;3, where the whole pasaa^'e is cited. ^ Lodijcr V, Fcrnjman, 1870, 3 R. 882, air. 1877, 4 R. "ill. 32. •" Stn\n v. .S'., 1882, 9 R. 730. ^ 1S93, 20 R. 036 ; sec JiiroUcal Ucricu; Vdl. v., p. 143. » ;Stcic. llatlit'iK'V, ill Lod-iirr, 4 1{. n.I.., at ]>. 3!), L. iilacklaini, at p. 43. ' /'. /■ ii. (iillunl in Lod-ii,i; 3 I'.., at p. 912; L.C. flainis, ihi JSrCillnm V. M'C, 18!)3, 20 .1 324 PRACTICE. tarily omitted hy the clefen, ]:] S. lODr;. V^r>,],i,'L. Low ; <•/. Fitlhrrivii v. /'.. ■ Tulloh v. 7'., ISfJl. •_>;} I). VuV.). 1873, 11 M. 720. ' ll'.ilbrv. Jl'., 1S71.0 M. lo!)]. '- Xicolson V. X., 1770, M. 12,030 ; i? '■ Mr a rccont his wife's in 1892, s not tlu' tiou with cv. The with liis n at till' t was not husband, ction was ( of Acts stated if is stated known to \ cause of inting to .ust liave (lifferoiit •t able to a(hiltery, I between )nths was 1 oof ;. ? 1). VuVJ. CHAPTER XXXVII. A SKETCH OF THE ENGLISH LAW OF HUSBAND AND WIFE. I HAVE thought it might be of convenience in a Avork of this kind to present in a few pages an outline of the English law of the subject. It is otten an advantage to know upon what parts of the subject the English authorities may be profitably consulted. Ami even the merest skeleton may be useful, as indicating in what branches of the law of husband and wife a general similarity with the law of Scotland may be expected. Constitution. — There is not now in England any form of marriage which is valid but not regular. In contrast to Scotland, however, there is now a form of regular marriage, purely civil, and without a minister. By the old law a Contract of matrimony, ^jcr verba de ijracsenti, or 'per verba de fatiiro, followed by copula, was to certahi effects binding, and either party could raise a suit in the spiritual court to compel the other to solemnise the marriage in facie ecclesiac. It was the opinion of many lawyers that it consituted com- plete marriage. But the contrary must be regarded as settled by a case of the very highest authority, in which the whole learning of the subject will be found fully discussed.^ By the statute of l7o3, commonly called Lord Hardwicke's Act,^ it was enacted that " in no case whatever should any suit or pro- ceeding be had in any ecclesiastical court to compel a celebra- tion of any marriage, in facie ccclesiae,hy reason of any contract of matrimony whatsoever, whether ^)(?7' verba de praesenti, or per verba de futitro." Irregular or clandestine marriages have, u » Tlie Queen v. MilHs, 1844, 10 C. and F. 534. - 26 Geome II. c. .33. 325 n 11 ill 32G A SKETCH OF THE ENGLISH LAW OF HUSRAXD AND WIl K. therefore, been entirely abolished in England. Their only effect would be to ground a suit for breach of promise of marriage. Regular Marriage. — The requisites are — 1. Consent of parties of proper ago — i.e., at least twelve in girls and fourteen in boys. 2. Where either of the parties is under twenty-one, and is not a widower or widow, the consent of the father or guardian is required.^ This consent is presumed after banns have been proclaimed or a licence obtained, and the clergyman will be justilied in proceeding with tlie ceremony if he have received no notice of dissent. But if he have received such notice from the jDcrson whose consent is legally required, the publica- tion of banns or ihe licence will be utterly void. And in that case it is a felony for the cleigyman to perform the ceremony ; and if the parties are awar'.' that there has been no valid publication of banns or licence granted, the marriage is null.- Want of consent of father or guardian does not involve nullity unless dissent be intimated to the clergyman after publication of hauufi, or :i a nraf lodged to prevent the issuing of a licence. A marriage will not be I'ound null on proof that at its date one of the parties was a minor, and that his or her father or guardian had not consented." But if one of the parties know that consent was legally necessary, ami has not been given, he or she may forfeit all property accru- ing through the marriage if the Attorney-General bring a suit for that purpose.'* In addition to consents, there must be either banns, or licence, or registrar's certificate. 1. Banns. — Banns are in Enghmd proclaimed on three successive Sundays. The clergyuian may, bat need not, insist on seven da3's' residence by one of the parties in his [)aiish before the first publication.'' The ceremony must be in one of the churches in which banns liave been proclaimed.'^ * For the nih's, set' 4 (Jud. I\'. c. 76, 5< 10. - 4 ( ;.•(,. IV. c. 70, i) 22. ^ The Klii'j v. Tkc Iiilinhifmit.-f of Biriniii'jhaiii, 1828, 8 Barii. and Cress. 2!). *4 Geo. TV. r;. 70, § 23; .w .1//.- Gni. V. MnJIvnj, 4 Hn.-s, ;?2'.) ; and Alt.-(l,n. V. C!niiiiil.<, IS7I, L.H 12 K(|. .'J 2. ■' 1 (ltd, I^^ f. 70, _::j 7 ; s, , ]"]vcr- slcy's " Ddiiiotic l{.dati(ins," j). ](iO, ' 4 (ii'M. IV. I'. 70, i; 2. I' 1,1 tic ( ~ LICENCE HEGISTRAH. 327 2. Licence. — A licence is a dispensation by a bishop, or some one having authority from him, to be allowed to marry without banns. A licence may be — (a) special ; or (6) common. (a.) Special Licence. — The Archbishop of Canterbury alone has th(3 right to grant a special licence. He inherited the power from the Pope.^ Tiiis licence costs about £30, and enables the parties to be married at any place or at any time within three months from its date, without the necessity of residing in any particular parish. (b.) (Jorinmrn Licence. — In each diocese there are siirro- gates appointed by the bishops, who have power to grant these licences. One of the parties must take an oath before the surrogate that he (»r she knows of no impediment, that one of the parties has for fifteen days resided within the pari.sh in which the marriage is to be celebrated, and if either of thorn requires the consent of father or guardian, that such consent has been given. - A false oath involves the same forfeitures as are incurred by the person who fraudulently conceals the fact that a con- sent, legally recpiired, was not given. ^ Where both parties knowingly and wilfully marry without due publication of banns, or a valid licence, the marriage is null.-» 3. Registrar's Certificate. — Where the j)arties desire to be married in a nonconformist }>lacc of wor.ship, they may obtain a certificate from a, registrar for that purpose, specifying the place of celebration. But the building nuist be registered for marriages, and the registrar must be present. The notice is exposed to view for twenty-one days. The procedure is statu- tory.'' And a clergyman of the Established Church may, if he choose to do so, marry persons who have obtained a registrar's certificate in i)reference to proceeiling by banns or licence." Marriage by Registrar's Licence. — Where the parties ' -2:, IKmi. VIII. c. lil, !^ 4, ■ 4 (W'o. IV. i: TC, 1^! M. ■' Ihld., ^ 2.'}. ^ Ihld, ^ '22. ^' 1!)&20 Vict. c. lliJ. " Ibid., ^! 11 ; ■•^'c 11. v. Jamc,«, IvS,")!, 3 ('. and l\. 1G7, when; a i.lei;4yiuan imlictrd for refusing to marry was ac(|uittf(l. 1 0^ : 4 ! I 1 328 A SKETCH OF THE ENGLISH LAW l)F HUSBAND AND WIFE. desire to be married without any ecclesiastical ceremony they may obtain a licence from the registrar. A notice must be delivered to him, declaring that there is no impediment, and that the party giving the notice has resided for fifteen days in the registrar's district. One clear day thereafter the registrar may grant a licence.'' The parties may then declare their mutual consent to be man and wife in the presence of the superintendent registrar, and some district registrar and two other witnesses. Wilful misstatements by the parties in the declaratidii involve the pains of perjury, but do not render the marriage null.-' Jews and Quakers. — Members ef these religious conuiumi- ties are permitted tu marrv according to the forms in use among them. Their marriages were even at common law accounted valid, and have since received statutory recognition.'' Dissolution. — Until the year 1857 no Engli.sh Court of law had power to pronounce a decree of divorce a vinculo. The only mode of obtaining a dissolution of the marriage was to get a private bill passed through Parliament. The Ecclesiastical (*ourt ])ossessed sole jurisdiction in matri- monial causes, ami had power to pronounce decree of divorce a mensa d thoro, corresponding to the modern decree of judicial separation.' In 1857 the jurisdiction of tlie Ecclesiastical Court was transferred to the Court of Divorce and Matrimonial Causes,'' now the Prol)ate and Divorce Division of the High (^ourt of Justice.'"' Divorce. — Under the Divorce Act" the marriage may be dissolved on the ])etition of either husband or wife. Where the husband is petitioner, it may be on the ground of the wife's adultery. Where the wife is ])etitioiier, it may be on the J 1!)& 20 Vict. c. 119, |:;i5 T) uiid (i. '^ Hohiu's y. Siminonn, 18f!8, L.U., 1 P. and 1). f)23. •' Qiucii V, JMilliti, itiijini; (! iV 7 Will. IV. c. 85, §i< 2, :5f); 3 ^^ 4 Vict. c. 72, § 5; 1!) & 20 Vi,t. .. ll!i, i^ 21 ; 23 Vict. c. 18; 3.') Vict. c. 10. As to Ji'wi.-li Jiiiinifi,L,'c's and divoi'L'L'.«, Hce Mo»s v. SndHi, 1H40, I .Man. an. 1 Cr. 2:?2. •• l''iir till' liistniy, scr Mac(|Ui'i'nV "Law (if Iln:-baiid" and Wil'iv' 3i'd Ed., \)\\. l"i-l Hiq. •' 20 & 21 Vict. c. 85. '■ ;5() & ;}7 Vict. c. Cd',!^!^ 3,34. As to ajipcals, .s'M 14 & 45 Vicl. c. HH, V-i 20 Ov 21 Vict, c, 85. t-IS DIVORCE ACT. 329 ground that be has been guilty, since the marriage, of incestuous adultery, or of bigamy with adultery, or of rape or of un- natural crime ; or of adultery coupled with such cruelty as would, without adultery, formerly have entitled her to a divorce a menf^a et thoro from the Ecclesiastical Court ; or of adultery coupled with desertion without reasonable excuse for two years or upwards.^ The Court cannot decree divorce if the peti- tioner (whether husband or wife) has been accessory to, or connived at, or has condoned the adultery ; or if the petition is presented or prosecuted by collusion. But collusion to operate as an absolute bar must be in reference to the particu- lar petition presented.- The Court is not hound to decree tlie divorce, if the petitioner has been guilty of adultery dur- ing the marriage ; or of unreasonable delay in the petition, or of cruelty to the other party ; or of desertion or wilful separation from the other party before the adultery and without reasonable excuse ; or of such wilful neglect or misconduct as lias conduced to the adultery,'' Tiic decree of divorce is first a decree ni>^i not to be made absolute in less than six months, and then only on the applica- tion of the innocent spouse.' During this interval any person may show cause why the decree should not be madc^ absolute, either by reason of collusion, or of some material fncts not brought out at the hearing ; and on cause being so shown, the case shall be dealt with either by making the decree absolute or by reversing the decree nhi, or b}' requiring further inquiry, or otherwise, as justice may requiri'.'' On decree of dissolution the Court possesses a power much to be desired in Scotland of varying ante-nuptial or post- nuptial settlements, and making such order as shall seem fit with regard to the application of the whole or a portion of the property settled, cither for the benefit of the children of the marriage, or of their respective jKireiits." ' 20 & 21 Vict, c 8,-), 5^ 27. - Jiuthrv. Ji. [18'J3], l\ 18-). 3 20 & 21 Vict. c. Sn, § 31 (UiHiiiiiijion V. ('., 1 S. ami T. 47r) ; lUiilis V. K, L.ll., 1 P. an.l D. 395. Uhi»,'ii\. <)., 187;'), 1 P.l). no. ■^ 23 .(((/y, iMCiS, L.H. douM.n v. ^'. [1S!)2|, I'. 1 (crui'lty 3 Cli. App. 220. by wilV). - Jiiirloi, V. Sturgeon, 187(! (('.A.\ " ■' Ilnd, ^ 25. 2 Cli.l). 318. ' Ml iS: 42 Vict. c. l'.>, |^ 4; .-■-, ^ Jiohirhun v. Vi'., 18S3, 8 I'.D. Moo./,, v. ir.. 1884, 10 I'.U. 172. !)4. ^D WIFE. ot, as ill riuioniul n at lira l >iiuptial ssolution Court as ,se, allow be left and has )urt(.'d ])y who is divorced 1 may be b, on the lesertiou its eoii- i various I by the jcen coii- lU nut bi' laijistrate ified that nder this 'paratioii, pay such ;ans, and iidcr ten. ftunls thr tion and d to tlu' ^5, i; H!; I (cnitlly ', 1^ 4 ; ,v, ™ ML'TLAr- PATIIIMOXIAI. IIIGHTS. 881 Rights of Wife in Husband's Estate during Marriage. — Neither at common law, nor by the ^larried Women's Property Acts, docs a woman acquire by marriage any rights in her husband's estate, except, oi course, that of being maintained by him. Rights of Husband in Wife's Estate during Marriage. — The English Married Women's Property Act, 1882,^ much more sweeping than the Scottish Act, entirely abolishes all the husband's rights in his wife's estate during coverture. To the extent of her separate property, a woman married after January 1st, 1(S83, or if married before then, to the extent of property acipiired after that date, is as completely mistress of her fortune as if she had remained unmarried. She may contract, sue, and he sued, as a feme sole, and may dispose of her estate, whether real or personal, either by deed or will. The position of the husband at common law was on the whole similar to that of the Scottish husband. Chattels personal in possession — i.e., moveables in hand such as furniture, jewels, cash in the house, &c. — passed at marriage absolutely to the husband. Her chutes in action, on the contrary, did not pass ipso facto to the husband. Under this expression fall & 4n Vict. c. 75. -^ I'ltrdcH- v. Jachon, 1 Pu^^s. 1. - If ill V. Foldj, -2 ILL. I'as.s, 2S. ' ."NLininwii, IL and W., ,3nl Ed., Ill /v hniilwrr.^ /vs'/((^, IHH!'., ;}:> \\ -21. Ch.l). (L'C. ill Mi ivr U' n\i HI 332 A SKKTCH OF THE ENGLISH LAW OF HUSBAND AND WIFE. hold estate of inheritance not settled to her separate use, the husband took a freehold interest in it. Before the birth of issue his interest was commensurate with the joint lives of himself and his wife. After the birth of issue he became tenant by the curtesy. During coverture, his interest was styled tenancy, by the coverture initiate ; after the death of the wife it became tenancy, by the curtesy consummate. He could charge or alienate her lands for their joint lives, but could not affect them beyond the period during which his interest lasted. The rents and profits went to him. Without his consent the wife could not burden <;(! iilt.soiiuI L-state, and Hiik's of (,'oiut, livWt v. 7'./0(t DccuiuWr, 188:2, Mac(|iiL'L'ii, 72. See also 20 & 21 Vict. c. rj7, as Ajiiu'iulix, 451. to a maniiMl woman's power to dis- - Hope v. //. [18!)2], 2 Cli. 33(5. LIABILITY FOR ANTE-NUPTIAL DEBTS. 333 The law now stands as follows : — 1. Where the marriage was before 9th August, 1870, the husband is liable in fiolidiini for his wife's ante-nuptial debts, and in respect of contracts entered into, and torts and breaches of trust committed by her before the marriage. 2. Whore the marriage took place between 9th August, 1870, and 29th July, 1874, both days exclusive, the husband is completely released from liability for his wife's ante- nuptial debts, whatever fortune she may have brought him. The creditor's remedy is confined to the wife's separate pro- perty to the extent of which she is liable.^ The husband's liability for her torts and breaches of contract was not changed.-' n. Wliere the marriage took place between 29th July, 187'}', and 1st January, 1883, exclusive, the husband's li;il)ility for ante-nuptial debts, contracts, and torts of the wife was again put on the same footing. It was in all cases limited to the extent by which he was lacratus by the marriage.' 4. The husband married on or after 1st Januar}-, 1883, is liable " for the debts of his wife contracted, and for all con- tracts entered into, and wrongs committed by her, before marriage, inchuling any liabilities to which she may be so sul)ject under the Acts relating to jt)int-stock companies, as aforesaid, to the extent of all pvuperty whattioevcr helomjuKj to his ii'ifc, 'which hi' sltall have acquired or become entitled to from or throv'jli his wifc:^ The Court may direct any ini[uii'y which it may tliink proper for the purpose of ascer- taining the nature, amount, or value of such property. As the husband now acquires none of the wife's property in virtue of the niarria ' II ! I ! 334 A SKETCH OF THE ENGLISH LAW OF HUSBAND AND WIFE. her separate use under the Acts liereby repealed or otherwise, if this Act had not been passed." ^ Liability of Husband to be placed on List of Contribu- tories in respect of Wife's Shares. — It would appear tliat tlie Act does away Avith the liability of a husband to be himself placed on the list of contributories of a company in which his wife holds shares, if she was married after the Act.- The English statute, like the Scottish, is not well drawn, and leaves in doubt many questions of great importance. It would appear that the married woman is not personally liable, not being subject to bankruptcy, except when carrying on a trade separately from her husband, and tlu'ii only in respect of her separate estate.'' A married woman having separate estate, and an unsatistled judgment against her, but not trading se[)arately, is not subject to the bankruptcy laws.' This being so, it would probably follow that property accpiired by her after the dissolution ol' the marriage, is not liable for her contiains or torts entered into, or committed during the marriage.^ For this pri)perty never had the quality of ".separate property," which always refers to property held by a married woman during coverture. Liability of Husband and Wife respectively for the Wife's Contracts, Torts, or Breaches of Trust during- the Marriage. Tiic husband's liability for the contracts of the wile as piU'jfosita iu'(;,n(,'s do)ii€sticls is the .same in England as in Scotland. Wife's liability in contract. — A wifi' may now render her- self liable on any e(jntract, a term which includes acei'iitanee of a trust or of the oflict' of executrix or administratrix.'' And "every contract entered into by a married woman shall hv deemed to be a contract mtcied into by her with respect to, ' ,•:• \:i h; cii.l)., ai }.. (U\± - Ex p'lri, ll'iirhu. |S7!), IrjCli.D. ' /;, (i, ml inn; r.i: pari' Cnnl..,,,,. ■284 (■•tli I'M., ji. SOI), and ji. 42). ■'>'.■, /';/,-. v. l-'n-jjlhlxm r..\. . "' ^ 1 (5). N,r iriiiarks (.r .Icssi'l, 1881, 17 • 'li.l ). \:>\. .M.I'., ill l!nhiii.e!ir that id to be iipany in the Act.'- fivn, and lice. It ly liable, ing on a I respect separate but not cy laws.' acquired liable i'or .iring the uality of leld by for the ring the wil'e as [111 as in kIl'T lier- xH'ptanee :.'' And shall hv spect to, ENGLISH wife's CONTRACTS. 335 m tc (JoiiImiii, ,<,n ('.A, . 1. and to bind her separate property, unless the contrary be shown. ^ A wife purchasing necessaries for the household is still pre- sumed to do so as her husband's agent, and such contracts do not affect her separate estate unless it is proved that it was to her that credit was given. But in contracts in which the presumption that she is her husband's agent does not arise, she is now taken to bo con- tracting in respect of her separate estate, unless she can prove the contrjiry. She is not personally bound, and she is not liable to imprisonment under the Debtors Act, 18G9, >!} 5, for default in payment of a sum due under a judgment." But her capacity hinges on the question whether she had separate estate at the date of the contract.^ And it must be separate estate of such nature and amount as she might reasonably be supposed to have intended to bind. Every married woman possesses some separate estate. But if it is merely her wedding ring or her personal clothing, she will not 1)0 presumed to have contracted on the faith of these assets.* There must not bo an unreasonable disproportion between the value of the separate estate and the sum due on the contract. Thus where a wife ])ossessed only £3 or £4 in hand, the fruit of her separate estate which was subject to a restraint on anticipation, it was held that she was not liable for a mort- gage of £400 executed by her and her husband.-^ It would appear that a married woman entitled to an income subject to a restraint on anticipation is not capable of contracting on the faitli of future income. The debtor must show that she had such a reasonable amount in hand at the ' 15 I, sul)-sectioii .'3. - Scott V. Mnrhij, 1SS7, -20 {).\)A). 1 -20. ■' I'cdliMi- V. (Iniiu'ii, 18S7, li) t,).ai). 51!); Stoiidon v. Lm [18!)1]. 1 Q.15. 0(51. ' L, ilk v. Dritju Id, 1880, 24 Q.J 5.1). :)8 ; sm' iilso Jlan-i^oH r. II., 1888, 13 IM). 180. A bill hiis l.rcn intm- iIikimI in tliL- piv.SL'iit ••^L'.^siou t) loiiuily till' iiijuslici' ijl' Iho (existing law ill this matter. Il provides tliat the eoiitracts cif a married wnmaii sliall not lie invalid because she had no separate estate at the date of the contract, and shall bind her separate property subse([uently aeijuired. But tliis will not render availalile to .satisfy the debt property subject to tlie re.-lraiiit on anticipa- tion. ■■ Bi-(iiinMciii. v. LriiiK, June 2, 1891, 7 Tiims' L.R. oUO. I I t; ; ft i i 1 i 11' Ii ; f'i I i 5 '!l '. ■' I i It IE") iS 33G A SKETCH OF TFIE ENGLISH LAW OF HUSBAND AND WIFE. date of the contract that she might be supjjosed to bo coii- tracting with respect to this sum.^ Jewellery and dresses and furs worth £200 may be separate property to the effect of validating a contract.'-' But not alimony.'' If the married woman had no free alienable estate of a nature and amount which makes it not umvasonable to assume it was with the intention to bind this property that she made the contract, the contract is bad. The fact that at the date of the action she has separate estate acfiuirfil subsequently to the alleged contract is immaterial. If the contract was good ah initio, this subsequently acijuired proi)L'rty is liable. ' Ihit if shu had no separate property in the meaning of the Act at the time of the alleged contract, she had no contractual capacity and cannot be made liable because she has at the date of action acquired capacity in virtue of estate which has subse(iuently accrued to her.-" Torts. — A husband by the law of England was always liable for his wife's torts committed during marriage. In Scotland, on the contrary, his liability for her delicts is only when he himself participatetl in them or they may be pre- sumed to have been done; by his authority. The liability of an English husbanixhiii, April Hi, 1891, 7 'Ames' L.l?. 40;^ 2 lUiDVin- V. Lyou, May S, 1800, 38 W. 17.541. ■! Auihr.'iini V. //-(;/, Nov. 2C, 1800, 7 Timrx' L.E. 113. ' ' ij 1, sub-81'ctiou 4. ^ PdllisiT y. GiiiHdj, siijini. 8 Seroka v. Kattaihitrg, 1880, 17 Q.n.T). 177. ^ .S'(;ro/.((, siipni. lND wife. ) be con- esses and effect of married 1 amount with the contract, he action e alleged lb ruitlo, f slie had lO time of icity and of action iso(\ueutly as always iago. In ts is oidy y be pro- inbility of ■il bv tlic )hl law a could niit husband. 1 she may of Trust. adminis- |t. If she isti'd the was liable. ■ij, 18.s(j, 17 LIAUILITV OF WIFE TO ATJMEXT WILLS. 337 By the Act of 1882 .she is enabled to accept any of these offices without the consent of her husband, and he is not liable for her breaches of trust or devastavits unless he has himself acted or intermeddled in the trust or administration.^ A married woman, who is now executrix, administratrix, or trustee, is liable to the extent of her separate estate for her devastavits, and may sue and be sued, and deal without her luisband's concurrence with the trust estate, in all respects as a feme sole." Liability of Wife for maintenance of Husband and Children. — A married woman having separate property is bound to maintain her husband to the extent of preventing hhu l)ecoming a pauper.^ She is also bound to maintain her rhikhen and grand- children, " provided always that nothing in this Act shall relievo her husband from any liability imposed upon him by law to maintain licr children and ''randchildren."'* This probably means that she is only liable, secundo loco, and that as long as her husband is able, ho must maintain tlie children and grandchildren, and can clnim no relief from her. Wills of Married Women. — A married woman had formerly no testamentary capacity to dispose by will, either of her real or her personal estate, except when it was settled to hor separate use. As to realty the Statute of Wills'"' excepted wives, anfl the exception was [)reserved in the AVills Act.^ Her will, purporting to dispose of her estate which was not settled to her separate use, was only good if her husband assented to it, and survived her. And he could revoke his consent after her death, but before probate.'^ By the Act of 1882 a woman married before 1st January, 1883, can dispose by will of any property belonging to her at mai-riage, and a woman married before that date can dispose by will of any property, her title to wdiich accrued thereafter.^ The scope of the Act is limited to " separate property," and cannot be extended to pro2)erty which she acquires after the 1 45 & 4(5 Vict. c. 7'), 5^ 24. - ^S 1«, 24. •!. nso ; ill n- Cuiio, Man.eforc that [ucath the vidow and ■f intestate estate on entitled to will. His s next and Edw. III. jarate pio- luT sr[)ai- •V .separate •liient ui' it will. Hut which the s .separate ) took her olution ot nalty, now le old law, itativr the suuld have ,S Stli Ivl. i. I'ilc, 1888, -.'/,) wife's IIIOIIT.S OF SUCCESSION. 330 been .subject to if living, and if he takes her estate nuist pay her debts. His liability i.s limited to the amount of such estate.' (b.) In Wife'fi real Estate. — By the common hiw the husband was entitled to an estate for hi.s own life as tenant by the curtesy in his wife's freehohls of inheritance. There are four conditions — (1) marriage; (2) seisin of the wife in fact if that were possible, in law if actual .seisin had been unattain- able ; (3) the birth of a living child ; (4) death of the wife.- Whcn the wife's real estate was not held for her separate use, .she could not defeat the curtesy. When it was her separate estate it was in her power to dispose of it free of the curtesy, and it was onlv on intestacy that the husband's rifdit became indefeasible. The Act of 1882 makes her real estate separate property, and tlie hu.sband will still bo entitled to curtesy out of it, unless she disposes of it otherwise by wi'l.' In (Mipyholds there is no curtesy except by the cn.stom of the manor; and in gavelkind curtesy is of only half the lauds, and ceases on re-marriage. It arises, however, without the birth of issue.' 2. Wife's rights of succession in Husband's estate on intestacy. {a.) In I[asb(t,nd's /xi'soaal Estate. — The widow ijf an intestate takes by the Statute of Distributions'^ one-third or one-lialf of his personal estate according as he does or does not leave children. To make a better jnovision for the widows of poor intestates, it was enacted by the Intestates' Estates Act, 181)0," that where an listestate husband left a widow but no issue, and estate, real and personal, not exceeding jjoOO, the widow should take the whole. Wher(> the estate is above £500, the widow in the same case is to have a charge tor jC-tOO. The above provision is in addition to her share in the residue, if any. (/>.) In Ilnsbund's real Estate. — Dower. — She is also entitled to a lih^ interest in one-third of the hereditaments belono'ing ' 45 & K; Viot. c. Tf), i^ 23; X//*-- niidi V. Ii'hii [1801], 1 (>.?.. 4:)1. -S'C, Stc'iilu'ii's Coinnu'ntavios, lOtli E.l. i. 2fil. ■^ Hope V. //. |18!)2], 2 I'll. ■■V.W. ' r.lackMoiif, ii. 128. ^ 22 .^ 23 Car. FI. r. 10 1 .Tac. II. r. 17, ;> •■ y.i Si ■)4 Vict. c. 21). w i I "' 1 il ;H I f! U4 340 A SKETCH OF THE ENGLISH LAW OF HUSIJAXI) AND WIFE. to her husbaud in fee simple or fee tail at law, or of an estate of inheritance in possession of which her husband was the equitable owner, which her issue, if any, might by p(jssi- biiity have inherited. But this right may be now barred by any deed of the husband or by will, and dower has become of little practical importance.^ Dower is also barred by acceptance of a jointure.'- lu copyhold lands there is no dower except by custom. In manors where the custom exists, the widow's right is called free-bench. It may be a life interest in a third, Init is some- times of the whole, of tlie copyhold lands, and is often only during viduity and chastity. The same limitation obtains in gavelkind lands. Here the dower, like the curtesy, is a lite interest in one-half the lamls.'^ The right to dower is lost by divorce although at tie instance of the wife, or by lier adultory and elopement.'' 1 Dowur Act, 3 & 4 Will. W c tiniis, p. •,)■,{■,. 105. '• Fi"nij,(im v. >7,y//»t'/(.s 1882, '21 - rhjhv. nuiiltll, 2])., y\. iUh] C. fh.D. KM; SlJiUii V. S., ;>, WW. 209. :]7(;. ■■' Si'A Ever..)]:]■ Lou- v. />., IS!)1, 1!) 11, per 1 M., ill \>. WM; i»r ]i. Cnwaii, L.J.C. Macdeiial.l, at p. 120. (Iclivi'iin^' jud.HiiiL'iit of ('nuvt, ihid., -St. i. 4, i) ; Kr.sk. i. 2, 21 iwk j at \K lliJS ; saiiii' case in II. el' L., I'.ell'.s Piin. ii, \:^'M ; Fr. ii. 8G7. 18(;s, (i M. Il.l;., ^i,c('ainis, L.C., at -^Tunurw 'n<>,„^,^o)u 1888, 13 p. 72; p,r L. ("nloii.siy, at p. 7!); I'.D. .^7. ,S7(W V. N., 1888, \b H., /)rc In-h's. ' ^^Vc /*.;• L. Kldon in L'lshhtix. LP., at p. !)11 ; /(.)• b. Minv, at ].. Itog, 1804, 4 Pat., at p. (U7. For 012; y«r Ti. Slianil, at ]>. !)13 ; 117/- the otlVctH of the dia?ii,'i' on the ,s'))/ V. M'., 1872, li.H., 2 P. and D.. rights of the spou.«os, sti; //(/n(. y^clj, i'en/ani'c, at p, 4 14 ; t'liran-JI n 1 1 :-J i. ; 1 1 1 ./ ' ' 844 PRIVATE INTERNATIONAL LAW, 111 Stair's words, " her abode and domicil foUowetb his." ^ Even when she has been judicially separated i'rom him a mensa ct thuro, it is not certain that she can acquire a donucil for herself.- In a leading case Lord Brougham expresses the doctrine thus : " For actual residence — residence in point of fact — signifies nothing in the case of a niaii'ied woman, and shall not, in ordinary circumstances, be set up against the presumption of law that she resides with her hus- band. Had she been absent for her health, or in attendance upon a sick relation, or for economical reasons, how long soever this separation de facto might have lasted, her domicil could never have been changed. Nay, had the parties lived in ilifferent places, from a mutual understanding which pre- vailed between them, the casj would still be the same. The law could take no notice of the fact, but must proceed upon its own conclusive presumption, and hold her domiciled where she ought to be, and -where in all ordinary circumstancrs she would be — with ht.'r husband."'' So, in one case where a wife had separated from her husband, and lived in Paris for thirty years, until her death, it was held that she could not have acquired a French domicil, dit'terent from that of her husband.' Even the fact that the husband's motive in changing his domicil is to obtain a divorce, on a ground nt)t recognised by the law of the domicil which he ahandons, makes no dit'l'ercnce, except in so far as it may make the Court in([uire more anxiously into the facts behn'o concluding that he has truly changed his domicil."' " If ho comes here," it was said, "and makes Scotland his home — comes an'niu) rcnidve/iKli — then the domicil is changed not only for himself but for his wife. And I know of no exception to that pi'oposition. For it is not the case of a std)stitution of one country tor anotlu'r for himself alone. His household are subject to the change. It is h' ,,ic that he changes, and his wif(! must change with him."" It is not e(|ually clear that the Court of tlu' fornu'r domicil would be bound to recoiiiiist! the divorce as valid, and ' St. i. I, :) ; \r,irriinln- v. M'.. lS3r., 2 S. ami M. 151 ; Di.w, |,. lo7 ; l'.i.-lin]i, i. 1711. '^ Iiifnt, iii'Xt si'ctidii. ■' ir<,hf.< srttli'llirlit, 1 Sr.S, 2.") Iiciv. irio. ■ Cirsinll V. ('., 1881, 8 !{. !)i)l. '■' //'/./., i>. Kiiii^f^dowii, ;it p. 420; and V. J'\(r,n<\ IHXO, (I P.D., at p. 47, ami fi r C'anipbL'll, L.C., at p. 4-J3. IVar- jicr C:itt(iii, L..T., ihid, at p. 4!); ranhv v. 11'., 2 S. and M'L., jiot L. pcrL. AVc-tliiii'v in I'lll v. /'., ISdt, ]'.hiUL,diinh, at ]>. IDG: L,itr v. L., . Mai'ii., at p. (MO ; y/, *• llannni, J., IS!)1, 11) li. 115; sic Wustlaki', in /;,7;/,'/,< v. ]',., IKsQ, ,^) IM)., at p. p. ;?()2. icr); Diiry, p. 2:5!), and s,c wfr<(, :' /.. Sii, tir v. J.c S., 1870, 1 P.D. under Jni'lsdictidii. I'.V.h - /W/»/,o( v. /.'»./-/»,.•, 185!), 7 H.L. ^ i:,',ldi,i'j v. 7.'., 1888, 15 \l C. 31)0 ; //, /• ii. ('ran\vortli,at p. 117 ; II '^2. tHtMlli ll ( ■ ■ 1 h i! I- 1 i « i' \ m I 346 inUVATE INTEHNATIONAL LAW. J., iu a recent case: " In such a case, if the substance is looked at and not the form, it does not matter wliether it is said that a wife can ao([uire a separate domicil for tliat purpose, or that residence short of domicil under certain conditions shall entitle tlie wife to institute a suit for divorce." ^ The rule that after a cauye of action has arisen the wife is entitled to her remedy in the Scottish Court, although the hnsbjvr^ -as subseipiently changed his domicil, is admitted in thir c . - but this does not iniply any capacity in her tti acqui. : c^ «. miicil of succession distinct from his if she does not apply to the Court for a divorce. In JJni ^>iv ' '^ohhii^, Lord Cranworth suggested that it was possible a w iie -v.-.x} acquire a separate domicil "when the husband has abjured the reahn, has deserted his wife, and established himself permanently in a foreign country, or has connnitted felony and. been transported."^ I}ut Lord Kings- down was clearly of an opposite opinion. ■* In a ]"toor law case it WiS 1 eld liy a majority of the whole Court that a deserted wife could not acquire a settlement in any parish different fr un that where the husband's settlement was at the time he left the country.' There are (h'cta in this case opposed to tlu' view that a deserted wife can change her domicil. " But such a case depentls on considera- tions of residence and not domicil, and the argument that the wife had power to acquire a uvw settlement was pressed against the wife by a i)arish seeking to be relieved from the obligation of s-.qiport.'' 'i'his case, therefore, has but a distant application. Where there has been a judicial Separation. — It is not definitely si'ttled that even after a decrci' of judicial sepaiation a wife has the ca[)acity to aeipiire a domicil distinct from that of her husband. Lord Fr.iser thiidvs .she can do so.^ It would seem a curious result if it should be held that a 1 ff>in;n V. F P.l)., at p. 157. '^ Jtiililinr/, .•;)'//)•('. <'/. llisliiip, K(l. I>S!)1, ii. .I-):) iinic, an. I //(/m, nmlt-r Jiu'lsdiction. ■ 7 H.L.C;., fit \>. 41'.). < Ihiil., \K liio : ,;. Wrstlalu'. ji. 302. ■■ dray v. Fowlu, 1817, !) D. Sll. «/S'.f per L.J.C. IToiic, at ]>. S21, iiiid jM'i- Ls. Ivory, ('(H'kbuni. ami Miuniy, at \). 824. " ,SV<" /vr L.J.C. iro]K', at p. 821. ^ ii. !t07 immI 12r)4. ; is looked said that io, or that all entitle lie wif'u is lOUgh the initted in in her tu she docs d that it when the wife, and ry, or has •d Kiu<''s- the wluik' ettlement hnsband's There are 1 wife can considera- that the s pressed from the a distant -It is not reparation from that so;^ It d that a ,9 T). sn. , at !>. S21, kburii, ami at 11. M21. DOMICIL OF WIDOW, 347 husband who, after the decree, has no right to compel his wife to cohabit with him, and has no interest in pro- perty subsequently accruing to her, should have the power to change her domicil and subject her estate to a foreign law of succession. After the separation siie may sue and contract as an unmarried woman, and it is thought she is free to acquire a domicil for herself,^ But the (piestion has on several occasions been expressly reserved by learned judges.- In Dolphin v. Robin--'; Lord Cranworth seemed in favour of admitting the wife's capacity and Lord Kings- down against it, but the point was left open. Phillimore, J., in a more modern case, has expressed an opinion that even less than a decree of separation may entitle the wife to acquire a new domicil.'* j\[r. Westlake and Mr. Dicey regard the ques- tion as still unsettled.* Domicil of widow, divorced wife, or wife judicially separated. — It is hardly necessary to say that the mere fact that a woman is free to choose a new domicil infers of itself no abandonment of that which she shared with her hus- band at the date of his death, or of the divorce or separa- tion. Until siie abandons this domicil it will still adhere to her.'- Summary of following Chapters. — The questions of private international law treated of in tlie following pages may be thus summarised. What law W'ill be applied in the Scottisli Courts in deter- mining : — 1. The capacity of persons domiciled in Scotland to contract a lawful marriage abroad, and the capacity for contract of a married woman resident in Scotland. 2. The forms required for the solemnisation of a valid » Sec ('oiijutj;al Rights Act, 18()1 [24&25 Viet.c. Hn],\!< 0. - Per L. Ht. LuniKU'ds, in Warremhr v. If'., 1&35,'2 S. and M'b., j)i7- L. Brongliam, at p. l!)4 ; Dicey, p. 108. rm :|!l 11 ^i .Hi ft-Ml i !■ h! I 348 PRIVATE INTERNATIONAL LAW. marriage abroad in order to entitle it to rocognition in our Courts, and the requisites for the validity of a marriage by foreiijncrs in Scotland. 8. The effects of the marriage, including the patrimonial rights of the spouses, and the legitimacy of children, and the modification of these effects by a subsequent change of domicil. 4. The jurisdiction of the Scottish Court in matrimonial tjuestions. i ion in our arriagc by )atrimonial n, and the change of latrimonial CHAPTER XXXIX. CAPACITY. By what Law is Capacity to be determined? — The picsi'nt position of the law on this subject is one of much uncertainty, and the cases are difficult, if not impossible, to reconcile. Somewhat different considerations arise in the three different classes of cases which may present themselves. These are : — 1. The contracts of a person in a foreign country who is in minority by the law of his domicil, but has attained majority by the law of the country in which the contract is made, or conversely. 2. Contracts or alienations of her estate made by a married woman abroad, which she would be competent to make bv the law of her domicil, but which a married womaTi domiciled in the i^lace of contract could not mnke, or conversely. 3. Marriages entered into outside the domicil between parties who are disabled from intermarrying by the lex domicilii, hut who could lawfully marry if they were domiciled in the place of celebration. Tiio cases which have occurred fall almost exclusively within the last category. It is, however, obvious that in this class of cases the reasons in favour of allowing the lex doiniclUi to prevail are much more cogent thai' in the two other classes. It is reasonable that the country in which per.sons are domiciled should claim the right of fixing the age at which they may alter their status by marriage, and of determining within what degrees of consanguinity or affinity the nuirriages of its subjects shall bo forbidden. But it may well be doubted whether the decisions, to be adverted to immediately, with regard to marriages celebrated abroad 349 \n\ M: , ii« [!,!! 'I 350 CAI'ACITV. betwccu pcrsous who are within the prohibited degrees by the hxw of their doinicil, really involve the (question of capacity at all. A minor is incapax l)ecause in the eye of the law he has not arrived at maturity of judgment. A married woman is under certain disabilities because her legal persona is .sunk in that of her husltand. But a Scotsman who marries his deceased wife's sister in Denmark, or a Portuguese who marries his first cousin in London, is not under any legal disability of a like nature. Unlike the minor he is as capax with regard to contracts generally, as are the rest of his adult fellow-countrymen. Unlike the married woman, ho has not voluntarily renounced any part of his contractual freedom. He is simply entering into a contract which the law of his Dwn country has expressly prohibited and declared to be ineffectual, whatever view may be taken of its legality by the law of the country in which it is attempted to be made. Tt is perfectly j)lain that any country is entitled to prohibit the marriages of its subjects with certain persons, wherever celebrated, and equally plain that the foreign cointtrv may regard or disregard the prohiljition as shall seem to it to he right. It is well said by a recent writer : " If the wisdom of our legislators should impel tin in to it, Parliament at \V(\stmiiister couhl to-morrow pass a law inilicting extreme penalties on all who had at any time previously gandiled at Mo)it(,> Carlo ; and the English Cuurts of law would presumably bo bound to enforce the penalties when an otfendei' was brought before them."' When the validity of sueh a prohibited marriage is called in (piestion in the Courts of the domicil of the parties, at least when the di')mieil of both is the same, no point of private international law I'eally arisL's. The only (juestion for the Court to decide is whether the prohibition is intended ro have effect beyond the territory. The solution ol' this difficulty may be songlit for in the words of the enactment, where the prohibition is statutory, as, i:.;/., in the case of a marriage in breach of the Royal ilarriage Act,- or in the grounds for the prohibition when it rests on common law, as in Ihvok V. Brool','^ where the view taken was that marriage ' i'igLfotl on ExlLTrilDi'iiility, \i. •"). -' Sussex I'ecrage Case, 1844, 11 C. iiiil r. s,"), ■' isci, !) ii.L.c. id:?. logrces by uu.stlou of the eye of jmont. A e lier legal Scotsman lark, or a on, is not rnlikc the nerally, as lie niarricd irt of his a contract prohibited )' be taken 'Inch it is ly country jects with plain that )r()hil)ition •y a recent cl thi'ni to uss a law any time ish Courts ' penalties I' is called parties, at • point of (piestion 1 intfuded I (if this nactment, case of a or in the on law, as marrmge PROIIllilTEI) MAlllUAflKS. 351 with a deceased wife's sister was regarded by the law of England as " contrary to God's law," and could not therefore be thought to be prohibited merely within the territory. Lord Cranworth expresses the same doctrinu in Fenton v. Lluinjstont', where he sovs : "Where it has been the policy of the law in any country to prohibit marriage in any particular circumstances, the prohibition attaches un the subjects of that country wherever they may go,"^ There is this further consideration in regard to marriage, that even looked at merely as a contract, it is a contract which is to be performed in the husband's doniicil. The doctrine laid down l)y Story is well recognised in our law. " But where the con- tract is, either expressly or tacitly, to be performed in any other place, then the general rule is in conformity to the presumed intention of the parties, that the contract as to its validity, nature, obligation, and interpretation is to be governed by the law of the place of peiforniance."- It is true that this principle can have no application where one of the parties was, according to the lex loci contrattus, incapable of giving consent on account of minority. •' But in such a case as Brooh v. Brook, the parties were capable by the lex loci. And in addition to these grounds, no country will recognise a contract between its subjects wdiich it regards as contrary to public policy. Lord Campbell's statement of the law in that ease seems, therefore, unassailable. " It is quite obvious that no civilised state can allow its domiciled subjects or c''i '.ens, l)y making a temporary visit to a foreign country iv uater into a contract, to be performed in the place of domicil, if the contract is forbidden by the law of the place of domicil as contrary to religion, or morality, or to any of its fundamental nistitutions." ' It might at first sight seem that this reason- ing would extend to such cases as the Gretna Green marriages, which were admitted to be valid in England although the parties had resorted to Scotland to evade the provisions of the English ^farriage Act as to consents and the like.^ But here ' 3 Mac.]., at p. 5 i:5. -' StdlT, ("ollll. nf Laws, ,5; iSO. ' Sci: ih)- 1.1)1(1 Watson in ('oiqui- V. ('., 1S88, If) II. ILL., at p. 2!) ; aiul /'. r Ilalslniry, L.C., ihid,, at p. 2"). ' '.) II. 1.1'., at p. 21 ± '"' Comptdii v. llAircri'/t, ITCJ), in note to MiihlUtoii v. Juiii.'i.riii, 2 I la-;.,'. C.K.. at p. 444, i i 3o2 CAPACITY. I! tlie view taken was that Lord Ilardwicke's Act was not intended to have extra-territorial etitect, and further, that its regulations only r^Cerred to matters of form, and did uut touch the essentials of the contract.^ It is prdhable that upon whatever legal ground the vali(lity of these marriages was based, the real motive was drawn fi(,ni public policy. Tt would have revolted the feelings of the community to havr found such inarriages null, and to have bastardised the issue. It cannot thercfon^ bo assumed with certainty that the judgnuiits which relate to marriage abroad will be ri'gardfd as applicable to cases in wliieli the (pu.'Stiou is one of capacity in the proper sense. In other words, the (,'ourts may Ik that the capacity of a person to enter into an ordinary mere;... tile contract must be referred to the hx loci, while the right to contract a marriage wiili a particular person nnist be governed by the h.r ihnnlcill !. In Cdoiier v. ('tm^'cr'-^ Lord Macnaghteii said: "It has been doubted whether the pei-sonal competency nv incom- petency of an individual to contract depends on tlie law of the place where the contract is made, or un the law of the place where the contracting party is domiciled. Perhaps in this country the question is not finall}' settled, tliough the preponderance of opinion here as well as abroad seems to be in i'avour of the law of the domicil. It may be that all cases are not to be governed by one and the same rule." It must be kept in mind that the (ptestiou here related to a marriagc- contr.ict, and that, altiiougli a Scotch appeal, the governing law was held on the clearest grounds to be tlie hiw of Ireland. I shall accordingly deal first with the right of parties to marry abroad who are barred from intermarriage by the law of the domicil, and afterwaids advert briefly to the rules of ])rivate international hiw applicable to capacity in general. Marriage foroidden by the lex domicilii. — A maiiiage, wherever contracted, will l)e regarded in Scotland as invalid if the parties are absolutely forbidden to marry each other by the law of their domicil. * .So' /'. Ty'.ii). snprn, i) U.L.C, at \k 2\') : ami p, r - lb8S, 1.') K. 11. L., at p. :H>. Lord 13l'nU''luuil ill Ftliliiii v. I.irinil- t was not er, that its 1(1 tliil init ho Validity hawii ill. in igs of the id to liave \f that the le regarded of ca})acil,^ may lu ir\' iiHi'c;... e the right 1 must h' I : "It has or iiicoiii- tlie law of law of the 'crliajis in hough the eems to he it all casts It must I inarriago- oriiiiig law eland. parties to jy the law le rules of eiicral. mariiaL;e, s invalid if 1 I'tlier hy I n. :]!•. V-., ^ IMlomiUTED MAHllIAGES. 353 No express decision of tin.- .[Uestiim is to 1)0 fuuud in the Scotch books, and there are undoubtedly dlddj of eminent judges to a contrary otifect. Bnl these were expressed in cases of a different class, and go much furtiier in the direction of making the hx luc'i supply the rule in all cases than is borne out by the more modern authorities. Lord Miadowbank, in (lordon V. l\>jc,^ in general terms refers all questions of status, including "the competency to contract marriages," to the lex loci coiit I'dctas. Lord Fraser, speaking especially of capacity to marry, .says tlu- view "which refers capacity to contraet to tlie-law of the place of celebi; iiou or contract, is that which has been adopted in the Dritisli dominions and in America. " - The generality of this language does not suggest that Lord Fraser entertained the opinion that the matter Would be regarded as one in ■which there was any conflict of ))rin('iplo between the jurisprudence of Scotland and that of Knglaiid. This is affirmed by the learned editor of Bar,'' but no authority is quoted, nor have I been able to find any trace of the existence of such a contlict. "No hint to this effect is to be found in the recent case of Cooper v. Cooper:^ The law as to eajiacity a])pears to have developed in both countries on parallel lines. In both the earlier ilicto, are in favour of applying the lex loci eontrt ictus, while the later decisions tend towards the recognition of the lex (lomiciHL In dealing with the closely allied .subject of the incapacity oi a minor, Loid l''raser supports with much learning the theory that the lex Joni/fUii, with certain limitations, ought to govern."' The Jlcf(( in h'diiioiidone (June 1, 181 G, F.C.) are referred to by iiim as conflicting with this opinion, and it is difKcult to see why iiiey should be treated as overruled as to the capacity of a minor, and still reganled as sound as to capacity to many. This difllculty is increased by the fact that there are many subse(iuent cases in England and America in which the law in the case of marriage has been much elaborated, while in the case of minority there is no modern ■ 1814, FerLjussi Ill's Ifup., \>. 3(il ; Sii]iiik'iiiL'iit, p. l.")37. scc- also Itimc V. iios'S, ISiiT, '» 8., didd by L. Meadowbaiik, at \k (V.i'J, liy L.J.C. I'joyli", at p. (i,")(i. - ii. ]>. 121)!) ; ami .-w liis criticism 111 Hottuiiiatjor v. Ih Jniiros in the Mr. (iilli'siiiu's iidte to Lar, 2iiil ivi., p. ;}7;j. * i:> I!. ILL. 21. •' Parent au.l Child, 2ik1 E.I., p. .-)7U. 2 A i I ! !( • , ' 354 C'APACITV. decision of importance. The following important dicfd on the subject occur in Scottish cases, and must be regai(le(l as entitled to more weight than the much earlier expres- sions of judicial opinion in Edmoiistone and Hose. In Udny V. Udny, Lord Westbury said : " Domicil, or the place of settled residence of an individual, is the criterion estab- lished by law for the purpose of determining the civil condition of the person, for it is on this basis that the personal rights of the parties, — that is, the law wdiicli determines his majority or his minority, marriage, succession, testacy or intestacy, — must depend." ^ In Fenton v. Lhuiifjstone, Lord Brougham said : " Now it must be granted that the general rule is to determine the validity of a marriage by the lav uf the country where the parties Averc domiciled." - Lord Cranworth said, sjieakiiig (jf the person whose legitimacy was in question : " If, as I think, the marriage of his parents was not a good marriage in England, where they were domiciled and wi're married, lie could not be their legitimate child in the view of a Scotch Court." •'' In Harvey v. Farnle, Selborne, L.C., said : " Let it be granted (and I think it is well settled) that the general ruli', internationally recognised, as to the constitution of marriaL;e is, that wlon there /x no /)rrson(d !nc('p((c!fy attaching upon either party, or upon the ])articular party who is t(» be regarded, by the law to which he is personally subject, tliat is the law of his own country, then marriage is held to be constituted everywhere, if it is well constituted sccunduni h'lli'nt loci coDtrddnK." ^ In (Jooprr v. ('oopcr, Halsbury, L.C, said, speaking of the capacity of a minor : "The capacity to contract is regulated by the law of domicil." '' In that case Lords Watson and Macnaghten reserved their oj)inion as to the law governing a minor's capacity to enter into an ordinary contract. As regards marriage, however, t'lc English authorities are much strongi.'r, and if the dlcfit (p-.otcd from Scotch ca.ses are sntli- cient to indicate that up to the present time there has been ' ISf!!), 7 M. Il.li., at ].. !)i). - is.'.T, ;i Maci|., at \k rr.ii. :• Ihnl., at \>. r)-J2. * lS,s2, 8 Ajip. Ca., at ]>. 50 {Ihc italirti tiri' wiih ). '' IT) I!. ILL., at p. 2'). Mini MAKItlAfiKS UE(.lAltl)EI) AS IXCESTiOrs. .'55.) t dichi oil e regividod lor expros- Iii Uih)y lO place of rion C'stab- il condition ill riglits of is majority iitcstacy, — : " Now it ennino the whore tlie sjicakiiig (jf as I think, narriage in niarrii'il, lie )f a Scotch ' Lot it ho enoral rnlo, if marriage cliiiig npoii is to ho iihject, tliat hohl to bo aaciinduin cing of the s rogulatod Vatsoii and ' gov(Mniiig itract. As s are iiiuoh li'S are sulh- o lias hoiMi lit !>. no yiltc npou this subject no ditfeience of principle between the law of the two countries, these recent cases in England cannot fail to carry great weight. But before adverting to them, I desire to refer to the well- known case of Fcnton v. Livingficone,^ in which, although the actual question was not raised, the reasoning upon which the judgments arc based points clearly to the conclusion which has since been arrived at by the Courts in Englu,:Ml. In that case a son boni in England of a marriage with a deceased wife's sister claimed to succeed as a child "lawfully procreate" to entailed estates in Scotland. It was held that the domicil of the jiarents at the marriage was in England. Proceeding on technicalities unnecessary for the prosont purpose to notice, the learned judges of the Court of Session found that by the law of Kiigland such a marriage was voidable but not void, and could not bo challenged after the death of one of the ])artics. The alleged wife had died before the action was raised, and th(! Court of Session therefore held that the marriage had become unassailable, and the claimant being legitimate by the law of England — the law of his father's domicil at his birth, and at the marriage — must be regarded as legitimate by the law of Scotland also. The argument in the Inner House was, by consent of counsel, taken on the footing that marriage with a dooeased wife's sister was incestu- ous and criminal by Scotch law, and contrary to Holy Writ; and that if the parents of the claimant had come to Scotland, they would have boon liable to capital punishment, unriu'ii. -11)7 ; ill (". nl' S. IS.-)!), IS I). SC).-). - IS I)., at )). ^1)() ; and siv yd r \J\ .M-Ni'ill, at !>. S'.liJ ; /«;• L. Cur- rirliill, at \K '.)02 ; ami pw h. l)i.'as, at ]>. !)0,"), 35G CAPACITY. ami that tlie fact of its liavitig passed Ix-'youd clialloiige by the tloath of one of thu i)arlics, did nut make tlie .son the issue of a lawful marriaye. Such a union was not valid t"U challenged, it was invalid ub iiiiltu, and all that the Court could do, if the question was timeously raised, was to declare, and not to make, it invalid.^ In Fcnton, there was no conflict between the; lex dumiclUi and the lex loc't coiitrdcta.'^, because England happened to be the country in which both jiarties were domi- cilod, and also that in wduch the ceremony was performed. The doctrine, howevei', v.hich had lu'en laid down by the judges of the Court of Session tliat they were bound to refer the question of status to the h\r iloinlcili!, was atHrmed by the learned lords, subject only to the limitation that lu) country was conqielled to recognise a niariiage, wherever celebrated, which was by the theory of its law incestuous or contrary to morality.'-' The case cannot fairly be usi d as a liirect authority in favour of the /ex (Idmirll ! i as against I lie hx loci, but on the whole it foreshadows not faintly the principle laid down in SofhniKi i/di' V. J)(' 11(1 rro.^;' and suuii'sts that the same conclusion W(/\dd have be'cn anivt'd at, the domieil of the parlies being Knglisli, if the celebraiion had taken place in a country, such as ])enniark, where marriage with a (leerasnl wife's si-. a;*! ; jii r I,. \\'rli,-l;l\ dair, ('./'/., :it p. .")!!). In ( '. nl ^,,jnr L. Aidiiniiiiii, IH !)., lit p. 871 : p.v li. Curiifliill, at ]i. S!)l) ; /!/■ b. l)cM>, al p. ilOl. L. ('nuiwniiji Miy.< \\c iiiu-l liMik to llii; law of till' Iiliirc " win IV (llic niai iia;^'fj Iia> I'cin ci'iitiaili d, m W In Ir tlic l)aiti(< WiTf ilulMirih il,' lldiikiiiL; fif a case like tin' imc |irr- -ililid. uihTi' lllr tun pku'c- \Vi I r idriiiical, :{ -Macij., p. .'i i:!. -.1 1'.l). I. ' I St; I, !» ii.L.c. i!i:{. ■' l^do. li S. and T. (17. i! '■ ENGLISH CASES ON CAPACITY. 357 ige by the lio issiiu of 'halleuyt'd, I do, if the t to make, tweeu the i Enghaud VQX'Q (h)ini- [)erf()rme(h u by tlic lid to refer ned by the no country celebrated, contrary to L iuithority )il, but on laid clown the same ieil of the |il;u'e in a I tlei'iascd as will be cessary to ft it ion ior luistatu'es : yhunl and ag'(! would :a', because sent, (iiiis bsequently mtiiiclt '1, 111' (• (liillli( ilnl,'' till' UIH' plv. I'laCfS Wilr i:;. the lady, desiring to be free, petitioned the French Court for a decree of nullity. That Court found the marriage null, on the ground that the parties came to England expressly to evade the French law. The lady afterwards took up her ri'sidence in England, and brought a petition for nullity there. 15ut the Full Court ^ held that the contract, ucinrr made in England, its validity foil to be determined by English law. They found the marriage good. The reasoning is very striking. After stating that Gretna Green marriages had been recognised in England, altlunigh the parties had crossed the Border to evadt! the necessity of obtaining the consents required by '2i') Geo. 11., the judgment proceeds: — "The French tribunal in this case a])pears to have held the marriiige null and void, not because it was absolutely prohibited by the law of Franco, 1)ut because the parties contractcil it in England with the formal intention of evading the prescriptions of the French law. Every nation has a right to impose on its own sul)jects restrictions and jirohibitions as to intering into marriage contracts, cither within or without its own territories ; and if its sulijects sustain hard- sidps in conse(|uenee of those ivstrictions, their own nation only must bear the blame ; but what right has one independent nation to call upon any other nation equally independent to surrender its own hnvs in older to give effect to such restric- tions and i)roliibiti()ns ? If there be any such right, it must b(; found in the law of nations, that law to which all nations liave consented, or to which they must be presumed to consent, for the eonimon benetit and advantage. Which would be for the common beiielit and advantage in such cases as the present, the observai ce of the law of tlie country where the marriage is celebn^ted, or of a foreign country? Parties contracting in nny country are to be assumed to know, or to take the responsi- bility of not knowing, tlv 'aw of that country. Now, the law of France is i'(pially stringent, whether both parties are French or one only. Assume, then, that a Fn'uch subject comes to England, and then- marries, without consent, a subject of another foreign country, by the law of which such a marriage Would 1)1' wilid, which law is to prevail? to which country is an English tribunal to pay the compliment of adoi)ting its l.iw ? As far as the law of nations is concerned, each must ' .'^ir ('. ('av--wc!l ; ('li.miicll, 1'.. ; and ivMlin-, .1. ! 358 CAPACIl'V. have an equal riglit to claim respect i'or its laws. Both cannot be observed. Would it not, then, be more just, and therefore more for the interest of all, that the law of that country should prevail which both are presumed to know and agree to be bound by ? Again, assume that one of the parties is English, wouM not an Englisii subject have as strong a claim to the benefit of English law, as a foreigner to tlie benefit of foreign law ? But it may be said that in the case now before the Court both parties are Frencli, and there- fore no such difficulty can arise. That is true ; but if once the principle of surrendering our own law to that of a foreign country is recognised, it must be followed out to all its conse- quences ; the cases put are, therefore, a fair test .as to tlie possibility of maintaining that by any cumitas or jus ffentiaia this Court is bound to adopt the law of France as its guide." ' In Jirook v. Hrouk- a marriage celebrated in Denmark between a domiciled Englislinuin and his deceased wife's sister, a domiciled Englishwoman, was held by the House of Lords to 1)0 void, 'J'lie argument that marriage as a contract was valid or invalid according to the lex lucl vonlnuins was strongly pressed. At first sight it might seem that Jh'Odlc v. liruoh would have no application to Scotlaml, as it was based on the extra- territorial elfect of an English statute (.'> >^ G Will. IV. c. 54), which does not extend to Scotlaml. That Act provided tbat marriages which might thereafter be celebrated between persons within the i)rohibited degrees of consanguinity or alHidty should be absolutely null and void, and not nierely voidable. IJut such marriages were in Scotland always ipso fucto voiil ; and, even as regards I'^ngland, the rubric to liruol: V. Jiiuml: which runs. " Held that under the provisions of the 5 t^' (i Will. IV. c. .')-i, the marriage in Denmark was void," does not adeipiately express the eifect of the judgment. Lord Campbell clearly laid ditun that the Act had not rendered any marriage illegal in England which was not ilK'gal ])el'ore, but had merely remedied a delect in Knglish procedure.'' It cannot be doubted that in Scotland the same result would be reached by ai)plying the principle of Fcithm v. fjlvhiifstinn', and lind- ' -2 S. aii-l 'I'., ;it \>. M, ■• U 11. !,.('., al p. iJoC. - |s<)l, !> il.L.C. ['Xi. flW! '' !' ; SOITOMAVOII V. DK I'.AUlMtS. 8.") 9 3th cannot [ therefore it country d agree to parties is ig a claim lie benefit the case nil there- )ut if oner P a foreign its conse- as to tlic s r/cntlioii S SJ'IIKic >■ I J)c'nni;iriv ifc'.s .sister, of Lords I tract was i(iv.>i was (>/.• wouUl the extra- V. c. 54), ided that between fuinity or L)t nieri'ly kvays ij)>io to lii'Doh lis ol lilf vas voiil," lit. Iii>i(l ilcred any (lore, but It caiiiiot to reached and find- ing that the marriage of a domiciled Scotsman with his deceased wife's sister being void in Scotland, and regarded as incestuous, and in the language of the Act 15G7, c 14, as "vile, tikliy and abominable in presence of God," could not be sustained, althougli celebrated in a country in which such unions were permitted. This leads to the casu of ^hitomayoi' v. De Barro!^, in which the whole law of the subject in England was fully discussed. The judgment of the Court of Appeal in that case has had t':o misfortune to meet witli severe disapprobation in v.'>'';.Mis (juarters.i But in spite of all the respect due to the eminent authorities who have unfavourably criticised it, I venture to think that it is in accordance with the stream of authority, and that it would be followed in our Courts unless Brook v. Brook shoidd lie regarded as laying down principles of law which do not extend to Scotland, a position exceed- ingly dilHcult to maintain in view of the case t>f Fentoil v. Lirln;/K(oiir. SiiUoiiiKi/or v. Dr liarros,- which was a suit for nullity of marriage at the instance of the woman, came originally before Sir li. Phillimore. The parties were first cousins. At the time of the marriage the wife was fourteen years old and the husband sixteen. Their parents were Portuguest^ subjects, anil in the view of the Court had not lost their Portuguese domicil. Tt was averred that the girl liad most reluctantly consented to the inarriage, in the l)elief that it would relieve her father from certain pecuniary embarrassments, and, relying on the assurance that the marriage, being contracted before a civil ofHcer in England, and being illegal in Portugal on account of C(Uisanguinity, would not be binding. Put the learneil judge found, as the result of the evidence, that the girl perfectly understood that shi' was about to contract a marriagx", and that no such pressure was put upon her as to amount to coi-rcion or fraud. The fact that she miuht have an erroneous view of its future consequences could not vitiate the contract. It was, liowever, proved by the evidence of a ' S,, SirJaiM.'H llaiini'ii'sopiiiinii - 1877, -1 IM>. Hi ; ivv. 3 P.D. 1 ; ill till- same case at tlic later >tat,'f, n-niiltiMl to I'rolnUo Division, and TilM). 1)1: I,. VitiM'v, Siiii]tliMMfiit, finally dt'cidi'd by Sir J. Hanueii, ii. l')li:> ; i!i>lio|i, I'M. IS'.d, i. HV,). 1^7!>, .') I'.D. i>l. , ! : ii 3(i0 CAPACITY. Portugncso fidvocate that first cousins wore by the law (jf Portugal incapable of contracting marriage on account of con- sanguinity, and that such a niarriago being by the law of Portugal regarded as incestuous, would be invalid wherever celebrated. JJut first cousins might contract a valid marriage if they had previously obtained a dispensation from tin- Pope. 1'he averments to the effect that theri; was no genuine matrimonial consent l)eing out of the way, the ))ure <|iicstiou of law presented itsi-lf, whether a marriage lu'ld as incestuou.s by till' law of tin' domicil of both parties, was valid in the country wht're it was celebrated, the parties not lieiiig under any proliibifion by the lex loci aciirx. Sir 11. Phillimore adopted the distinction drawn by Stoiy between marriages universally regarded as incotudits, un- natural, and destructive of civilised lifi', and so considered by \.\\\A (]H(ie Ini'niti IK) (jrnrri Viilvrrsi) sunt (lafiic, and those which some Christian nations treat as incestuous and others as permissible.' The mai'riage of first cousins, being pirmilte(| in many (christian eoiiiitries, could not be incestuous according to the general law of Ciiristendom, and the prohibition could not be put hiu;lu'r than a prohibition by the positive law of the country of the domieil, The learned Judg(> rather indicated an opinion that tin.' h'.r (linuicilii ought to jtrevail, but considen'd hiinsell bound by the judgment of Sir ('. Cresswell in SIvKniiii v. M\ p. :i-' 1, /'■ r I/. ( 'i.iu- wdlli. 15 U. III,. -Jl. ' Srri, „.',;,■■ V. N.. IT.-.l'. ll ll.i-j. (',i;..y/. /• Sii' Ivl, Siiii|i~Mii, at Jl. -Il!> : Shiiiniln V. M.iH.ir, 1S(10, 2 S. and T.. Ill r Sir (', CitsswcII. at ]i. 77; Mull V. /.'.//), .'■/>■, isoo, :) Ksp. i(;;5, jii r I,, I'lldiiii ; and sir i'^]a'i'ially Jihluiiu'iit 111' llainicii, .1., ill ^'^/^(- 'riiiii,,- v. It, Hiniw, ]><:!), i") I'.D. 111. 1 m r ■il I ll ^ 3G2 CAPACITV. Sottovuojor V. De Barvos was remitted to the Probate Division in order that certain qncstions of fact, raised by tlie Queen's Proctor's pleas, miglit be determined. The result of further inquiry was to lead Sir James Hannen to the conclu- sion that the husband's domieil, at the time of the niarriag(3, was in England. The Court of Appeal had carefully limited their judgment to a case where the doniicil of both parties was in a country which prohibited the marriage. Sir James Hannen availetl himself of this limitation, and held that tlie marriage was valil. Ho took the opportunity of expressiiiLf his strong dissent from the law laid down by the Court (if Appeal. Ho founded his judgment on the view expressed as to the law governing capacity in Midc v. liobcrtx, Scrlmshlve v. Scrinishirc, and Simoniti v. MnUac. Male v. Roberts was not a ease of marriage, but that of the capacity of a minor to contract, ticrinixliiir. was entirely a question of the validity of a marriage in point of form. Sir E. Simpson said : " From the doctrine laid down in our books — the practice of nations — and tlie mischief and confusion that would arise t^o tin; subjects of every country, from a con- trary doctrine, I tnay infei- that it is the consent of all nations that it is the jn v. liitircrnfi, ITflT. Hat::.'. <^-T>. •-"• ' ls:5s, Mihv. I. N,,' C'resswrll, .I.V, j\iil;,'nn'iit ill ;} Sill, ami (!. I^^l. e Prob.'iti; led by tliu e result of be conchi- inarriiige, lly limit I'd •th paitii'S Sii" James I that tlie expressin^f ; Court I if ex pressed . Hole rt.'^, hlC. Mull' at of the entirely a form. Sir our books confusion rom a con- all nations le different ;erved, and )y the laws lini,' of Sir loul»t, con- uliohlXijar. ion of tlio ) form and Intolv pro- to obtain the same assimilated f i^trrle V. outi> til Stilly, 8tli Ell., p. '' ('oiitlict (if Laws, 8tli Ed., p. 217, wIuTc the rule laid down in tlu- '2-2'.i. i i ■' KIT tl 1^- 3(i4 CAPACITY. where he says : " There could bo no valid contract unless each was competent to contract with the other." ^ And the remark of Lord Macnayhten in CoDprr v. Cooper seems irresistible, and not limited in application to the case then before the Court — viz., one in which the contract was made in tlie place where the iierson whose ea[»acity was in (piestion was domi- ciled. '• It is difficult to suppose that Mrs. Cooper could con- fer capacity on herself by contemplating a different coiuitry as the place wlicrc the contract was to be fullillcd, if that be tlir proper expression, or by contractinj^ in view of an altt'ration of personal .•^liid'ts, which would bring with it a change uf domicil."-' 'J'hi' dilcnniia ])ropoundi'd by Sir C Cresswell, in Slmo-nln V. Mdl/df : "'\\i whicli country is an hhiulish tribunal to pay the comjiliincnt of aduptini;' its hiw ( . . . Botli cannot be observed," brinL;'3 out clearly tlu- expediency of leavim;' all (]uestions of form to the /«,'' loci, but no logical ditliculty exists in referring- tiie ([uestion of capacity to the law of each of the parties icspectivelv.'" Nor dors tlu" adoption of this ])rinciple appear so I'rauglit with danger to Ihitish subjects as was feared by the learu'tl judge who iinally decide(l Solln- niaijoi' V. J)c Inii'i'oK. It would prob;d)ly not be extended to any prohibitions other tlian those grounded on too great near- ness of Uinshi]) or atrniity. Such prohii)itions are not ninnerous, and it is unlikely that a doniii'iled Scotswoman or I'lnglishwoman, ^''Ao /ms a, J'(irhii/in sc ji i-sl-cniist n. shouM be ignorant that the law of l*ortiiL:al I'orbids the marriage of ])ersons so related. And ]»ublie ])Mlicy is snri'ly against eiicouragihg marriages in this country which will be treated as ntdl in the hu.-band s domicil, which is |)resumably tlie ])lace contemplated by the i)aities as the matiimonial home. Capacity of Fcreig-n Minors. — There is no S(H)ltish aithority to the etie 't that nunority, anil the degree of inca- pacity residting ther-from, is to be determined by the h,r loci (H'fns more modern than certain dlclo in old cases decided at a- time when the lav as to status in geneial Ii.'mI been nmch ' 1 .^. nil.) 'I'.. ;il ]!. Iii;{. - ]■< i;. II I... ,11 p. :•,!. ■' Sn- W.Mlaki', :',r.l I'M, i>. .'■)7 ; Dii'.y, y. ■2-2\. miless each the rciniuk irresistihh.', betbro tlio 1 the phicc was (h)nii- couhl Con- country as :hat 1)0 llir ilteration of clianiic of n SI moil lit. nnal to pay cannot he h'avin;4 all il (liriiculty law of each tioii of tliis suhjects as idcil Sollii- I'xtciuh'd ti) iireat near- s ai'i' iidt s'Aduian or . shonhl he lari'ia^e of •Iv against he treated lliiahly tlh' naUiiunuial lo Seettish I'ce of inea- the hx loci ■5 (leci(h'il at been uineh 1 I'M., i<. 'u ; FOUKIGN MIXoltS. 3 Go less conshlered than at present.^ In none of these cases was the actual point detenuined, and it is thought that the rule tliat cai)acily must depend on the lex doia'ic'du would now, with certain limitations, be accepted in Scotland. Voluntary Deeds of Minor. — Where the question relates to the uiinor's power of managing- his estate without the con- sent of a guardiaii, or of making a gratuitous alienation of moveables by deed, or of executing a will clVectual to carry moveables, there can be little dcjubt that it will be solved by reference to the law of his domicil.'- A person domiciled in a country where majority is fixed at twenty-five, cannot by coming to Scotland when he is twenty-one years of age free himself at .t stroke from the disabilities of minority, unless he comes niiriiio mawnidi, and therel)y acquires a Scottish doiiiieil. Capacity to take depends on domicil. In one case Li>rd llomilly directed executors that they might safely pay a legacy to a girl of eighteen, she being then major by the law of ILunburg, where she was domiciled.'' Contracts by Minor. — There is a greater dilticulty in regard to the contracts entered into in this country by a person will) i.s in minnrit}' l)y the law of his domicil. It is probable that the validity of such a deed as an ante- nuptial marriage-contract, by which a uiitCfrxifas was conveyed, would be determined in Scotland by the Icr iii ici! i!:^ This woidd also be the rule with regard to contracts by the minor to per- form personal services— r. 7., articles of apjirenticeship. And in cases where a rcslil ul Id in hitci/ruiii was possible, this would be allowed if the minor was entitled to it by the law of his domicil. ' .SVt jicr li. Mcailiiw liaiiU, in (liinloii V. I'lji, I'V'iu'. <'"n. I.aw, Ajix. 17 ; I'll- li. (iUmiK'c, in Jinsi v. /,'„,«, mill .May, 18:27, V.V.; and p. r \...].C l!u\ ic, in luhn(iud-'. . ['diiiiv. SM/.,' (JilUsjiiu's ]Jai', \\ 1510; nur!.,'e, - I'la-ir, W aihl ('.. p. '><] ; Dicey, ]i. 17I.) ; Savi-'iiy, \k \:>-2 ; Imt fic -Mr. (iut]iiii'"s null'. ■■ I), r, 1 1 eUnni ),})>'.■< Will, 18(;(!, if., IM')'.), 7 v.. ii.L, at p. It'.); Cuojn r b.l'. - Hii- :3(i:}. V. ('., IT) I!. II.L. ■2\ ; Soltomniiitr v. ' ■<• In rr r,„/,-,\f 7'//'>V>'. 1887, />«• 7>'rnn).s :5 I'. I). I ; iMiiser, I'aivnt 'tC L..I. Cli.. t!:',7 ; >/(•/" in Coniier v. an.l ("hill', \>. r)7o .svr/.; Wustlake, C. \:> \l.U.\.. Jl. 11.4:]; Dicey, J). 177; Story, ;5 luO .i^M ;ii 1! MlT M*'r t.'xample, a per.-oii whose doniicil was in a country where ' )r///,(V V. />/o//.)//,l^:'.l, li'S. ."lOd. - l''r;isci', Tairnl anil ( 'liiM. p. ."iS J ; .•ill', Icllliuks (it roltrf, .1., ill lllr;_:lvat Aiiii'rii'aii (M-r III' S.ml w lli.< Cr.ili- 'o/>', ]iriiilt'il a- an A|i]iciiilix In I'liiiliMiorc's Int. Law. iv., al ]>. TH'i. .Siiiiicwlial .-iniilar cMiiitiuii- In llu' lujf tlial rapacity i- iciuii'il tu tiic luT-iiiial law, wliicli in t'laiirc ■^(■iic- rally ilr]H'ii(ls (in n.itinnalily iinl linlllii',!. XTlll tu lie aillllittcd liy tlu' l''ivnrli Coiiit.-. S., W.-tlako. ji. :.'s. ' (iiilcspicV \\.v.\ |i. ;5|o, i:u|,. liy lilt' tran-latiii'. I'.ar jiiiii-rli'.-iiiiiii.it.- a .-inular view, Hii'l., \>. '.'\'.\. (•(»NTI!A' Old .gv of .V uieatcr iti'ius, iiL,'- adniit the it capacity I.-' If, U try whcrt; .iialily net lilt 1 I'll li.V tllf i-tlalo'. ].. J<. :)10, V.u\r l.y M■l|■-Ulll"i^t^ :!i:5. mnjority is fixed at twenty years of age, came to Scotland, should we decline to re<;ard him as of lull age hecausu he had not attained the age of majority according to our law ?^ The question is in a very analogous position in England, the old case of Male v. liobrrts being the only direct authority for the statement that an infant's capacity to bind himself by contract depends on the hj' Joc'i andnuiux, while the tendency of modern decisions is to treat capacity as part of the law of status, and to reter all (piestions of status to the hx thrniicUii. Mr. Dicey doubts whether, even if the lex loci is ultimately tixed upon as giving the rule, " it can be applied to cases where an infant domiciled in England has entered into a contract abroad either without any consideration or for which he had not received any consideration."-' Mr. AVestlake advocates the adoption of the rule of the hx (lomlrilii, and says, " if therefore the Engli.sh Courts should in future hold that the general rule to govern capacity, as affected by age, must be drawn simply from the personal law, they will put themselves far more nearly in accordance with the Continental rules than they would do if they drew their general rule from the lex loci conft'dclns."'^ The English ease of ^f(ll(^ v. ]utbr,t>i,^ which is the only authority in that country in favour of ;ipplying the lex loci coiitriictus in all circumstanci'S,^ was an action for payment of a di'bt incurred by an English minor for li(iuors supplied to him in Scotland. Lord Eldon, at Xlsl Priiix, saiil, "the law of the country where the contract arose must govern the contract." Such a contract was one whicii would fall within the exceptions suggested by Lonl Eraser, and might very nnturally come under a ditferent rule from a contract by wdiich II uinor undertook — e.(j., obligations by a marriage-contract atVecting his whole estate. The rule that a minor's capacity to contract depends on the l;i\\ of the domicil was adopted by Stirling, J., in In re Gool-es Tii'^t^S' There it was fotmd that an ante-nuptial marriagc- ' StdiT adlirn's to tlio I'lilo of tlu' h\i- hwi iirlii.'i ill ;ill filsc'S. Cullllicl nf Laws, .5; lo:',. - Diiiiiicil, ]i. 17!). ^ lYiv. Jut. Law, ;3r(l E<\., \k U\. ' ISdO, :] Ks].iiia>-i', 103. •> Nil Diccv, \K 17'.», aii'l ai;:;. in In ,:■ Cool.'s VVcs's ".(i I,..I. (;ii., at p. (;38. '■ iss7, .-,(; L.,|. ch., (;:)7. I !!' 3G8 (APArrrv. I contract (.'Utereil into in Franco by a, doniir'ilLsi K.nglislnviinian was not biiuUnj^ upon lier, she beiiij^ at its date an iut'iint miii incapable of contractinL;- by the law of England. Midi' v. Rohei't!< was foundetl upon in ari^uint'ut, ln't the learned jiid^e, without expressing; any personal opinion, conceived liitM--fU' bound to follow the doctrine of the (>onrt. of A[)pral in SuUomn )/()!• V. De Barros. Wife's capacity to Contract. — The importanie for the ])re.sent j>ur[)ose wf tlie cpiestion with rcLiard to tlie law to I).; 'ipplied to tlie contracts t)f nnnors is that, whatevt r ruk' niay tintdly be tixed ii|kiii, il may lio thought to affect also the con- tracts of married womtii.' IjomI Fraser appiars to lie of opinion that ihr two casts sluudd bi; miverned b\ dilfiiiiii, considerations, for he says the vali'lity of the contracts ot' a married woman made in Scotland will be (Lternuncd \w tin. law of St'otland, thoui^h lur donucil is in another countr,, auil docs not refer to his view that the capacity of nnnors depcnils in n'encra! on tlie hx ilaniict/ 1 1.- lie indicates no j^iound for the distinctitjn. lint, the validity ot' a wife's contracts nia\- he regarded from another [loinl of \icw. ( )ne reason, at any rate, for the so-caded inca; acity he wa-. not bound because iicr contract was invalid by the law of hei' domicii. She would be treated in the siime way as a married wctuian domiciled JuTe who enters into similar oi)JiL;;itions. Her capacity, however, to execute deeds alieiiatintf her moveable estate, or to test upon moveables, onu'ht to be determined by the law ol hei' donucd. Where the (piestion is truly one ol' the degree of authority ' \Vc.>^llMkctliiid<.- it wiiiil.j, ji. 17; -(•/. II. iiiid \V., ii. l;il^. uitli mill see Dicey, p. I'M. I'liri'iit ami CliiM, ."(Ts .iV'y. p. I lislnviitiiau iiit'.'Uil ami M.llr V. in'il judge, .■(1 hiin-clf Al)lit';il ill • law til 111! r niK' luay so till' niii- < tw Ik' ot liv ditViicul iracls lit' ;i iiH'd liy till' Diiiitvy, aihl Ill's di'jicliils I Mliilllid \i'V ids may 1)0 I'a" .icitv lit' ate caiiiint mill lall Id III this •cl'cniiri' |i> t(i t'lirri'^ii linsi'li iiiit rs iiilii rnii- iti'l-kt't'|ii'rs |ilrail III a u'l- cniilrart 1 111' inatnl I lu'H' will" liiWi'VtT, til i» tl'Sl ll|liill her diiiiiicil. I antlunity li. l:tls Willi Wll'ES ESTATE SEPARATE 1!V LAW 01' DOMICIL. oGO which tlic htisband possesses cer the wife, and of the extent to which sIr- has placed her property under his control, it is conceived that the law of the actual doinicil must in all cases govern, suhject to such limitations as those suggested as applicable to the rights of foreign minors. Thus, where by the law of the domicil of the spouses there is a com nntiiio boiioriuii, any right which may exist in the wife of alienation or contract must depend on the law of the domicil.' But it is no part of tlu; public law of Scotland that a wife is merely by the fact of marriage incapable of dealing with property which is entirely hrr own, and in which during the marriage li''r husba)id has no legal interest. On the contrary, our law fully recognises the right of a woman before marriage to reserve to herself the full powur of disposal of her estate, iuul to exclude the husband's rights, and the fiecdom of third parties to give or becpieath to her estate from which the husband's _/'((, s' iiuirlll and right of administration aro excluded. And it, is .settk'd that she may (k'al with such estate pre- cisi'ly as if she wuro an nnmairiod woman.-' The tpiestion, thrri't'oie, with ri'gard to a marriud woman's contracts or alienations, depends in many cases not op. cajiacity but on patrimonial light. If the estate is absolutely her own, the fact of maiiiagt' will not render ln'r incapable of dealing with it. Now, if the (.'State of a foreign wife is in this position either by contr.act, or by the law, common or statutory, of her domicil, why should her right to deal with it be impaired by iier residence in Scotland :' Where Wife has separate Estate by the Law of her Domicil. — A married woman in Scotland, whose estate is held bv her in virtue of the .Married WonuMi's Pronertv Act, 'y has no nower to dispose of the capital without her husband' ist'Ut. Ihit a married woman in England, whose estate eoi IS vested in hi'r under the English Act, may ilisi)ose of it in the aame manner as if she were a feme xolc.'' Is h ler power to do so dimiidshed by the fact that at the ilate of the contract or alienation she is resident in Scotland { It seems clear that ' .S'lr (!il lui's iii'.r •ii; Jtlijijiiil v. Cityo/Uln.iijon' Hit iil:, 1S7S), (i 1{. 170. ■' -1.") & 40 Vid. c. 7."), § 1. 2 If lit 1 1 V !i i ■ 370 CAPACITY. her rights in this respect sufter no diminution by her tem- porary residence in Scotland. Where a Foreign Wife with separate Estate acquires a Scottish Domicil. — If tlie views elsewhere expressed are correct with regard to the el't'ect of change of domicil upon tlie patrimonial rights of the spouses, it will follow that if by the law of lier i'onner domicil the wile had the power of (k'aling with her sejiarale estatt> without her Inisband's consent, she will continue to have tiie saiiie power. Her status has no doubt changed, and t'Very (pustion which truly relates to her personal status must now he answered by the law ol' Scnlland. ]^ut the j)o.ssession of estate of which she has the lull power el' disposal is not incoiisistt nt with the status of a Scottish wife, and to diminish her rights of dealing with what was separate estate before her Scolti>h domicil was ac(pnred, wDidd he arbitrarily to deprive her ol' a light not of status l)ut of projxrty.i This \ iew is supporte(l i)y the i'jiglish case of Dinwun \. (Jannan,- although the point there was to a wile's powi'r over estate conveyitl by a marritige-contract. Hy the law of Scot- lauil the wile had power to give ;i valid discharge for a sum of money comprised in the enotract. It was held tha' !!:e riMnoval of her domicil to Kngland ilid not superinduce a tlis- al)ility in iier to give a ii'ceipt to trustees for tlu' amount. The contention was lh;it her ca[>acily now depemled on i'lngiisli law, by which, under a deid so expressed, she could not have given a valid ri'ceipt, the proj)erty not being expressi il to be for her "separate use." Sir J. Ilondlly, M.ll., held that the etl'ect of the dvrd and the wife's |)iiweis under it must he governed by Scots law, and observed " to create a disability in one of two jiaities to u foreign contract, not existing accordiiiL; to the law which governs the coutiact, solely l»y reason of the change of domicil of the contracting parties to a coimtry where such ;i disability exists, appeals to me to be cdiitrary to the principh's governing such cases." '' In alliiMiing the judgment, Knight llruci', Ij.J., said : " If we introduce it (the contract), ' (/. Diny, \K \'X>; ImU .<,, Hm-r, 7 l»r ( I., M. ;nil. \H I5i!iivaii, I I'M, air. Is.V.. TRAXSFEIl OF CO.JPOHKAL MOVKABLE GOOD WHERE MADE. 871 ffTT-l^^ f ] her tcm- e acquires prosst'd aiv !il upon tilt.' t if by the • of dcaliiiy' consent, she itus lias nil 'lutes to Ik r of Seolhuid. till power of cottish wife, ,vas separate' I, would be atus but of Pinicdi) \. i powi'r ovrr law of Scot- i' for a sum ■1.1 that ;!;,. iduec a dis- till' ainoiu\t. d on Kn.i^'iisli uld not have )ressed to be eld that the it must be disability in n^ aeeonlin'^ eason of the luuitry where itrary to the le judyinent, he eonlraet), II. wo must introduce it as a Scotch contract, with all the inci- dents of a Scoteli contract, so far at least as not proliibited by the En-ilii'- 'aw; and it is not, I repeat, prohibited by the English li >. that a married woman should have conferred on her the power aad capacity just referred to."^ The matter is no doubt clearer when the rights of parties stand upon con- tract, and the argument is hardly tenable that in changing their domieil they intended to innoNate upon these rights. But it is conceived that the view that the (piestion is, in the case of a wife, freciuently one not of cajjacity but of patrimonial right, and that this will not be atVected by change of domieil, is aidetl by cases turning on contract.- Validity in point of form of transfer of moveables. — It must be borne in mind that a Inmth juh' purchaser for value, who is in possession of a. corporeal moveable, can generally defend his right to it by .showing that it was etii'ectually transferred to him on a title good by the Ivx nl kHhc. The ma.\im nwhllia ftcquuiitui' jK rsDinnn, as applicable to transfers of particular nn)veabh's by contract, has suffered many rude shocks in recent eases, and the learned editor of Story even suggests that the exceptions would probably be less fr-'(juent if the maxim were h'X sit ax i)HthU]a roj'tl:'' The rule expressed in an English ease,' " if personal property is disposed of in a manner binding according to the law t)( 'he country where it is, that disposition is binding everywhere, was approved of as a sound generrd rule though open to exceptions in ('iis(r!<}ar v. Tiuric/' and a ^indlar doctrine undi'rlies the judgment in the Scottish case of CoiiiKif V. LodcrS' And in a recent case the purchaser of ;i stolen lioise successfully defeiuled his title against the person from whom it had been stolen, by proving that he bought it in In land in open market, although sale in market ovi'rt in Scotland would not have purged the I'itlnrii ri'alc/ ' 7 IK' (;., .M. uu.i <;., lit II. !»l. -'Nil' (lui'iH'iiUi V. Yiiiiiuj, IHi")!, I |)r C. aiiJ S. -'17 ; /'.(//()/( v. HnxilciiliJ, IS."iS, i2.") la'ilV.lll, -J IS ; and .s'm: Ili'Xt .'^I'Ctieil. ■' Sill I'M.. ].. r>\:\. ' ('ii)inihll V. S,,r,ll, ISCO, .-> II. ami N. 7:JS. • is70, I,.i;. 1 K. and r. A]']\. at ji. IJ'.I; /.M V. Alnhj, iSSO, 17 (^l!. I). ;ii):». '■' l^cs, i; M. lOi).''., s(.' j>,r M.iii- .reiir, l-..I.-<'., at p. II 10, And ,s.e W.'-tlak.', :(rd I'M., ]>. 17'.I.sm/. " 7'-././ V. . I /•»(..'■• issi> 1) If. !)0l. ClIAPTEK XL. THE lOIiM 1!V WIIKII Tin; .\l.\i;UIA(;K IS CONSTITUTED. Lex loci actus must be complied with as regards the forms of marriage. — 'J'lie Scutti.^h Ct.urt.s will not icgurd as valid a inairiaLfe which in point of form did not fullil the rei^iiiix'niont.s of the law of the ]jhice in which it was contracted. In other words, the h\e loci vout rmlaK is the law wliich dictates the I'ornis which are to be treated as conchisive eviiience of matrimonial consent. No form of marriai^f is prescribed by the law of Scotland itself, and a marriage may be contracted in this country without the intervention of a minister or of a registrar. But an irri'<;tdar niarriaL;ci entered into abroad will not be valid, — although the evidence of consent wouUl have been sufficient if it had taken |>lace in Sc(jtland, — if the hx loci acttis be not satislied. This doctrine has not been tin subject of (h'cision, and is not su])i)orted by much authority in Scotland." IJut the rule i.s .so settled in England and America, and it is .submitted that it is in acconUinci' with principle. Two exceptions are admitted: — 1. wlu're compliance with the/'.'' loci was impossible ; 2. where the marriage was celebrated in terms of some JJritish statute dealing with marriages of subjects of the Qiuhmi contracte'tl abroad. These will bi' considired later. Lord Fraser says a mariiage invalid in the country where it is celebrated wid be so in every other country.'- Mr. (lillespie, in his valuable editicui of Jiar. maintains that this would not be so held in Scotland, although he does not dispute that the law is lixed in this si'use both in England and Amc'rica. " The mairiage-contract being in Scotland so purely a matter of consent, and so entirely ' >'('(! Fr. ii. Il'KT; Wurn )i
. l!Ks, - ii. 1301). 372 :,Y-^ 5^ TITL'TEl). , the forms as valul a [uireuionls In other s tlif Joniis latiimoiiial tlio law of c'd in this a roj,Mstrar. ill not bo have bci.li \\v Irx loci been the titliority in 1 Anieriia, ililc. Twi) til the l<\r ebrateil in irriagi's oi isi" will be iilid in the very other in of J5;ir. although nso both ill , being in so entirely fRREGULAi; MARRIAGE ABROAD. 373 independent of form, it would seem, with all deference to Lord Eraser's authority, to savour of absurdity to hold that Sco'.s persons must, if they desire to enter into their contract abroad, go through the forms prescribed by the law of the foreign country. Is it to be said that, while the interchange of consent openly before witiuisses in Edinburgh will constitute a marriage, the same consent cannot be interchanged before the same witnesses in Paris, and that the Scots Court will refuse to uphold the same contract [»roved in the same way ? Lord Eraser cites no authority in support of his dictum, and principle seems to be against it." ^ The theory advanced hero is supported by writers on private international law of great eminence. Bar says the rule "locus rcjif iidiim" is, as applied to marriage, merely pex'missive — !.'■., a marriage in accordance with tlu; local forms will always be good, but the parties, if they prefer it, may legally av lil themselves also of the forms of their own country, jirovided that be ])ossible in fact.'- This was held by the Supreme (]'ourt of Saxony. A marriage celebrated in Belgium between two Saxon subjects was sustained, although the law of Jje'lgium, which required celebration before a civil oliicial, had not been complied with.-' Savigny I'xpresst's the same view, an. I thinks that in perform- ing any juridieal act, the person doing it has the choice between the form in use at the place of tli(> act and the form of "thi" place to which tin; juridical act properly belongs," — a curi- ous phrase, apparently e(]uivalent here to the Axwix ^ol ulinins. lie says, "If iidiabitants of ;i country where the ecclesiastical ceremony is required enter into a marriage in a C()untry that prescribes a juritlical form, and not a religious eeremrmy, and if they tlierc get tlu'inst'lves married in tin* religious form, without observinu' the iuridii-al form of the country, the iiiarriago is valid, because ihey have used the form of their own eouiitrv, the natural and permanent seat of the mar- riage." ' l')Ut this is to place the contract of marriage in a ditVer<'nt position from (n'cry other contract. It is a well- known rule of private international law that the formalities iei|uired for a contract by the law of the iilace where it was ' Cill.'siiii'V I'.ar, i!ii.l -' ////'/., p. ;5.'i!>. •' lliU., p. IW.), i,,,l,\ .,]!.. '{Tl. 'CiitlirifV Savi.'iiy, liml I'M., p. :: !■! i4 I ij "I VJT 374 TllK FORM J5V WHICH Till: MARIMAfiE IS CONSTITUTI.I). made are also neccssaiy for its validity in this country.^ R(^ where an assli^iiation of a debt was execiitcMl in England, but the assignation was null according to the English law, it was held that the assignee had no title to sue in the Scotch Court, thougli if the assignation had been made in Scotland it would have been valid.- In a case where it v.':i;, avciiod tliat an agreeuiL'nt made in Surinam was invalid as bfing unstampL'd, Lord Elicnborough said: "I shouM clearly hold that if astani|) was necessary to render this agreement valid in Surinam, it cannot be received in evidence without that stamp here. A contract must be available by the law of the place where it is entered into, or it is void all the world over.'"^ Marriage has been assimilated to other contracts in this respi'ct by judgments of high authority. A mariiage eeli'brated between JSritisli sulijects by the chaplain of tlie English (!hurch at Antwerp, in presence of the Jhitish Consul there, was found by Shailwell. V.-C, to 1)1' invalid, on tin,' ground that ceitain reipiiivmenis of Jjelgian law, by which, Inter (il!poited by Snnnnhi \. MuKuc.^ It may bo looked upon as established in I'lngland that the validity of a marriage celebrated in that country is to be judgecl of sohjy by English law. In any English court the test of its valiility is the li.c lod. The oidy excejilioii which has been ailmitted ll;i-. ',s',,' Wi.-tliikc, 1 Mi Villi' Jiit.r- iiiitiiiiKil l-aw, :j|il I'M., ]'■ -•'>! ; l'" I), ir.ni. ^ i'lufjwlAnj, \H\-2,'.i ('aiii|.. KH!. v.n. 3!»:). p. lOS. 1». lOl'. I SCO, -2 ^. an 1 'I". (I aii>l ' Km I \ Siiuiiiis, 301. /; nrij, is 10, 1 1 /;-.-/. V. /;., 1^(11, :» !l.l..('. id;' ^'STITUTl.D. intry.^ So igland, but law, it was tlie Scotcli Scotlaiiil it ,orrod tliat uuslampi'd, it" a staiin) Siiriiiain, it p here. A wlicie it is aninyc lias jiul^inciits L'cn J'riti.sh t Antwerp, y Shadwt'll, :'quirL'iiiciiis iviiiouy wa-; And in a a niarviaur id: "ThrlV 1 tliis cansr, in, l)v virtue 10 niarriaL;tJ the validity " And ill i apprc'luiid iiii'd l;iii id I M' arc iiiadc." ' \l<,lhi,:^ It I lie validity H'ed (if soli ly 'its validity en adniiltiil 17. la-':'. r. (!7 ; aii'l •■'ii' ll.l„c. I'.i:'.. T*r,T- PROOF OF COHABITATION ABROAD. 375 is that uf roquirinj,^ in addition to a form valid by the lex Ivci, that the parties shall bo comiietcnt to marry each other by the law of their domicil.' Thi-s exceittion, in the opinion of Hannen, J., only applies to a case where both parties are domiciled in a conntry which prohibits their intermarriage. - Now if this reasoning be a,pplied to the case of an irrei;idar Scots marriage celebi'ated in England, it is clear that such a marriage would not be regard.'d as valid in an English court, although it should be i)roved to them that no ceremony was re(piired to constitute marriage in Scotland. And if invalid in point of form wlu're it is celebrated, it will be invaliil all the world over. Mr. Uillesj)ie refers to various cases in which proof of cohabitation abroad was admitted, as support- ing his view that an irregular marriage between two Scotch per.soiis iiiiuht be constituted in a country where some form, civil or religious, was essential. Hut, with respect, they do not ap})e;ir on examination to lend much aid to that doctrine. In F()i'l)(.-< V. Coanh'.'Oi of StrdtkiHoi'c/' L. P. Dundas is re[)orted by Elchies to have said that, " thouyh nothing could have the civil effect of marriage in Seothuul but celebration xrcn 11(1 II Hi li'iiciii loci, yet coii.-^nisns (t cii/iiild even in Scotland would make a good marriage; in Scotland, and it was not an agreed point whether cohabitation in Holland would not have the sajne eftect." This is ambiguous, and may mean merely that it was not atlniitted that such a marriage would not be valid by the law of Holland. Tlie President refers to two eases not reported, in one of which proof of cohabitation in iMigland was allowed, and in another "the Court refused a [iroof of cohabitation at CJibrallar only becaiisi' tliev would not condescend on the witni'sses." Put thes(! may have bei'ii cases in which there was an attempt to prove maniage by evidence of cohabitation and reputation according to the law of h'iKjIii ml, or the cohabitation may have bi'cn the continuance of previous cohabitation in Scot- land. It is clear that where two persons have bi-en ri'puted to be married and have cohabited in Scotland in e(piivocal circumstances, their conduct abroad may lie fairly considered ' SiiUiinidiiitr \. Dc y>'0')vis 1ST7, .tiijini, ]k '^'td ■<(ii. •.] IM), 1. ■■ 17.'iO, Kicliics, ii. r Proof p. :5*i'», - S.iiin.' cii-ii', r» I'.D. 1)1; aiul .-m,' ami G ralon, (iS4. I^ I *37C) Tin: I'oini r.v wiiicir tiik mahriage is coxsTrnTED. as tlirowiug liylit on t]io issue wlietluT the relation between them is concnltina^e or niiuriage. And in all the cases in wliich proof of cohabitation abroad has been admitted, it has been as evidence of ))rior consent to marry i-xchani^ed in Scothuid.' In Kdii/er the majority of the (,'onrt, wlio foninl no mai iia;j;e, said "the cohabitation siieh as it was took iil.icc chietly in CJibraltar, where they cnuM not be marrieil alhr that fashion, "- and tlie minority said of the cohabitation at Gibrahar that it '•must be taken in connection with that in Scotland, which had proibiced two cliihh'en, and was viewed in tlie same liL;ht ly the few sur\ivin^■ witnt'sses."'' Jn (he Bn iiilidhaiif case the ground of JudL;nient, both in the Court of Session and in the IFouse of Lords was that there was sutlicient eviih'uce apart tiom the ctake omit some essential reipiirement of tlie /(.'• hir'i. Such persons ma\' afteiunrds coine to Scotland and re>ide tlier( , ami their cnntinued cohabitation may found the pi'esumption that theyliave exchanged matrimonial consent.'' This lanL;uaL;e imj)li( s cleailv the opinion that the want of ceremony was fntal to the \alidity of the iiiarria^e ah 'i hUhk And thei'e are many '-iii'lh \. Yi! r, ,'lini , which conlliet v, ith Mi'. (Idli'spie's \iew. lionj Deas says ol mania'_;es b\' promise siilis( iiin iil< cojiiilii^ nml hv declaration '/'■ jh'ii ^ful'i , "nor is it necessary that the p.nties should he what the law icyards as domiciled in Scotland. It is enoiiL;h that they are residi'Ut in Scothnd for the linn' l)ein'_;', and that the reipiisites of the contract, a-^ a purely ' /''(i;/<. V, (it.; \,ij,i,r V. .v., I.Mi.l W, -iliin V, at ]>. i i:?. 1801, llmiir- I )i'ci>iiiii-, i>. '.'1)7; ' \k 111 : aii^i s■., CiiniiiJI \. ('., l,,.l.-('. Iii-lis, aii.l l.nr.l. Xfav.sitii.i I'-Cu, n M. II. I,. 11.-) (ill ('. ,,r S., .Muiv, I M., at p. !):;<;, win iv []v\ i .M. MIT . -rrlll III lilllil llh' [".Wi^l' i .1' In ili^ - ji. ."'T'J. Ill iniiil uiilioiit ;i II riiiiiiiiy l" ■ Ihiil., , ■ill!) Jill. \u']-.n\\- liviii-- ill Sinilaiid; aini ' .') M. 11. b., lit J). li'T; aihl /-(■ /../■ L.r. M-Nii!l, at p. 1)1(1. T^T STITITKI). II between 3 cases ill tc'd, it Ikis iaii,L;i'il ill ivho lo\uiil tixik placi' rried iilUr )it;iti()ii :it th tli:il in as viewed ■' 111 llic tlic Cniirt tiirlt' was f Si'ollaiid. tlu' ]icrind iiii|)1ii'll ill •iithuid), it ■lSlllll]>tiiill •, liiit <.f llif )tl:iud and iiiiikI the (•(ilisciil.'' want 1)1' ill I mill). li'UirlJi V. \v. I -did 1^, and liy II' paitii'S land. It the time a |inr(!y .>|iiniiin nf will IV tlliV ,T I't tiiiii-; riiiiuiiy III il.iiiil ; mill FOREIGN MAltHIAGES ACTS. 377 civil and consensual contract, have taken place in Scotland."' It is true, as Mr. Gillespie points out, tliat in that case the pursuer was an Englishwoman and the defender an Irislunan, and tlie law of Scotland was invoked as the lex loci contractus. Ijiit the case cannot be distinguished in this way, and it is maintained that the lex loci must always be satisfied irrespective of the domieil of the parties.- The case of Callei} v. Gossage^ is also instructive. Evidence of cohabitation in England was then looked at. But this was to set up a case of reputation sutVicieiit by the law of England to create a presumption of marriage, although no register of the ceremony could be found. It appears, though not expressly stated, that Gossage was an Englishman, or the case wouhl be a weighty authority against the recognition of irregular marriages not good by the lex !"(•!. It is submitted that the trtie rule is that observance of the forms of the lex loc! is the only sufficient evidence of genuine matrimonial cmisent. Certain Cases in which Marriages are regarded as valid independent of the lex loci contractus. — These eases are of twu classes — (1) wlnre in virtue of the doctrine of e.xiei ritoiinlity tlie })ortion of tlu; foreign country upon which the marriage is celebrated is regarile(l by a legal liotioii as within the Queen's dominions ; (2) where the marriage is celebrated in an uncivilised country, and it is not possible for the parties to go through any religious or civil cereiiiony, or where in a civilised country they are excluded lidiii .availing themselves of tin; /'■,/• loci. Foreign Marriages Acts. — The marriages of British subjects abroad, unless celebrated in accordauct' with the hw lor!, are now regulated by the i-'oreign Marriage Act, l.S!)2 (.').') i^- .')() Vi<-t. e. -J.'J), and the Order in Council, dated 2Sth October, 1S1»2.' This Act commences on l.st January, ISOo. It is a Consolidation of the statutory law on the subject; and repeals the following enactments: — !• Geo. IV. c. Dl; the 1 I M., lit p. I7i>; aiiil ,s'.r at ].. -' ,s',i alsn ,1/.((Yi///iJ(7.' v. .If., ITa'.), ITi.'. till. ; ami j>,r \..V. M-.Nrill, at M. l.V.tl, ivv. -2 Pat. Xi. ||. IT'l, foot; ill llon~c nl' [.Mills ;),/• ■ IS.'iO, I -J D. (I,'}:}. i,iiil W.-lliury, -2 M. 11. b., at p. * Siatiitmy ilulcs ami Ortlera, "I'l; p.r !,.('. (•lu'liii^liini, at \k X-2 ; IS'.tii, ].. Cl'.'.. //. /• b. I\iii;4-tliiwii, at p. 8(1. ^ I I I) i 5 1 I m 378 THE FORM BY WHICH TIIi: MAKIUAGE IS CONSTITUTED. Consular Maniago Acts of l!S49 ami lS(uS (12 .^ 1.'} Vict. c. (J.S, and :U iV: 32 Vict. c. 01); the Maniayo Act, 1S|)() (')',) Sc ")4 Vict. c. 47) ; and the Fonign Marriage Act, IN!) I (54 v.^ 55 Vict. c. 74).i The Act api>lies to nii.xed marriages, but where one only eC the j)arties is a Uritisli subject, the marriagt> efllcer must bo satislied either that the other is not a citi/.eu of the country, or, if so, that sutficient facilities do not exist for solemnisation in accordance with the h.c loci. And as it is possible that wiiere the man is nutalhitish subject the marriage would not be regarded as valid by the law of his own count rv. the marriage otHcer uuist be satisliid that by the law of the alien's country it would be a good marriage.-' These [irovisions arc very properly introduced, because in many European countries such marriages would not be valid, at least unless l)otli paitiis were Ih'itish sid)ji'cts. It may be a matter of ndiioi' CMnrern to an Englishman and a (jcrman woman who go tiirough a ceremony of marriage at the Jhitish Consulate in Antwerp to know that the marriaije woidd not be good bv the law of Belgium, liut it is of the greatest imjioitance that the law ol' the future donncil should be satisfied, and highly undi sir- able that iiritish consuls should fai'ilitate et icmonies of nuuriage which would be legally null when the paitits returned to the matrimonial heme.' Subject to compliance with the conditions as to notiia',' and consents where reipiired by the law of h'lii/lii lul/' such marri- ages may bi; s(jlemnise(l by, or in presence of, any and)assadur, consul, governor, or other ])ersoii authorised in that behalf by warrant from a Seei'etaiy of State.'' The commanding eflirer of one of Ihr Majesty's -hips on a for- eign station mavbe authori.-ed as a mairia'-c ofllcer under the Act." Marriages solemnised within tlu! JJritish lines by any chaplain or oflici-r, or other peison (fliciating under the oiders 1 It rcpials al.-n tlif wmils aliuiil iiianiii^f at ciiiliassifs in ;■ II el'tln' N.iliuali.sitieii Act, IsTo i;{:5 ^^ ;{ 1 Vict. V. M). - 4^.^ 4 aii.l f) (.t tlu- Fcivi-n Mar- ria;fi's OmIlt in Council, IS1)2. ■' Sec Ifcpiirt (if Mairia,:,'c Laws Coiunii.-siuu (KS(J>s),anil the valiiaMc arcdiiiit el' tlif Imnialitic.s rc(|uiMMl liy I'lPivi-n law- in llu' Ainicmlix U> llanuniclv's Marriage l^iiw el I'lnu- lan.l. * ^■^■ '•' .^ II. '' ^ 1-2. .s'lt tile Oitlcr in Ceiuicil. TT [STITUTED. : 11} Vict. Act, 1S9() t be brought under the validating clauses of the Foreign Marriages Acts, or justified at common law ou the ground that there was no means available for more solemn celebration. But if the ground ujiou which these casi.'s de[)ends is that in our law endiassies, factories, and the space within lines of our armies are part of the British territory, and ' .^:i:2 of SL's>i(in Iki'I a I'luiiulativc juris- 2 iiV'^t'V. .S'hkV//, IM.'il, IS r.cav. 112. (lictiuu, I'oiiiiili'.l rutioiii: ori//, iSOS, 10 Ka>t. (Mm's lietwi'iii Scot.-iuL'U who were ■2H-2 ; liuiluKj v. Sniitli, \b-2l, -2 11 a--. ('.!!., at ji. 38."). There was a S., its raetory at ('amiiviTc, ia Z^'aland, suliji'ct to till' jiniMlii'tiiiii of tlu' ('(iiisi'i'vatiir (if till' Si'dttisii I'rivi- k'^es ill the NcthiTlaiuIs, wlio was "tied (li)Wii to juil^e hy tlu; rules of the law of Scollaiul." The Coiut nuiulni's (if the t'acloiy. Sec Ki'sk. i. 1, :$1, au.l note to i. 2, 1'.). * \\'<[hl fad that the Innis conl I'lii'l nx is outside the foreign territory, the rijhts of liritish subjects there woidd fall to be determined by the law ol' their respective doniieils. In a ca-e with regard to pi'obate of the will of a British subject roiileiit in a ririti>li factory at Smyrna, Dr. liUshin^^toii held that, in virtue of tivaties with the Uttoman Knqiire, tlu' validity of the will must be judi;'ed of by English law. Tin- learned jiidnc remarked : " I consider the deceased was domi- ciled in lMit.;land, and not in Scotland, or in a colony; for i^roat difiiculty woidil h.ave arisen had the deceased been domi- ciled in Scotland, and a new question if he had been domiciled in Dritish (iuinea.'- From a comparison of this case with the previous one, in which probate of an earlier will bv tlu' same testator had been rel'use .S'.<; Wotlakr. :5i,l I'M., at ].. c,:{ ; l'ii,'!^ott 111! " Kxtiiritciiiality," \k ss. - M„llcl to which the ceremonies of their marriage must conform is the law of England, and a marriage according to the native c\istoms would be invalid." ' This is to a certain extent sup[)orted by the fact that in tl;e Orders in Council the term, "British law," is sometimes used in the sense of English law.'' It is clear that the lex loci is not the law of the Oriental country, and ecpudly clear that any provisions in ih'itish statutes and Orders in Council apply to all members of these communities, whatever may be their respective domicils. But it is submitted that wherever reference to the common law has to be made this must be, in the case of a Scotsman, to the common law of Scotland ; or in tlio ca.sc of an Irishman, to the common law of Ireland. The question ' 3/'T//rt.« v. .v., 1842, ;} Curt. SM. tliL- ?ul joct nuiy be fully .stmliL.l. - .S'.«; Tiirriii^'s liiitish C'oiisuliU- ' I'i^^'utt ou E.vtcrritoiiality, p. Jurisdiction in the Eii.st. lir). •' Sec the iiitere.stiii",' work of Mr. •' Had., ji. 120. I'iggotton Exterritoriality, in wliicli I t w IkIIHI 1 il > a i *-l III 382 THE FORM BV WHICH TIi.: MARIUACE fS CONSTITUTED. might easily arise in a practical shape. If two British subjects domiciled in Scotland, l)nt resident in China, inter- marry thin having previously had an illegitimate child, if the law of tlio father's doinicil governs the ca.se, according to the ordinary rule, tlu; cliild will be legitimated by the s.d)sc- (luent marriage. Js this I'tloct excluded by the theory that the father, without losing his Scottish doinicil, has become ;i member of a comnmnity the law of which, even in (luestions of status, is the law of l^iigland ? JJoth principle and authdr- ity appear to be against this view. It would be much himic easily maintainabh; if it were admitte(l tliat resident members of such a community nught actpiire a domicil there, and in such a case as the one figured, that the man had iJe facto accpiiri'd an Anglo-CJhine.su domicil. Even in that case, how- ever, it is thought that the personal law of a Scotsman would still be Scottish and not English, and his donnt'il more correctly styled Scoto-Chinese.' Ihit, this dilliculty does not arise, for it was sai;, or in a foifign tidal river below all bridges, ' ,S' <; I'l) \A\ liii;lis ill St,,l\.S., ileiik- tiiis casi' clra!, iml ImiiIi Ii.' 1HH8. 15 I!., at p. 1)0'.». ami -Mr'. ri,i,',t,'i.tl innstimi tlic smiii'l- - TnoliP^i Tnisl.-i, |HS.% j;m'1i. !>., iirss nf Tnnl.ils Triixls ; WVstlak.', at \K 'I'.ix. Mill I'M., i>. iJSD.svy. ; I'igi^'ott (III I'A- ■• JInl iil-M. <^:ii V. /•'.on, ISSS, Irnitniiiliiv, |). |;^.» so/. 1:5 .\\>\>. Ca. i;U. .Ml. Wc-tlake ' .\t p. 1 l."i. r u STITUTEl). \o British 11:1, iutcr- 3 chilli, il' corcliiit^ to ihc s.ibsc- ic'ory tliat become a 1 (|uesli(iiis i(! autlmr- uich iiinie t nuiubers ere, and in I lie fiiili) case, hiiw- inaii would uicil iimrc V iiiiii'l- Is; Wrsllak.', 'i;_'_'etl till I'A- 7- MAUIUAGKS AT SEA. SS3 she remains suhject to Britisli jurisdiction. If she belongs to an English port, the law applicable will be Kiiglish law, and if to a Scottisii port, it will be Scottish.^ A marriage by rcrhd do prccsciifi, even upon an English ship, might be good on the principle that a regular cer.monial was impossible.'- But in an Irioii case it was held that a marriage on board a transport, celebrated by the civil commander between a soldier anil a woman, was not valid at common law, so as to avoid a siib- seipient regular marriage of one of the parties.'' On a Scottish vessel it would bo good, because Scots law was the Jt',i' loci. By the .Merchant Shipping Act, 1 So -l, marriages are to be entered in the log-bdnk.' Wit ,iii foreign terri- torial waters the loreign li.c loci, or the Foreign Marriaiic .Vets must be complifd with.' 2. On /; il/o'/^-r;/'- ir*//'.— If the view expressed above p. M7i>) be sound en the ipu-stion of marriage in a place which, though locally outside the United Kingdom, is not legallv within a foreign territoi'y, it would follow that the validity of the marriage of a domiciled S otsinan on board a British man-of- war would bi; determine by the common l;iw of Scotland. The only difference between the case of a merchantman and a (.Queen's ship would seem to bo, that the latter preserves her (X'j'rritoriality even when in foreign territorial waters. I'i'ovision is made l)y the Foreign .Marriage Act, 18()'2/' for tiie solenmi.sation of marriages, when one at least of the partii's is a J'.ritish subject in presence of the commanding- ollicer on one of Ijrr Majesty's ships serving on a foreign station. Previous marriages so solemnised, either with a religious ceremony, or pi'r vi rhn tlr prii si'nfi, are validatt:d by 1-2 Sc 4.*} Viet. c. 2!), in cases where both parties vvere IJritish subjects. I5ut, inde|ieiident < f this statute, Jiey would hv valid in Scotland at eomnioii law if one o|' the |iarties was domiciled in Scotland." It is cUvir that ;\ Scot.sinan entering ' Sr,' Wc.-tlakr. :'.i.l Ivl., ].. |s,) ; l>eiili"liii, ISS7, 1.") i;. i.')ii; /./.!//(/ V. (luihti-L ISC.J, L.l{. I (,>.i;. IK), s,,: t;s]>. at \<. l:iH. -' No' lu'.xt suction, Mini pi i- ^\'ill^•s, .1., ill iSndiil.tkv. II., iSCl,'.) II. lit L. » 'a., at !>. 'M-2. ■• hit MiiiiHii v. Driiiti, isco, 13 II. c.b. 2!-:. ' 17 & IS \'i.t. c. lot, Jj 2S0. ' .s'l'c lor a vi ry I'laliorati' acccnint of tciiiti'iial waters, Hcj. v. Kiipi, isTc, L.i;. -J i:x. I). (;;}. ri."« iS: nt; Vict. r.i, S 1: ' .\nd so ]-2 &. 1:5 Vict. c. (IH, .^ lio, liiil (•/'. Dicey oil Deiuicil, p. :'0S. ''i 3h nian-of-war, with no minister })ro- scnt, would be prol)ably invaliil.-' .Mr. l)iicy tinds this view conlirniid in ihc doctrine of lUackstone,'' that i'ritisli subjects si'ttling in a new ly-discovered connlrv caiTv with them "so miK'h of the English law as is .applicable to their own situation, and the condition ot' an iidant colony;" liy the rules as to Anglo-Indian doniicil ; and by the langunge of 2.S .\: 2J) Vict. c. (JM, ;;j :! ; 4 (Jeo. IV. c. 1 ; 12 .V l;{ Vict. c. (J 8, {^ 20. J5ut any such inft ivnee from the language ol" tlioM' Acts is very indirect. 'i'lie rides as to Aii'^lo-Indian doiuicil weic really based on the \iew that ser\ ice with the Ivist India Company was practically ecpuvalent to .siiviee umler a Ibrcign governnn'nt. In wonls which Mr. J)icey himself (juoles else- wiiere ' "persons who had contracted obligations with such g"\ernnient (the go\ernment of the l'];ist India Company) for .ser\ice ;ibro:Ml, cotdd not reasonably be' considered to lia\e intended to retain their dondcil jieic 'i'hey, in f;iet, heeaiui as much e.^tranged i'rom this country as it' they had become servants of a loicign government." ' Such laiigua,;e would f' (juite inappropriate to the service of the state either in the forces ol' as a ci\ilian. lllackstoue in the passage cited is not contemplating any conllic'l of laws among the settler.^. iliit, apart Irom tlii-. thertj may lie a presunipti2, 1.") lUav. 111. ,s'm iilsn in re MiliTiiijId. I'd.itiill V. Mdfl' iijlll, i,s^"), .'JO cii. I), n;,-, ; L.iihUni'h I'liiiuii, IMS,"). 10 Api*. ('a., at pp. fliiii, I'i^^; ami ir imvli: Ciniiiiiniliinii, - I»..iuiril. p. :;os. ■' Jiljukstiiiic, i. |(t7, a.- tn wliirli ,s'm; iiifni, "Cnlfni il Marriai^f.^." ' Di.iiii.il, p. I |-_'. ^' /'. /■ TuiiH T, li..l., in Jiijiii V. IC-.o./, IMC."., t 1).' (!. .1. atnl .S., at 11. (IlM. .'>«'i( H'inirhiinc V. H'., 1^77, Yt p. I (71 rcMMulL 18b4, 13 U.li.D. 41^ 1 !!. !)i: I VAI.IDAIIMi At IS. :;n.) TrruTED, Scottish vy bciiiy Dicey to hich the ect imisl 1 l;iw 111 oils both jil'd ■•<< lit I iter \)\\i- iiids this it r.ritish iny with ■ tn llu'ir ■' liy thf ;imi;ii;'i! ol 'i:;'virt. sc Acts is licil wnc lust India ' ;i I'dlri^li iiti'S I'lsC- ;ilh such jiaiiy) Tor t(i lia\(' , liccaiiK 1 hi'coiuc WduUl ll'J K I- ill the til is not rs. iliit, Si'otsinaii. I,- 111 wliicli •i'iji;4i's.'' ill Jiifi' V. ami S., at ir., i.^TT, P beiiiff ;v nioiiiber of siicli a new cijinnniiiity, consents to abainh)!! his own hiw, and to become subjrct to tlu; law of the si'ttlenieiit, wliieh woidd naturally Ik; the law et' Kiinland in a case wlim' the iiiajuiity of the sritleis cauie iVoni that cuiiiitry. A Se()tsniaii in the Ihilish army er navy ^tamls in a diriereiit pusitimi, and im such [iresunijitiuu arises. Validating Statutes. — Vaiinus AVc. ; ff) on boaiil a :iianof-\vai on a foreign station in the pl'i Miire oi' the comioandim^' ofhcer. .*) 1 \- ;>2 Viet. (■ ((' removes doubts as lo (.'oiisidar niarria;^es in preseiiet of consuls hoMiiiL;' otliee merely lul 1 iifcrl III. 4l* A- I'O Vii'I. e. li'.l renio\e> a doubt as to the validity of marria'^es on men ol-uar by I'crli'i Ir /n'li -^i ul i. ol. \ ."i,") \'irt. e 74, v^ III, leiiiu e-> a doitbt as to the effect III ."):> iv ."(4 \"ii't. c. 47 U|ioii such mairia'.;es on a Ihitish >lii|). ■».") \ ,")(( \'iii c. •„'*), !:j 2(i. removes iloulit-. as to coii.-ular inarria'^es arisiun' finiii di feets in the autlio>ity of the con-ul or fnuii till eelebraliiiii beltiu cIm, v here than at the tousida.te. These .\t lo one o} thi'se invabil man iaL;es has, duriii;^ the lifetime of tiie other lawfull\- intermariied with aiiv third iieiseu. the liist marriaye is not- validated bv any of the Acts from IM-I* downwards. They do not atfecL the validity of any maiiiane solemnised bevond the seas otherwise than [irovidevl in the Acts, and do not extend to the niarrui,ei of any n\' the lloyal l-'amily.' > iii >S: i:i \'i.!. ( , (is, >^S M ami '2\ ; 55 -i "m ^'.<-\. v. -J.'^. .^ ziC. 1 '. t m 1: :?Sri llli: FolIM |!Y WHICH TIIK MAlil!l.\(JK IS COXSTITl'Ti:!). 'I'lif t'nllowiiin' statnti's \;ili(l;itt' maniai^f'.s, jis to wliicli (Imibts ( xisfcd, ct'lchratid in ]i;irticiilar jilaccs abruad ' : — 4 (Jrit, IV. c. ()". Sf. I'rtcr-. ;") (led. IV. c. (is. Nc\vfuiiii(llnii(l. :) Sc 4 Will. IV. c. 4:>, II;iii.l)iir,u^ 17 X- I N \'i(t. V. SS, Mi'xicd. -I \- '2'2 \'icl. c. 4t!, MnscDW, Tahiti, iiiid ^h iii'_;[)t). '22 iSc 'I'A Vict. c. <;4, liishoii. •J7 X- -S \'i(i. <: 77. iMiiiaii IslaiMl.-^, hd'oiv l.sr,4. .SO .^ .•;! Vict .'. -2, Odcs.'^a. 30 v^ ol Vi(t. c. !>:{, Mniio N'clli.., liraxil. 31 \- :]'2 Vict, c (il, Cliina and clscwlicn-. Where there is no lex loci, or it is impossible for the parties to avail themselves of the lex loci. — A manii-v ciiiitractcd aluniid will be ic;j;ii'dcd a.s valid in the Si'(itti>li ( 'iiiirts if the t'\ idciicc ni' mat riniuiiial cniiscnt woiihl h;i\i' 1m en siitliciL'nt had Sent land In eii the luci's ci'li lirnl'mti is, and il' tin re wa.s nil It .!■ Ii)fi ol'which the [larties citnld have a\ailed theiiitoin of tlu' ('liree tribe. In oiiler to contract a marriaijc l»ef'ore a priest or a magistrate A. would have had to lra\el on loot and by ea noes bet ween three' ant! Ibiii' tlmnsand miles. A. and 11. eoh;il»itid lor t wenty-ei;^ht year^, and A. introdinid |;. to l"JU'o)»eans as his wife. UnriiiL; Us lifetime A. eontrai'led a (,'iuistian niarriiieo with ('. lie bad children l>y !'>., some of wli it'll were baptised a-> le^it imate, bnt one was, with IJ.'s consent, baptised as illeeit iniate. After A.'s death it was held tliat his surviving; child by 15. was leeitimate on the i;ronnd thai A. had contracted a valid mairiai^e with lier ju r rirhn ilc pra'senti.' The ('hrees .admitted jioIyL^^ainy bnt il w;is held 'Ami sic W) \. Tio \'i'i, c. ;j ill (il 111^ pii'viiiu- iiiiiii!,\;;cs. .Alilifiidiv. Tlii?< All aiilliiiriM s - ('inniollii v. H'lnilriih, isiiT, II Kii,L;li>h L'lii_'Viimii tn urcivc n ititi- ].o\v. Can. Jur. IDT. ciluil l^y liislmii I'iitt.' of liiimis in Sfutlaud, ami cmi- VA. 181)1, i. 'Mn>. iTiirii;!). to wliii'li i . le for the , iii;iiii;i,l,fi' If ScdLtisli llllVc 111 rll 111(1 it tin I'f tlicliisclvcs. iii'4 ill :iii . cdiitiai'li'il 1'.., SlIllH' lit l.'s CllllMilt . M l!ia1 his ,.1 thai A, ( was hi.'Ul .;./(, iM'iT, II N<» l./:.\ l.oil AVAII.AI'.l.K. .•5.S7 that evidence poiiiteil to A.'s iutcution to contract a Christian iiimriai^a'.' Ill such circumstances niarria^c hy dccUxratiun is rei-arded as valid even in \\w. Courts of Eiit,dand on tlie principle above stated, and, d fortiori, it would he so held in Scotland where no ceremony is re([uired. {h.) They may be in a country which makes no jirovision for marria_t;e except accordin;^ to a reliyinus cerenioniid which the parties are not able to adopt. E.'. :!7 1 ; L'tn'om- \. 7'. im/.J,', Isic, Sci lu'|iiirl (111 Ftiirii,'!! Marr la'jc' S Taini. siM. S8S Tin; loiiM iiv wmcii Tin; mauiuage is coxstitutkii. law provih law as is applicable to tin ir o\\ n sit nation, and tho condition nt' an inlant colony, such, foi in>tance, as tile gcmral rules of inheritance, and of prottci icn fioui personal injuries." ' This rule covers tln' forms o|' m.ini.igc which, in such ;i plantation, must conlorm to tin rei|tiii-ements of the Kngh>h law as it existed ;it the time the settlement was m.ide. JJritish statuti's subse(|Ui iitiv made do not, unless .so expic-sfd, e.xtend to the colony, and the torni> obs{ rved liy the n;iti\is of the country are immateiial. A doiuicih'd Seotsman, beini; one of the mend)ers of such a settleimiit of colonists, must, In order to contract a \alid marriage, sat isly t In' reiiuirenients of 1 1 ■■ English .and not the Scott i-h cuninion law. Jnthe l,,i nili rihil' I'cri'ii;/' ('(IS)' ^ till' eni|uiry was ,as to the validity of the marriage of a domiciled Scolsman celebrated at New \>>\k in 1772. It was contended that the crreinony pi riormed by a clci'Liyiiiin of the t'hurcli of I'lnglaml w;is invalid from the want of banns or license, and the aigiiment does not si em to ha\(' ' Ui'iliiiij y.Siiilih, IM'I, -2 ll;iu"-. Taunt. s;;o ; ('„i,rc /;,o/. Ca., at \>. 71 I. - r.l.iek.-leiu', i. io7. ' Iss,-,^ |o A]!].. Ci. ^\'.l■2. Ltiiiti'iir ,-. '/m.-v/,,/,, l.sjC,, S STITUTKU. COI.ON'IES — IXIMA. 3S9 been submitted tliiit, where the domicil was Scottish, interchange of consent, i^cr vcvhn tie jn'dsnitl, Wdiild have been snflicient.^ Mr. Dicey thinks tlie rule tliat Jiritish settlers carry with them English edmnion law is in favour of the view that Scots law has no a|ii»lieation to tlie forms of marriatfe in cases to which the [)rineii)le of exterritoriality applies.- lUit tlie position of a Scotsman in a new colony diltrrs, lolo culo, from that which he occupies in a llritish army on board a Ih'itisli ship, or as a nu'inher of a J'.ritish community in an Oriental country possess! UL,' the privilej^e iA' exterritoriality. As a settler he e'oes out (luiiiio iiiHiirinn, and may naturally be presumed to consent to become subject to the law of the colony, a presumption not excluded by the fact that IVom bein,n' in the army (as in the Lauderdale case) or other causes his Scottish domicil may not be lost. In the otliei' cases ihele is iio similar presumption.'' Colonial Marriages Validity Act, 1865. —The Act 28 iS: 1^1) Vict. c. ()■}• ])rovides that laws made and to lie made by the colonial Icjislatures f'>r the ])uri)ose of estal)Iishinn' the validity of any inariiaue contracted within the colony, shall have till' same force in all parts of the llritish Empiri' as in the colony wluTi' they ;ii'e passi'd, provideii that no marriage shall be thereby made valid uidess at the time of the marriage both of the jiaities thereto were, according to tl)e law of Muuland, competent to contract the same. 'I'lu' validitv or noi. validity of marriages with a deceased wife's sister, when the paities are donnciled in a colony where such unions aw legal, is tlierel'ore unaffected by this statute.' Maiiv oi the colduial K'L;islatures have passed Acts prescrib- ing the fornis of marriage to be obseived in ilieir respedive jurisdictions. ' Marriages in India. Wy the law prior to II- X 15 Vict. c. 40, and the Indian Act of 1S.")2 (Act 5 of 1>S.'')2), a marriage ])etween Ihatish subjects was valid \i' mni\v jx'v rcrlxt lie jn-(i.si iili thoii'^h without a minister." 'J'hi'se statutes ' S,, (l">l.,a\ \>. IS.i. ■' V'i.' Acts - |)niiiiiiiiiiii nf |,(inl C:iini.-, (<'./Vf(, Snpp. xvii. at p. :i!)3. I' ^ I ' I .*}!)() Tin; I'oitM i!v wiiirii Tin-; maruiace is < ls7- in Indiii between Eiuopuan IJritisli subjects miw depends on eoniplianoe with the Indian Marriage Act, 1S72 (Act 1 .'i of 1S72). Tlicv are good if celebiated : — 1. By any minister episcopally ordained, or any clergyman of tlie Chnrcb of Scotland according to tlie rites of the Chuicli to which lie belongs. '2. I!y any minister who, nnder the provi-~ioiis of tin- A't, has obtained a license to solenndse niari'iages. 3. IJy, or in the presence ii{\ a marriagi' registrar under the provisions of 1 i X- I.') Vict. e. K) (or Act .') nf Is.')2). j3xceptions to the Rule that a Marriage good where celebrated is good everywhere. The l;. mial rule is thai a marriage valid liy ihc law tif the placr uhcrc il is I'elcliiaii'i is valiil all the wo;ld over.' iliil to (his rule tluMe are certain will-recognised exceptions. No country will admit the validity of a marriage which il regards as incestuous, ami e\fry country has a. right \n prohibit certain maniages to which one (jf its sultjects ma\ lie a parly, and to declare that it will not le•co^ni.^e such a marriaL;e w hei'i'ViT c.-lehi.ated, .and whether il he lawlul • r unlawful in the view ol'.any foreign couiiiry. MoieoM'i', a nionou.'inious country will not regard .as marria'^c a. union enlered into m ,i p(p|yganious country, unle>s it he shown that the intentiun of part ie^ w;is to cuut r.iet ;i ('lni.>li.in niariia'^c. In laieliv di-cussing these exceptions, 1 sli.ill conunence with the la~.t, a> hein^ i ho most .--inipl". Marriage in Polygamous Country. -'I"h is is not, in the view of (lur Law mairia^e, if the hM>li,ind could lawfully take a seciiud wife iIuimdl; the lil'etinie of the llist, although in tact he has noi done so.' " Marriage is one .ir 1 the same thiu'i sidjst.antially all the Christian world o\er. ( >iii- whole law u| marriage assumes this; and it is important to observe that » .SV, /-,;• i,Mr,l Stnwrll in //,,•/„,/ ••! //,,,/, V. //.. JSCU, l,.|;. 1 1'. ;n,.l V. //., isj!), :i Mil--. C.l;., :U ].. L'TI, l>. I;i0; i„ ,:■ li.lh.ll, I ^sS. lis ami till' csiiiiMticin nj' ilic law l\ < 'li. I ». Ll:io ; :mim /■« T//. . , l"-^<;, Loiil r.iniiL;li;uii in Wiiriiinlir v. ."):'. I..T. .\.S. 7ll,;ill. "i| li.T, N.S. M'., IsMa, -2 ('. ami !•'.. at |i. ."i;io. -JsU. ( i><;sriii"i'i:i). l'(tI.Vf!AMOrs (»lt INCKSTlftrS .MAIll!lA(ii;s. HiM n'iiistrars m S7'2 ill Iiiili:i 111 CUlllpliillKX- IS7-2). Tlu'v uiy cler<4yiimii of (lie Chiuvli lis nt' till' A't , ("^istrar uii'U'r , nf IS.-) 2). J good where 1 rule is thai a it is fi'lfltral- '1 mlr there aix- rria;4f \vhi1 i'lii timis, 1 shall , i-; lint, ill til'' 1 lawfully tak.' litlioiiuh ill tart the same thiiiu 11- whole law ol to ohseive that iscd, I,.i;. 1 I'-aM 1 s,, n- I'll'-, i^^'i- I. nil. M 1..'!'. N-^- we regard it as a wholly (litVereiit thiiij;-, ii dilVerent ■'ilnli's, from 'rurkish or other marriages aiiioii'^ iiilidel nations."' Ihit on proof tliat a iiiarriaife is not jiolyt^ainous, which is coutracteil aecordin;^ to the li\r hid in ;i noii-L'luistian country, it will he recognised Ity our Courts as valiil.- And it would sei'ni that if there is sutlieient i-vidunce that the parties beiiej; in a |ioly,i;an».ius country intended to contract a mono- gamous niariia;^!', and toi.k the he>t iiieans in lluir powi r of declaring their consent t. a ( 'hristian niariiane, ilu' niuniaue Would he valid in this count ly/' Marriage in a Country where Concubinage is sanctioned by Law. i n some couni I iis, and aiiioHL; sciiiie iiinii' or le^s hai - ha rolls 1 1 ihcs, only one " chiet' w il'e " is allowed. In it in addition to lii'r the man is allowed to lake eonciihincs or lesser wives. The |)riiici|ial wife, therefore, cont r.icts u niarria.;i' on the footing that the hushand is imt de'Iiaired from associating other women wiih her in thi- w;iy, .'ind that in so doing hf wdl not he coiiiiiiil 1 11114 ''1 hreacli of diiiv towards her, or giiiliv (if any ma! i iiiionial off. nci' for Ahich she weuld he eiilill'd to le;;al riijii'^s. It is pietly certain that a marriage oil these (eiins would not he re-arded hy oiir ('ourt> as a "('hristian iiiarriaL;e,"" tliniiL;!] in stiici language it niiL:lit noi he called pol Veamolls. ' Incestuous Marriages. Marriage with Deceased Wife's Sister. — .\ mairia'_;e, which in the \iew ol' Scoiiisii law is iiiee>tiioiis, is invalid if one ot' tli,' parlies he domiciled in Scotliiiid, although cejeliratid in a country hy the law of which the parties arc iinl uiiiiiii the lorhidilen degrees.' As le'^ards ihe siicci»i//.''. the is>iie of .a liiairi.a-c to which the p.artics Were w itliiii the forhiddeii degrees ill Scotland would not he entitled to tak.' ahhoii-h the douiicil of the parents at the ' /'. ;-li. r.niii-Iiaiiiiii ir.o/,»./w, ' S. \%-'.\l en Kxtciiil. rialily, sK/i/.f, at 1'. 'i'.'>-2. ]'■ I'il. - Ih-iiiLhij \. All. (i-i,niMii,i,, lS,"i'.», ;? I'.l). TC. " Ma. (I. J'.iT : /.'/..,,/, v. /.'.. ImH, !» /;.//„//, ^inu'i ; . I run- ll.L.C. lli;!; .1/,//, V. .1/., l.^.Mt, Unit \. .1., i^fn;, hdi. :i I' II. .1 i.i llidinp t^lvl. l.S'.ll ', i, :{10. I .^. aii.l '['. lie, an. 1 .■iiifii'il, Ulll kr ' ! i T II II M02 Tin: FoisM nv wmrn the mauimaci: is constitutkd. inarriaifo was in a country wlicrc it was Icnal' I'ut from the opinions in Brook v. Jirook it appears plain tliat tlic marria^fe — r.f/., of a J)anu with liis tii'ccascd wifi/s sister colol)iat('(l in Denmark where both wen; doiniciled, would he rrucli a marriai;e in Denmark, while duniii'iled in their native country, if thev shoidd cunie to leside in [•ji;;l.inrinciples which I iiave laid down, such niarriai;es if examiiMil wnidd l)e held \alid in all JMcjlish ('ourts, as thev are accord iir_; to the law of the country in which the pailies were domiciled ulien tin- inairia'^es were eelelnated.'" ' And when ilie (pir>tion iiext ari^e-, the lact that the \alidity of such inai lia'^es li.is been di dared b\ st.ituti' in several ol' our colonies, and that these Acts ha\(' I'eeeivi d the royal as-ent, would sei'iu to make it impossible to carry the argument to this len-th.' Story di-~tiii'.Miislies bitweeii marria'^es inci'stuous by IIk; law of niiture, and sueh as are iin'e^l iious by the positi\i' code or (Mistoinarv law of a slate, and tlnic is American authority for this. h was (ib-( rved "if a l'oreii;n state allows of mairia'^cs ince>tuous Ijy the law of nature, as between parent and child, such m;irriat;"e would not l)e allowed to have any validity here. I'.iit marriai,'es not n;it orally uidawful, but ])rohibited by the law of one stale and not, of aiiolhi r, if ' Fi iiti'ii, sitjirn. lliiiilis rliiMivu ef a iii,in'i;iu'i' with -' 'i'llis IMtluT .-rclU< 111 111' tllr 11 c IrCcenl wife's si>tl'r, wll;llc\i'l' view dj' I.. St. Liiiiiaril>, ainl iicrli:i]is tin- (joiiiiiii ef tln' jianails, will lut nf I,. Wrii>li-vifilc! in liroii!: \\ /.'/•(»//,, illc'itiiiKil" in Smllanil willi rrfcr- '.) li.L.C. \X\. CI H'c III MHivcalili' no less than to Vv II, ni. niwiiilh, ]'. 1^1:5, and so' II, !• L. iral t-tati- I'ari'nt ami < 'liiM, y id. No infra, lj(';4itiinai'V. (St; DicfV, p. -I-IO. Li ml f'rasur 'z^] ?tituti:d. Rut tVom tliiil till- fo's sister would hv. irposi! iu s ciiuutry. ' ciUl bt; y |KMst)ns IxiiiihI to iiiii.im! (tl /'(*(//,' Lord coulil Unt •(•|i;il('il lo ictctl >U('li •ir liativL- I'll It OH iriuiL^i'S it ts, :is tlicy tlio iiarlics (l."^= And \.ilidit y III' i;il oi' our yul asx'iit, ^'UllM'llt to -; l.y tlu! ,iti\C Cndl! 1 aullioiity 1 1 lows til cm iiart'iit . Imvo iiny ;i\vtV,l, but lllotlli f, it' i.iiTiau'i' willi I'l', \vliatr\rl' CI its, will 111' il witli I'l-iVr- lc. ai'V. M.\l!l!!A(;i: Willi PAItAMnrii. n!)3 CL'lfbiatod wlicie tlioy uro not prohiljited, would l>e lioldm v;did ill a stuti- whoio tliey arc not allowed."^ It is not vi-ry clear wliat test is to bo usod in distin.uuisliin^r what tilt; law of nature regards as inecst, but if inductive roasoiiing is |icriiiissibl(', it is jtlain that no civilised Cdiintry now allows marriages between ascendants and descendants in the direct liiu', or between brothers and sisters. Marriage betw(ien uiiclr :uid nicce is permitted in lonuau C'atlii)lic countries if a papal dispensation has been obtained, and tiure seems no logical ground Ibr refusing to recognise the validity of such a marriage when not prohiliited by the law of the duiiiicil, and valid at the place of ceh'bration.- liord ( 'aims, speaking not as a judge but as a legislator, e\pre>.-ed the fullMwing important oi)iniiin with regard to the validity in Knghuul of a marriage with a deceased wife's sister in the ('olonies: "My view of the law upon the point is this — that if a man, being domiciled in a coliuiy in which it is lawful to marry a deceased wife's sister, does marry his deceased wife's sister, his iiianiage with her is gend all the wnild n\ er ; whereas, if I he man is a domieiKil lMii;lisliman, iHit (f iiiiicileil ill the eulnny, but merely resident there, his marriage with his deci'ased wile's >i>tei' in sui h cireunistunces is bad everywhere, becaust' lie carrit's the impediment of his deuiieil to siieli a marriage with him."'' Marriage of Guilty Spouse with Paramour named in Decree of Divorce. The Act hiOO, c. 2U, ihH'lares all marriages null ' coiitractit heireftir be oiiy persones diverci'it Inr tliair awiii cryme and fact of adiiltcric frome thair lauchl'uU spouses with ([uliLme they ar declaiit, be sentence of the oidinar juilge to have commiltit the said cryme and i'act of adulteiie." it is at pre-eiil not filially decided whether the parties might ' (n-'i'itraiiil V. ('iiiii.<. (\ M,i~<. ;57 |iiiiliaMy \<> ln' takm as ivferriii;.^ to (I have lint ai'cc-> til tliis iv|iiirt, a ca.-i' ulicic tlic inarria.L^e is voiil mill lite iViiiii Slmv, Slli Ivl., p. liy tlu' h.'- (liiuiicilii, luit valitl by \\):>). llu' /(.!• fori cniitriidns. ■ A iHrhiiit . -^^ w >. K^ IMAGE EVALUATiON TEST TARGET (MT-3) ^/ ./^^"^^ 1.0 I.I 1^121 150 Hf 1^ 112.0 11.25 i 1.4 1.6 c>%. ^J^J ^J^ Hiotographic Sciences Corporation 23 WIST MAIN STRUT WEBSTIR.N.Y. 14SS0 (716) •72-4503 \L^ % 394 THE FORM I5Y WIIICU TUE MAllKIAGE IS COXSTITUTKI), ? * lawfully marry in a country where no similar prohibition existed. In one case Avhich occurred, the divorced wife and the paramour acquired a domicil in Lower Canada, and went through a form of marriage there. It was proved that by the law of that country persons who had knowingly committed adultery (i.e., who knew at the time of the intercourse that one of them had a spouse living) could not afterwards marry each other. Tlie marriage being bad by the lex loci was held invalid in Scothuid. Lord Deas .said: "If the marriage had been valid by the law of Canada a different question would have arisen, which would have required great consideration." ' Lord Ardmillan .said such a marriage " is not unlawTid iu Scotlantl, so as to preclude us from recognising such a marriage, if celebrated where it is la—ful, on the ground of its being repugnant to our general policy and morality, as in tlie case of a marriage of an incestuous character. L. P. M'Neil also was of t)pinion that the princii)le of Fenton v. Livniij- stone ilid not apply.'' Lord Kitdocii, Ordinary, was of an o|)positc opinion. \\\ Frulmi Ijord liroiighaui said : "Suppose such a marriage contracted in Enghind, where by our law it would not be invalid, can it be doubted that the issue of it, clainung an estat(! in Scotland, wotdd be considered illegiti- mate." ' Jhit hi^ is there s[)eaking ol' succession to Scotch heritage. Tn a later case Lord (h'aighill, Ordinary, held a marriage with a paramour nannd in the decree to 1 )(■ nul the domicil of the parties being Scottish, althoiigli the \ )la('e ot ceU •brat ion was in England. Will the Marriage if celebrated Abroad be good in the Foreign Country?— It is pr.»bable that a marriage betwcru persons so prohibited, if celebrated in England, or in ani^thii' country where no s'lch disability existed, woidd be reganl li as valid l)y the Courts of the hx loci, in accordance with the general ride that })enal statutes are not extra-territorial in ' llciiltif V. /.'., 18()(l, .""i ,M., Ill lie ill EihiKiiislDiii V. /v., I'"i r,;;. ImJi., ]K i!)0. i«. -mrf. '■^ i />/(/. ■' SInrini V. Ik I'alOy A\>v\], 1S7S, •' n/l. 537 ; and Kfc aho jhv b. (!K'ii- fi I JTITUTEI). rohibitiou wiib and \u(l went at by the onunittcd lursc that •(Is niarrv ', was held riago had ion would eration. dawful in ;• such a uud of its as in the P. M'NfiU V. Livi'ivj- ,vas of an " Suppose lui' law it ssuo of it, •fd illc,L;iti- to Scotcli ■y, hold a t bo null, tho placi' 0(1 in the V botwt'i u in anotlur e I't'L^ardt d with tlio rriLorial in '., Kfi,^. It' !'■. Al.ril, 1S7S, Mr. Mackav, ROVAI, MAItlUAGES ACT. 395 their effect. ' And this principle was admitted in a very instructive judgment in the American case of Peniwjar v. State cf Tennessee, referred to in the following section. Will it be good in Scotland if valid by the lex loci ? — It may be argued that on tlio same principle such a marria<'e celebrated outside the territory should bo sustained." There is a simikr prohibition in the States of Tennessee and Penn.sylvania,-'' and in some of the American States the guilty spouse is proliibitcd from enterhig into a second marriage with any person during the life of tlie husband or wife of ti>e dissolved marriage. It has been held that statutes of this kind are only effectual witliin the territory.' So, where a man divorced in Massachusetts, and unable tliere to marry again, went into Connecticut with a woman whose domicil, like his own, was in Massachusetts, and there married her, and then returned, the marriage was held good in Ma.ssa- chu-setts.-' Hut a decision to the contrary effect was lately pronounced by the Court of Tennessee. The guilty spou.se and the paramour who were prohibited from marrying by the law of that State, had gone to England and been mariied there. It was held that the prohibition was part of the .settled policy of the State, and that it would be contrd, borivs '}ri()i'cs to sustain the validity of a marriage had by the guilty parties in a foreign (,'ountry for the purpose of evading the statute.'' And this was the view adopted by Lord Craighill in the ease referred to.' Marriages in Breach of the Royal Marriages Act. — The various statutes relating to maniage '^ which have been passed IVoni Lord llaiilwicke's Act'' (liG (ieo. IL c. '?3) to tlu' Kor.iun Marriage Act, lSf)-2 f.').') .<;; .')G Vict. c. 2.'}) liave ' AW'stlakf, ]i. ,')S ; ami s.c Nci)// V. I.sss, lo Aiiirricau Slatr llupials, .1'/. (1,11., l.ssd, 11 IM). 12N. (its. - I''r. ii. i:',();5. liar ailluTcs In tlir ' N/'///v(, \>. ',]'.) i. rule tliat llu; viilidity (leinMnl.- mi '^ l>iit iitii llic Marrii'il Woiiicu'.-* the iicrsdiial law, (iillfspii'V l!a!', Pni])('rl\- Ads. \). '.)')\. " Tlu' dill rniiuiiiin law of luarri- ■' I'isliiii), I'M. 18!>l, i. TOC). mi.;i' in Mtiulaml may lie stiulieil in M5i,-luip, Ed. ls;)l, i. sc,:) ; ii, /,'. v. Ml/lls, lS-14, 10 C. ami F. IGl!). :>:U- aii'l l!,n„i!., l.r. li.I-.C liTI. : il f 390 THE FORM HY WHICH THE MARRIAGE IS CONSTITUTED. specially exempted members of the Eoyal Family from their operation. The validity of a marriage to which a member of the Ko3-al Family is a party rests, accordingly, on the common law of England. In 1771, the marriage of the Duke of Cumberland, brother of George III., with Mrs. Horton, excited the King's vehe- ment disapprobation, and to prevent similar mmdliances in future, the Royal Marriages Act, 1772 (12 Geo. III. c. 11), was introduced and passed in spite of strong opposition in both Houses. This Act provides "that no descendant of the body of his late JNlajesty, King George the Second, male or female (other than the issue of princesses who have married, or may marry, into foreign families) shall be capable of contracting marriage without the previtMis consent of his ]\lajesty, his heirs or suc- cessors, signified under the Great Seal, and declared in Coiincil (which consent, to preserve the memory thereof, is lu'rebv directed to be set out in the licence and register of marriage, and to be entered in the books of the Privy Council) ; and that every marriage or matrimonial contract of any such descendant, without such consent, shall lie nidi and void to all intents and purposes whatever." The sovereign has not, however, absolute power to prevent the marriage, for section 2 j)rovi(l('s— " That in case any such descend;uit of the body of his late Majesty, King George the Second, being above the age of twenty-five years, shall persist in his or her resolution to contract a marriage disapproved of or dissented from by the King, his lieirs or successors, that then such descendant, upon giving notice to the King's I'rivy Council, which notice is lu'rel)y directed to be entered in the books thereof, may at any time after the expiration of twelve calendar months after such notice given to the Privy Council as aforesaid, contract such marriage. And his uv her marriage with the person before proposed and rejected may be duly solemnised without flie ])revious consent of his Maji>sty, his lieirs or successors, and such marriage shall be good, as it this Act had never been made, uide.ss both Houses of Parliament shall, before the ex})iration of twelve calendar months, expressly declare their disapprobation of such intended marriage." Penalties of Praemunire are provided against I ITUTED. m their mbcr of common brother ;'s vohe- .mces in c. 11), sitioii in y of his le (other y marry, marriage s or suc- •lared in hereof, is ^n'ister of 1k! Privy , contract I he null sovereign •riage, for nilant of 1(1, being IS or her (lissrnted lii'n Huch Cotmcil, he books if twelve y Council marriage be duly i)(>sty, his as it this 'arliament months, intended ;l against MARRIAGE OF FOREIGNERS. 397 persons solemnising or being present at any marriage in contravention of tlie Act. It Avas decided in the ^Sushcx Peerage Gase^ that this statute was extra-territorial in its scope, and that the marriage of the Duke of Sussex with Lady Aiigusta Murray, celebrated in 1703 at Rome, was invalid. It would appear on the principle of Brook v. Brook and Sottomayor v. De Burros" that when a member of the Royal Family is married abroad, the Courts of the lex loci ought to give effect to the prohibi- tion if the domicil of such member was in England. The English Courts would proba\)ly hold the marriage invalid, whatever the domicil of the party in question, on the ground that consideration of general rules of private international law cannot control the express words of a British statute, but the foreign Court would not be bound by the Act, and might only be expected to give effect to it in a case where the English domicil subsisted.'^ Descendants of George II., not being British subjects, have applied for and obtained the Royal consent to their marriages — ('.(/., the consent of the Queen in Council was given on 27th November, l.STS to the marriage of the Duke of Cumberland with Princess Thyra of Denmark.' Validity in Scotland of the Marriages of Foreigners celebrated in this Country. — The general rule is that the UKirriage is good if the evidence of consent interchanged in Scotland be such as to satisfy the re(piiremeuts of Scotch law. An irregular marriage between two foreigners in Scotland is valid hero, and, therefore, valid all the world over, provided one of the parties has had his or her usual place of rs..,.acnce there, or has lived in Scotland for twenty-one days preceding the marriage.' A marriage Jiowcver attempted to be constituted wdl be invalid if the parties were absolutely forbidileu to marry each other by the law of their domicil, and it seems that this would be held if the parties had different domicils, and the prohibi- 1''. 85 ami ' Gi'iiry mi iSIiirviagc and Kiiiiiily lU'latidUs, p. ]-I\. '■ 1!) & -20 Vict. c. !)6. See Law- ford v. Davks, 1878, 4 P.D. 61. mill 1 ISH, 11 ('. A])]). - t) Il.L.('. U).3; 3 IM). 1 3 8ec Dicey, p. 2U>. : 1 1 1 1 ' :i 1 i 1 .111 M >i I I ill t iHf 398 THE FORM IJV WHICH THK MARHIAGE IS COXSTITUTED. tion existed only by the law of one of them.^ But tlio marriage is not invalid because by the lex domicilii, certain consents were necessary and have not been obtained, although the lack of them may cause the Courts of the domicil to regard the mairinge u.; null. Such consents will bo looked upon as part of the forms, as distinguished from the essentials of the marriage, and the laws enjoining them as withou effect beyond the territory."- And disqualifications of the following kind will not invalidate the marriage in Scotland : — Penal Disqualifications not recognised. — Although it appears from the preceding remarks that marriages deemed incestuous by the la of the domic 1 of both (and perhaps even of one), of the parties will noi. be valid if celebrated here, there are certain disabilities I'or marringe which our Courts will decline to recognise. The rules as to degrees of consanguinity or affinity within which marriages are uidawful, are not widely divergent in civilised countries, and it is in accordance with the doctrines of international law that wo should respect a prohibition of the marriage of first cousins impo.setl by the law of a Catholic country on its own subjects, and on our part expect a foreign country, by whose law marriage with a deceased wife's sister is lawful, to decline to admit the validity of such a marriage celebnted between British subjects who have not acquired a domicil in the country where the celebration takes place, and where, but for the prohibition of the lex doniicilii, the marriage would be valid. But prohibitions which have their origin in institutions repugnant to the spirit of our laws, will not be recognis(;d by our Courts. Marriage of Blacks and Whites. — In some American states marriages between whites and "persons of colour"'' are prohibited by statute, and the validity of such marriages con- tracted outside the territory has been the subject of decision ' Siipi-K, Cajtiicitv, )). '.W2 sc/. - Siiiionin v. Mallai; ISCIO, 2 S. uiid T. ()7 ; llroolc v. Jl., I. 'SOI, !) II.L.C. 1!)3 ; Shulc V. Iira,l]i) ; ^iiliomn ijor v. Ik Ban-OS, 1877, 2 RU. 81, 3 IM). I, 1870, r. P.l). !)4. ' In X. Carolina, a per.son one of wliosi' '^rcivt-Ljrandiiarcnts wan Ijlack is a " per.-^on of colour." ^'ce per lliuinon, J., in Hottoinaijor v. J)e I'xirroH, 5 P.I)., at p. 104. 11 TUTED. ut tlio certain Itliough 1 regard upon as of the effect jllowing ough it deemed perhaps "lebrated lich our ^crrecs of mlawfnl, it is in that we it cousins subjects, lose law Iccline to between il in the |c, but for ouUl be stitutions ^nised by American our „"3 are acres con- decision r,s(m ono of s was Ijlack " &e per ayor v. I>e PENAL PROIIIBITIOXS. 390 in several cases. The judgments vary according to the degree of prejudice with which such alliances were regarded. In Massachusetts, if the parties went into a state wliere they coidd lawfully marry and then returned, the marriage was held good.^ Tn Louisiana, a marriage in France between a Frenchman and a " person of colour " was held bad irrespec- tive of the domicil.i In North Carolina, the Court took up the intermediate position that the marriage was good if the parties were domiciled in the place of solemnisation, and it was lawful thcre.^ It can hardly be doubted that a pro- hibiticm of this kind would not affect the validity of a marriage celebrated in tliis country.^ The incapacity would be regarded as of a penal nature, and traceable to the institution of slavery. So in a French case it was held that a Frenchman married to a negress in Louisiana could not plead in France that the marriage was ludl by the law of Louisiana — a case which goes much further, for there the marriage was invalid by the h\i' loci actus.'^ Marriage of Priest or Nun. — In like manner the disability imposed in (.-atholic countries on persons who have taken religious vows or ord<'rs would not bo recognised as invalidat- imr a niarriaue celebrated here.'' The 7Vlhti/nid Civil de la Seine has held the marriage of a Catholic priest celebrated in London invalid." ' Mi(hca]i v. Nccdhdm, 8 Am. Drc. VM. - Jiisliiiii, i. SC).'). •' /SVf JKT IliUiiuMi, .r, ill SqUo- iiiniinr, supra; Dicrv. \<. li^M. •* luKjcr V. /i'., Trill. Civ. dr rnii- toisi', 1884, Jouniiil ilii Di'oit IhUt- iiatiiiiiiil I'live, Vol. .\ii., ]i. -I'Mi ; rjicil ill note to (lillos]iii''ri iJiir, :2iiil IM., ]\ •^•''•'- ''"'■ tliiiilv^ tliu coiTi'ct rule is that sueli a iiiiU'riat^e is bud wlierever celebrated, if invalid by tlie |ier.sohai law of the husband, i.hkl. ■• I'll- iiaiineii, J., in Softomayor, s((p,v( ,■ Dicey, p. '2-2-i ; Story, J^ 94 ; Wesllake, p. nS; Cf. Stephen's CoiHui., nth Kd., i. IK). .I/./c'y/.A'.s- 7V//s/,s, 18(;4, 2 De G. J. and S. 122. *"' lioiut V. il'., Journal du Droit Tnternatioiial Prive, Vol. .viv.,p. 6(i. .SVc (iillespie's iJav, p. 324. ill ! M 1 f » i CHAPTER XLI. TJIK ESSENTIALS OF MAEKIAGE. As the form of Marriage is judged of by the lex loci, so the Essentials depend on the lex domicilii. — In enter- ing into a marriage the wife acquires the husband's donii- cil, because she evinces by her mere consent to the union, the clear intention to make his home her own. From the moment of the marriage her domicil becomes the dumicil of the husband. It is, thereft)re, natural that, in the absence of ex2)ress contract to the contrary, the effects of tlie marriage — the rights of the husband with regard t > the ^lerson of tlie wife or her property, and vice versa; the grounds upon wliicli the marriage may be dissolved ; the sfctun and rights of the children ; end, in tine, all the results flowing from the mar- riage — shall be determined by the law of the country in wliicli the parties intend to establish tiieir home. In the words of Selborne, L.C., in a Scottish case : " When a marriage has been duly solemnised according to the law of the i)lace of solemnisation, the parties become husband and wife. But when they become husband and wife, what is the character which the wife assumes ? She becomes the wife of the f(jreign husband in a case where the husband is a foreigner in the country in wliich the marriage is contracted. She no longer retains any other domicil than his, which she ac(piires. The marriage is contracted with a view to that matrimonial donii- cil which results from lun* placing herself, by contract, in the relation of wife to the husband wdiom she marries, knowing him to be a foreigner, domiciled, and contemplating perma- nent and settled residence abroad. Therefore, it must be within the meaning of such a contract, if we are to inquire into it, that she is to become subject to her husband's law, 400 fi !^ 1 lex loci, In entiT- d's tlouii- he union, From tlie (loniicil of absence of uuriivge — ^on of the pou wliich lits of the tlie ni;u-- in which e words of •na,^-o has e place of wife. But character the forei<;n ler in the no lender ires. The niiil (lonii- acl, in tlie -s, kno\viii;4 ing perma- t must be to inquire band's law, DOMICIL CHAN(Ji:i) AT MAUUIAGK. 401 subject to it in respect of the consequences depending upon the law of the husband's domicil." ^ And in a leading case, where a domiciled Scotsman had married an Englishwoman, the marriage being celebrated in England, Lord Brougliam said : "A domiciled Scotchman may be said to contract not an Eiurlish but a Scotch marria<.''o, though the consent wherein it consists may be testified by English solemnities. The Scotch parties, looking to residence and rights in Scotland, may be held to regard the nature and incidents and consequences of the contract according to the law of that country, their home; a connection formed for cohabitation, for mutual comfort, protection and endearment, appears to be a contract having a most particular reference to the contemplated residence of the wedded pair; the home where they arc to fulfil their mutual promises, and perform those duties which were the objects of their union ; in a word, their domicil." - Where the Parties contemplate a change of Domicil after the Marriage. — It may happen that the intention of parties is to acquire a new domicil immediately after the mar- riage, as — e.;/., if two persons domiciled in Scotland marry with the intention of going out to America, directly after the ceremony, to settle down there. In such a case it might be urticd that the incidents of the marriage must be determined by the law of the State in which they intend to reside. Let us suppose that the husband dies on the voyage. Is the vs'idow entitled to her legal rights by the law of Scotland ? The question docs not seem to have been determined, but the opinion is expressed, by writers of high authority, that when a change of domicil is contemplated at the marriage, the rights of parties will depend on the law of the intended home. Thus Pothicr says, in a passage which may be thus translated : — " If the husband at the marriage intended to fix his domicil in the country of the w^ifc — e.g., if a citizen of Lyons came to Orleans to marry a woman, with the purpose of establishing his domicil at Orleans, he would be taken in this case to have abandoned his domicil at Lyons, and to have acquired one at ' Harmj v. Farnie, 1882, 8 App. ('a., lit p. no. 2 Wamnder v. TJ'., 1835, 2 Sli. and M'L., at p. 204. 2 D By: h \ 402 THE ESSENTIALS OF MAIUJIAGE, Orleans, to the law of which place he must bo consulered to have subjected himself. " Must we come to the same conclusion if the same citizen of Lyons had nic^iried the woman of Orleans at Paris, with the purpose of going to establish his domicil at Orleans? " The ground of doubt is that, as domicil can only be acquired fado et annuo, the man had not in this case, at the marriage, already lost his domicil at Lyons, or acquired one at Orleans, to which place he had not, at that time, gone, Not- withstanding, we must say that, although at the marriage he had not yet acquired a dt)micil at Orleans, it is suflficient that his intention was to establish his donucil there, in order to make Orleans rightly regarded as the matrimonial domicil, and that he should be taken, in consequence, to have wished that the nuirriage should fall under the laws of Orleans rather than under those of the domicil which he was on the eve of quitting." ^ Story supports this theory. " liut suppose a man domiciled in Massachusetts should marry a lady (huniciled in Louisiana, what is then to be deemed the matrimonial domicil? Foreign jurists would answer that it is the domicil of the husband, if the intention of the parties is to fi.x their residence there ; and of the wife, if the intention is to fix their residence there ; and if the residence is intended to be in some other place, as in New Y(U'k, then the matrimonial domicil would be in New York." ■-' And after citing various jurists, he thinks the con- elusion thev arrive at is sr)und. But it is to be observed that Cujtis, Huber, and L(i IJrun, to whom he refers, are contem- plating a marriage in which the intended domicil is the husband's actual domicil at its date, though the C(Memony is performed abroad. And the same remark applies to the Ampilcan cases cited by Story. Here, it is clear law that the husband's domicil is to govern the rights of parties. But in the case where the marriage is contracted with a view to the husband's changing his domicil, it is submitted as not doubt- ful that the wife aci[uires tirst the actual domicil of the husband at the marriage. Mere (i)ihaun will not change his Traitt' (L" la Com. Art. I'rel Mil. II. 15, 16. - Conllict of Laws, ii 1 !t4. ,s'c c al.s liiu'^c, For. aiul Col. Liiw, i., p. 245 ami Wustlake, 3rd Ed., p. (J8. f ^ Jerecl to c citizen with tlie only be 50, at the cd one at le. Not- rriagc he ciont that order to niicil, and shed that ither than lie eve of domic ded Louisiana, ? Foreign msband, if there ; and lice there ; r ydace, as be in ^'ew ks the con- served that . re conteni- licd is the ereniony is ies to the i\v that the s. But in view to the not douht- i<'il of the cliange his ,;uv, i., p. 245 ; ].. (J8. CAN HUSIJAND PREJUDICE WIf'e's lUGHTS ? 403 domicil, and hers must be the same as his.i The case of Ifdny- settles that if his domicil is one of origin, it is not lost except anhno et facto, and if it is an acquired domicil, which may be abandoned, his domicil of origin reverts till he has acquired a new domicil of choice. The notion that the wife could maintain that part of the contract of marriage was that the matrimonial domicil should be in the new country, and that, therefore, her rights must be fixed by that law, seems untenable.^ Where the Husband's Domicil is changed during the Marriage. — It is maintained by some writers that the hus- band cannot by changing his domicil prejudice the wifc^'s rights, as they existed at the marriage. On general grounds of principle there is much to he .said for this view. Savigny puts it thus : " A second controversy relates to the case in which the domicil of the husband is chanucd durins the mar- riage. Here one opinion is that the local law of the earliest domicil remains decisive at all periods, and cannot therefore be changed by the election of a new domicil. The reason is generally stated to be that in the inception of the marriage there is included a tacit contract, that the conjugal rights of projierty shal' be immutably settled according to the law of the present domicil. This opinion I hold to be connect. ... A second opinion refuses to assume a tacit contract, and makes the matrimonial rights of property depend solely on the law of the domicil. Hence it is concluded that in the case where a new domicil is chosen, its law must decide, and that therefore every change nuist have as its consequence a different law as to the matrimonial rights of property. Finally, a third and inter- mediate opinion rejects, like the second, the theory of a tacit contract, and likewise allows only the law of the existing domicil to decide, but with the reservation, that the estate acquired at the time of the marriage remains unchanged Qw.s qiuvsltifin), and that only future acquisitions sliall be governed by the law of the new domicil. Let us examine the argu- ments for these opinions a little more closely. Our unpre- judiced sense of right certainly speaks in favour of the first. 1 Woncwlcr v. IV., ISli^y, 2 S. and ■' .sVcthe (Udum of Iliilsbiu'y, L.C., M'L. l.-)4 ; Dicey, p. 104. in Cooper v. ('., 18HS, 15 R. ILL., at ■^ Udnu v. r7.,"l86!), 7 M. ILL. SO. p. 25. ' ! I t 404 THE ESSENTIALS OF MAUUIAGE. Wlien the marriage was about lo bo contracted, it was entirely in the wife's option, either to abstain from it altogether, or to add certain conditions touching patrinu>uial rights. She has made no such contract, but has accepted the conjugal rights as fixed by the law of the dcniieil, and natuially has reckoned on its perjietual continuance." ^ Mr. Westlake cites this passage with approval, and, while admitting that it is not borne out as yet by Pjiglish authori- ties, predicts that future cases will be decided in this seiise.-' He says the principle has been adopted in the ^bu'ried Women's Property (Scotland) Act, ISSl (44< c^ 45 Vict. c. 21), which provides (i^ 1) : " Where a marriage is couli.'cted after the passing of this Act, and the husband sliall at the time of the marriage have his domicil in Scotland, the whole, moveable or personal estate of the wife, whether accpiired before or during the marriage, shall by operation of law be vested in the wife as her separate estate, and shall not be sub- ject to the 7t6.s mdrill." It is true tiiat by the language of this Act its effect is limited to marriages in which the husband was at the time of tlie marriage domiciled in Scotland. Apparently it would not extend to the' case of a domiciled English husbanil who after his marriage acquired a domicil in Scotland. Uut it does not determine whether in these circumstances the law of Scotland prior ti> the Act, nr the law of England, as that of the matrimonial domicil at the marriage, would be applied. Suppose after the Scottish domicil has been acquired the wife bccomi'S entitled to a legacy. Would it fall under the jas mariti, subject to the doctrine of reasonable i)rovision,'' or would it vest in the wife as her separate property in virtue of the English Married Women's Property Act, 1882 ;* ' The consideration of the general question is much compli- cated by the difficulty of distinguishing proper rights of succession from the patrimonial effects of marriage. It might appear on principle that a woman who marries a domiciled Scotsman, relies on her right to jus relidiw no less than on her 1 Priv. Int. Law, (Jutlu'iu's Trans- lation, 2ii(l K(l., p. 2!)3. 2 Wefcitlake, .-Jnl Ed., p. 68. »Conj. flights Act, 18G1, i^ 10. Ml', .^[urray thinks tlie j((,s' mariti Wdulil apply, Property of !Marrk>cl Persons, j». (ii). ' 45 & 40 Vict. c. 75, 5;.^ 2, 5. lUOlITS OF SL'CCESSIOX. 405 entirely er, or to She luvs riu'lits as ixoucd on nd, while 1 authori- lis seuse.'- ;M;u-ried 45 Vict, jouti acted ill at the the whole. ac(\uired of law he ot be siih- : language in which miciled in ■ case of a acquired a whether in he Act, or icil at the ,> Scottish it led to a cct to the in the wife sh Married nch compli- rights of It might a domiciled than on her the jnx mariti ty (if Married 5, 5^-5 2, 5- right to have her moveable estate vested in herself. In most cases it would probably be more prejudicial to her that her husband should, by acquiring a new domicil, obtain ami exer- cise the power of excluding her by will from any share in his succession than that her property should fall under the jus mariti during the maril i '''• Accordingly Savigny says : "Intestate succession between spouses is regulated, as between strangers, by the last domicil of the deceased. In many cases, however, it may be do- aful wliethcj' the claim to the inherit- ance is to be deduced from tb ■ rules of proper intestate succes- sion, or from the mere continuance of the ix'Litions as to con- jugal property which subsisted during the marriage (coinmiinio honoravi). In the first case the last domicil determines: in the second case the domicil at whirh the marriage bciian." ^ Rights which have been held to be merely Rights of Succession. — 1. It has long been settled after great variety of opinion, that the moveable sucL-ession of an intestate is regulated by his domicil at death, irrespective of any previous domicil, or of the place in which the funds may be dc- facto situate. l)e jure they must be in the country of his domicil, according to the brocard, lUohilia Hcqaantar personam. The long controvei'sy on this subject was put at rest by the case of Ih-iiccft v. Jh'uce,'- in which it was held thtit the moveable estate of a Scotsman, who had ac([uired a domicil in India, was to be distril)uted according to English law, though the estate was partly in India ami partly in Scotland, and that a brother-consanguinean was, according to the English rule, entitled to share equally with brothers of the full blood.^ This was followed in the great case of Hofi v. La^hley,^ in which it was held that the daughter of a man who had acquired a Scottish domieil after his marriage, and died domiciled in Scotland, was entitled to hyilivn/' a decision which was repeated in Tri'veljjan v. Trc'd/janJ' ' ( liiflirir's 'I'laiislatii.u, ^nA I'M.. - 1790, 3 l^itoii, k;;}. ■' S(C 11, I'uil au'l iiiti'ri'>liii,L; n.-^imic (if till- cai'lii'V cuf^i's ill l](ilH'i't>iui on IViviiiial Slice i(Pii, pp. 80-118. ^ 1702,3 Put. .11, -247 ; mikI .«r pn- Li.rd Eldon in the later case, LnaMey V, Hog, 1804, 4 1\itoii, atp. (114. ■■' For tlie statement that Vlv. Ilog had lost his Scottish domicil of oridin at his niarria;-,'e, see p. 604. ''1873, 11 M. .')1(). I I * V] .r 406 THE ESSENTIALS OF MARRIAGE. if i It was further settled that the right wiiicli prior to the Intestate Moveable Succession Act, 1855 (18 & 19 Vict. c. 23), § C, was enjoyed by the wife's representatives of claiming on the dissolution of the marriage by her predecease, that the husband should account to them for her share of his moveable property, was a right which existed when the hus- band's domicil was in Scotland at the date of the wife's death, although at the marriage he was domiciled in a country — c.f/., England, where no such right obtained. But it is to be remarked that as to legit iw there appears to be no case in which it has been held that a husband domiciled in Scotland at his marriage could defeat the claim of the children by acquiring a new domicil. But ley'dim would probably bt' held so defeasible as being a right of succession.^ In Trevehjan's case, L.J.-C. Moncreitf said : " There can be no doubt that the right to Icgltim, although in a certain sense a debt, is so far a right of succession, that it is to bo determined by the domicil of the defunct," " — an important dictum, though the case was the converse one of Scots domicil at death, but not at marriage. Neither Iryitim, how- ever, nor the obsolete claim of a predeceasing wife's repre- sentatives, stand in the same position as jus rclldae, the presumption being far stronger with regard to the last that it was part of the implied contract under which the wife consented to the marriage. Lord Fraser ^ refers to two cases, one in Kngland and one in Scotland, as settling that jus rdidae is also defeasible by the husband acquiring a new domicil. On examination it will be found that neither of these cases supports the proposi- tion. In Munroe v. Douglas'^ a widow claimed yjt.s rcUdae on the ground that her husband died domiciled in Scotland. His domicil of origin was Scottish, but it was held by Sir John Leach, V.C, that he had acquired an Anglo-Indian domicil, and that the widow's claim must be rejected. But the marriage took place in India, and his domicil was more clearly Anglo-Indian at that date than at his death. * Lashliy v. llofi, 1804, 4 Pat. 307 ; iifl'. sub. iiom. Maxwell v. 581 ; Kmnedij v. Jkll, 18G4, 2 "SI. MH'lurc, 1800, 3 jNIiicii. 852. 587, rev. on tlio fact of tlomicil at - 11 M., at p. 519, wife's death, 1808, M. ILL. 0!) , Donaldson v. M'Vlnre, 1857, 20 D. u. !)!)2. 1820, 5 Madtlock, 379. JUS RELIGTAE. 407 The same result was arrived at in closely similar circum- stances in a recent case in Scotland.^ In Ck'iene v. Sykesr the wife's claim was sustained, but the domicil was Scots both at marriage and death, as was the case also in the meagrely reported case of ColvUle v. Lauder.''' In Ninhett v. Nisbdt's Trustees'^ a widow's claim to jus relictae was rejected on the ground that the husband died domiciled in England. The marriage was in America, and the report gives no clue to the husband's domicil at its date. But no argument was sub- mitted as to the effect on the rights of parties of a change of domicil, and the husband may have been domiciled in England at the marriage. Bell says jus relictae is " a share of the moveables of the husband domiciled in Scotland," a statement for which he refers to the case of Nhhett only.'' The point can hardly be said to l)e conchisively settled by tlie authorities, still less, with Lord Eraser,'' to be settled by Hoij V. Ldshlei/, where the question did not arise, as the widow predeceased. But the reasoning of Lord Eldon, who assimi- lates Jt(,s rclldae to le(j!tiin as both being rights of succession, would probably prevail. Lord Eldon there .said : " But, it is said, that if there be no express contract when the marriage is entered into, there must be an implied contract, and it is assumed that that implied contract is this : — That the dis- triiiution which the law would make of the property of the husband if ho were to die eo iastauli that the marriage was celebrated, is the distribution which nuist be made of the property of the husband dying intestate at any distance of time from the ])eriod that the marriage was contracted, and under all the circumstances of mutation and change which might have taken place. It appears to me, tiiat those who .say that there is such an implied contract, beg the whole (piestion, because the question is, whether the implied con- tract is not precisely the contrary ? This being a contract attaching upon property, in consequence of its being personal estate, whether the true implied contract must not be taken 1 U'ldirl ;)<• v. ir., 1S77, 4 H. M8;35, 13 S. 517. !)4:.. - 1811, n'i>(ii'ti'il as a note to Mil II roc, T) Miuldock, iit p. '.V.)-L •' 1800, M. A pp. c. Siicci'ssiou, No. 1. '■> Prill, ii. lo!)l. Also L. :M'Lareii, fouiiiliii^' on tliL' saiiK' case, M'Lareii on Wills, i., p. ]-2(>. " ii. 'M-2. i I 408 THE ESSENTIALS ()F MAHUIAGE. I 111 ii |i ri to be, that the condition of the wife, in respect to licr expocta- tiun shouhl change as tlie condition of the husband changes with reference to tlie hiw of iho country in wliich they are resident." ^ Tliis view seems supported by the Language ot the Married Women's Property Act, 1881, vi} (I, wliich pro- vides that tlie husband of any wife (hjiiKj domic lied In, Scutland shall be entitled toJn>< relicti. Effect of Change of Domicil upon the Personal Rights of the Spouses. — It is clear that the lex fori must decide any (piestion tliat may arise with regard to rights person;d, as distinguished from patrimonial. Persons, whether domiciled or merely temporarily resident in any country, are subject to its public law, and cannot plead that they are eiitillrd to break the law because their conduct would have l)een lawful ill the country in which they were jnarried, or in which tiny chance to be domiciled. It was said by Lord .Meadowbaiik in one case : " If a man in this country were to cmiHue iiis wife in an iron cage, or to beat lier with a rod of the thickness of the judge's Hnger, would it be a jii'-tilicatiou, in any (^)urt, to allege that these wen; powers which the law of England conferred on a husband, and that he was entithd to the exercise of them, because his marriage had been ede- brateti in that country?"- And in the same case Lord Gicnlee said : " We would not imprison a mariiod woman in Scotland for debt, wherever she was married, though she might have been imprisoned by the law of the country in which she was niarriecl." •"• ExTect of Change of Domicil on the Patrimonial Rights of the Spouses in their Moveable Estate, stante niatri- monio. — It ap[»ears from the [)reCL'ding reinaiks that where ' Lanlthjl V. Jlo'l, 1804, 4 Pat., iiL -' tlnnlmi v. />, is] I, 1'ri.r. Uv^,., p. (il."); .s'ci' tlu' wllulc pilssUtfL'. Ill ]i. .'i(ll, cili'il W illl lllijirnVill, y/. /■ l,ni(l tills very coiiipliciitcd cmsu iiihil'ccs- IJolnTtsdii, in I'^ilnioiiihluiu' \. /.'., sary coiil'usion i.s L'lvjitoil by iisiii^ iSKi, fci'L^iissdifs Ivcpnits, at ]>. ;i',ii», lilt' jiliraM; y«x nllrliic. as iiicaiiiii^' ■' fhii}., \k 10 1; ami s.ii /). /• \t"\d the ri;_'lit of tlie rejiresuiitativus of !'< iiiiiatyiR', iln\l., 40:2 ; an('\ ; Vv. ii. IHJS; liaii'i. ,S', ,■/.'.-'/. /7.SM,/, i'.'i's. .Succcs- l)i-li(ii(, ii. -JC; I'.iir;^!', i. ('.s;5 ; Dicry, sidii. p. 41S, an.l 1 i'at.ni, at p. ()()(!, p. I!):!; i'liill. iv. ij 4S(;. note. 1^'^ IIIGHTS STANTE MATRIMONW. 409 Rights ,,. r li'ipc the effect of change of domicil has been considered, it has boon witli reference to rights such as hfjitim, jus relidYe Wcstlako, 'M-A El., y- "-*• DioL-y, p. 270; Wtstlalu-, Srd E.I., r I 1 410 THE ESSENTIALS OF MARRIAGE. k « II '. v • ; . V • ■; i . i i ' ■-i\ J ') personal and patrimonial consequences resulting from this status so etfectually and indelibly constituted, may be different in different countries. It" they continue in the country where they were legally married, the husband and wife may have certain personal prerogatives and privileges, and certain rights and powers over their respective properties peculiar to that country. If they return to their own country, or remove into a third country, all these may be totally changeil ; hut no consequences of this kind affect the constitution and subsist- ence of the status of marriage originally and legally stamped upon them. Married they were, and married they must remain. No previous domicil or change of domicil can unmarry thorn ; they carry that status with thei.i wherever they go, as Boullenois says, and if they have not settled their rights by a contract, they must take their chance of the effect which change of residence may produce."^ The international question as to the effect of foreign law on the rights of spouses staiife matrimonio has been glanced at in several cases to which I shall brietly advert. In Neidands v. C/udmevs Trustees'' bonds bearing interest and forming part of the succession of a man doniiciletl in .Jamaica, fell to a married sister of the deceased as next-of-kin. The question which arose was whether these bonds fell under the Jus inavltl of her husband. By the law of Scotland they would have been excluded as being heritable. IJut it was held that as by the law of Jamaica they were moveable, they fell under the /iiju;j,al ii'ulils as tit ■■ .Mr. KviTsIcy (Ddiiu'stii; IJrla- iiKivoabk' iiiii|iirty will vaiy. lb; tituis, 1K8."), p. ild) sii;4;4csts tlial draws IK) (listiiK'tidii lictwci'ii nr- llie liiisbainrs luntivc (nr tlif I'liaiim' tjninifii and iiciiiiiri )iil,i. (I )i)inf.-lic is lualiTJal. IJut lie i^'ivt's in; aullm- Ki'latiuiis, l>ss:),|.. .l.ss,aiid.sv(q).:ii:J.) rity for this. ,s',,: ViirS81, 8 1{. <)01. § 17t) sc'7.; Saul v. IHa i'rcdllor^, PERSONAL OR HEAL LAW. 413 presumption must be, they intended their rights to property should be g()verneJ by the laws of the country where they married. [The learned judge must no doubt be taken to mean the liiwH of the country of the matrimonial domicil, which, hi the case of tSmd, coincided with the place of celebration.] This is admitted. But then this presumption as to their agreement cannot bo extended so as to give a greater effect to those laws than they really had. If it be true those laws had no effect beyond the limits of the state where they were passed ; — then it canncjt be true to suppose the parties intended they should have effect beyond them. The e.xtent of the tacit agreement depends on the extent of the law. If it had no force beyond the jurisdiction of the power by which it was enacted, if was real and not personal, the tacit consent of the parties cantiot turn it into a personal statute. They have not said so ; and they are presumed to have contracted in relation to the law, such as it was, to have hnoion its limi- tations, as well cs //s naitive, and to have had the one as much in view as the other. . . . The most familiar way of treating the idea of tacit contracts, being made in relation to the laws of the country where they are entered into, is to say that the agreement is to be construed the same way as if those laws were inserted in the contract. Now, supposing parties to marry in Louisiana, and that our statute providing for that connnunity of ac(iuests and gains is veal and not personal — that it divides the property acquired while in this state equally betv/een the husband and wife, but does not regulate that which they gain in another country to which they remove — the insertion of this law in a contract would be nothing more than a declaration, that while residing within this state there shoidd be a community of acquests and gains. An agreement such as this could not have the same force as an express one by which the parties declared there should be a community of acquests and gains wherever the]i went, for the one has no limitation as to place and the other has. The maxim, there- fore, which was so much pressed on us in argument, taclti et e.fi)vessl eadem vis, is only true when the law to which the tacit agreement refers contains the same provisions as the written contract" (p. 74!)). I have quoted this judgment at such length on account of its great importance, and because t 414 THE ESSENTIALS OF MARRIAGE. the American report (5 Martin, N.S. 5 GO), is not readily accessible. But it must be borne in mind that, although the reasoning would extend to the rights of the spouses inter se, during the marriage, the judgment itself does not go further than the Scotch cases oi Lasliley v. Hog, 1-S04, 4 Paton, 0(S1, and Kennedy v. Bell, IS (54, 2 M. 5i(ui;4liaiii, ibid., at p. nSi. IS;-);-). 7 l)e G., M. an, 4 C. CHAPTER XLTI. LKOITIAIACY. The general rule is settled that if by the law of a child's domicil at birth it has the status of legitimacy, this status will be recognised all the world over. It is well expressed by Lord Ardniillan thus : " The status of legitimacy is a personal quality, and, when once impressed by the law of appropriate jurisdiction, quaUtaft jiersunara sicat v/inhra Kequltur." ^ As will be seen, this rule suffers an exception when the in(|uiry i? as to the right of a person to succeed to heritage. Hero the lex rel nitac is alone regarded, and if the claimant has not the status demanded by that law, it will not avail him that he is legitimate by the law of his domicil.'- Does the Rule apply to Children of a Marriage which would have been prohibited as incestuous if the parties to it had been domiciled in Scotland ? — issue of a marriage with a d'-ceased wife's sister could not succeed as heir to Scotch heritage.-' " The (piestion of legitimacy, having rela- tion to real estate, is a (piestion which each country will answer for itself, and will not ask the aid of another country to determine it." ' In a cuestion of succession to moveables it is probable that the status of legitima>:y impressed by the law of the domicil woidd be now accepted. In Fnito'ii, Lord Wensleydale said : " The law of the domicil regulates also the personal qualitie.-. which take effect from 'irth, such as * Fenton v. Livinf/stonc, ISrjC), 18 D., at \). 875. i>cc this cjuso in 3 Muc(i. 497, and tlic cuses ai'torwartls oited in thi.s cluiptor. - Fenton, supra. 420 •' Scr Fcnto)i V. Liri)ig.ftii>u', '.i M!U(|., ill p. 044, per \j. I'lanwortli. •* Ibid., per L. Clielmsfbrd, at ]>. 55!). i I "ir CHILDREN OF PROHIBITED MARRIAGE. 421 a child's lis status ressecl by . personal )prupriatc " I UHiuiry i'^ Ikro thu IS not the 'lut he is ge which parties marriage heir to g rcla- itry will • country luveables d by the tov, Lord s also the such as ilKJsliiHC, 'i liiiiwurlli. ■ilonl, iit p. legitimacy or illegitimacy, or absolutely as to the succession of personal property." ^ Fenton v. Livingstone was remitted to the Court of Session, and the opinions finding the claimant illegitimate are carefully limited to the right to succeed to heritage.^ The doctriue that as regards personal succession the status assigned by the domicil will be universally accepted is indicated distinctly in the more recent cases in England.^ So in In re Goodman's Trusts it was held that a child born before wedlock of parents who were at her birth domiciled in Holland, but legitimated according to the law of Holland by the subsequent marriage of her parents, was entitled to take as one of the next of kin of an intestate dying domiciled in England. And the ground of the judgment of Jessel, M.R., which was there reversed, and that of Lush, L.J., who dis- sented, was not that status as a rule must be determined by ihe lex domicilii, but that in distributing the estate of a domiciled Englishman the English Statute of Distributions must be strictly construed. "I am, therefore, of opinion," said Lush, L.J., at the end of his very elaborate judgment, " that this Statute, like any other, must be construed in the sense which the common law puts upon its words, and that children means such, and such only, as are recognised in our table of consanguinity." The opinions which went on this view have, merefore, no application in a country in which, as in Scotland, the ilistribution of an intestate's estate docs not rest upon .statute. The question as to the legitimacy of the issue of polygamous marriages in countries in which polygamy is lecogniscd has lately been expressly reserved.* In Hyde v. Hijde/' the Mormon marriage case, Lord Penzance said : " This Court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons ; 1 ' Ihid., ]). 547; sec pr L. Ikuu^linni, ihid, p. 532. L. Cniii- wortli's opinion siii,'j,'c'stH he woiiM ret^'urd the issue as illej^'itimiito i'or ill! purposes, p. 544. L. Cheluisfonl reserves his opinion, p. 557. '^Scc per L.l\ M'Xeill, 2.3 D., at ]t. 372; per L. (.'uii'ieliill, at p. 375; per L. Deas, p. 380 and p. 385. :'N,r Shxw v. Gould, 18G8, L.R. 3 !':. and 1. App., ^Mr L. Ciauworth, at 1). 70 ; in rr (roodmnn'n Trrids, 1881,17Ch. ]). 200. * In re Ulkc, 1885, 53 L.T. N.S. 711 ; 51 L.T. N.S. 28(5. •' 188(), L.ll. 1 1'. !iiic! merely to ilis- cover if the marriage is good in point of I'orni. The incidents and elfects of the marriage depend upon the law of" the hus- band's domicil. The child born in England of a domiciled Scotsman and an English woman was held legitimated by the & ' 188(1, 5:5 L.T. N.S. 71 1, all'. :>A L.T. N.S, 280. '■^ See Mucnii^litL'u's l'riiici|ili's df JNIdiiiinniicdan liuw (1S70), ji. (il. ■':>:] L.T. N.S., at ]). 7i;5. Tf PEE SUBSEQUENS MATRIMONIVM. 423 of thr rth anil takes itinia- *v;\s not to ilis- icidiMits lij hus- )micilrtl by t 10 (U. subsequent marriage of its parents in England^ It is equally clear on the same principle that where the (lomicil of the father is in a country which does not admit of the doctrine — exj., in England, the fact of the marriage taking place in Scot- land will not have the effect of legitimation.^ But is the date of the marriage the only jMtwciiWU temporis to be regarded? There is considerable authority for the proposition that the father's domicil, both at the date of the child's birth and at the marriage, must be in a country, the law of which recognises legitimation per siihseqiwns matrimon'mm. And this is the law of England where it is held that an indelible status attaches to a child at its birth. If it is born when the putative father is domiciled in a country which does not admit of legitimation in this way, it isjUlus nnllins, and has no capacity of legitimation. Hut if born wlieu the father's domicil was in a country which admits the rule, the child is jilias nullias at birth, but has a potentiality of being legiti- mated by the sul)so(iuont marriage of its parents, at a time when the father is domiciled in a couutiy where legitimation can be effected in this way. This distinction between illegiti- mate children boni with this .sy/c.^- or cajjacity, and illegitimate fhildrcn born without it, is now lixed in the low of England.'' in Scotland the point is still open.' In the cases of il/ttuvo and Udnij, it was found that the i'athei's domicil was Scottish both at the child's birth and at the marriage, and it was therefoi'o unneeessarv to decide what would have been the law if his domicil at tlu- child's birtli had bi'eu English. ■' Lord Ui-ougham in Mii iiro appears to think that domicil at maniage would be sulhcient." L.C. Cottenhani is more guarded, and ' Miiiiro V. .1/., IS 10. 1 i;,,!). .i!iL' (ill ('. (il'S., K; S. ls>. - /'( /• Ciittriiliaiii, !,.('., in M mno c'it., ill ]i. (;it:2. ■' .S'm' //I )• I l.itlu'ilcy, I. .('..ill I'diiij V. I'., ISO'.I, 7 M. Il.l.., at ,.. S)l. 'Pile cast's nlVrivd to iiiipuai' to lie; n ll'rnjhl, lS.-)(;, -2 K. and .1. .">!)."•) ; ami /)(i(/(.s' V. Il(iliili\ iSli.'i, 1 1 1, ami M. Ti)S ; .sir ai';,'iiiiii'iit in In /v daod- ((/«n('s 7'c((.s7s, hSSl, 17 CIi. !)., at ]>. :2(;^ ; Cooihnmi v. (/., ISOii, 3 liill'. (i i;5 ; lY (ioodiiitrti!< 7Vi/>'/.<, fit,; )r (('(•«(•(' ; V((Hch( r v. Sulkitur to Tna- .sv')'//, 1S8S, 40 I'll. 1). 2iG; Wost- laki', ;5nl lvlili..n, \\ HO. ' /',(• llatluTlrv, L.C, ill Udini V. r., siijii-ii, at ]>. !tt; /" )' L. C'liclnisl'onl, ihld., at i>. i)S, loot. •■' So also in . I '7. /(('(/( v. .1., 1S,")1), 'Jl 1). 7ri7, all'. ISdO, :5 Maoi. 854. '■ \ itoli., at p. (ill, ami pp. (i21 and Vd4, wlifVD he says lie iii^'vees with almost tlu; wliolu of llio jmlf,'t'H in lliu C. uf S. uu the (piestiuii of law. 424 LEGITIMACY. states the rule thus : " The child of a Scotchman, though born in England, becomes legitimate for all civil purposes in Scot- land, by the subsequent marriage of the parents in England, if the domicil of the father was and continued throughout to be Scotch.i The majority of the judges in the Court of Session seem in J\[un7'o's case to have been of opinion that even if the father's domicil at the child's birth had been in England the subsc- quent marriage wouUl have had the effect of legitimation, if the father's domicil had become Scottish at the date of the marriage.- And this is the view of Lord Eraser, although he admits that the question is difficult and disputed.'"' It has also the weighty authority of Savigny, who says, "legitimation by subsequent marriage is regulated according to the father's domicil at the time of the marriage, and in this respect the time of the birth of the child is immaterial."' But the (licl(t in Maaro were, as already stated, obiter, and it is submitted that the ex^^ress judgment of the Court of Appeal in la re Grove'' would now be followed in Scotland. Although not bimling upon them the Scottish (Courts would naturally attach great weight to a judgment of such high authority, based not upon specialties of Englisii law but on principles of general jurisprudence. A Child legitimated, per subscquens matrimonium, cannot succeed as heir, ab intestate, to English real estate. — It is settled in England that in order to suetieed to real estate the heir must have bc(>n born after an actnal marriage betwi'en his piirents. Legitimacy, jter mihueqiiens innlriuiu liam, in accordance with the rules of private international la>v', with the limitation .above explained, will entitle him to succeed to move- ables, but it has bet'U authoritatively detei mined, that as regards lealty, the Statute of Merton, which re(piires that he ' 1 IJiil)., at ]K <">"•">• - S(epi:r L. .).-('. linylc, and Lords Mi'addwbank, l''iillt'rtiiii, .IcIlVi'V, and Cunin^liaini', in Hi S., at ]t, 27; /ir.r Tiiii'ds (Jlcnlec, Mfdway, Mmi- cruiir, and ("(icklmrn, at ji. 14, l(i]» ; 2>er Lord (iillii's, at p. 54 ; y*. /• Jiord M,., Kcnzif, at p. r)(! ; jn r Tjord ( \iw- liotisc, at ]i. nC), (III ji III 1)1. ■' Parent and ("liild, :3nd Kdition, ]ip. 4!> and !')-2. ■' Private Int. Tiaw, (lutluie's Translation, 2nd Kdition. ]>. ;J02. "> IHsS, 40Cli. 1). 21(J. STATUTE OF MERTON. 435 Shall be born in lawful wedlock, must be complied with ^ So al a father legitimated, per subsequens mJrimonium cannot succeed to his son's English land.^ ^"^^i^m, 1 Birtwhistle v. Vardill, 1826, 5 B. 4Q7 • n,,,! w,„.„ „ y. ; 1 t t^ .<...! ;;. 433, »(,-. 1840. 7 a Li f! ,,,, Z i. a™ t^ ' '"""'• '-''' ' ■=• 1 Kob.627; seei^cM'., 18^8, 15 K. 8()<). 428 JURISDICTION. referred to in Jack v. Jdch,^ which was decided by the whole Court. In that case the doctrine was affirmed by a majority that the Courts of the country wdiich had been the matrimonial home of the spouses had jurisdiction, although that country might not be at the date of the action the husband's domicil for succession. The material facts were these : The husband had a Scottish domicil of origin, and was married iu Scotland, where he afterwards resided with his wife. He went to America, leaving his wife in Scotland, and became a minister. Sub- sequently he raised an action of divorce in the Court of Session on the ground of his wife's adultery in Scotland, where she had continued to reside. It was not argued for the pursuer that he had any (iniinus veverteiuU, and the case consequently went on the footing that his domicil for succession might he at the date of action in America.- L.P. M'Neill, L.J.-C. Inglis, and Lords Ivory, Curriehill, Ncaves, ]\lackcnzic, and Beidiolme held it was sufficient to give the Court jurisdiction that the matrimonial home of the spouses had been con- tinuously in Scotland, Lord Deas dissented, and held tliat the jurisdiction could not be sustained unless it wen; proved that the husband had a domicil in Scotland. On the authority of the old cases his Lordship was inclined to hold, however, that for this purpose a domicil based on forty days' residence would be siifVicient.'' In Pitt V. Pitf^ the subject of matritnonial domicil was again discussed, but the circumstances were so different from those in Jack's case that the latter cannot, it is thought, he regarded as overruled by that decision. In l^llt v. Pitt the husband's domicil was English, and ho rcsiih'd iu England with his wife. In 1854 he came to Scotland to evade his creditors, leaving his wife in Enghuul. lie resided in Scotlniul apart from his wife for about six years, and in 18()1 raised an action of divorce against her on the iit L. KiiildC'li ami L. .Ici vi-- wodile ln'M it net proved tluit tin' liusliiuidliuil Idst liisScdttisli (Idiiiii'il fur all inu'iMisL's. lliid.^ al jip. -iTK ,•111(1 480. •' Ihid., at y. it:?. ' 18(12, 1 M. IOC, ivv. II.L. 28,4 Ma((|. (;27. 1804, 2 M. -^nr PITT 1'. I'lTT. 429 3 whole iiajority imonial country doniicil Scottish here lie Unciica, Sub- ' Session lierc she pursuer cquently night he L.J.-C. izie, ami 'isdiction een cou- leld that \) proved On the to liold, )rty days' nicil was cut fllUU )unht, !)(' PUf the Eiigiaiid evade his Scotlaial raised an ■ry. The lield that IM(;4, -2 M. I i the Court of Session had jurisdiction, on the ground that the matrimonial domicil was in Scotland. This judgment was reversed by tlie House of Lords. In considering the result in that House, it is necessary to notice the somewhat unusual course adopted at the debate. " Sir R. Phillimore, Avith whom was Sir Hugh Cairns, on behalf of the respondent (the husband), said, that after much consideration he and his learned friend had come to the resolution of abandoning as untenable the ground on which the Second Division of the Court of Session had rested their decision, namely that divorce a vinculo might be validly granted to strangers not domiciled, though temporarily resident within the jurisdic- tion."i The only question, therefore, before the House of Lords, was whether Colonel Pitt had acquired a domicil for succession in Scotland, and the learned Lords, finding he had not done so held that the Court of Session had no jurisdiction to grant a divorce. It is humbly thought that the concession made by the respondent's counsel was completely justified in the cir- cumstances of Pitt V. Pitt. The spouses there had never resided together in Scotland, and the contention appears untenable that the husband, by residence short of domicil, in a foreign country, apart from his wife, could subject her to the jurisdiction of a foreign Court. The advocates of the doctrine of " matrimonial home" do not need to maintain that the Courts of a country have jurisdiction in which the husband had a home, which was the wife's merely constructively, and ex fictionc legisr An entirely different question is raised where the real matrimonial residence of both spouses — the home of the marriage — has been within the jurisdiction, and this question was not touched in Pitt v. Pitt. That it is still open, appears from the opinion of L.P. Inglis ill Stavert v. Stavert,^ where, as in Pitt's case, there was no matrimonial residence in Scotland, and from the dlctmn of Selbornc, L.C., in Harvey v. Farnle. His Lordship is there referring to an English case, to be presently noticed, in which ' 4 Uac([., at p. G33. Act, Niboyd v. N., 1878, 4 P.I). 1. - Tliis, iKJWover, has been held in i.o matrimonial home, although not the husband's domicil for succession, and he remarks : " I do not say that the case of Pitt v. Pitt would, of necessity, govern cases like Niboyct v. Nihoyet, for example, if they were to arise in Scotland." ^ The theory of jurisdiction founded on "matrimonial home," is supported by Lord Colonsay, in the English case of ^Ikiw v. Goiihlr His Lordship say.'?, speaking of a case in which both parties, by agreement, resort to a foreign country merely for the temporary purpose of obtaining a divorce : " But if you put the case of parties resorting to Scotland, with no such view, and being resident there for a considerable time, though not so as to change the domicil for all purposes, and then sup- pose that the wife commits adultery in Scotland, and that the husband discovers it, and immediately raises an action of divorce in the Court in Scotland, where the witnesses reside, and where his own duties detain him, and that he proves his case and obtains a decree, which decree is unquestionably good in Scotland, and would, I believe, be recognised in most G. '■' find, at p. 90. - IhCo, L.H. :3 E. and 1. App. 55. ^ 1882, U R., at p. 527. MATRIMONIAL HOME. 431 ](l was position ourt of divorce otlaml. s, if he trine of orce in a very ler the uises is the same as that which would regulate the intestate succession of the husband, or whether it is not sufficient that Scotland has been the settled home of the marriage for some period, with no intention of leaving the country, where the spouses liavc settled down to live, where their household goods have been set up for the time, and which, if a separation, judicial or otherwise, has been arranged, and afterwards annulled, would be the place where one party owes to the other the duty of returning for restitution of the conjugal relation. There has been a good deal of speculation on this point, but fortun- ately it is not necessary to deal with the question here. It has not yet been decided, in the Court of last resort, and T merely notice the matter in passing. If it depended on the decisions pronounced by this Court, it is pretty clear what the result would be ; but, as I have said, there is no reason now to consider the matter, for I am of opinion that the defender here has not acquired a domicil either of one sort or the other." His Lordship evidently meant that the result of previous decisions in the (Jourt of Session was to require less than a domicil of succession in order to found jurisdiction. He is so understood by Lord Shand, who, however, was of a different opinion, and says : " In the case of what has been called a ' matrimonial' domicil, however, I should have great difficulty in knowing what standard to look to, and all I can say is, that 1 think it would be most unsatisfactory to leave it as a jury ([uestion fur the Court to say, in each case, what is or is not to amount to a ' matrimonial domicil.' " ' Lord Deas shared the view of Lord Shaud. In the latest case,- Lord Trayner expressed a clear opinion that nothing less than domicil for succession would be suffi- cient. Lord Young expresses himself not so much in favour of the doctrine of a matrimonial homo, distinct from the hus- band's domicil of succession, as of the theory that a domicil for all purposes may be obtained by a man, in spite of an anhnus rcvertcndi, to his native country. Opinions against ^ llnd, at p. r)33 ; aiul sc( for ^ler L. Cowan, iit p. 117, and ^)cr L. opinions in iuvoiu' of a nialiiinonial Ni'ave?, at p. 118. domicil distinct from a domicil of - iow v. iy., 1891, 19 R., at p. 123. succession, Pitt v. P., 18G2, 1 M., ; i 432 JURISDICTION. the doctrine of matrimonial Lome Lave also been expressed in the cases undernoted.* The English authorities on this subject are to be referred to with caution, from the fact that in the leading case of Nihoyet V, Niboyet,^ James, L.J., and Cotton, L.J., who formed the majority of the Court of Ajipeal, rested their judgment on tlie construction of the English Divorce Act.^ That Act (20 & 21 Vict. c. 85) runs: "It shall be lawful for any husband to present a petition to the said Court praying that his marriao-c may be dissolved," ' and the view taken by tiie learned Lords Justices was that these words removed the doubts which mlLiht exist in the case before them with regard to their jurisdiction. And in the later case of Harvey v. Farnie, when in the Court of Appeal,^ Cotton, L.J., speaking of Xlboyet, said the decision of the majority of tl>e Court " turned entirely upon the con- struction of an English Act of Parliament." But although this deprives the judgment of much of the weight which it would otherwise liave liad as an cxi)osition of principles of private international law, the doctrine of " matri- monial home" as a basis of jurisdiction was fully discussed, and the authorities referred to." Nihoyet v. Kihoyet arose in the following circumstances : — The husband, whose domicil of origin was French, marrioel a domiciled Engli.-nwoman at Gibraltar, and cohabited witii her at various pliuj.js abroad. In 1859 he deserted her, and she came to resi'lo in England, where she lived, apart from hiui, until the raising of the action in 1878. The hu.sband came to England, and resided there for some years as French vice- consul. The wife sought for divorce, and alleged adultery committed in England, and desertion. It was clear, from the nature of his occupation and other circumstances, that the husband had not lost his French domicil. > Per L. Lee in Walh v. \V., 18S5, 12 R., at p. 807 ; per L. M'Laren in lieddiug v. A'., 188H, 15 R.,iit p. 1103 ; and stc j)er L. Lyndhur.st, in U'ar- render v. IT., 1835, 2 S. and M'L,, at p. 231. ^ 1878, 3 P.I). 52, rev. 4 P.D. 1. ^ (S'te per Janieti, L.J., 4 P.D., at p. 7 ; and per Cotton, L.J., ibid.., at p. 25. ■» )^ 27. f"' 1880, P.D., at p. 51. " And.sM(lictuni oi'St-lborni-, L.C, in llarvie v. Furirie, 18S2, 8 Apji. ( 'a., at J). 5G COURT OF DOMICIL. 43 li 3sed in rrcd to Vibuijet ed the on tlie & 21 jand to Kirriagc 1 Lords li might sdiction. Hi Court decision the con- h of the )sition of " matri- sscd, and ances : — arried a ith her and she m him, d canu' ■]\ vicc- ididiory nd other French I., ibid., at Kirnc, L.C, -2, 8 Ari'- Sir R. J. Philliinorc held on these facts that the Court had no jurisdiction. His judgment was reversed hy the Court of Appeal, Brett, L..T., dissenting. In the very ehd)orate opinion of Brett, L.J., his Lordship stated with great force the argument in favour of tlie rule that to found jurisdiction, tlie husband's permanent doinicil at the (late of action must l)e within the territory. " By the universal independence of nations, each binds by its personal laws its natural-born subjects, and all who may become its subjects. By the universal consent of nations, every one who elects to become domiciled in a country is bound by the laws of that country, so long as he remains domiciled in it, as if he were a natural-l)i>rn subject of it. It follows, then, from the nature (if the subjoct-niatter, that laws which, for certain enacted or [iredicated causes, as distinguished from causes agreed upon between the parties, alter the personal relations of individuals to each otli'i-, or their relation to the community, can only bind the nntural-born subjects of the enacting country, or foreigners who have become domiciled in it ; but they may, consistently with principle and the universal consent of nations, bind both of these. The law, then, which enables a Court to decree an alteration in the relation between husband and wife, or an alteration in the status of husband and Avife as such, is MS matter of principle the law of the country to which by birth or domicil they owe obedience. The only Court which can decree by virtue of such law is a Court of that country."^ The previous English authorities are fully referred to in the same opinion.- Apart ♦'rom the principle expressed by Brett, L.J., and from the fact that the case turned on the construction of the English Act, upon another ground it appears unlikely that the case of yihoyet v. N'lboyd would be followed in Scotland — viz., that there was no matrimonial cohabitation within the territory. This, it is thought, sufficiently distinguishes that case from the one figured by L.P. Inglis in i■.(/. ■' Story, Htli I'M., p. 308, not,: ■• (Sec ]i(r Lnni.s Nouvcs ami Mac- ki'iizit, hi Jack v. J., 1S(;-J, -24 I),, at p. 47t) ; jicr L. Anlmillan, ihid, p. 477. ' llmncv. II., 18(12,24 D. 1342; jur L. M'liiuvii, ill lii:iUi)iii v. U., 1888, 15 1{. 1102 ; Vv. ii. 1212, 1251, and i*o ill I'^iij^'land. So: pi r Uicll, L.J., in Nihoi/rt V. N., 1878, 4 IM)., at p. 14; per IMiilliiiioif, J., in Ac Siiciirv. A('N.,187(;, 1 lM).,atp. 141; Wcstlakc, p. 80 ; I'liilliiiKirc, iv. ij 4!)7. AiiEii^'liHlit'asi',wliicIiappi'arsiitlicr- \\\>{i aiioinaldus, is pnliaps to Ik- tsiip- poi'te'il on t^'is .mouinl. Tlic s]ion-i - sf])ai'at(Ml hy coii'i'iil, ami alter tlir scjiaraii' :i \\\i- Im^liaml went to AiiKjrica.wluiilii,' 1 anu'ilomiciliMl, aiitl l)iuaiiiou>ly maififil amitluT Woman. Tiic wile, w im liad not Ifll l'ai,L;laml.]iftitiiiiic.! tni'a liivorcf.anil tlu'Coiirl sustaiiii'il its juiisiliclioii, on tlic ^imiml thai tlir liusliaml, altlioiiL;li 111' liad c'lian^cil jii.- doiiiicil, liad iiMt slialvi'ii oil' his alli'Lriaiicc, and was s;ill aiiii'iiahh' to till' hiws of tile lltiti-h Kmpirc. in no oihcrcasf d('r> Jui'isdiclioii a]iiifai to liavi' lifcii lr>tiil nil aUl'J,'iail('r. J>-d- V. Ik, 18i;o. 2 S. and T. 90. MOTIVE TX DOMICIL. 435 allfV llif went to uiiicili'il, iUlolIliT il not left ^-urcr.aiiil ■i>ilicti(iii, liu.-liiuul, ,'i'(l liis 1 oil' lii.- flllll)ll' to jure. Ill HI ii]iiifai lc;,'iaiii'i'. T. i)0. it canaot be the law that the husband might bar the wife's remedy by acquiring a domicil in a country in which divorce is not permitted. If the Husband be domiciled in Scotland, it is imma- terial that his motive in acquiring a Domicil was to obtain a Divorce. — In Stavert v. Stavert,^ the Lord President (Inglis) said : " I do not think that, if an Englishman or a foreigner .shall acquire a domicil in Scotland sufficient in char- acter to found jurisdiction in a consistorial cause, it is a ground of objection to that domicil or to the jurisdiction of this Court, that the husband has come to Scotland with this view among others — namely, to subject himself to the jurisdiction of this Court, or even that that is \i'< main or oidy object, provided that it is proved that there is a complete and sufficient change of domicil and accjuisition of one in this country. The domicil must not in any way be fictitious ; it must be real, and must 1)0 acquired (Lii'imo tt facto.'"' In a more recent case. Lord Fraser, Ordinary, used language equally broad : " The motive of the pursuer in coming to Scotland is, in my opinion, totally irrelevant. The husband is the master of the sitration. He can determine the domicil of the spouses, and according to that domicil tlie rights of the spouses must bo settled."-' And in Car.swcll v. Carsivell,'^ the husband obtained a divorce from his wife on the ground of her desertion, altliough he admitted that one of liis main motives in coming to this country was to obtain a divorce which he could not get by the hiw of Canada. Jurisdic'-ion cannot be founded by Consent. — It is clear that where the Court has no jurisdiction over the parties, it would be an invasion of the rights of the country in which they were domiciled, to claim to alter their status on the ground that the parties were not opposed to this course. The doctrine of juriscliction as dependent upon domicil is based on the theory that each community is entitled to determine the ' 1S82, !) R. nil). •i [hi,i, at p. 527. •1 Stal v. ,S'., 1888, ITi R., at p. !)04. * 1881, 8 R. '.)01 ; cf. Starcrt v. S., 1882, 9 R. 515), where it was found the change of domicil had not been eilected. I 436 JURISDICTION. status of its members. Tins right residing in the state cannot be waived by the agreement of the parties.^ But where tlie husband appeared by counsel, without lodg- ing defences, and stated no objection to the jurisdiction, it was held in one case that it was not jiars jadicls to inquire strictly into the question of domicil.- This was a case where the married life was in Scotland, and there was no clear indication that the husband's domicil was in another country, thou"ii the facts proved rather seemed to point to that conclusion. But such a case s(>cms open to the observation that the divorce is liable to bo treated as iuvalid if ever questioned in the country in which on fuller incpiiry the husband might bo found to have been domiciled at its date.^ Jurisdiction over Co-Defender. — The question of jurisdic- tion against a co-defender is not regarded as one primarily affecting his status. Jurisdiction will, accordingly, be sus- tained against him on any ground which would make him liable to be sued in Scotland for a personal debt. But the Conjugal Rights Act (24 & 25 Vict.), ij 7, has not extended the jurisdiction of the Court against a man who woulil not have been subject to it in an orilinary personal action. In a case where the co-defender was domiciled in England, jurisdiction was sustained against him on tiie ground that he was tenant of shootings and a shooting-lodge in Scotland. ' Recognition of Foreign Divorces. — Every country has, in virtue of its independence, the power to exercise such jurisdic- tion to grant divorce as shall seem to it to be iittitig. It may claim to dissolve the marriages of persons domiciled in another country, but long resident within its jurisdiction, and may even go so far as to divorce spouses who are merely casual visitors. Whatever rule upon the matter it may adopt, its ilecrees are valid within the territory. But every independent country in » Riugcr v. Chnrchill, 1840, 2 I). 307 ; sec jtrr T>. Dciis in Jach v. ,/., 1862, 24 1)., at p. 472; per Lords Neavi'S juid Mackcnzii', ibid., p. 474 ; ;)('/• T5rc(t. L..T., in Nihnyrt v. N.^ 1878, 4 lM).,at p. 12; V,\Aw\\ VA. 1891, ii. 56, 187. 2 Wath V. ir., 188-), 12 R. 894 ; (•/. lUmil V. /)'., lS(i(), 2 S. ami T. 1)3; anil i'alhcll v. ('., 1860, 3 S. anil T. 25!). ^ See note to Stli Kd. of Story, p. 308, for a similar case in Anicrica. * Frasfr v. F., ami llilihui, 1870, 8 M. 400 ; src range v. G., and Anmit [1892], P. 245. FOREIGN DIVORCES. 437 which the validity of the divorce is called in question, is entitled to admit or reject it according as it appears to have been granted upon a sound application of the rules of private international law or the reverse. In the words of Lord Westbury : " The foreign decree may be perfectly valid and unimpeachable within the territorial jurisdiction of the judge wlio pronounced it. It may there fix the legal status of persons, and conclude the right and title to property; but it may still not be such a sentence as by the comity of nations (that is by the general principles of jurisprudence which are recognised by the Christian States of Europe) has an extra- territorial effect and authority."^ Divergent views with respect to the sound basis of jurisdic- titm led at one time to very unfortunate conflicts between the Courts of England and Scotland. A substantial agreement has, however, been arrived at. The Scottish Courts no longer claim to exercise jurisiliction based on forty days' domicil of the husband in Scotland, with personal citation of the wife there, or adultery committed in Scotland ; and, on the other hand, the doctrine that a marriage solemnised in England is imiissoluble even by the Courts of the country in which the parties are domiciled is now exploded. In ^St(lvt'rt V. Stavort, Lord Shand said : " In sustaining the jurisdiction of the Courts of this country, it is clearly desirable that wo should proceed only on principles which would com- m.'ind the assent of the Courts of other countries, else results might arise most disastrous to the parties." - And it would appear to be clear that, whatever standard of jurisdiction should be adopted in this country, the same standard ought to be applied in determining the validity of a foreign divorce. If the fact that Scotland is the "matri- monial home," in the sense explained above, is to be regarded as a so\ind basis of jurisdiction here, it could hardly be logically maintained tliat a foreign divorce was invalid because the husband had not a domicil for succession within the foreign territory.'' At present it rather seems that there is some ' Shaw V. iiould, 18G8, 3 K, an.l I. A pp., at p. 81, ibid,, j>cr L. Craii- wtii'tli, at p. 5)8. •■' 1882, y R., at p. 534. ^ Sec per L. Chelinsfortl in Shaw v. iionld, 1808, 3 E. ami I. App., at p. 70 ; and per L. Coloiisay, ihid.y at p. !)(). ! 11 I ■ I I i , ' •I ' ' I '' 438 JURISDICTION. inconsistency in this regard in England. Mr. Westlake, while accepting the rule laid down in Niboyet v. Niboyet, limits the recognition of foreign divorces to those pronounced by the Court of the domicil of the parties.^ In one case, a husband who had already obtained a divorce in Scotland, brought a petition for dissolution in England. It appeared that the matrimonial cohabitation had been principally in Scotland, but it was foimd that the husband had not lost his English domicil of origin. In giving the judgment of the Full Court, it was said, " If a valid divorce has already been had by the proceedings in Scothmd, it would be idle and unfounded to come to the Court for a further remedy ; but without going into the question of the effect of the divorce in Scotland, in respect of the second )narriage there contracted, and the cluldren of that marriage, sitting here as an English Matrimonial Court we cannot recognise that divorce as putting an end to the marriage bond of a domiciled Englishman." - But this case was jirior to Nihoyct, and was j)ractically undefended, the husband simply requiring the English judg- ment oh mdjorcm cautelam. A Divorce pronounced by the Courts of the Parties' Domicil, and possibly by those of their matrimonial home will be valid in Scotland. — The Court will recognise the validity of a decree of divorce pronounced by a competent foreign tribunal, if the husband was at the time domiciled in the country where such tribunal had jurisdiction, and tlie decree is not impeached by any species of collusion or fraud. ^ There has never been any doubt of the soundness of this doctrine in Scotland, although it is somewhat singular that the })oint appears never to have arisen. But as the Scottish Courts are in the constant practice of div'- ' .^ spouses whose domicil at the time of the marriage was in another territory, they would be bound to admit the equal right of a foreign tribunal to iji'ant a divorce at the instance of a husband ' 3rd Ed., p. 83; and ste j),r L. Peiizaiici' in Mnnving v, M.^ 1871, L.R. 2 I', iind 1)., at p. 226. 2 Tollcmachc v. T., isrjj), 1 S. and T, 557 ; Init sie Shcuvv. Gould, 18G8, L.R. 3 E. and I. A}.]), bh. 3 Jlarven v. Fnrnii; 1882, 8 Aji)). Cu. 43. As to divdi'c'i! iur u caiLso not adniittud in Scotland, sec infra, \\ 442. i BY COURTS OF DOMICIL. 439 e, while nita the by the divorce England, td been luisband dug the divorce it would further ctli'ect of iiarriage , sitting ■ocognise )ik1 of a actically sh judg- Parties' al home uiso the nipeteiit idled iu and the r fraud.'' of this lar that Scottish |cs whose I'rritory, I foreign husband 2, 8 Ajiji. ii' ii cause r ivfra, » formerly domiciled in Scotland, who had at the date of the action acquired a domicil within the foreign jurisdiction. And applying this converse rule it would seem that the validity of the foreign divorce would be admitted although granted for a cause upon which a decree of divorce cannot be grounded in Scotland.^ In England the opinion was at one time enter- tained that an " English marriage " was in its nature indis- soluble and could not be severed by any foreign decree. This notion was sui)ported by the fact that the English Courts had not, imtil 1857, any jurisdiction to pronounce a divorce a vinculo. As the complete dissolution of the marriage tic was only possible by the direct action of the legislature, it was thought that no Foreign Court could claim a power which was not possessed by the English tribunals themselves. The opinion wa?? also regarded with favour by those who accepted the sacramental theory of marriage, and it is on similar grounds that the Austrian Courts still decline to recognise the divorce of an Austrian Catholic even when he has embraced Protestantism and become domiciled in a Protestant State.'- The doctrine was thought to be supported by LoUeij's case,^ and by the opinion of Lord Brougham in M'CarfJnj v. Decaiv^ The latter was not a matrimonial (|uestit)n, but it was there necessary, in an action concerning a wife's property, to consider whether a Danish divorce was valid in England. The husband was a Dane, and had married an Englishwoman in England. The matrimonial cohabitation was throughout in Denmark, and a divorce was pronounced by the Danish Court. Lord Ihougham conceived himself bound bv Lolleii'fi case to hold that the Danish divorce could h.rve no effect in England. His Lordship said, " If it has not validly and by the highest authorities in Westminster Hall been hidden, that a foreign divorce cannot dissolve an English marriage, then nothing whatever has been established."^ hnt it has since been laid down by the House of Lords that this was a complete misapprehension of Lulley's case. There the domicil of the parties was English throughout, and the husband came to Scotland temporarily, and merely for the ' See Canicll v. ('., 1881, 8 R. 901. ••; See CJillesi.io's Bur, p. 404. 3 1812, Russaiul Ry. 237. ■» 18ai, 2 Russund My. 614. 6 Ibid., p. 619. 440 JURISDICTION. purpose of obtaining a divorce. It was decided in Harvey v. Farnie^ that the fact of England being the locus contractus did not render the marnage indissoluble, and that it might be dissolved in Scotland for a cause which would not have been sufficient to obtain a divorce in England. In Harvey v. Farnie the husband's doniicil was Scottish throughout, and it had been long settled that whatever the English doctrine of indissolubility might be, the solemnisation in England did not prevent a divorce in Scotland, which in that country at least would be valid.- But the reasoning of clie learned Lords seems to imply that the result would have been the same if the domicil had been originally English, but ha 1 ^^ecome Scottish at the date of action. This doctrine is expressed ))y Lord Westbury in an earlier case. " The posi- tion that the tribunal of a foreign country having jurisdiction to dissolve the marriages of its own subjects, is competent to pronounce a similar decree between English subjects who were married in England, but who before and at the time of the suit are permanently domiciled within the jurisdiction of such foreign tribunal, such decree being made in a hone fide suit without collusion or concert, is a jjosition consistent with all the English decisions, although it may not be consistent with the resolution commonly cited as the resolution of the judgi'S in Lollry'fi ease."" A Divorce will not be recognised which is granted by the Courts of a Country in which the Husband was never Domiciled. — The Court is entitled to disregard the divorce if it appears that the husband's domicil was n(»t within the territory.^ In some of the American States it a))pears to be the law that a wife, whose husband has deserted her, or been guilty of conduct which justifies her in living apart, may ac(iuire a separate domicil for divorce, and may raise an action against the husband in the Court of the cotmtrv in which she has 1 5 P.D. 153 ; nff. 6 P.D. 3r» ; all'. 1882, 8 App. Va. 43. - Wammhr v. U'., 1835, 2 S. antl M'L. 154. •' Shaw v. Uould, 18G8, 3 E. ami I. A])p., at p. 85; and sir Turmr v. Thnmpsov, 1888, 13 P.D. 37 ; aii.l Srntl\\All.-(u')i., IHSfl, 11 P.D. 128, in wliirli tilt' viiliility of ibreiun (liv(ii'ccs \v;is I'l'CdLjtiisi'd. * llrlijiis V. /;., ISHi. r> P.D. 163; .S7(r((r V. Atf.-1, ii. IK). - .S7((K(' V. Att.-a,ii., 1H70, L.R. 2 1'. and D. ir)(). ■^ a rev, I V. <;. (18f).3), P. SO. ■• Shaw v. ilould, 1868, L.R. 3 E. and I. A]ip. 55 ; see per L. West- bury, at ]). 82 ; Dolphin v. Eobins, 18;')!), 7 II.L.C. 390; see per L. Kiiif,'sdown, at p. 422. 442 JURISDICTION. In a recent case, where the co-defender took an office in Glasgow for the husband (the pursuer) and paid all his expenses, it was proved that the fact that the husband was not domiciled in Scotland had been carefully concealed from the Scot- tish Court, and that the parties had acted throughout collusively. In a petition in Englantl to declare the marriage of the co-defen- der with the divorced wife null, it was hekl that the divorce in Scotland must be ti'eated as invalid, the Ct)urt having no juris- diction, and the divorce having been obtained by collusion,^ In Shaiu v. Attorney-General,- the judgment was based partly on the ground that the defender received no notice " except an advertisement which he never saw, and was never likely to see," It was observed : " A judgment so obtaineil has, therefoie, in addition to the want of jurisdiction, the incurable vice of buiiig contrary to natural justice, because the proceedings are ex inuia, and take place in the absence of the party att'ected by them." It must be observed that in the cases which have occurred a suffi- cient ground for the invalidity has always existed in the want of jurisdiction, apart from the question of fraud or irregularity. Is the Divorce Invalid because the Husband acquired the Foreign Domicil to obtain a Divorce, or because it was granted for a cause not recognised by our law ? — Applying the principle of reciprocity, it would seem that the Sc;ottish Court would not regard a foreign divorce as invalid on either of these grounds.^ Lord Fraser says : " The Scottish Coiuts will not recognise as valid the decree of divorce of a foreign Court unless the ground of divorce be adultery or desertion." ' But it can hardly be doubted that the divorce of persons never domiciled in Scotland must l)e valid or invalid by tlu; law of their domicil. In B'ivt v. Boiitinez,^ upon which Lord Fraser relies, a domi- ciled Belgian married an Englishwoman at Gretna Green. The parties lived in Belgium, where they went through a second ceremony of marriage. This marriage was dissolved by a 1 Bonaparte v. /)'. [1892], P. 402. 2:5!). 2 1870, L.K. 2 P. and D. 15G ; Brig(fs v. B., 1880, .5 P.D. 163; cf. VoUis.i V. Jlcctin; 187;'), L.R. H> Ecj. 1334, where tlie question was as to the ell'ect on niarria^'u settlements of a divorce so obtained ; and set; Gillespie's Bar, j). 400 ; Dicey, p. •■' (Jarswcll v. C, 1881, 8 R. !)(»1 ; Starert v. ,S'., 1882, 9 li., per In^lis, L.P., at 527 ; Steel v. N., 1888, 15 11., per L. Fra.ser, at p. !)04. •• ii. 1331 ; and see Fer^,'. Reports, pp. 137 and 15(5. s IHC >, L.R. 1 P. and D. 487. I CAUSE NOT RECOGNISED. 443 Tlu competent Court in Belgium by the mutual consent of the parties, nothing being said of the Scotch marriage. Lord Penzance held it was not dissolved, and remarked : " Whether, if it had been brought forward, and application made to dissolve it by mutual consent, the Belgium tribunal would have held itself competent to that act, this Court h:is no means of knowing. Had such a divorce been pronounced, it would have been necessary to consider Iioynt far the law of this country would adopt and act upon the dissolution of a valid Scotch marriage by a foreign Court ; and that upon a ground unknown to the law (jf this country, the mutual consent of the parties." It seems clear, after llavvey v. Farnie,^ that a Belgian divorce of the Scotch marriage upon any ground recognised by Belgian law, would have been good, and entitled to extra-territorial recognition. The marriage, though contracted in Scotland, was not a "Scotch marriage," except in the sense that Scotland was the place of celebration. It was a Belgian marriage, and subject to dissolution by Belgian law. The case would have been identical with M'Carthy v. Decaiv, which was uverruled in Harvey v. Farnie. It is, notwithstanding, doubtful whether the divorce would be valid if the husband, domiciled in Scotland at the mar- riage, had afterwards ac([uired a domicil in a country where marriage was dissoluble at the instance of the hushand, with- out the commission of any grave matrimonial offence on the part of tiie wife. In the case of a domicil being acquired in an Oriental country in which the husband has the right of putting away his wife without fault on her part, it would seem that such a divorce would not be regarded in this country as effectual on the ground that the wife had entered into a " Christian marriage," which could not be converted at the will of the husband into a status essentially different.^ There would be more difficulty where the change of domicil was to a European country or an American State in which divorce can bo obtiiincd on the ground of incompatibility of temper. In Jack v. Jack Lord Dcas observed : " I do not look upon the rule, that the wife follows the domicile of her husband, as so absolute that there can be no exception to it, however palpably the husband may be attempting to turn the rule to the purposes of injustice." ^ ' 1882, 8 A].p. ("a. 43. - See next section. ^ 24 D., at p. 472. 444 JURISDICTION. In Pitt V. Pitt the contention was that the husband, who had come to Scotland without his wife, and lived there apart from her, had acquired a Scottish domicil, and Lord Westbury, C, observed : " If it had been necessary, which I trust it will not be, to arrive at a different conclusion as to the fact of his domicil (/.c, to find it was in Scotland), I should still have had the greatest possible difficulty in bokling that the domicil of the husband was, in a case of this kind, to be regarded in law as the domicil of the wife, by construction or by attrac- tion, so as to compel the wife to follow the husband, and to become subject, for the purposes of divorce, to the jurisdiction of the tribunal, of any country in which the husband might choose, even for that purpose alone, to fix and tcr James, L.J., in Xilioi/d v. X., 1878, 4 P.l)., at i>. 8 ; iind per Haniien, J., in BrifiijH v. /.'., 1880, 5 P.D., at p. 165. The point was not noticed in the opinions expressed iu the House of Lords in Harvey v. Farnie, 8 App. Ca. 43. 3 8 App. Ca. 43. * Hec per Cotton, L.J., 6 P.D., at p. 48, and j)^?' Lush, L.J., i6M?.,at p. 53. " Warrender v. W., 1835, 2 S. and M'L., at p. 213. « 1890, 15 P. D. 76. \ 44G JURISDICTION. Moreover, it seems clear tliat to any o\t lo wliich recognition may be accorded by our Courts to marriages in polygamous countries, equivalent recognition must be given to divorces there obtained. In one case where an English- woman had married a domiciled Turk, the eti'oct of a Turkish divorce upon settlements was disregarded by an English Vice- Chancellor. But this appears to have been on the ground that due notice had not been given to the wife or the persons interested under the settlements, and that they were thus deprived of the opportunity of appearing to defend. ' Actions of Separation and Actions of Adherence. — Judicial separation completely alters the relation of the spouses, by freeing the iiijmvd party from the 'igation to fulfil the primary duty of conjugal adherence. Eraser is of opinion that jurisdiction might be sustained in such actions, on grounds less than would be necessary in the case of divorce.- But, with respect, it is thotight that the same rule must apply. If jurisdiction is eventually sustained for divorce, on the groimd of " matrimonial iionie," this will extend to actions for separation. If, on the other hand, domicil alone is to be taken as the test in the one case, no »jther criterion will be applied to the other. It may be said th.at judicial separation does not, strictly speaking, involve a cliange of status. The paitics remain married persons. But it is surely a question for the law of the domicil of the parties to say upon what grounds it will allow persons subject to its jurisdiction to occupy the position of husbands without wives, or wives without husbands. A position so unfortunate and so dangerous to the welfare of the community is one which should be under the control of that community of which the parties are membei-.s."> In the old cases of Gordon v. Pye, and Dilutee v. Levctt,^ the commissaries thought that they would have had jurisdic- tion to grant a separation but not a divorce »/, vinculo. But this was on the ratio that tlie parties being domiciled in England, where separation was permitted, but not divorce, the ' Colliss v. lf,dnr, IRTf), L.H. IJ) v. .V., 1S7S, 4 IM>.. at ji. 21. Eq. 334. ' I'Vr.L,'. ncimrt^ A]<]<., pp. 301, 2 ii. 1294. 320, 435, and te.\t. j)]'. Ill, 122, 220. " But sec i)er Cotton, L..T., Xthnijit 1 4V NULLITY, PUTTINQ TO SILENCE. 447 Scottish Court must apply the English law, and could o'ive the injured paity no higher remedy than was possible by the law of his domicil. But it is now completely settled that the nature of tl-^- remedy depends on the lex fori, and no Court can give Vscii jurisdiction by saying it will limit the remedy to one permitted by the competent tribunal.^ For the prin- ciple that jurisdiction for divorce and for separation is co- extensive, there appears to be no direct Scottish authority. But no distinction is suggested in Stavert v. Staverf,- and in England and America tlie identity seems to be admitted.^ In Nihiiyet, Brett, L.J., said: "The same rule" (that witbout domicil the Cent has no jurisdiction), "I confess seems to me to apply, for the same reason, to its power to grant any relief which alters in any way that relation between the parties which arises by law from their marriage. It applies, therefore, as it seems to me, to suits for judicial separation, ajul to suits for the restitution of conjugal rights. J do not think it docs apply to suits for a declaration of nullity of marriage, or in respect of jactitation of marriage."'* A Declarator of Nullity of Marriage, or a Putting to Silence. — An action of this nature stands in a ditt'erent posi- tion. If the woman is the pursuer, .she is denying the fact upon which her domicil would depend. She cannot, there- fore, be bound to sue in the domicil of the man, which may or may not be her domicil according as the marriage is found valid or invalid. Such an action, therefore, can be competently raised by the pursuer in his or her own domicil if the defender is resident within the jurisdiction.'' But if the woman who seeks for declarator of nullity have already taken up her residence and cohabited with the man in his domicil on the faith of what she believed to be a valid marriage, she has acquired liis domicil and may sue in its Courts.*'' And if she is defender and main- >&■(!?',)• L. r>nni,^'liiuii in Trrtm'u- rii,'hts), Wes^tlake, p. cSI ; Bishop, ckr V. jr., \Ki:), 2 S. uiul M'L., at p. 203. - 1SS2, !) U. .-)!!). ^ M.ianiivj v. M., 1871, L.H. 2 P. aii.l 1). 22H ; Niboyet v. N., 1878, 4 IM)., jwr Brett, L..T., at p. 19; Firchmrc v. F., 1878, 4 P.D. (!3 (a suit for rc'stitutiun of conjugal Ed. 18!H, ii. Ci). ■• 4 P.D., at p. 19. But see 'per Cotton, L.J., ihul, at p. 21. » N,.' NUmy,! v. N., 1878, 4 P.D., jKr Bi'ftt, L.J., at p. 19, ftr James, L.J., ibid., p. 9 ; Wcstlake, p. 82. « Si'e Turner v. Thompson, 1888, 13 P.D. 37 ; Gillei-pie'ir Bar, p. 175. r 448 JURISDICTION. tains the validity of the marriage, she cannot plead she was improperly cited, if the citation was at the husband's domicil.^ Aliment. — An action by a wife concluding for aliment only, does not involve questions of status unless the marriage is denied. But the decree will be limited to " so long as the defender shall refuse to receive and entertain the pursuer." - It would appear that the Court has jurisdiction where the marriage is admittetl, or the woman has e.r privid facie the status of wife, although the husband is not domiciled in Scotland.^ Dut care would be taken to ensure that the relief so granted was only of a temporary character, and until the right of the wife to live separate could be determined 1 •> the Court of the husband's domicil. In an American ca-- wlicrc a foreign wif^ raised such an action, the Court refused to entertain jurisdiction, and it was observed that alimony " is an incident of the marriage, and is a right entirely depending upon the status of the parties, and each state has the right to determine the status and condition of those who are domiciled within its limits. The Courts of this state have, therefore, no jurisdiction to pass >ipon, and determine the relative duties of husband and wife, both of whom are residents of another state."' But this was a case in which the parties were not even resident witliiii the territory, and the wife pleaded that jurisdiction existed merely because the hnsbund had property within the state.'' It is thought a different result would be reached in a case where the jiarties were resiilont but not domiciled in the territory, and that, subject to the limitation suggested above, the jurisdiction would be sustained. The principle would, in fact, be the same as that upon which th(> sheriff, althougli having no jurisdiction in matters of status, may aw.ard interim aliment until the rights of parties can ho ascertained by the Court, which possesses universal jtirisdiction." ' Chichi'sfn- v. Ihiinjnl, 1822, 1 liy Uislio]), E. li). ••i n'i//iVn-i>'»» V. U'., 18(10, 22 D. MO. Sn: Miicl., 187r), 2 R. lor,: and ]i(.i), ii. 71, and Bar 38(t and 381.* rt.of, in terms of tlie second section of the Act 19 & 20 Victoria, c. 9G, to certify that the petitioners have been married to one another, and that both petitioners had resided in Scotland for twenty-one days inuiiediatcly jjreccding the date of the marriage (or one of them had so rrxidi'd for fv'i'ntij-one days, or hail his or her usiinl residence in >Scolland, as the case may he), and also to grant warrant to the regis- trar of the district of St. Andrt^w, in the burgh of Edinburgh, t i mter such marriage in his registers for the present year, in terms of the Act 17 & 18 Victoria, c. 80. Th(! Proof consists of a declaration signed by the parties and by two witnesses, in ibis form, and of evidence in support of it : — We, John Brown and Maiy Brown {design), liereby declare that we this (lay, within Number 10 York Buildings, Edinburgh, in the registration district of St. Andrew, in the burgh of Edinburgh, accepted, as wo do hereby accept, of each other as liusband and wife, and dcclan; ourselves to be; married persons. In witness thereof, this declaration is subseribcid by us, at Edinl)urgh, the day of , Ijiiforc these witnesses {names and designa- tions of two ivitnesscs). The two witnesses appear Ixifore the .sheriff with the parties, and depone that tliey were present at the declaration, and are aware that the parti(!s {or one of them, as above) have been more than twenty-one days in Scotland. Tlieir depositions are signed by thera, and by the sheriff, whose docroo is a warrant to the registrar. 451 452 APPENDIX I. 2. Declarator of Marriage at instance of the Woincm. Victoria, &c. — Wiikkeas it is luunbly meant and sliown to us l;y our lovitc, C. L. or ^[., wife of A. M (desu/n hhn), Pursuer ; against the saiil A. M., her husband, Defender ; — in terms of the condescend- ence and note of i)leas in hnv hereunto annexed : Tiierefoub tlie Lords of our Council and Session ought and should find facts, circumstances, and ([ualitications proven relevant to infer marriage between the pursuer and the defender, and find them married persons accordingly : And therefore ordain the defender to adhere to .he pursuer as liis lawful wife, her society, fellowship, and company, and to treat, clierish, and entertain her at l)ed and lioard, and to perform the other conjugal duties as l)eeometh a husband to his wife, and to cohabit with the pursuer, and nowise leave or desert her company in time coming: And our said Lords ought and should dkckrn and ORDAIN the defeniler to make iiaynu'ut to the jmrsuer of tlie sum of £, sterling, or such other sum as our said Lords shall modify, as the expenses of the process to follow liereon, conform to the laws and daily practice of Scotland, used and observed in the like cases as is alleged : Our will is herefore, A:c. Conclusions when necessary : — (a.) For Aliment. And the defender ought and should ])e decerned and ordaineh, by decree foresaid, to make payment to the pursuer of the sum of £, sterling yearly, for aliment,(|iaya1)lc at two terms in tlie year, Whitsunday and Martinmas, l>y e(pial portions, half-yearly inadvani'e, beginning the lirst term's payment of said sum of alinunit, as at the term of AVhitsumlay last, 18 , for the half-year immediately follow- ing, and so forth half-yearly thereafter 'during the joint lives of the pursuer and defender, or until the safd parties adhere to each other, with interest at live per centum per annum, on each lialf-yeais aliment, from the term of payment until payment. ( Wliea more desirable, conclude for quarterly, monthly, or weekly payments.) (b.) Alternative conclusion for Damayes- Promise of Marriage, and (2) for Seduction. -(1) for Breach of But if it shall be found that the pursuer is not married to the defen- der, then, and in that case, the defender ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £ sterling, in name of ilamages and sola- tium, on account of the diifeiider having refused to implement and fullil a promise of marriage nuule by the defender to the pursuer: and the furtlier sum of £ , on account of the defender having seduced the i)ursuur. 1 1 I ADHERENCE PUTTING TO SILENCE— NULLITY. 453 mian. vn to us l;y ?/•; against coudesccnd- REFORE the FIND facts, er niai'ria<,'(! ried persons here to .he lUipany, and to perform ivife, and to company in DECERN and tlie sum of 1 modify, as lie laws and cases as is I OUDAINEIi, the sum ol ill the year, in advance, nt, as at the itely follow- ives of the each other, lialf-yoar's Whun more neiits.) lireach of' ¥ 3. Summons of Adherence and Aliment (tt instance of the Wife. Victoria, Ac— Whereas it is luunhly meant and shewn to us by our lovite, A., wife of B., pursuer; against the said 15., defender, in terms of the condescendence and note of pleas in law hereunto annexed : Therefore, it ought and should he found and declared by-dcCTp e - of tlio Lorda -t>f our Council ami S es sion that the pursuer, being the lawful wife of the defender, the defender is bound to adhere to the pursuer, and to cohabit with her and to treat and entertain her at bed and board, as becomes a husband to do to his wife : Therefore, the defender ought and should be decerned and ordained, 4*y U«M'«e fuvesfihl, to adhere to the pursuer, his wife, and to cohabit with her, and to treat and entertain her at bed and board, as a husband should do to his wife, and that during their joint lives. Conclusion /or aliment as in 2 (a). 4. Summons of Declarator of Freedom and Putting to Silence, nnd for Damnytis. Victoria, itc. — "NVueueas it is humbly meant and shewn to us by our lovite. A., jjursuer ; against 1>., defender, in tcn-ms of tlie condes- cendence and note of pleas in law hereunto annexed : Therefore, it ought and should be found and decl\red, by decree of the Lords of our Ci>uneil and Session, that the pursuer is a free unmarried per- son, and that the defender has falsely and calumniously given out and alleged to various persons that she (or he) is married to the pursuer: And it ought and should be farther found and declared, by de- cree foresaid, that the pursuer is free of any marriage Avith the defender, and that the defender nnght to be put to perpetual silence thereanont in all time coming : And the defender ought and should be decerned and ORDAINED, by decree foresaid, to make payment to tlu! pursuer of the sum of £ sterling in name of damages and solatium : And the defender orcHT and snour.D be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £ , or such other sum as our said Lords shall modify, as the expenses of the j)roeess to follow hereon, conform to the laws and daily practice of Scotland, used and observed in the like cases as is alleged : Our will I.S IIEREI'i>RK, »Vc. !, ; to the defen- SHOULD be MENT to the ges and sola- )lemcnt and lursuer : ami nder having 5. Summons of Declarator of Nullity of Marriage (in ilia (/ruuiid of rrcrions Marrimje of tlie Dc/nndei'. Vun-oRiA, ite. — Whereas it is humbly meant and shewn to us by our lovite. A., pursuer; against 15., defender, in terms of the condes- cendence iuid note of pleas in law hereunto annexed : Therefore, it OUGHT and SHOULD be rocND and declared, liy decree of the Lords 454 APPENDIX I. of our Council and Session, that at the time when a pretended marriage was entered into between the pursuer and the defender, the defender was married, and still is, to C, residing at : And it OUGHT and SHOULD be farther found and declared, by decree of our said Lords, that a pretended marriage entered into betwixt the pursuer and the defender, on or about the day of , was from the beginning, is now, and in all time coming shall be, null and void, and of no avail, force, strength, or effect : And that the pursuer is free to marry any free person : And further, the defender ought and SHOULD be decerned and ordained, by decree foresaid, to restore and deliver back to the pursuer all and sundry lands and heritages, sums of money, goods, gear, and others whatsoever winch he {or she) received from the pursuer on occasion of, or by or through said marriage : Further, the defender ought and should ))e decerned and ORDAINED, by decree foresaid, to make payment to the pursuer of the sum of £ in name of damages and solatium : And the defi'U- der OUGHT and should be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £ sterling, or sucli other sum as our said Lords shall moilify, as tlie expenses of the pro- cess to follow hereon, conform to the laws and daily practice of Scut- land, used and observed in the like cases as is alleged: Our will is herefore, «fcc. 6. Summons of Declarator of Nullity of Marriage at th<: instance of the Woman il the Man on the (jround of Iinpotenci/. Same form as .'», except that thf. coiichisioib for i/fuiiof/cs will be omitted, and the declaratory coticluxioii will be: TuEHEroiii;, it ought and SHOULD be found and declared, by decree of tlie Lords of our Council and Session, that tlic dcfciidtT was at th(,' tiiiK,' when tlie piv- tended marriage Ijetwcen him and the pursuer was entered into, and still is, impotent and unable to cunsuiiiniate marriage by carnal copu- lation. 7. Summons of Aliment to Wife and Children. Victoria, ite. — Wheueas it is humbly meant ami shewn to us l.y our lovite. A., wife of II., pursuiu' ; against the .said 1'.., defender, iu terms of tlu' coiidescemleiiee and note of plea.s in law luireunto anne.xed : Thi:i!i:k()KE. it ought ami should be kou.nd and declareh, by decree of the Loids of our Coumil and Session, that though the defender, as the husliand of the pursuer, is liound to adhere to her, and n'ceive and entertain her as his wife, he has in pla(;e thereof deserted her ('//•, has tiM'Ued her out of his house and refuses to reei'ive. and entiM'tain her as aforesaid) : And the defender oU(iHT and should bo DErERNED and ORDAINED, liy decree foresaiil, to make tavme-NT to the pursuer of the sum of £ .yearly, for aliment to herself so long as the defender shall refuse to reeeive and entertain the imrsuer. IS i. k) i pretended ender, the : And it decree cif itwixt tlie , was , null and le pursuer ler OUGHT to restore heritages, 10 (or she) ough saiil DECEUNLI) pursuer of the dofeii- e foresaid, ig, or Rucli f the i)ro- of Scdt- U WILL IS fe at (Ik: /round of es will hr , it OUGHT (Is of our n the piv- into, aiicl iial copu- to us liy ifendir, iu hcreuutn DICCLAUEli, lou^'h tilt,' •e to hci', to receiv(! d .siioi.'i.i) .VMKNT to luT.^clf so ; pursuer, SEPARATION AND ALIMENT. 455 and of the sum of £ yearly, for aliment to each of C, D., and K the c uldren of the marriage between the pursuer and defender, so long as they shall be unable to earn a livelihood and the defender shall refuse to receive and support them and they shall reside with and bo supported l)y the pursuer, payable the said several sums of aliment at two terms in the year, Whitsunday and lilartinmas, by equal portions, begnining the first term's payment as at the term of last, for the lialf-year immediately following, and so forth half- yearly thereafter during the foresaid peri(jds, so far as regards the aliment of the pursuer and of her said children respectively, with interest, at the rate of five per centum per annum, on eacli half-year's aliment, from the term of payment until payment: And the defender OUGHT and SHOULD be decerned and oudained, by decree foresaid, to MAKE PAYMENT to the pursuer of the sum of £ sterling, or such other sum as our said Lords shall modify, as the expenses oF the pro- cess to follow hereon, conform to the laws and daily practice of Scot- land, used and observed in the like cases as is alleged : Our will is UEREFORE, tfcc. 8. Summons of Separation and Aliment at instance of Wife, and for Custody of Children. Victoria, &c. — Whereas it is humbly meant and shewn to us by our lovite, A., wife of V,., jmrsuer ; against the said 15., her husband, defender, in terms of the condescendence and note of pleas in law hereunto annexed : Therekore, the Lords of our Council and Session oucmit and should find it proven that the defender has been guilty of cruelly maltreating the pursuer, his wife {or that the defender has been guilty of adultery, as in next style) ; And therefore find that tlio pursuer has full li])erty and freedom to live separate from the defiuider, her husband : And tlie defender ought and sut)ULD be DECERNED and ORDAINED, by duorco of uur oaid Lordu , to separate him- self from the pursuer, a viensa et thoro, in all time coming : And the pursuer ought and should be found entitled to the custody and keep- ing of C, 1)., and K., the children of the marriage between the pursuer and defender : And the defender ought and should lie decerned and ordained, by d ooi ' i'i fun Mid , to make payment to the pursuer of the sum of .£ sterling, yearly, for aliment to herself, and of the sum of ,£ yearly, for aliment to each of her said ehihlren, payable at- -Uvo trvma ill thO'"yrTri7lV"IirtSTmrlay-+m(l Martiiuua vby equal portions; bt***tm*mf4-th& lir st term' s paymenb of said ncverit l-MHity-of-a^tmenfe-as at- 4 t h t' tuiii mf 4ast fur tin' half-year-imwediaiely following, ii» d -(> o fo :4^-hftlf-yt'ttr ly thereafte r, during tlie joint lives of tlie pursuer and defender, so far as regards the pursuer's aliment, and as regards the aliment for each of their said children, so long as they shall bo unable to earn a livelihood and shall remain in the custody of the pursuer, with interest, at the rate of five per centum per annum, on each h nl f- y r ai' - H aliment from the term of jiayment until payment : And the defender ought and should bo interdicted, i-uohhuted, and i 450 APPENDIX I. DISCHARGED fi'om interfering in any way with his paid children, or any of them, or the pursuer as the custodier of thcni : And the defender OUGHT and should be decerned and ordained, l)y decree foresaid, to MAKE PAYMENT to the pursuer of the sum of £ sterHng, or B uoh QtheT~6 «m n n- our s aid - Lordc ahnll modify, as the expenses of the process to follow hereon, «e»fonu to tliu Ijhvs- and daily p raetico of- ■bMH iu n youE, Ac. 9. Summons of Divorce for AdulUry, at instance of Wife, with Conclusions for Custody of and Aliment for the Children. Victoria, «fec. — "Whereas it is hunihly meant and shoAvn to us hy our lovite. A., wife of 15., pursuer; against the said IJ., defender, in terms of the condescendence and note of pleas in law lu'reuntn annexed : Therefore, the Lords of our Council and Session ought and SHOULD kind faints, circumstances, and (pialilii'atinns proven relevant to infer tlie defender's guilt of adidtery with C. {desiipi her), (or with a woman, whose name and address are unknown to tlie pur- suer), and tlierefore find him guilty of adidtery with her, accnrdingly : And our said Lords ought and should divorce and kepahate tlie defender from the pursuer, and from her society, fellowshij), and com- pany, and FIND and declare the defender to have forfeited all the rights and ])rivileges of a lawful hus1)and, and that the pursuer is entitled to live single, or to marry any free man, as if she had never been married to the defender, or as if he were naturally dead. Conclusions for custody and olinieid to children as in 8, oinittiny aliment to wife, iVo/c— Wlu'ii aliment fnud. Ynn'oitiA, iV'c. — Whereas it is humbly meant and shewn to us by our lovite, A. 15. {di'slyn hi)n), pursuer; iigainst JMi.s. K. C. or 11., his wife, defender, in terms of tlii^ eoiulcsceudenee and note of plea in law hereunto annexed: Therefore the Lords of our Council and .Session oUfillT and should find facts, einiimstances, and (piali- tications proven relevant to infer the defender's guilt of adultery witli X. Y. (ili'siyn him), (or with a person or jmrsons whose names, afcujia- fious, and places of n-sidena: are unknown to the pnrsner), and tliere- t'ore FIND lier guilty of adidtery with him (or than) accordingly ; An'D our snid Lords OUGHT and should divorce and sei-arate the defender from till! pursuer, and from his .society, fellowship, and eomiiany, and KIND and DECi-ARE the defender to have forfeited all the rights and privileges of a lawful wife, and that the jjursuer is entitled to live single, or marry any free; wonnui, as if he had never been marrieil to 1 I ill, or any dofender resaid, to es of thu 'i/e, tvith Iren. to us by fonder, in horeunto on OUGHT s proven '■shjn her), I the p>n- •imlinj^dy : \11ATE tlu' and coni- -■d all the Hirsuer is Kill never d. i8. ■< and ;i''es 1 t(i us by C. or ]i'., nnt(! of ir (^mncil ind ipiali- Iciy witli .V, dccnjm- .ml tlicre- ,1,'ly : AnM) defender pany, and i;-;hl,s and mI to live larrii'd to DIVORCE. 457 the defender, or as if she were njitnrally dead : conform to the laws and daily practice of Scotland, used and observed in like cases as is 11 1 Qyj^ ^^.jj^j^ jg HEREFORK, i^c. alleged Conclusions when necessary : — {a.) For Damrujes against the Co-defender when named. And the said X. Y. guoht andsuouu) be decerned and ordained, by decree of our said Lords, to make payment to the pursuer of £, , in name of damages and solatium. (6.) For expenses against Wife and Co-defender conjunctly and severally, ivhen the Wife has Separate Estate, and the Co- defender is named. And the said X. Y., and the said E. C. or B., ouoht and should be decerned and ordained, conjunctly and severally, to make pay- ment t(j the pursuer of tlie sum of £, sterling, or such other sum as our said Lords shall modify, as the expenses of the process to follow hereon, conform to the laws and daily practice of Scotland, used and observed in the like cases as is alleged : Our will is herefore, sterHn;,', or such other sum as our said Lords shall modify, as the expenses of the process to follow hereon, conform to the laws and daily practice of Scotland, used and observed in the like cases as is alleged : Ouu wii.i. IS IIEnEFORK, &c. Conclusions when necessary : — (a.) Alternative conclnaiou for tSepm'ation and Aliment, and, if required, Custody of (Jhildren and Aliment for tliem. As in 8. 12. Summons of Divorce for Desertion at imtance of Wife ai/ainut IIusba)ul and Cliildren and Ncxt-of-Kin, the Unshund being Abroad, and Address unknoimi. Victoria, &c. — Wiiekeas it is humbly meant and shewn to us by our lovitc. A., wife of B., now in the United States of America, or elsewhere furth of Scotland, and whose place of residence is unknown to the pursuer, pursuer ; against the said 13., defender, and also against C. and D., the children of the marriage between the pursuer and the defender, and E., the brother {or as the case may be), one of the next-of-kin of the defender, for any interest they may have, and who are hero calUnl under antl in virtue of "The Conjugal Rights (Scotland) Amendment A(!t, 18G1," section 10, in terms of the con descendence and note of pleas in law hereunto annexed : TiiKuiOKoKh; it OUGHT and siioui.n be founM) and declaued, by decree of the Lords of our Council and Session, tliat the, defender has be(!n guilty of wilful and malicious non-adherence to, and deserti, by decree of our said Lords, be divouced and sei'auatei* from tlu' pursuer in all timt; coming: Anmi it ouuirr and shol'i.d be iounu and DECLARED that tli(! pursuer is loosed, acipiitted, and freed of tjie marriage contracted betwixt the defender and her, and that it is law- ful for her to marry any other free person whom she pleases, in tlie same manner as if she had never licen married, or as if tiie tlefender were naturally dead; and also, that the defender has forfeited all the rights and jirivileges of a lawful liusl)aii(l, and ]o^l and amitted all goods, gear, money, and others wliatsoevi'r wliich he reeeivetl with or on account of the jiursuer, or which were anyways eontraeteil or agreed to be paid to the defender in respect of the sai. — When damages are asked both for breach of promise and for seduction, and biHh the above forms of issue are used together, there should bo a separate schedule of damages for each issue. See Paton v. Brodie, 20 J ). 258. (3.) Damages for Seduction of Married Wuiiian and Adultery. Whether, between the month of , 18 , and , 18 , the defender did seduce and commit adultery with A. B. or C, then tlu,' wife of the pursuer, in the house at (specify i)lace) and did iiiaintaia an adulterous connection with her in said house (specify other places if any), to the loss, injury, and damage of the pursuer? Damages laid at £ Xote. — I have not thought it necessary to print the statutes dealing with Registration. They are : — ('l.) 17 it IS Viet. c. 80. (•J.) 18 Vict. c. 29. (;{.) 2:5 it 24 Viet. e. 8."). (1.) U it 12 Vict. c. 43. (f)-) 42 Vict. e. 8, ^ 2 (.Vriny). The marriage schedule now in use is the following : — o > u iJ m •N <1* lO :/! X) J3 , C »-H rt *^ c; o s i^ s o ^ H S 2 '3 CI K ^ r* c Vi <1 ^^ ^ ^^ ^ r- K ^ (-H ** o A < l-H ^^ ^ »<; T I. »-H o ;i. >^ "rt O d 5 W •J ii 1:^ > c . Ji P^ <— < — U f! w 1» a 4> c; O o ^ H d o r' tr 1—1 Pi ^ •■J rT ft Co '-I ^^'3'-^ ^ § f^V <^J 1* ^ s MS ^ -w •"^ ^ ■^ «*;» *^ ^ -^ •To! 3 c i, r. , - I. c 1) s a ^ l s '^ =5 ^' 1 ^ ■*o ^, !? •». t> "* ^ ~ ^ » "»^ 1 02 U »^*i i*-. »>^ ";. ^-s. "«H ^ "•*» *^ c "« itiliP|l 5 -5 K*5 S E*J I S S r. - = :i *S 1 460 1 ^ ? i •fci •-C 1 '-, ii -0 t5 2 .0 V "^ 4 =5 s t !:^ "v. 1 ^ .7 -c; c V s V '^ 1 1 •=.i «>=-.„ "3 i -J '= ." ^ = i: r! - > •; ~ -1. _ — t «> V C* «^ ^ i u = o t- i: s i = 3 C — ~ '*" ^ t! ' ^ — *^ ~ . •^ a> .:,«—*; u - ^ — - ; o ^ '• .; -^ _^ i _ ti^'Z'Z = r •" f ; ^ ." ^ X ENDIX II.— STATUTES. No. I. ACT ALLOWING DIVORCE FOR DESERTION, \oT-l Cap 55. Anent thamc that dlcertis fra vtheris being joynit of befvir in Laiichfidl Maviage. It is fuiidin aiid dei'liirit be our Snuorano Lord my Lord KeL,'eutis f^race, the Hire- Kstatis, and haill l)odio of tliis present Parliament, Tliat in all times byjuist sen the trcw and Chri.stianc religioun was pulilictlie itreichit, awowit, and establischit witliin this realmo, naniclie sen the moneth of August the yeir of Ciud ane thousand live Imndretli tluvscoir yeiri.s, it lies bene, is, and in all tymc cuming salbe lauchfull, that ([uhatsumeuer jicrsoun ov persounis joynit in lauchfuU iiialrimonii', husl)and or wife, divertis fra utheris companie without ane ressonabill cans alledgeit or dcducit befoir ane judge, and remanis in thair malicious obstinacie l)e the space of four yeiris, and in the meant' time refusis all preuie admonitiounis, the husljand of the wife, or the wife of the husband, for dew adherence, that than the husband or the wife sail call and pcn'sew the obstinate persoun olfendar befoir the Judge ( »rdinar for adhererco , and in case na sullicient causis l)e alledgeit ipdiairfoir na adherence sidd be bot that the sentence procedis aganis the (jtVendar rcfusand to obey the samin, the husband or the wife sail mene thamcsellis to the superiour magistrate, videlicet, the Lordis of Sessioun, and sail o])tene letteris in the four formes conforme to the sentence of adherence ; iiuhilk charge being cotempnit and therefoir Ix'iiig deuuueit rebell and put to the home. Than the husband or the wif(! to sute the spiritual jurisdictioun and power, and require the huuihfuU archibischop, bischop, or suj^orintendent of the countrie ([uliair the oU'endar remanis, to direct preuie admonitiounis, to the said oU'endar, ailmonisching him or hir as befoir for adherence : (pdiilkis admonitiounis gif he or scho contempteouslie disobeyis, that ai('hi])ischop, bischop, or superintendent to direct charges to the minister of that iiarochin (pihair the oifendar remanis, or in case thair be nane, or that the mii\ister Avill not execute to the minister of the nixt adiacent kirk thairto, qulia sail proceid aganis the said oU'endar with publict admonitiounis, and gif they be contempnit to the sentence of excommunicatioun : (pdiilk anis being pronuncit, the malicious and obstinat defectioun of the partie oirendar to be ane sullicient cans of diuorse, and the said partie oU'endar to tyne and lois thair tocher, et donaliones propter nuptias. ■ 4G2 APPENDIX II. No. 11. Declaring under wlmt circumstances marriages solemnised in Scotland shall be valid. (^ertifiratf.l copy of entry by shcritf- dei>ntc tiiat parties ivere niiuricd, ami that cine iif them lived in Scotland twenty-one days preceding such niariiai;e, conclusive as to its validity. No conviction for, nor regis- tration of irrejrular marriage, witho\it proiil' of previous residence. 19 & 20 VICTORI/E REGINiE, Cap. 96. An Act for aviendivg the Litio of Marriage in Scotland. [29tli July, 185G.] WiiKREAS it i.s expedient to aiiieml the linv touching Mamngcs in Scotland : 15o it therefore enacted hy the Queen's most Excellent Majesty, by and with the advice and con.sent of the Lords Spiritual and Temporal, and Common.'*, in this jmisent Parliament assembled, and by the authority of the same, as follows: 1. After the thirty-lir.-^t day of Jlecember Oiu; thousmd ei{,dit hundred and fifty-six, no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony sliall be valid, unless one of the parties had at tiie date thereof his or her usual place of resid- ence there, or had lived in Scotland for twenty-one tlays next preced- ing such marriage ; any law, cu torn, or usage to tlu; contrary notwithstanding. 2. If any jiersons who shall have contracted an irrcjgular marriage in Scotland after the day and year aforesaiil shall within three montlis thereafter present a joint application fur a warrant to regi.ster such marriage to the iherill' or sherill'-substitule of the comity wheic such marriage was contracted, and .'*hall prove to his satisfaction that they have ))een married to one another, and that c. e of them had livi'il in Si.'otland for twenty-one days next preceding s'.;';li marriage, or had liis or her usual residence in Scotland at thi! date thereof, such sherill' or sherill-substitut Oiall certify tiic same under his hand, and sliall thereupon gr;..i, u-arrant to the registrar of the jjaiish or 1 urgli in which the marriage was contracted, who shall forthwith enter such marriage in the register of marriages kept by him, in terms of an Act of the seventeenth and eighteenth years of Her present Majesty, chapter eighty ; ami any ciirtilied copy of such entry, signed by such r(>gistrar, aod which sucli registrar is hereby retpiired and empowered to give, charging for tlie same tiie sum of live shillings, shall be recciived in evidence of such marriage, and of such residen(;e or of siich jjrevious living t\venty-o!U' days in Scotland, in all Courts in the 'United Kingdom and dominion.-: thereunto belonging. 3. It shall not be lawful, after the date aforesaid, to convict any parties of having irreg darly contracted niarriage, inili-ss tin re shall lie adduced to I lie jiistitM- t r justices of thi' peace, magistrate o; magis- trates, before whom the eom]iIaint against such parties has been liroiight, siitlicieiit proof', other tlian the acknowledgment of such par ties, that one of them had at the date thereof his or her usual residence in Scotland, or had liveil in Scotland for tweiity-oni' days next preceding such marriage ; nor shall it bo lawful for any registrar BAXXS CONMUGAL RIGHTS. 4G3 of births, deaths, ami inarviagos in Scotland to register any marriage under the provisions of the said recited Act, on tlie proiUiction of an extract of a conviction for having irregularly contracted marriage, unless such conviction shall hear that such sutlicicnt proof as aforesaid was so adduced. riir (ir ^^liall uri^'li in r such Ml Art Wajcsty, ly such lOWCI'lll .all 1... I' or of s in till' No. 111. 49 VICTORI/E ilEGIN/E, Cap. 3. An Ad to remove Doubts d in Kngland, one of the parties to such marriages lioing resident in Scotland: l>e it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Si)iritual and Temporal, and Commons, in this present Parlia- liament assembled, and by the authority of the same, as follows: 1. No marriage solcmr.iscd, or to be hereafter solemnised, in any church in Kngland, after publication of banns in such church, shall be, or b(! deemed to have been, invalid by reason only that one of the parties to such marriag(> was at the time of such iniblication resident in Scotland, and that banns May have been publi.shed (U' prodaimeil in any church of tin; parish or place in which such party Avas resident, according to the law or custom prevailing in Scotland, and not in the manner required for the publication of ])anns in Knglam', 2. Tliis Act may be eite.l a^ the Marriages Validity Act, 1886. No. IV. •24 .^' 2-) VICTOIILE llEdlN.E, Cap. 80. An Art to (tineinl the Law rerjardhig Coiijuf/dl R'ujhts in Scotlaml. ' [Gth Augtist, 1801.] WiiKUKAS it is expedient to amenil the law of Scotland relating to Husband and Wife: I'.e it therefore enacted by tlie Queen's most I'Accllrnt Majesty, by and with the advice and consent of the T-ords Spiritual and Temporal, ami Commons, in this present Parliament a.ssembled, ami by the authority of the same, as follows: 1, A wife ileserted bv her liusliand may, at any time after such Awifodesorted dese'rtion, aj.ply by petition to any I.(n'd Ordinary of the Court "f jlfj.'f 'J^J'" Session, or in tin- time of vacation to the Lord Onlinary on the I'.ills, „,,.,iy fo,. „„ for an order to protect property wiiich she has acetiti()ii for recal rdiiiaiy shall require evidence of such desertion, and on being .satislied thi'reof pronounce an interlocutor giving to the wife protection of her property as aforesaid against the husband and all creilitors or persons claiming under ov through him ; and if answers bo lodged to the said petition, the Lord ( >rdiuary may, on considering th(^ same, ami, if he consiiler it necessary, after hearing parties, allow a proof to them of their ri'speetive averment.s which pioof he shall take himself, anil either write the evidence with his own hand, in which case it .shall l)e read over to the witness by the judgi'. and signed by the witness, if h(! can write, or the Lord ( )rdinary shall record tiie evidenc»! by dictating it to a clerk, in which case it .-liall, when taken down, be read over and signed as above ; or the Lord Ordinary shall cause the cvidenci! to ho. taken down ami recorded liy a writer, skillc'l in .short- hand writing, in manner after-mentioned, and it shall bi' competent to the Lord Ordinary, in special cause shown, instead of taking such proof, to L.ant a commission to take .siid proof elsewhere than in Kdinliurgh, in which case he may pronounce an interlocutor .setting forth such special cause, and granting commission to tak(i such proof, and if satisfied after proof of the fact of such desertion, and that the .sanu! was without rea.sonable cause, he shall iiroiitiunce an interlocutor giving to the wife protection as afore.said, and he shall appoint intima- tion of the said interlocutor having been jironounced to be made in one or more news]papers puldished within the county within which the wife is re.-;ident, or in such other newspapers as the Lord ( irdinai y may appoint. 2. It shall be lawfid for the husliand, or any creditor or other peisoii claiming in or thinugh his right, if such creditoi', husliand, or other person have not lodged answers as aforesaid, to apply by intition to the Lord ( )rdinary liy whom suidi orler was made for the reral therenf ; and the Lord (hdinary shall appoin, surh petition to be answereii by the wife, and thereafter dispo.>ie of the application as he .«hall think just ; but such recal shall not allect any right or interest ouerously and lioiiii ji(f'' acipiireil by any thinl party from the wife liefoiv .said recid ; and the Loid (Mdinary shall direct that publication nf his interlocutor be made in manner ln'reinhefoic provided. 3. All inti'rlocntors of the .said Lord (tnlinary may be brought under review of either l)ivisiou of the Court of Session, by lodging and boxing within twenty-one days after the pronouncing of such Interlocutors, if in ses.sion ; and if the said twenty-oiu' days shall expire during vaca- CONJUGAL RIGHTS ACT. 465 I she has csevtioii, iLf ill or putitiDii nd to he II' of the , shall he shaiul ho unst him I petition 1, ami on \]\v wife 1 and all iswors hi; fiiii.L; the ;, allow a 4iall take hich case rd hy till' ■ cvidenci! down, he calist; till' 1 in slioil- •(iniiK'tcnt iiw^ such than ill or sfttiii,^ icll inoof, 1 llial thr trrloclUnr lilt iiitinia- niailc ill Mil wliiili ( trdiuai V icr pi'isiii |, 111- ntllt T lilion to d thcrrof; nvcriMi I'.V liall think loiicronsly licfolt' loll of his lilt ;llt undrl 11 loMll'. tiou, hy lodging in the Bill Cliamher a reclaiming note and hoxing the operative, same at the lir.st hox day after the expiry of the said twenty-one days: ^° action of Provided alway.^ that, notwithstanding such reclaiming note, the "JmSft interlocutor of the Lord Ordinary granting protection shall take effect while order when intimated as aforesaid, unless the Lord Ordinary, either at the ^'i^sists. time of the pronouncing thereof or within forty-eight hours thereafter, order that his interlocutor shall not take effect till the advising of the reclaiming note, or such other period as he may think fit ; and such order of protection shall, where there has heen appearance hy the hushand, continue; operative until such time as the wife shall again cohahit with her hushand, or until the Lord Ordinary, upon a petition 1)y the hushand, shall he satisfied that he has ceased from his desertion, and cohabits with his wife ; and the Lord Ordinary may require him to find security for such i)eriod as may be appointed, that he shall continue to cohahit with lier ; and upon the Lord Ordinary being so satisfied, and security fouiul, if required, he shall rccal the order of protection ; hut such recal shall not affect any right or interest acquired hy the wife .»hile the said order subsisted, which right and interest sliall remain vested in her, exclusive of her husband's jus mariti and right of administration ; nor shall it affect any right or interest acquired by a third party during such period, or any third party through or from her, while the said order subsisted ; and until such order be recalled it shall not be competent for the husband to institute an action of ailherence against his wife ; and the Lord Ordinary shall direct that publication of its rccal be made in manner hereinbefore provided. •ufors, if Iring vaca- 4. After an interlocutor of protection is pronounced and duly intimated, tin; jn'operty of the wife as aforesaid shall belong to her as if slu; were unmarried : Proviiltnl always, that such protection shall not extei d to property acquired by the wife of which the husband or his as.si>,'i'je or disponee has before the date of presenting said p(!tition obtained full and complete lawful jiossession, nor shall such protection affect the right of any creditor of the husband over property which he has before the date thereof duly attached by arrestment, followed by a decree of forthcoming, or which such creditor has before the said date duly poinded, and of which he has carried through and reported a sale. 6. If any such order of protection bo made and intimated, it shall have the effect of a decree of separation a mema et thoro in regard to the property, rights, ami obligations of the husband and of the wife, and in regard tt) the wife's capacity to sue and be sued. 6. After a decree of separation a mensa et thoro obtained at the instance of the wife, all property which she may acquire, or which may como to or ilevolvo iipon her, shall be held and considered as property belonging to her, in reference to which the jus miritl and husband's riglit of administration n,i excluded, and such property may bo disposed of by hor in all respects as if she were uiunarried, 2 11 After inter- locutor of protection is pronounced, property of wife to belong to her as if unmarried. Order of i ro» tection to have effect of decree of separation. In case of separation the property of the wife to belong to her, exclusively of the; us mitrili and right of ftd- 1^1 46G APPENDIX II. ministration ; also for purposes of contract and suing. and on her decease the same shall, in case she shall die intestate, pass to her heirs and representatives, in like maimer as if her hushand had heen then dead ; provided that if any such wife should aj^ain cohabit with her hushand all such property as she may he entitled to when such cohabitation shall take place sliall be held to her separate use, and the jus mariti and rii^ht of adniinistratiim of her husband shall be excluded in refeience thereto, subject, howctver, to any aj^reement in writing,' made between herself and her husband ; and the wife shall, while so separate, be capable of enteriuj,' into obli^'ations, and be liable for wron,L,'s and injuries, and be capable of suin^' and being sued, as if she were not married ; and her husliand shall not be liable in respect of any obligation or contract she may have entered into, or for any wrongful act or omissi(tu by her, or for any costs she may incur as pursuer or defender of any action, after the date of s\ich decree of sei)aration ami during the subsistence thereof ; provideil that where upon any such separation aliment has been decreed or ordered to be paid to the wife and the same shall not be duly paid by the husband, he shall be liabhi for necessaries supplied for her use. In notion of 7. In every action of divorce for adultiTy at thf instance of the divorce husbatid, it shall be comitetent to cite, either at the commencement or. adulterer to be , • /, , , ', , , ,. . i -^i ii -c co-defender, during tile depeiulence thereof, as a (;o-defender along with tiio wife, tlu! person with whom she is alleged to liave committed adultery; and it shall be lawful for the Court in such action to decern against the person with whom the wife is proved to have committeil adultery for t'.K! payment of whole or any part of the expenses of process, proviiled he has bec^n cited as aforesaid, and tln' same slrdl \)i' taxed as between agent and client: Provided always, that it shall be competent to examim; the j)erson with whom the wife is said to havt; committed adultery as a witness in the cause, iiolwithstanding he is called as a co-defender in th(.' action, and in the power of the Court, on cause shown, to dismiss such ai'tion as regards such co-defender, if in their opinion such a course is conducive to the justice of the case. Lord Advocate 8. It shall b(! competent to the Lord Advoeate to enter appearance .•Mllfoarance in '''''! '^ 1"^''^^' '" ""^''' 'I'^^ioii of declarator of nullity of marriage or of actions for divorce; and it shall be competent to him to leail such proof and nullity of maintain such pleas as he may cdiisider warranted liy the circumstances •Uvorcer'*" "^ ^'"' ^''^^^- ! '""' ^-''^^ ^'""'t ^l'""' whenever they consider it necessary for the proper disposal of any action of declarator of nullity of marriage or of divorce, direct that it l)e laid before the Lord Advocate, in order that he may determine whether he should enter apiKMiance therein ; and exi)enses shall not be claimable by or against the Lord Advocate with reference to such cascja. In action for separation Court may make interim ordiTH with rcsnoet to children. 9. In any action for separation a vieum rf thot'n or for divorce the Court may from tinnf to time make such interim orders, and may, in th(( final diicree, make siu.h jtrovisioii as to it shall seem just and proper with respect to the custody, mainleiiance, ami education of any pupil children of the marriage; to which such action relates. CONJUGAL RIGHTS ACT. 467 bate, pass )and hail [1 cohabit to when irate use, md shall ifrcement the wife Lions, and Lnd being ; be liable id into, or she may of such provided Iccreed or ly paid by ler nse. lice of tlu' icenient or . 1 the wife, [ adultery; ern a^^inst •d adultery )f process, 1 be taxed shall be 1 to have in;,' he is lie ('(lUrt, fcudiT, if the case. ippearance n,i;^e or of proof and Ministances it necessary nidlity of Advo(;ate, appearance it the Lonl divorce the nd may, in ni just and ttion of any 10. In every consistorial action the summons shall be served upon m every the defender personally, when ho is not resi.lent within Scotland • consistorial Provided always, that if it be shown to the satisfaction of the Court *''*''"* ^^'^ u that the defender cannot be found, e.lictal citation shall be deemed s™on suflicient ; but in every ease where the citation is edictal the pursuer defender per- shall also serve the summons on tlu; children of the niarria"e if any """'^"7. T^^n and on one or more of the next-of-kin of the defender, exclusive of Scotknd" the children of the marriaj,'e, when the said children and next-of-kin are known, and resident within the United Kin<;(lom, and such children and next-of-kin, whether cited or so resident or not, may appear and state defences to the action.' IL It shall not be necessary, prior to any action for divorce, to Not necessary institute a<,'ainst llie defender any action of adherence, nor to charge *"* institute an the defender to adhere to the i)ursuer, nor to denounce the defende"!-, Htc^^iSt' nor to apply t(j the presliytery of the bounds, or any other judicature, defender prior to admonish the defender to adhere. to action for divorce. 12. Tile willow of any person who shall, after the passinj,' of this Terce claim- Act, die infeft in jjroperty held by burgage tenure shall be entitled to able for burg. terc(! tliei(!from : and the like proceedings as to service and kenning ^^^ P'^°P^*'*y- before the sheriff shall be; competent in such a case as are competent with reference to property in resjjcct of which terce might have been claimed prior to the passing of this Act.' 13. The forty-first section of the Act of the first year of His late Lord Ordinary Majestv William the Fourtli, chapter sixty-nine, in so far as it to take proofs .■naVte.l that " it shall l>e lawful for His Majesty's Principal Secretary lotr.?*"™' of State for the Home Department to appoint, from time to time, such number of persons, l)eing sherills-depute of counties, as he shall think lit, to take proofs in consistorial causes, which duty the persons so appointeil shall iierforni ;" ami the second section of the Act of the sixth and seventh years of His late Majesty "William th(5 Fourth, chai^ter forty-one, sliall be and the same are herel)y repealed; and in place thereof it is hereliy enacted. That wiiere proof in consistorial actions shall W' allowed, a Diet of Proof shall lie appointed, at which the evidence shall be led liefore the Lord Ordinary, and he shall take hiniseir, and either write down with his own hand the oral evidence, in whieh case it shall be read over to the witness by the judge in o])en Court, and shall Ix^ signed by the witness, if he can write, or the Lord Ordinary shall record the evidence by dictating it to a clerk, in whieh case it sliall in like manner be read over and signed; or the Lord Ordinary shall cause it to bi! taken t». - Sir Cdnveyaiicing Act, IS/'l, § '2.^». Court of Susxion Act, . 4G8 APPENDIX II. Payment to certain sheriffs. Actions of aliment. notes of the Ju(lj,'c, or the extended notes of such writer, ccrtiKed by the presiding Judge to he correct, shall be the record of the oral evidence in the cause; and the Lord ( )rdinary shall take a note of the documents adduced, and any evidence, whether oral or written, tendered and rejected, with the ground of such rejection ; and any ruling of the Lord Ordinary in reference to the admission or rejection of evidence may be recalled or altered by the Liner House, under a reclaiming note against the final interlocutor of the Lord Ordinary, disposing of the merits of tlic- cause; and the diet of proof may be adjourned by the Lord (Ordinary, if he shall consider it proper and reasonable so to do ; but the proofs ^hall be taken, as far as may l)c, continuously, and witli as little int(!rval as the circumstances or the justice of the case will admit of : Provided always, that it shall bo competent to the Lord Ordinary, where any witness or haver is resident beyond the jurisdiction of the Court, or by reason of age, inllrniity, or sickness is unable to attend the diet of proof, to grant commission to any jjcrson competent to take and report in writing, according to the exi.sting practice, the evidence of such witness or haver.' 14. The Commissioners of Her ^fajesty's Treasury shall annually pay to each of John Cay, Ksquire, Siieritf of tlu; Cininty of Linlith- gow ; John Tait, Ksquire, .Sheritl" of the Counties of Kinross and Clackmannan ; Krskine Daniel Sandford, Es([uire, Steward of the Stewartry of Kirkcudoright, and Sheriff of the County of Wigton ; Robert Hunter, Es(piire, Sheriff of the Counties of l)umliarton and Bute ; and Denjamin Robert Bell, Escpiire, Sheriff of th(i Counties of lianff, Elgin, and Nairn, out of monies to be voted by Parliament for that purpose, a sum (Mpial to one-fifth of tht; total amount which shall be ascertained by the Queen and Lord Treasurer's Rememl)rancer in Exche([uer, to have lieen paid amiually, on an avtirage of the last three y<'ars, to the sherill's-commissary, in respect of proofs taken liy them in consistorial causes ; but such sum shall only be paid as long as the said pers' r'.:! shall hold the oHice of siierifl' in any county in Scotland, and no longer. 15. Actions of aliment in the Court of Session between husband and wift! shall not be considered Liner House causes, liut shall be considered and dispost^l of in like manner as other consistorial causes, except as hereinafter proviiled iis to decrees in absence ; and actions of aliment at the instance of other i)arties shall not be considered Liner House causes, but shall be disposcMl of by the Lord Ordinary (subject in l)oth eases to reclaiming note in common form against his interlocutors) in the same way as such cau.ses are at present disposed of by the Judges of the Inner House: Provided always, that all actions for aliment shall Ix; deemed summary causes both in the Outer and in the Liner House, and that whert; no a|)])eaiance is entered for the defender, decreet shall bo proiumnced in ab.sence without i)roof, as in other cases before the Court of Session. ' It is now competent to |,'rant a commission to take tiio deposit ion of a havt-r ftlthou^jh hu may ho rcHident in .Scotlaml. Court of SusHion Act, 1SG8, § 100. CONJUGAL RIGHTS ACT. 469 titiecl by the oral L note of written, and any rejection , under a Ordinary, f may bo (iju'r and 5 may be, es or the shall be haver is n of age, , to grant I writing, .-itness or annually f Linlith- nrnss and ix\ of the Wigton ; larton and ounties of 'arlianu'ut nt which 'mbrancer f the last taken Ity id as long county in II lusliand t shall be •ial causes, nd actions considered ( )rdinary igainst his t disposed !, that all th in the icaranoc is n absence 16. When a marrie.l woman succeeds to property, or acquires When a right to It by donation, l)equest, or any other means than by the married exercise of her own industry, the husband or his creditors or any '""T" '"°' other person claiming under or through him, shall not be entitled to perty.^&a^ claim the same as falling within the communio bonorum, or under ^'usband or the ju8 mariti or husband's right of administration except on the Stled to* condition of making thorofrom a reasonable provision for the support claim the and maintenance of the wife, if a claim therefor be made on her *'*'"^- behalf ; and in the event of dispute as to the amount of the provision to be made, the matter shall, in an ordinary action, be determined by the Court of Session according to the circumstances of each case, and with reference to any provisions previously secured in favour of the wife, and any other property belonging to her exempt from the jxis mnriti: Provided always, that no claim for such provision shall be competent to the wife if ijefore it be made by her the husband or his assignee or disponee shall have obtained complete and lawful posses- sion (jf the i)roperty, or, in the case of a creditor of the husband, where he has before such claim is made by the wife attached the property by decree of adjudication or arrestment, and followed up the .said arrestmeiil by obtaining thereon decree of furthcoming, or has poinded and carried through and reported a sale thereof. 17. The Court of Session arc hereby aut'':..;sed and empowered to Court of mak(! from tiiia; to time such orders aiul regulations as to forms of *^*'^^^'"' '^J"" process by acts of sederunt as they may consider necessary for carry- makeTct8*of ing into execution thi' purposes of this Act. sederunt. 18. All laws, statutes, and usages are hereby repealed in so far as Repeal of laws the same are inconsistent with the provisions of this Act, but no inconsistent further or otherwise. >vith this Act. 19. Tlif following words and expressi(ms, when used in this Act, Interpretation shall, in tlie construction thereof, be interpreted as follows, except •'^ *"^''ms- where the nature of the i)rovision or the context of the Act shall exclude or be repugnant to such construction ; that is to say, the expression "Lord Ordinary" sliall include his successor; the word " property " sliall iii<;hide and apply to all property falling under the jns mariti ; the expression "consistorial action" shall include actions of declarator of marriage, of declarator of nullity of marriage, of declarator of legitimacy and bastardy, actions of separation a vmnsa et thoro, of divorce and of adherence, and of putting to silence, and actions of aliment between husband and wife instituted in the Court of Session. 20. This Act may in all proceedings be cited as the " Conjugal short title. Rights (Scotland) Amendment Act, 18GI." 21. Tliis Act shall come into operation on the first day of November Commence- now next ensuing, and not before. """*°^ ^°*' of n haver <,S 100. 470 APPENDIX II. Definition of "sheriff." Sheriff's jurisdiction extenilt'il to applications for orders to pro- tect property of deserted wives, and for the reciiU of such orders. No. V. 37 & 38 VICTORIA REGIN^, Cap. 31. An Act to amend the Conjugal Rights (Scotland) Amendment Act, 18G1. [IGth July, 1874.] WiiEUEAS an Act was passed in the twenty-fourth and twenty-fifth years of the roi.Lju of her present Majesty, intituled " An Act to amend the Law rej,'arding Conjugal Kights in Scotland : " And whereas the expense of procedure under that Act prevents many persons from availing themselves of its henetits, and it is dcsirahle to amend the same : Be it therefore enacted by the Queen's most Excellent Majesty, l)y and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament a.scembled, and by the authority of tlie same, 1. Tlie word "slierilf" shall include slierill'-substitut.'. 2. The shcrifTs of counties in Scotland shall have all jurisdictions, powers, and authorities necessary for iicaring, trying, and determining applications by wives deserted l»y their husbanils for orders to protect property that they have ac([uired or may actpiire by their own industry after such desertion, and jmiperty which they jiavo succe(!ded to or n)ay succeed to or acquire right to after such deser- tion, against tlieir husbands or cretlitdrs of their husliands or any persons claiming in i)r through the rights of their lius])ands, and ap]>lications l)y the husbands of such wives, their creditors, or others claiming in or through tlie I'ights of such husl)aiids for the recall of such onh-rs: Provided as follows : i. All such applications in the sherilV court .-hull be made by pcitition in common form, and subject to any orders and regulations which the Court of Session iire hereby autlmriseil to make froiu tinu! to time as to proceduie in such applica- tions, the procedure in every such petition, including the procedure in appeals taken therein within the sherilf court or to the Court of Session, shall, as nearly as may be, be the same as in an ordinary action in the sherill' court : 2. The conditions on which orders to protect property as ;ifores;iid may be granted or recalled in the shcriU' court shall be tliu same as those on which such orders may be granted or recalled in the Court of Session. The provisions of the recited Act relating to the intimation of intt!rlocutors granting or recalling such orders in the Court of Session shall apply to the intima- tion of stu-'h interlocutors when pronounced in the sherilf court ; and tlu! effects of the grant or recall of any such order duly intimated shall be the same when made in the sherilf court as wlu-n made in the Court of Session : CONJUGAL RIGHTS ACT, 1874. 471 ndment y, 1^74.] enty-fifth . Act to prevents lul it i.s \it'-'^ty, by LVuHioi'iil, I by the isdictioiis, tfrminiuj,' to jirotcct heir own ley have ncli ilescr- Is or any mis, any virtm; of letters of supplement to persons furtli of Setitlaml to appear 1m 'fore any of the inferior courts of Scotland: and such abstract shall exhibit such particulars as are reiiuired to Ite exhibited in an abstract of any copy citation by law appointed to be made or registered by the said ki'cper or his clerk. 3. This Act may be cited as the Conjugal Rights (Scotland; Short title. Amendment Act, 1S71. I I i I aforesaid ill be tli(! )!' recalled cited Act r recalling le iiitima- le sheriff >uch order the sheriff No. VI. 40 & 41 VICTORL'E REGINiE, Cap. 29. An Act for the Protedlon of the Property of Married Women in ScothuKl. [2nd August, 1877.] WnKHEAS it is just and expedient to protect to the extent hereinafter provided for the property of n>arried women in Scotland : 472 APPENDIX II. Commence- ment of Act. Extent of Act, Protection of earnings of married women. Liability of liiis1)!inil for wife's ante- nuptial debts limited tu amount of property received through !ier. Savings, 24 k 25 Vict. c. «(> 37 k ;« Vict. c. 31. Short title. Be it enacted by the Quecn'.s most Excellent Majesty, by and with the advice anil consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by tlie authority of the same, as follows : 1. This Act shall commence and take elFcct from and after the first day of January, one thou.sand eight hundred and seventy-eight. 2. This Act shall extend to Scotland only. 3. The_/«s mariti and right of administration of the husband shall be excluded from the wages and earnings of ;iiiy married woman, acquired ov gaineil l)y her after the commencement of this Act, in any employment, occupation, or trade in which slie is engaged, or in any business which she carries on under her own nanu', and .-^Iiall al.so be excluded from any money or property ac(piire(l by her after the commencement of this Act through the exeicis(! of any literary, artistic, or .scientilic skill, and such wages, earnings, money, or property, and all investments thereof, .'^liall ])e deemed to be .settled to her .sole and sejtarate use, anil her receipts shall be a good discharge for such wages, earnings, money, or property, and investments thereof. 4. In any marriage which lakes place after the ci'inniencement of this Act, the liability of the Inisband for the ante-nuptial de])ts of his wife .shall lit; limited to the value of any properly which be shall have received from, through, or in right of bis wife at, or before, or subse- quent to the marriage, and any Coiu't in wliieb a husband shall l)e sued for such delit .shall have power to direct any inipiiry or proceed- ings which it may think proper for the purpose of ascertaining the nature, amount, and value of such projierty. 5. This Act shall not affect tlu' rights conferred ujion a married woman by the Conjugal Rights (Scotland) Amendment Act, 18G1, or the Conjugal Kiglils (Scotland) Amendment Act, 1S71. 6. This Act may lie cited as "The Married AVoinen'.s Property (Scotland) Act, 1S77." No. VI I. 43 & 44 VICTORLK KE(JIN.K, C\\\ 2r effecthvj Policies of A 8tmroliey, immediately on its beinjf so elleeted, shall vest in him ami his leiral rejiresentatives in trust for the jiurpose or purposes so expressed, or in ;',ny trustee nominated in the poli(;y, or appointed by separate writ in-.; duly intimated to the assur- ance olhce, but in trust always as aforesaid, and shall not otherwise be subject to his CDUtrol, or form part of his estate, or be liable to the dilij,'ence of his creditors, or be revdcable as a donation, or reducible on any ,v,'round of excess or insolvency : And the receipt of such trustee for the sums .secured by tlu; policy, or for the value thereof, in whole or in part, shall lie a sutlicient and efl'efitual discharj^'c to the assurance olliei! : Prtividi'il always, tliiit if it shall be proved that the policy was etreete], and it is jnst and expedient to protect, to the fnrlher exti'nt lierein-after jirovided for, the property of married women in Scotland: ]»e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of tln' Lords Spiritnal and Temporal, and Commons, in this present Parliament assemhled, ami \>y tlie authoiily of the same, as follows : 1. (1.) Where a marriage is contractecl after the jtassinj,' of this Act, ami the hushand sliall, at the lime of the marriav'e. have his domicile in Scotlaml, the whole moveahle or personal estate of the wife, whether ac([niri'd before or durinij the marriaj,'e, sliall, by opera- tion of law, be vested in the wife as her separate estate, anil shall nol be snbject to i\\{'Jus nmriti. (2.) Any income of such estate shall lie payable to tin! wife on Inr individual receipt or to her order, and to this extent the Imsbami's ri,\dit of administration shall be excluded; but the wife >hall not be entitled to assitjn the prospective inconu! thereof, or, unless with the husliaiiil's consent, to itis]iose of such esliite. (3.) Except as herein-after ))rovide(l, the wifi''s niovealile estate shall not be subject to arrestment, or other diliL;ence of the law, for the husband's ihOits, proviiled that the said estate (except sui'h corport'al niovealiles as are usually possessed without a written or documentary title) is invested, jilacetl, or secured in the name of tlie wife herself, or in such terms as shall clearly distinj,'uisli the same from the estate of the husbantl. {■{.) Any money, or other estate of the wife, lent or entrusted to the husband, or immixed with his funds, shall lie treat<'d as assids of the husl)and's estate in bankruptcy, un ir law, for ii-pt sui'h wiitti'n or nic of till' thr saiiii' 1 trusted to IS ass((ts of the wife's 'y or other ors of the k'orth havr the power is Act, the ;iii,i,' to tlu! •f ailiiiiiiis- How far Act to apiily to marriages contracted hi'fore its pa-ssing. MAKIUED women's PROPKllTY ACT, 1S81. 475 3. In the case of marriages which have taken place hefore the pass- ing of this Act : * (1.) The provisions of this Act shall not apply where the husbaml shall have, before the passing thereof, hy irrevocable dee.l or (leeils made a reasonable provision for his wife in the event ot her surviving him : (2.) In other cases the provisions of this Act shall not apply except that thi^ jns mariti and right of administration shai: be excluded to the extent respectively i)rescril)ed hy the preced- ing sectums from all estate, moveable or heritable, and income therinf, to which the wife may acquire ri"ht after the passing of the Act. 4. It shall 111' competent to all persons married liefore the passin" of this Act to declare liy mutual deed that the wife's wliolit estati" including such as may have previously come to the husl)aiid in right of his wife, shall be regulated by this Act, and upon such d 1 biTnu' registered^ in the register of deeds at Kdinliurgh or in tiie Sheriti Court register of the county or counties in which the parties reside, and being ailvntised in terms of the schedule in the Ediitinr;//] (Invite and three tiiiu's in two loeal iiewspajiers circulating in such county or counties, the said estate shall be vested in her as herein- before providid, and subject to the provisions of this Act; provided tliat the said estate (i-xci'pt sucli corporeal moveables as are usually possessed without a written or documentary title) is invested, placed, or secured, in the nan f the wife herself, or in such terms as shall (Irarly distinguish tlie same from flie estate of tlie husband; Itut no such deed shall l)i' of any etlect as against any delit or obligation con- tracted by tiic liu.-liand prior to liie date of the deed being so adveitised and legisti'icd. 5. Where a wife is deserted by her husband, or is living apart froiii Husband's him with his consent, a judge of the Court of Session or Slieriif Court, consent dia- on jietition addressed t(i the Court, may dispense with the husband's '"•'"•''^'' '"'*** '" consent to any dred relating to her estate. In case of marriages contracti'il liL'fon- Act. jiarties may come under its provisions liy deed. '"" certain cases. 6. After the jiassing of this Act the liusliand of any woman who may die domiciled in Seotland shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveabli! estate, according to the law and practice of Scotland, and subject always to the .same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thea-of, as the case may be. 7. After the jiassing of this Act the children of any woman who may die domiciled in Scotland .shall have the same right of legitim in regard to her moveable estate which they have according to the law and jiractice of Scotland in regard to the moveable estate of their deceased father, subject always to the same rules of law in relation to the character and extent of the said right, and to the exclusion, dis- charge, or satisfaction thereof, as the case may be. Right given to husband in wife's move- able succes- sion. Children of women dying domiciled in Scotland to have right of legitim, &c. '^ 47G APPENDIX II. Exempting contracts and certain legal rightfl from operation of Act. Sliort title. 8. Tliis Act shall not ailoct any contriicts niatle or to 1)0 niado hotween married iiorsons bcforo cv during,' niarria,Lr»', ov the law relat- ing to such contracts, or the law roiating to donations lietween marrii'il persons, or m a wife's nonliability to diligence against her person, or any of the rights of married women under the recited Act. 9. This Act may he cited as the Married "NVo i. n's Property (Scotland) Act, 1881. SCHKDULE. FouM OF XoTinc i-nKscuntKi) iiv Skction K Notico is hereby given tliat mi the day of a ileed by A./>. of C. [dcsi(/)mtioii] ami E.F. his wife has lieeii registered in the Kej ister of in terms of the Married Wnmeii's Property (Scotlaml) Act, 1881. 1 No. IX. THK 45 & 4(1 V urn )RLK KKdlNJv i\\v. 7."). KNdUSH A i *'l* Ail Act to consolidiite aiul dvinnl the Acl^^ irliilnKj to llic Property of Miwricd ^Vomen. [isth AmltusI, ISS'2.] WllKHKAS it is expedient U> ('(iiisolidale and am 'iid tln' Act nf the thirty-tliird and thirty-fourtli Victoria, cliaptci' niiicly Unci , intilulcil "The Manicil Women's I'ldperty Act, 1,S"(»," and the .\ct ol' the thirty seveiilli ami thirty-eighth \'ict.s a/twi- the sMiie manner as if she were a j'cnic sith,^ without the intervention of aii> trustee. (•_*.) A married woman shall lie c,!)>able of entering into and render- ing herself lialile in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in I'oii- traet or in tort, or otherwise, in all respects as if siie were [\j'fi)tf soli; ami her husbaml need not be joiiu-d with her as plaintill' or defend- ant, or be made a party to any action or other legal proceeding lirought by or taken against her; and iiny damages or costs recovered by her in any such action or proceeding shall be her separate property; sofc. ^ ! I ENGLISH ACT. •477 ' to Itfi iniidi! the liiw rcliit- tAvoen inarrictl lior person, ur ct. n's Property a (Iccil rcgistt^rcd in icn's Property Ill hill h) till- i.U'Ust, LSS-i.] (• Act ',int n' value of such money or other estate after, hut iiol hefore, all claims of the other creditors of the hushaml for valuahle cons-'uli ration in money or maney's worth have heeii .satislied. 4. Tiie execution of a general power hy will hy a married woman Execution of .shall have the eliect of making the property ap|)ointed liahle lor her K«'ii-'iftl power, dehts and ittlier lialiililics in the saim; manner as her separate estate is made liahle under this Act. 5. Evi'vy Woman married hefoi'(> ♦'■(>, commencement of tliis Act Property shall he entitled to have and to '.lold iind to dispose of in manner ''■«'l"i>'«J aft«i' aforesaid as her separate property all real and personal property, her 'yy,^Jj^ ** title to which, whether vested or eontiligeiit, and whether in jjosse.s- married sion, reversion, or remainder, shall accrue after the commencement of '"'f'"''', "'? i"^"' ,.'..,,. . , , . , to i)e lioId l)y this Act, including any wages, earnings, money, and property so gamed )„,,. 118^^1 „„ or accpiired liy her aa aforesaid. sole, 6. All dejiosita in any pewt-oihce or other .saving.^ hank, or in any As to stock. otlicr hank, all annuities granted l)y the; Commissioners for the reduc- *"., to which r.i V ,• I iv il 1 .1 I II p a married tion of the National 1 )eht or hy any oilier person, and all sums form- woman is ing part of the pulilie stocks or funds, or of any other stocks or funds entitled. transferahle in th" hooks of the (ioverimr and Comiiaiiy of the liank li ;t 478 APPKNDIX II. As to Rtock, fic, to he trftiisffrrcil, &c. , to a nmrrit'cl woiniin. IiivcHtmcnts ill joint iianu'H of iiiarricil woiiu'ii iimi othtTH. of Etifjland, or of any othor bank, whicli at tlio cnmincnconiont of this Act arc staiuliiij,' in the solo nanu; of a married woman, ami all shares, stock, (Ichentiircs, dcljenturo stock, or other interests of or in any corporation, company, or public body, municipal, commercial, or other- vise, or of or in any industrial, iirt)vident, friendly, benelit, ])uildin;,% or loan .suciety, which at the commencement of this Act are standiiiL,' in her name, shall be deenu'd, uidess and until the contrary lu; slmwu, to be the separati' property of such married woman ; ami the fact that any such deposit, annuity, sum forming' part of the p'l' lie stocks or funds, or of any other stocks or funds transferal 1 in books of the (lovernor and Company of the; liank of Kni^land <'i oi any other liank, share, stock, debenture, debenture stock, or other interest as aforesaid, is standing' in the sole name of a mariii'd woman, shall be suUicicnt priniil jiicie evidence that she is lienelicially entitled thereti i lier separate! use, so as to authorise and emiiowcr hi'r to receive or ^ 'i.-*'er the same, and to receive the ilividemls, interest, and pl'otils tii. , 'of, witiioul the concurrence of her husband, and to indemnify the Post- master (ieneral, the Commissioners for tlie Keduction df tb" National J)ebt, the ( iovernor and Company of the liank of 'iij.iiid, the (Joveriior ami Company of the Hank of Irelaiul, ami irectors. mana^'ers, ;ind trustees of ev(!ry such liaid;, rorporation, comp,.'\v, public lH)dy, or society as aforesaid, in res|ie(l iln'ivof. 7. All sums formiiiL,' part of the jud-Ii:: stocks or funds, or of ajiy other slocks or fuml.- transferal)le in the books of the Hank of lMi,L,'land or of any other bank, and all such deposits and annuities respectively as arc nwutioiicd in the last jirecediiiL; si ction, and all shares, stocks, debentures, dcbcntuie stock, and otiier inti'K'sts of or in any sudi corporation, company, pulilic body, or society as aforesaid, whieji after the commencement of this Act sliall be allotted to or placed, registered, or transfeiied in or into or maile to stand in tlie sole name of any married woman shall bc! deemed, uidess and until the contrary be shown, to be her separate property, in respect of which so far as any liability may be incident thereto her scjiarate estate shall alone be liable, whether the same shall be so expressed in the document whereby her title to the sanu' is created or certitied, oi in the books or rej,'ister wjierein her title is eiitere(| or recorded, or iioi. I'rovided always, that nolhin;,' in this Act shall reipiire or authorise any corporation or joint stock company to admit any marrieil woman to l)e a holder of any shares or stock therein to which any liabilitv may be incident, contrary to tiie jirovisions of any Aei o|' Parliament, charter, l)ye-law, articles of association, or d I of >.iil.>nient ic<,'ula'- ini,' such corporation or com])any. 8. All the provisions heri'inbefore ciint linid a- to deposits in any post ollice or other saving's bank, or in any oihei' liank, annuities u'rantcd by the Commissiom'rs for the Keduction of the National I )ebt or iiy any other ]>erson, suu's '"orniin^' part of the public stocks or funds, or of any other stock'^, oi funds transfiMalde in the books of the P)ank of I'lrii^dand or of any other bank, slia.es, stoik, debentures, debenture stock, or other interests of or in any >uch corporation, com- H'lnont of this iiid all sliaics, of or ill any •cial, or otluT- t'lit, buildiii;,', t are staiidiii'^r iry be .sliowii, tiie fact that lie stocks or • books ol the y other liaiik. t as aforesaid, bo sufficient eretii f her ve Ol' i n.-*"er 'olits til, 'oi\ lify the Post- ♦ 1>" National KliKii'iid, thi' '' ireetors. Ill, eoniji,>'iv, Is, or of any k of Kin,'Iaiid I respect ivi'ly lares, stocks, in any such , which afti T 1, re^'isliMvd, lanie of any contrary ln' so far as any lall alone ))i' ir ilocuiiicnt the books di' or aiithoiisi' nii'il Woman any liability I'arlianient, neiit re^Mila'- i>ils m any K, anniiitiis he National lublic stocks he books of debentures, U'ation, coni- ENGLISH ACT. 479 pany, public body, or society as aforesaid respectively, which at the .•..niniencenient ot this Act shall be standing in the sole name of i niarruHl wonum, or which, after that time, shall be i.ll„tled to or placed, re-istered, or transferre.l to or into, or made to stand in 'the solo name of a married woman, shall respectively extend and innlv so far as ridatc:^ to the estate, ri-lit, title, or interest of the m'lrried woman, to any of the particulars aforesaid which, at the commence- ment ot this Act, or at any tune afterwards, shall be staiidin- in or shall be allotted to, placed, rej^istered, or transferred to or into' or made to stand in, the name of any married woman jointly with 'any persons or person other than her husband. 9. It shall not be necessary for the hus1)aml of any married woman in respect of her interest, to join in tln^ transfer of any such annuity or deposit as aforesai.l, or any sum formiii<; part of the public stocks or funds, or of any other slocks or funds transferal)le as aforesaid, or any share, stock, d.;benture, debenture stock, or other liciielit, ri''ht. .laiiii, or other intt-n-st of or in any such corporation, company,' public body, or society as aforesaid, which is now or shall at any time here- after bo standin.L; in the solo name of any married womaii, or in the joint names of such niairied woman and any other person or persons no lieiiiL,' ber husband. Ilushnnd need not join ill transfer. The margin of the Act has "us to stock, &c., standing in tlio joint names of a married woman and otliers." 10. If any investment in any such deposit or annuity as aforesaid, Fraudulent or in any of the public stocks or funds, or in any other stocks or funds '"^'^''*"'^"*' transferabl.. as aforesaid, or in any share, stock, debenture, or £'3.''^''* delieiiture stock ot any corporation, coniiiany, or publi(! body, municipal, coninieivi d, or "therwise, or in any share, debmture, lienetit, rii^'ht or I'laini whuisoever in, to, or upon the funds of any industrial, provident, friendly, bciielit, buildin^;, or loan society, shall have been made by a married woman liy niear.s of moneys of lier husband, M'ithout his con- sent, the Court liny, u|ion an application under section seventeen of this A<'t, order sue i investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband ; and nothing in this Act contained shall <,'iye validity as against creditors of the husband to any j^'ift, l)y a busbaml to his wife, of any property, wliicb, after such ^dft shall continue to be in the order and disposition or reputetl ownership of tl'c husband, or to any deposit or other investnwnt of nioi>:'ys of the busliaiul made by or in the name of his wife in fraud of his crciliLors ; l)ut any moneys so dL,)0siled or invested may be followed as if this Act had not passed. 11. A married woman may by virtue of ilie power of making con- Moneys pay- tracts h(!reind)efore contained eU'ect a policy upon her own life or the tt''|« ""'l*^'" life of her husband for her separate use ; and the same and all benefit assurance not theretd' shall enure accordingly. to fonr part A policy of assurance (^fleeted by any man on his own life, and "[^e i^^iired. expressed to be for the benefit of his wife, or of his children, or of his wife and idiildivn, or any of them, or by any woman on her own life, and expresse(l to be for the lienefit of her husband, or of her children, or of her husliand and children, or any of tli' 'ii, shall creaie a trust in r T 480 APPENDIX 11. Kemedies of inairied woman for protection aiul security of ac|)aratc pronerty. Wife's ante- nuntial iMAh itiiu liabilitii'8. favour of the ol)jects tlicrein named, and tlic moneys payal)Io under any such policy sliall not, so lon^' a>< any object of the trust remains unperformed, form part of the estate of tlie insured, or be subject to his or her debts: Provided, that if it shall be proved that tht; poli('y was eli'ectcd and the premiums paid with intent to dt^fraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum ecpial to the i)remiums so paid. The insured may by the policy, or l)y any memorandum umler his or her hand, appoint a trustee or trustees of tht^ moneys payable under the policy, and from time to time appoint !i new trustee or new trustees thereof, and may make provision for the ajipointment of a new trustee or new trustees thereof, and for the investment of the moneys payable under any such policy. In default of any such appointnu'Ut of a trustee, such policy, innnediately on its bein^' elit'cted, shall vest in the insiu'ed and his or her leLjal personal representatives, in trust for the jiurposes aforesaid. If, at the time of the ileath of the insured, or at any time afterwards, there shall be no trustee, or it shall lie expedient to apiuiinl a new trustee or new trustees, a trustee or trustees or a n(!W trustet; or new trustees may ])e ajipoinled by any Court havin;,' jurisdiction under the provisions of the Trustee! Act, IST)!), or the Acts amending' and extemling the same. The receijit of a trustey the policy, tir for thi! vahu; thereof, in whole or in part. 12. Kvery woman, whether married before or after this .\ct, shiill have in her own name a^'ain.st all persons whomsoever, in\ but except as aforesaid, no huslmnd or wife shi'.ii bo entitled to sue tlm other for a tort. In any indictment or other proceudiu",' under this section it shall be sullicient to allege such property to l)e her property ; and in any proceedin;,^ >inder this section a husbiind or wife shall be competent to ;,'ive eviilenco a;,'ainst eacli other, any statute or rule of law to the contrary notwithstandinii; : I'roviileil always, that no crinuuid ]trocce(Iin;,' shall be taken by any wife ;i;,'ainst her husband by virtue of this Act while they are livinj,' together, as to or concerning any property clainuMl l)y her, nor while they are living apart, as to (U" concerning any act done liy the husband whilt! they wen; living together, concerning property claimed by the wife, ludess such property slndl hav(! been v/roiigfully taken by the htisbaml when leaving or deserting, or about to leave or desert, his wife. 13. A woman after \w\' marriage shall continut! to lie liable in respect and to the extent of her separate property for all tlebtH con- tracted, and all contracts entereil into or wrongs committed by hi'r ENGLISH ACT. 481 payablo under I trust ri'iiiaiiis ir 1h! subjfct to liiit tht! policy 1(1 till) cnjtlitor.s of till! luoiicys 1 so paid. Tilt! dcr his or lior d)li! under tilt! )r iu!W trustees f a ii(!\v trustoi' uoucys payal)l(' lointiiu'Ut of a 1, shall vest in 's, ill trust for if the insured, or it shall he isti r trustees y Court haviiif,' , ISnO, or the of a trustee or liutuient, or in ' the le;4al jier- e to the i>llice ureof, in whole this Aet, shal! ineludini,' her IS leLjards her -aiiie n-niedies protection and ty helon^'ed to 1 or wife slir.il nient or other o allege such ler this seetiiin V. a:.;aiiist each twithslandin^' : taken ]>y any Ihey are livin;,' her, nur while y the hushand •iaiiiied hy the taken by the e iir desert, his lie liahle in r all «« to a he shall liave aciiuiieii or lieconu. ciiiitled to irmu or through Ins and also for wife, after deducting therefidiu any payments made by him, ami any Iht contiacts sums for which judgnn^nt may have bec'ii hondfuhi recovered against"'"^*"''*''' him in any proceeding at law, in respect of any such debts, contracts, or wrongs for oi' in resjiect of which his wife was liable iiefore her marriage as aforesaid; but he shall not be liable for the same any further or otherwi.se ; and any (Jourt in which a hu.sliand shall be sued for any such debt shall have power to direct any iiujuiry or proceedings which it may think proper for tli ■ purpose of ascertaining the nature, amount, or value of such projicr'.y : Provided always, that nothing in this Act eontaiiied shall operate to increase or diminisii tho liability of any husliaiid married before the commencement of this Act fur or ill le-pect of ally such di'bt or other liability of his wife as afori'said. I. A husband and wife may be juintly sued in respect of any such Huitsfor or other liability (whether by cimtract or for any wrinig), con- 'V'|S;"Vl'*'"' tracted or iiicuried by the wife before marriage as aforesaid, if the plaintill' in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in respect of any such delit or liability against the husband alone, it is not found that the husliaiid is liable in resiiect of any propiu-ty of the wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of llu' action against the wife if jointly sued with him; and in any such action against husband and wife jointlv, if it appears tlnit the Imsbainl is liable for the debt 2 I 15 debt 482 APPENDIX II. Act of wife liiihle to criiiiiiinl pro- ct'eilinL's. Qui'stions ))l't\VL'lMl luis- ))aii(l ami wife as to proiicrty to l>u ilecideil in 11 suniinary way. or damages recovered, or any part thereof, the judginciit to the cxfont of the amount for Avliich the husband is liable sliall ]m a joint judgment against the husband personally and i'gainst the wife as to her sejnvrate proi)erty ; and as to the residue, if atiy, of such debt and damages, the; judgment shall be a separate judgment against the wifi' as to her sepaiate property only. 16. A wife vloing any act with resjieet to any property of her husband, which, if done b}' the husband with respect to property of the wife, would make the husband lial)le to criiuinal jiroceedings l)y the wife under this Act, shall in like manner bi; lialjle lo criminal proceedings by her husl)and.' 17. In any (piestion between husband and wife as lo the title to or possession of property, either party, or any such l)aid<, cor()oration, coui[)any, pulilie body, or society as afon'said in wliose books any stocks, funds, or shan;s of eiliier Jiarly arc standing, may apply liy summons or otherwise in a summary way to any jutjgc of the Higli Court of Justice in Mngland or in Ireland, according as sucli ])roperty is in Kngland or Ireland, or (at the option of the applicant iricspec- tively of the value of the property in disi»ute), in Kngland to the juilgt; of the ('oiuity Couit of the (h'strict, or in Ireland to the cliair- man of th<' Civil Hill Court of tlie division in which i-illier party resides, and the judge of the High Court of Justice or of the County Coiu't, or IIh! chairman of the Civil llill Court (as the case may be), may make such onler with res[iect to the properly in dispute, and as to the costs of and consequent on the ai)plication as he thinks lit, or may direct such application to stand over from tiitu' to time, and any iiiipiiry toucliing the matters in peal in the same way as an order made liy the same judge in a suit pending or on an e(piilable plaint in the said Court wli for the as the luishaiid i.s now liv liiw subject to for tlu' luiiiiiti'iiaiict' of her rc .so!itative (if iiinnifd WOIlliUl. 23. Ki'i' the purposes of this Act the le,i;al personal representative of any married woman shall, in respect of her separate estate, have the same rii^lits and lialiilities and he suliject to the same jurisdiction .is she wiiuiil lie if she Were living. IntiTiirctiitidii 24. Tiie word " colli lacl "' in this Act sliall include tiie acceptami- of terms. of any trust, oi' of the ollice of executrix or administratrix, and the provisions of this Act as to li.ihilities of mairied women sh.ill extend to all lialiilities liy reason of any lircach of trust or (/rrasfiirif com- nntted hy any married woman hcinic a trustee or executrix or adniiiiistratrix either liefore or after her marria.L^e, ami her hir-hand shall not lie suhject to sucli lialiilities unless he has acted or inter- nicildled in the trust or administration. The word "projierty" in this Act includes a tiling; iu action. I'dinmcnce- 25. The date of the comniemcment of this Act shall lie the tir-l of meiit (if Act. .January, one thousand eiiilit hundred and eighty-three. lv\tent (if A(t. 26. Tliis A. t shall not extiiid to .Scotland. 27. 'I'his Ad may he cited as the .Maiiied Woneir- I'ropcrtv Art, nniicf 111' liii iiiii^' in tliis i\\>i>u him liy till' Mairinl arc licirliy iii't iliiiic i>r any ri^lit "i icnci-nii'iit III Slliil li'liiMlnl tract, wrmi-. (f wliii'li any li Ini-liaml m ('l)icscntalivc ate, have the iiistlictiiin .IS ic acccjitaiH (' tiix, ami the sliall externl rusfiirif cDiii- executrix Hi- ll T hu.-hainl tcii nr inter- rty " in this )(' the hist of 'v''\ IMAGE EVALUATION TEST TARGET (MT-3) T 4, ^^% 2a 1.0 I.I ti^|2j8 |2.5 15.0 ^^^™ MJflB ^ Kl |2.2 us -iy£ 11.25 ini 1.4 III 1.6 '/ Photographic Sciences Corporation 23 WEST MAIN STREBT WUSTIR.N.Y. 14SI0 (716)872-4503 ^-"'"^y^ '4^ c ^ INDEX. Access, when granted, 76. not to wife divorced, 7(3, illustratiiins of orders made aa to, 77. ACQ.uireilda, of wife, jus marlti over may bo renounced, 147. Agent, may be witness in consistorial cause, 4S5. Sec Expenses, Contracts op Wife. Adherence, what is non-.adherence, 94. is it non-adherence to refuse sexual intercourse ? 95. defences to action of adherence, 9."). wliat amount of cruelty is good defence, 96. jurisdiction in action of, 446. Administration, Right of, not excluded by Act of 1881, 174. effect of non-exclusion of, 177. as to wife's contracts, 178, heritage, 178, as to wife taking shares in company, 242. effect of change of domicil on, 368. Adultery, as ground of nullity, 10. marriage with paramour void by Act 1600, c. 20, 10. must be named in decree, 10. patrimonial eflfects of marriage with paramour, 1 1 . what is adultery ? 41, evidence of defender in divorce for, 44, proof of adultery indirect, 44. evidence of children, 45. pro.stitutes, 45. ante-nuptial incontinence corroboration of, 45. indecency as corroboration, 46. visits to brothels, 46. confessions by defender, 47, 323. admissioiis, 47. aa ground for judicial separ.ation, 54, 57. specification of acts of, 324. conunitted in Scotland does not found jurisdiction, 427. summonses of divorce for, 456. Sec DlVOliCE, PAU.urouH. 48!) r 490 INDEX. Affinity, as ground of nullity, 9. no allinitas (iffinitutis, 9. no distinction between full and half-blood, 9. le}.ntimacy and illegitimacy, 9. marriage with deceased wife's sistor, 391. Alien, wife entitk'd to terce, 200. husband not untitled to courtesy, '2.T4. contracts of wife of alien enemy, 109. marriage of, in Scotland, 28, 397. Aliment, husband bound to aliment wife, 100. wife'.s claim postponed to husband's creditors, 100. is action competent for aliment only ? 1 00. where contract of separation, 101. conduct justifying non-adiierence, 102. interim aliment, 102. when action competent to sheriff, 102. jKndentc lite, 103. when wife is pursuer, 101. defender, 105. pending ai)peal or reduction, 10(i. when wife in gaol, 106. husband has no funds, l(i7. in actions of nidlity, 107. amount of interim aliment, 108. permanent aliment, 109. where spouses have fi.xed siun, 111. illustrations as to anioimt, 111. amount may be varied, 112. diligence on dypendence of separation and aliment, 113. husband may .somelinies be l)ound to secure, 113. arrears of aliment not claimable, 114. jurisdiction in actions for aliment, 102, 408, 448. aliment of foreign wife, 448. wife's expenses in actions of aliment, 122. viiid irlfr v'Hh separate estate itlimeiit children t 2(54. when husband is not indigent, 2ti.5. must she aliment indigent husband ? 2(10. indigent surririiu/ spouse cntitltd to tdinunt, 2(J7. claim barred by marriage-contract, 208. widow's aliment to first term, 208. does not rest on necessity, 209. not renounced by general words, 209. aliment in Kngland to divorced wife, 330. wife's liability in England to aliment iiusband and children, 337. Ambassador, marriage in chapel of, 377. Ante-nuptial Debts ofWife, husband formerly liable for, 190, 192. husband's liability, if he marry foreign wife, 190, 417. as contributory, 191, 242. is husband liable after marriage is dissolved \ 192. husband liable, though he only got moderate tocher, 192. former law ns to husband's liability, 192, INDEX. 491 Ante-nuptial Debts ofWife—coiia'/nftirf. wife's liability to aliment relatives, 1H3. heritable debts, 194. English law as to, 332. Approbate and Reprobate. -See Elkction. Arrestment, on dependence of separation and aliment, 113. when wife li.ible to arrestment, as in nicditatione fiigac, 274. Assault, husband not excused in assault on wife by prnvocatioii, 284. husband may commit assault in defence of wife, 284. Assurance, policy on wife'w life did not fall under ;»s mariti, IfiS, ^Married Women's Pdlicies, &c.. Act, 301. how will proceeds of policy be divided ? u02. where premiums paid by wife, 302, when husband's creditors can claim repayment, 302. wife may assign her interest, 302. policy may be surrendered, 303. foreign husliand may insure under Act, 303. v.r, , 1!)2. Bankrupt, husband does not lose his curatory over wife, 313. wife of, may be witness in bankruptcy, 283. Banns, n. deeds grantetl by woman after, 19 1. in England, 320. Scotch certificate of, received in England. 4ti3. Bonds. See Ukuitaiu-k .\nd ]M()vk.\iu,k. Breach of Promise of Marriage, style of issue, 459. implement of promise not enforced, 285. promise may be inferred from conduct, 286. precise date need not be proved, 2Sij. promise may be conditional, 287. breach, what is, 287. committed abroad, 288. defences in, 288. uiichastity of woman, 289. impotence, 289. ^ fraud. 289. serious change of health, 290. defence of mora, 292. action by or against executors, 292. measure of damages, 294. Civil Death, effect of Imaband's, 108, 179. Olandestine Marriage, lO. Co-defender. *'cc rAKAM<3uii. Cohabitation. &c Hahit and Reputk. Collusion, what is, f»3. in obtaining foreign divorce, 441. Con,munio bonorum, doctrine of, 149. Company. See Wifk ah rAUTNKii and .Shauehoi.dki!, 23'!. 492 INDEX. Condonation, nature of, 48. whether condonation can be per rerha only, 48. by wife, 49. when condoned adultery may be proved, 50. does not bar .action against paramour, ,^0. X>ars judicls to note, 50. may be stated by creditors, 50. after judgment of Lord Ordinary, 51. of cruelty, 68. Conjugal Rights Act. Sec Protection Order, 270. Connivance or Lenocinium, not mere negligence, 51, husband telling wif; to return to prostitu'ion, 52. not connivance to watch wife, 52. may be pleaded ag.iinst wife, 52, inferred from del.ay, 52. is connivance absolute bar ] 53. Consanguinity, degrees within which marriage is forbidden, 8. foreign prohibitiouK, how far recognised, 352. Consent to Marriage, incapacity for. Sec Impediments, Capacity. evidence of. Sec Constitution, Consent in Form but not in ]''a( t. must be to present marri.age, 1(3. Consent in form but not in fact, marri.age in jest not valid, 79. may regular marriage be reduced, 79. evidence of no real consent, 80. ulterior purpose, 81. no serious intent to marry, 84. cojuiIk as indicating intent to marry, 85. error, f.'). Convict. Sec Civi . Death, 108, 179. Courtesy, conditions of, 229. icife must die in f eft, 229. no courtesy wh' '"e trustees hold to convey to wife, 230. not excluded by erior in wife's title, 230. heritable bond.-i, ;> u-dutiea, burgage, yield courtesy, 230. casualties not liable to courtesy, 230. real burdens preferable to wife's sasine exclude courte.'iy, 230. due if wife had sold but died infeft, 230. u-ife miisl be mother of heir, 230. child must be heard to cry, 230. no other evidence of life competent, 230. child nmst be wife's heir, 231. wife must have taken by succession, 231. where, though singidar successor, she was alioquin sucecssura, 231. arises ipso Jure, 232. is personal to husband, 232, husband enjoying courtesy is liable in interest of wife's debts, 232. formerly enjoyed title of wife by courtesy, 233. is there courtesy from Lands from which jus muriti was excluded t 233. how courtesy is excluded, 233. not by taking conventional provision, 234, alien husband not entitled to, 234. husband may have to find caution, 234. change of domicil will not affect husband's right to, unless lie becomes an alien, 414. Crimes, n<> presumption wife committed crime under coercion, 275. husband's influence may be mitigating circumstance, 27^'. nut crime to harbour guilty husband, 27t). Sec Evidence, Theft, Rape, Assault. Cruelty, ground for judicial separation, 57. what ia ? 58. threats, when, 59. insults, when, tiO. course of tyranny, when, 00, 494 INDEX. Cruelty — continued. attempted violence may be, 63. by communication of disease, 64, venereal disease, 6-1. whether cruelty when wife is not infected, 65. confining wife to house, 6."i. committed during insanity, QiQ. disease, 67. constructive, 67. by wife, 68. condonation of, 6S. what amount of cruelty is good defence in adlierenco '. PiJ. Curator, wife cannot be, 162. may sue nullity of marriage on ground of insajuty, 7. Custody, power to Court of Se.s.sion to regulate, 72. Sheriff no power to give permanent custody, 72. father has prima fuck right to, 73. effect of Conjugal Kights Act, 73. guilty husband not necessarily deprived of, 74. ni.ay be decerned for thougli no conclusion for, 75. weight of English cases as to, 75. order as to custody may be varied, 75. when mother is entitled to, 77. her right is personal, 78. may property be seized to compel obedience to order as to .' oi'i. should petition for interim custody be to Lord Ordinary ? 323. Sec Access. I Damages, woman entitled to, wlio has been entrappeu into ^uiiposed marriage with married man, 12. for bre.ach of promise, 285. se. effect of change of domicil on donations between spouses, 410. wife's change of domicil on marri.age on liability for wife's debts, 417. change of domicil during marriage on liability f(U' wife's debts, 419. fixes legitim.acy, 420. what of marriage prohibited in Scotland I 420. effect of domicil of father in legitimation per suliKcqucns hiatrunonium, 121. must his domicil both .at child's birth and at marriage be looked .at :' 422. Donations inter Vinim et Uxorem, origin of rule as to, 125. between whom rule exists, 126. mere presents not, 127. by wi*' ' of income not revocable, 127. wh.at is revocable ? 127. where third party is benefited, 128. renunciation of right may be, 128. when v.alue given inerpi.ality must bo gross, 129. depends on intention, 130. value is at dissolution of marriage, 130. reasonable provision not, 131. must be placed beyond reach of creditors, 132. post-nuptiivl provision as against creditors, 132. proof of, 134. delivery, 134. by speci.al destination, 135. not revoked by general words, 135. entries in husband'.s books, 136. deposit-receipts, 136. money origin.ally wife's, 137. stirrogatum, 138. renunciation of _;'i(s mnriti is, 139. who may revoke ? 140. right of creditors to revoke, 140, presumption against revocation, 141. sequestration of donor is revocation, 141. so.'). INDEX. Donations inter Virum et Uxorem—continucd. divorce effects revocation, 141. does adultery of donee effect revocation ? 141. revocation need not be intimated, 141. right to revoke barred by homolojjation, 141. not by ratification or prescription, 142. nature of donee's right, 142. advances by wife, when, 143. when shares bought by husband for wife are, 238. effect of change of domicil on, 410. 497 il i 406. 6. wife's debts, 417. ife's debts, 419. •Imoniiun, 121. ced at > 422. Election, wife's right to elect between Icyitim and provisions in father's will 181. widow's right to elect between legal and conventional provi,sions, 212. must be made in full knowledge, 212. acceptance may be implied, 213, 227. when widow must elect between Jus rdictae and provisions, 22^!, long delay no bar to repudiation, 227. effect of election on division, 228. Election Law, wife no parliamentary vote, 304. husband's vote for wife's heritage, 304. wife must be owner, 304. where trustees have power to convert, 304. but need not have made up title, 304. where husband is secjuestrated, 30.5. husband of tenant has no vote, 306. what wives may vote in municipal elections, SOO. not eligible as town councillors, 306. county councils, 306. wife may vote for or sit on school board, 306. parochial boards, 307. English Law, cyns<''^(!l. V. ation of Seduction, style of issue, 459. what is seduction ? 296. not necessary to aver promise of marriage, 297. carnal intercourse not, 297. action may be combined with breach of promise, 297. or alternative to declarator of marriage, 297. claim for damages lies against executors, 297. of married woman, 55, 297. amount of damages, 55, 297. seduction in country where not wrongful, 298. Separate Business of Wife, evidence of, 159. earnings protected, 158. not stock in trade before 1881, 158. nor earnings of unlawful business, 159. obligations connected with, 167. as member of firm or shareholder, 169. when deserted by husband, 170. wife may be shareholder with separate estate, 240. Separation. See JumciAi, Separation, Volunt.\ry Separation. Signing Summons in Consistorial Cause, 317. Service, in consistorial action, 317. when on next-of-kin, 317. defender less than forty days absent, 318. he is in Scotland, but cannot be found, 317. School Board, wife as elector for, or member of, 306. Sheriff, how far competent in actions for aUment, 102, T 508 INDEX. Slander, husband not liable for wife's, 273. Submission, husband cannot enter into, as to wife's heritage, 248, Succession. See Terce, COUBTE3T, Jus Relictae, Wills. Summons, Forms of. See Contests ok Appendix, Signing, Sekvice. Terce, what is, 199. marriage is presumed, 199. alien wife entitled to, 200. wife who has divorced husband, 200. nature of right, 200. what subjects are terceable, 200. is mansion-house liable to ? 200. where house is let, 201. two mansion-houses, 202. of servitudes and fishings, 203. subjects not terceable, 203. teinds, real burdens by reservation, 203. superiorities, 203. rights of reversion, minerals, timbtr, 204. leases, burgaa;e, personal bonds, 205. lesser, 205. husband must be infeft at death or divorce, 205. where property sold but seller infeft, 205. husband's infeftment is nominal, 206. terce is due though husband not infeft, 206. father has contracted in son's marriage contract, 207. husband has fraudulently delayed infeftment, 207. was infeft but his title is reduced, 207. has disponed lands in trust or security, 208. trustees hold for husband, 209. when was husband's infeftment complete, 209. opens at death of husband, 209. how terce is excluded, 210. presumption that exclusion is intended, 210. See Election by Widow. barred by entai", 213. widow loses terce by husband's escheat, 214. divorced wife has no claim to, 214. how right is made effectual, 214, service, 214. appeal under brieve, 215. nature of right before service, 215. is it transmissible ? 215. effect of service, 216. service operates retro, 216. question with heir and with singular successor, 217. when purchaser may retain to meet, 217. kenning to, 218. remit to valuators, 219. infeftment not necessary, 219. Theft, can wife steal from husband ? 283. INDE\, 509 Title to Sue. Sec Executous. nullity for impotence, who has ? 4. divorce, who has ? 42. wife at common law no, 308. husband may sue for sums under ^ms mariti, 308. but not unless vested in wife, 309. husband may sue for wife's rents if Act of 1881 does not apply, 309. if Act applies wife may sue alone for rents, 309. where husband will not concur, 310. husband cannot arbitrarily prevent action, 310. title of wif- since 1881, 311. is husband's concurrence necessary ? 311. when wife may sue as if unmarried, 312. where husband is defender, 313. cannot concur, 313. action is one of damages, 314. effect of husband's subsequent concurrence, 31.5. Tocher, must husband divorced for adultery restore ? 197. is husband who has received moderate tocher lucraius? 194. Torts. See English Law. Venereal Disease, as evidence of adultery, 46. communication of is cruelty, 64. is it cruelty if wife escapes infection ? 65. Voluntary Separation, no defence in divorce for desertion, 39. effect of on husband's liability, 186. wife li.able if not justified in living apart, 186. where husband pays allowance, 187. gives wife no power to acquire domicil, 345. Wife, Status of, wife has no legsA persona, 160. husband cannot renounce headship, 160. wife cannot compel husband to live with her, 161. be curator, 162. may be executrix or trustee, 162. husband's curatory of, 163. wife's nationality, 164. Capacity of, wife's personal obligations null, 165. exceptions to this rule, 166. obligations binding as in rem versum, 167. husband civilly dead or in prison, 168. obligations ad faetiim praestandum, 169. when living separate, 169. husband is abroad, 170. deserted wife as trader, 170. when wife has held herself out as unmarried, 171- has protection order, 172. is judicially separated, 172. 510 INDEX. Wife — continued. capacity under 1877 Act, 172. 1881 Act, 173, can wife dispose of savings of separate estate ? 174, husband's consent when Court may dispense with, 175. wife living with husband does not bind herself, 176, 178. wife's power to deal with heritage, 178. whether wife can grant lease, 179. when wife is separated or husband civilly dead, 1"9. inter vivos deed to take effect after death, 180. power to make will, 180. right of election, 181. Contracts o/wife which bind husband. Sec Contracts of Wife. Wife's heritable estate. Sec Heritable Estate of Wife. See I'lxGLisH Law. wife's rights where change of domicil contemplated at marriage, 401. where husband changes domicil during marriage, 403. rights of succession depend on last domicil, 405. wife's liability for antenuptial debts, 417. Wife's Sister, marriage with, 391. Wills, wife has full power to make, 180. power of English wife to make, 337. Witnesses. See I']vidence. LORIMER AND GILLIES, 1-KlNILHS, 3I ST, ANDREW SQUARE, EUINBURGH. Just Published. By the same Author. Price H alf-a-Grown. SCOTCH MARRIAGES, REGULAR AT^D IRREGULAR WITH LEADING CASES. "Tliis very instructive and diverting volume, the author naively tells us in his preface, 'is not intended for the practitioner.' Persons about to marry, a 'large and deserving clar^s,' are the objects of his solicitude. But though the treatment of the subject is popular rather Mian professional, the law is sound, and at every point clearly defined. Indeed, the writer has quite a happy talent for lucid exposition, which the complexity of the law of irregular Scottish marriages tests in the severest manner. He has, moreover, a certain grim humour with which he seasons the viands set liefore the 'large and deserving class,' that adds no little charm to the narrative. , . . His views of matrimonial law are broad, healthy, and wise, and he accepts the inevitable with candour and a good grace. . . . There is, as has been seen, a deal of human nature in this volume, which certainly contains much that is calculated to astonish the unsophisticated Southern. But we can confidently assure him, that if he peruses it with attention, he may visit Caledonia at any time without the slightest fear of recrossing the border an involuntary husband." — Daily Chronicle. " The most experienced in matrimony will gather some profit from the chapters in which this work informs its readers as to the essentials of a valid marriage, and as to how a regular marriage has to be contracted. Persons in doubt usually consult their ' best man ' about these things ; but the best man seldom knows any more about it than the dubitant bride and bridegroom, and they are all too ashamed to exhibit their ignorance. To be ignorant of the way in which an irregular marriage is contracted will generally be considered not discreditable ; but the greater portion of the volume is taken up with such matrimonial unions. . . . The book will arouse in everyone who reads it an intelligent interest in the legal aspects of its subject, and it deserves to be widely read." — Scotsman. " This charming little monograph on the Marriage Law of Scotland is not intended for the practitioner, but the English lawyer may consult it Scotch Marhiaoes, Regulau and Irregllah— couinu/eeZ. with ailvantai^'c. We have seldom seen a hettei' hook to phice into the hands of students. The account of tlie essentials of n valid niarriaLje p. 12, is reniarkahly clear. A perusal of the diocussion of irrej,'ular marria^'es will remove many misconceptions prevailing in Kn<,']and on the subject. As an example of an invalid irrei^'ular marriaj,'e he discusses the ftlle<;ed marriage between Arnold and Anne in .Mr. Wilkie Collins' 'Man and Wife,' and shows that it was not a mairia.v'e, as there was no consent. The historical discussion uf divorce is full of interest. The author states most clearly that accordin},' to the orthodox Catholic doctrine marriage is indissoluble thouj,'h entered into without the rites of the Church, and discusses very shortly the existing law of divorce in the principal European States." — Law Quarterly liciiew. "The Scottish lawyer who publishes 'Marriages, Regular and Irregular,' has made his volume remarkably interesting." — Saturdaii Review. "The time-honoured ' Advice to Persons about to Marry' should now be altered. Tliose who wish to counsel parties contemi)lating matrimony should rather ailvise them to procure and study the little volume which is entitled ' ilarriages. Regular and Irregular.' There is so much ignorance upon this important subject current on both sides of the Korder that a ■ work of this kind is most opportune, . . . and the explanations given of the present state of the marriage Laws in Scotland are lucid, intelligible, and founded on recognised authorities." — Dundee Advertiser. " A serviceable law manual, whicli reads like a romance, sounds rather a contradiction in terms ; but the union of these (jualities has for once been successfully accomplished in the present volume." — Fifi'shire Journal. " All the important causes ceUhres of Scottish matrimony are here narrated in a style as lucid as it is piquant, clever and humcn'ous." — Inverness Courier. " In short, the book, which is only about 180 pages, reads more like a novel than a treatise on law, at the same time that accuracy is never abandoned ; while the practical chapter on publication of banns and the other formalities preliminary to marriage is particularly useful to anyone contemplating the condition, for the information is not to be found in anj' other published work." — Stirling Journal. " Explains the marriage laws of Scotland in an interesting and popular manner." — Glasgoiv Herald. 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