Abbildungen der Seite

the provisions for children, are in questions with creditors. By the act 1621, c. 18, all gratuitous alienations made by a debtor to “conjunct and confident persons," may be reduced at the instance of previous creditors.* It is held that a deed in contemplation of marriage is for “a true, just, and necessary cause,” according to the terms in which the act defines the transactions against which it does not strike. It is pretty clear, however, that a transaction by which an insolvent person, under the pretence of executing a marriage-contract, should attempt to defeat the right of his creditors to attach his effects, would be treated as an evasion of the law. It is held, that when near relations of the parties to be married participate in an antenuptial contract, the obligations they incur are onerous, and do not come under the act. The provisions to children are only onerous against the father's creditors if the terms admit of payment of them being demanded during his lifetime. If, according to the terms of the deed, he does not become a debtor for the provisions, but they only fall to the children on his decease-they are successors, not creditors, and their claim cannot enter into competition with those of creditors, whether arising prior or subsequent to the contract. If interest is made to run from a period which may occur during the parent's lifetime—as the child's marriage or majority—the child is a creditor. The most effectual means of securing the interests of children is by conveying property to trustees for their benefit. By the other methods, the child is at best but a creditor, and unless he have obtained his provision, can only compete with the other creditors, drawing a dividend if the estate be divided under the bankrupt law. A wife is in ordinary circumstances only a creditor for the provisions in the contract of marriage, and entitled to rank with the other creditors; and she can only have an absolute preference by property being vested in trustees for her behoof, or by being infeft in heritable property.

Postnuptial contracts are by the strict rules of law looked upon as gratuitous conveyances, although they have not generally been considered as open to the privilege of revocation mentioned in the seventh section. In provisions to wives in such contracts, the principle, as expressed in the decisions, is, that they are good " in so far as they do not exceed a reasonable provision;" but no rule is derivable from these decisions, by which the onerosity of such deeds can be tested, apart from the particular circumstances of each case.? Questions with Representatives.- In these the child who has a provision under a marriage-contract, if he have not an actual preference over a particular estate, has at least the privileges of a creditor; and his rights, though they may be postponed to those of the onerous creditors, are not liable to be defeated by gratuitous alienations by the parent.

* See this discussed under the law of Debtor and Creditor. - See the Author's Law of Bankruptcy, &c. p. 120-153.- Ibid. 150-153,

Sect. 5.-Management of Common Property. After the marriage, the moveable property (see Part II. Chap. I.), which may have belonged to either party before it, or may afterwards accrue, is formed into a common fund, under the management of the husband. The right of the husband to the administration is termed the Jus Mariti. It gives him the full right of a proprietor over the goods in communion. He receives payment of and grants acquittances for debts due to his wife, and he can sell and even gratuitously dispose of the estate at his pleasure, the right of property in the wife, if it can be called so, remaining dormant till the dissolution of the marriage.3

Exceptions. There are slight exceptions to this rule. The wife's clothes or ornaments, termed paraphernalia, are not subject to the jus mariti, and so cannot be attached for the husband's debts,4 and a sum may be secured to the wife, by herself before marriage, or by a stranger, from which the husband's right is excluded. An alimentary provision to the wife, though it do not specially exclude the jus mariti, excludes the husband's creditors. The husband may renounce the jus mariti over the whole or any part of the moveable estate. This was formerly doubted, and it is still held that his renunciation cannot extend to “ the entire renunciation of his right to act as the head of the family." 8

Husband's Liabilities. The husband, as vested with the moveable property of both parties, becomes liable to the corresponding obligations of both; and so, while the marriage lasts, he is liable for his wife's moveable debts, though contracted before the marriage. The wife is still nominally the debtor, but the husband is called in all actions as administrator of the goods in communion. At the termination of the marriage he ceases to be liable in this capacity; but, in the first place, whatever portion of the wife's share of the goods in communion remains in existence is still

[ocr errors][ocr errors]

attachable for the wife's debts; and, secondly, if the husband has acquired property through his wife, i, e. property beyond an " ordinary tocher," the position of the parties considered, he is liable, to the extent to which he has profited, for all her debts heritable as well as moveable. If the wife's heritable property have been conveyed to the husband by the marriage contract, he becomes liable for her heritable debts :2 and in all cases he is liable for the interest of heritable debts, as being in character moveable.3 If the husband turn his wife out of doors, he is bound for the debts she may contract for her subsistence, and tradesmen or other persons making corresponding furnishings to her, have recourse against the husband.4

Wife's Right of Management. It is a general rule consequent on the jus mariti, that the wife cannot burden the common stock with debts contracted during the marriage, but the rule is subject to the exception of her propositura, or right of administration in certain matters. She has a presumed propositura in household matters while she lives with her husband, and her oath may be taken on a reference to prove a debt for furnishings. The husband may restrict his liability for such debts by obtaining an inhibition against her by a petition to the Court of Session. The propositura of the wife may extend beyond household concerns, if sanctioned by a writing from the husband, or by her being in the management of any branch of business, as a shop, tavern, &c. In this respect she is simply placed in the position of an agent or manager.? It will not be presumed that by having a management confided to her, she is entitled to borrow money, and incur correspondent obligations. (See Index, Agent.) The heritable property* of the wife does not come under the jus mariti, but the husband, in virtue of his curatory, has the right of administering it for his wife's behoof.9

Sect. 6.Husband's Curatory. · The husband stands in the situation of guardian to the wise. In the general case he is entitled to direct her motions and pursuits, but his authority is to be used for the support

[ocr errors]

of domestic order, and not less for her advantage than his own; so he is bound to support her according to his rank and wealth, and must adopt the measures suitable to her comfort and health, as in an old case where the husband was bound to defray the expenses incurred by his wife, who was in bad health, visiting a watering place. If the wife be deserted by her husband, she has, along with her action of adherence, an action of aliment. By the Poor-law Act, when a husband deserts his wife so that she falls on the parish, he may be prosecuted criminally as a vagabond, and is liable to fine or imprisonment. 3

Suits. The wife is not personally liable at the suit of creditors, who must bring their diligence against the husband. No suit consequently can proceed against the wife till he have been cited as a defender for his interest; nor can the wife sue without the concurrence of the husband.4 He, however, cannot sue in her name and right without her concurrence. If the husband unreasonably refuse to concur, if he is mentally incapacitated, or if the action is by the wife against the husband, the court will appoint a curator in the cause.6 When the action regards property so situated that both the jus mariti and the right of administration are excluded, it has been held that the wife may be a party without her husband's consent.?

All deeds by the wife, even though affecting her own heritable property, are null without the husband's consent, not only if executed after the date of the marriage, but if after that of the proclamation of banns. But the power of repudiation may be renounced by the husband, or excluded in respect of any particular subject by the terms in which it is conveyed to the wife. Her estate, however, cannot be attached for pecuniary obligations contracted by her during the marriage, even though they be with the consent of her husband, as they are of themselves essentially invalid.10 There seems to be, however, an exception to this rule, in the case of any obligation incurred in rem versum of the wife, or applied to her own exclusive use, e. g. for the improvement of her estate. 11

If the parties be permanently separated, the husband absent from the country, and the wife conducting a separate

[ocr errors]

business on her own account, she is liable for performance of her legal obligations.

Excepting in the case of propositura above mentioned, which will not without special authority extend to the borrowing of money,—so long as the parties are not separated, obligations of a personal nature granted by the wife, such as Bonds, Promissory notes, &c. are null, as affecting property which is not her own, but entirely under the control of the husband, whose right over the management of the moveable property is not a mere curatory, as in the case of the heritable property. Such acts, therefore, cannot be validated even with the husband's consent. The nullity, however, appears to be of a kind that must be pleaded, and if the obligation be an onerous one, and have been fulfilled, or its enforcement has been submitted to, it does not appear that the consequent proceedings can be treated as utterly null.3 The wife is personally liable for the consequence of crimes, when she is pursued criminally : but when she is pursued civilly, for damages, the liability is with the husband, in the same manner as any other civil debt. In a case where an agent employed by a woman had succeeded in an action of declarator of marriage, in consequence of which a separate fund was created in favour of the wife, he was found, failing the husband's ability to pay his account, to have recourse for it against the fund so belonging to the wife, but without a right to execute personal diligence against her during her husband's life. The wife may bequeath her share of the moveable estate, or inake a disposition of her heritable estate, to come into operation after death, without the intervention of her husband.6

Sect. 7.-Deeds and Donations by Married Persons. Contracts between husband and wife, if they are “onerous," are valid, and cannot be revoked. It is not necessary that there should be a consideration in value; a deed by which the husband makes a rational, provision for his wife after niarriage (not having done so before) will be considered onerous between the parties, whatever it may be in questions with creditors. The law looks with jealousy on gratuitous obligations, or donations between man and wife. They are not null, but they are revocable. The revocation may be

1 Churnside v. Currie, M. 6082. Orme v. Diffors, 30th November 1833. Paul v. Gibson, 14th June 1834, App. 7 W. S.462. Fraser, i. 264.

E. i. 6, 25.-3 Thomson v. Stewart, ilth February 1840.- 4 Murray v. Graham, M. 6079. Fraser, i. 271.- Gray v. Wylie, 26th June 1840.& E. i. 6, 28.--7 Short v. Murray, 27th June 1677, M 6124.

« ZurückWeiter »