Book I. Where the wife is præposita negotiis. clothed with husbands. But this rule admits of several exceptions. First, Where the wife gets a separate peculium or stock, either from her father or a stranger, for the maintenance of herself and children, which is by the grant exempted from the jus mariti, she can lawfully charge or burden that stock, and bind herself for sums of money, in so far as it extends, Dirl. 164. (Neilson, Dicт. p. 5984.) 157. By stronger reason, 2dly, Where there is a legal, or even voluntary separation of the husband and wife, and the husband hath settled a yearly sum for the wife's separate maintenance, her personal obligations during their separation are effectual against her; yet not so as diligence may proceed on such obligations against her person; since no wife can be subjected to personal diligence upon a civil cause, even after either legal or voluntary separation, till the marriage itself be dissolved by divorce*. These obligations contracted by the wife after separation, cannot in the least degree affect the husband; for by his securing a yearly annuity for her maintenance, he fulfils the natural obligation the marriage laid him under to provide for her; and therefore the creditors, who continue to deal with her, contract upon her faith solely. 26. Where the wife is præposita negotiis by the husband,―intrusted with the management, either of a particular branch of business, or of his whole affairs,-all the contracts she enters into in the exercise of her præpositura, and even the debts due by her for the price of goods, though they should not be constituted by writing, but arise merely ex re, from furnishings made to her, are effectual; but such obligations have no force against herself, for she acts not in her own name, but against her husband, who gave her powers to act, and who must on that account be bound by her deeds. A prapositura may be constituted, either expressly by a written commission or factory, or tacitly, when the wife has been in use, for a tract of time together, without a formal mandate, to act for her husband, while he either approves of her management by fulfilling her deeds, or at least, being in the knowledge thereof, connives at or acquiesces in it, Dirl. 319, (Wilson, DICT. p. 6021.). With regard to disbursements necessary for a family, the rule is, that the wife, who is formed by nature for the management within doors, is presumed, while she remains in family with her husband, to be præposita negotiis domesticis. In this character she hath power to purchase whatever is proper for the family; and the husband is liable for the price, even though what was purchased may have been applied to other uses, or though he may have given the wife a sum of money aliunde, sufficient for the family-expense, Dirl. 310, (Dalling, DICT. p. 6005.); Harc. 871, (Alston, Dicт. p. 6007.) †. This præpositura ceaseth, first, By the wife's delict; for if she should abandon her husband's family, and take up her residence elsewhere, she can be no longer Where a husband had left Scotland in bankrupt circumstances, his wife, who had entered into trade, was found liable to personal diligence for debts contracted after his departure; Fac. Coll. July 11. 1789, Churnside, Dicт. p. 6082. But the wife herself does not become bound by such family transactions; Fac. Coll. Dec. 12. 1780, Mitchelson, Dicт. p. 5886. 157 In his smaller work, our author says, " she may grant obligations in relation to "suck stock;" Principles, h. t. § 15. son; Such stock cannot be affected by the wife's cautionary obligation-even for her own "the only way in which a wife's personal obligation can be made good, is by shewing that the money has been in rem versum of the wife;" Harvey, &c., 21st Feb. 1791, Dicт. p. 5980. longer looked upon, either as manager of the family, or as being under the husband's protection; and so hath no longer power to oblige him to the payment of any of her debts, except those that she may have contracted for her necessary subsistence, July 6. 1677, Allan, (Dicт. p. 6005.). 2aly, It ceaseth by the husband depriving the wife of the management of his family.. This is effected by inhibition; which is a remedy competent to every husband whose wife discovers an inclination to live beyond his fortune. It is obtained upon a bill or petition preferred to the court of session, and prohibits all persons to contract with the wife, or give her credit. As the wife's praepositura falls by the perfecting of this diligence, according to the forms observed in common inhibitions, infra, B. 2. T. 11. § 4. et seq., the husband is not liable for any debt contracted by his wife after inhibition, except for such furnishings suitable to her quality, as he cannot prove that he provided her in aliunde, Gosf. June 23. 1675, Auchinleck, (DICT. p. 5879.); July 25. 1676, Campbell, (DICT. p. 5879.). As the wife's right of managing her husband's family is founded entirely on the presumption that he placed her in the direction, and as every one may remove his managers at pleasure, without assigning any reason for it, inhibition may pass against the wife, etiam causá non cognita, though the husband should not offer to justify that measure by any actual proof of her bad economy, or profuseness of temper, Falc. i. 209. Kilkerran, HUSBAND AND WIFE, N° xii. and xiii. (DICT. p. 6024, and 6025.)- Hitherto of personal obligations. 27. All obligations granted by the wife, either charging, or even alienating, any estate or subject, of which she retains the property exclusive of the jus mariti, whether proper heritage, or bonds bearing interest, are effectual, provided the husband as curator consent to them: For though a wife cannot oblige her person, which is in some sort sunk by the marriage, she continues capable of holding a real estate, and her paraphernalia; and in grants or obligations relative to subjects which are her own property, her estate is solely considered, and not her person. Such obligations are valid, even where they are accessory to a personal obligation, though it be certain that personal obligations granted by a wife have no degree of force, Harc. 878, 882, (Marshall, Dicт. p. 5990, and Sommervell, DICT. p. 5991.). Nay, though the obligation be in its form merely personal, yet if, by a backbond or defeasance of the same date, it shall be restricted to her heritage, it will be effectual, Jan. 23. 1678, Bruce, (DICT. p. 5965.); for by such backbond the nature of the obligation, of which the backbond makes a part, is in effect changed, and continues no longer personal 158. If the wife can, with the husband's consent, grant securities upon or even make over her heritage to a stranger, she may with the same consent grant leases of it: But it may be doubted, whether she can do this, or indeed any act of administration relative to her heritage, without his consent, notwithstanding a decision, Fount. Feb. 21. 1679, Cockburn, observed in Dict. i. 401., (Dicт. p. 5795 and 5998.); for though the jus mariti extends not to the heritable subjects themselves, yet the husband's consent to the granting of leases, removing of tenants, and other acts of administration exercised by the wife, appears indispensable, on account of his office of curator, under which character he 2 M VOL. I. must 158 This decision, however, it is observed by Fountainhall, "deserves to be again "considered;" DICT. p. 5966. TITLE VI. What obligations she may grant with the husband's consent. BOOK I. Her power of making deeds mortis causa. Donations inter virum et uxorem are valid, but revocable. must interpose in all her deeds, whether respecting heritage or moveables 159. This is so true, that if the wife should, without his consent, make a grant of lands, though with the reservation of the husband's jus mariti, and the courtesy, the grant would be void; for he is her guardian, for security of her and her heirs, as well as for himself. Upon this ground, though paraphernal goods are not subject to the jus mariti, being truly the wife's property; yet the husband's right of curatory extends over them, in the same manner that it does over her proper heritage; so that she can do no deed by which they may be affected, without his consent. Hence, if the wife should impignorate any paraphernal subject, in security of a debt contracted by herself without the husband's consent, the subject continues the free and unburdened property of the wife, notwithstanding the impignoration, which being null for want of his consent, can create no real security to the creditor, July 11. 1735, Gemmil, (DICT. p. 5997.)*. But a wife may effectually impignorate her paraphernalia, in security of a debt contracted by the husband, even without his consent; because that is accounted a donation by the wife to the husband, which requires not any formal interposition of his consent, supra, § 23. Where the husband is, from furiosity, or other disability, rendered incapable of interposing his consent as curator, the necessity of the case may support a deed granted by the wife alone, affecting her heritage, if it be rational. 28. The wife's powers in making grants which are not to take effect till after her death, are more ample; because the husband's interest ceaseth before such grants or deeds can have the least operation. Perhaps she cannot, in the form of a writing inter vivos, dispose of or burden such moveable subjects as may accrue to her on the death of her husband, though his interest be then at an end; because no subject can be conveyed effectually by a present deed of alienation, to which the granter has not a proper right at the date of the grant; and the wife has no more than the hope or prospect of a right to the goods in communion while the marriage subsists see Dec. 19. 1626, Matthew, (DICT. p. 5959.). But she can bequeath her share of these goods by testament, even without the husband's consent, in the same manner that a minor can test without the consent of his curators. And she may, upon the same ground, become bound for a sum of money, in the form of a deed inter vivos, if it be not to take effect till after her death, Feb. 1720, Colquhoun, (Dicт. p. 5973.). Though minors are, from the weakness of their judgment, and instability of their inclinations, incapable of settling the succession of their heritable estates, yet wives, those at least who are of perfect age, against whom unripeness of judgment cannot be objected, may, it is thought, lawfully execute such settlements, even without their husbands' consent; for no reason occurs, why his consent should be necessary to deeds, which can neither affect his interest, nor have the least operation till his potestas maritalis be at an end. 29. All deeds, whether granted by the wife to the husband, or by * Compare Pringles, July 1711, DICT. p 5970 160. 159 Unless where his right of administration has been renounced or excluded; as to which, Vid. ant. not. 147. 160 Which, however, besides being a prior case, and therefore derogated from by the subsequent decision referred to in the text, is noticed by Fountainhall as carried "by a scrimp plurality;" DICT. p. 5973. by him to the wife, importing a donation. are indeed valid; but may, both by the Roman law and ours, be revoked or voided by the donor, at any time of his or her life; lest either of the two spouses should, by ill-judged testimonies of their affection, undo themselves or their families, Reg. Maj. L. 2. C. 15. § 10, 11.; L. 1. De don. int. vir. Deeds, though gratuitous, executed by the husband or wife to a third party, are not revocable, not even a ratification by the husband of a disposition granted by the wife in favour of her children of a former marriage, Jan. 15. 1669, Hamilton, (DICT. p. 6107.); see also July 12. 1671, Murray, (DICT. p. 5689.); because these are not donations between the two spouses. But a deed, the only genuine intention of which is to convey a gratuitous right from one of the spouses to the other, though it be granted nominally, or in trust, to a third party, is, notwithstanding that mask, subject to revocation, Feb. 1. 1728, Sanders, (DICT. p. 6108.): Plus enim valet quod agitur, quam quod simulate concipitur. And, on the other hand, an obligation, though it should be granted by one of the spouses directly to the other, and even truly intended for the benefit of the grantee, is nevertheless secure against revocation, if it contain a right, even gratuitous, in favour of a third party, Spottis. L. Hislide, p. 155, (DICT. p. 6087.). And hence it would seem that a wife's impignoration of any paraphernal subject, in security of a debt contracted by her husband, which truly constitutes a donation by her to her husband, cannot be revoked; because the husband's creditor, who is a third party, acquires a direct interest by the impignoration, which ought therefore to subsist irrevocably as to him; see Dalr. 170, (Clerk, DICT. p. 5996.). Donations, where they are antenuptial, fall not under this description; for the parties are not husband and wife till marriage; consequently, not only are paraphernal donations irrevocable, but even gratuitous bonds granted by the bridegroom to the bride at any time before marriage, Harc. 888, (Gordon, Dicт. p. 6097.). All donations are thus revocable, in whatever form they may be constituted. Craig indeed affirms, Lib. 1. Dieg. 12. § 38., that though a gratuitous disposition by a husband to his wife, of lands to be holden of himself, be subject to revocation; yet his resignation or surrender of lands to the superior in her favour cannot be revoked : And he repeats the same doctrine, Lib. 3. Dieg. 1. § 34., in the case of a wife's surrender in favour of her husband. But the distinction made in this question between the effects of a base right, and a resignation or surrender, is not supported by either reason or authority: It defeats the plain intention of the law, by opening a way to make all donations between the husband and wife, of heritage, irrevocable; and it seems to have been disapproved of by our lawyers, who do not so much as use it as an argument for securing such surrenders against revocation, Harc. 883, (Stewart, DICT. p. 6096.). 30. Donations are grants which arise from the mere liberality of the giver, without any antecedent cause or obligation. Hence, first, mutual remuneratory grants between the spouses, made in consideramade in consideration of each other, are not revocable, Jan. 26. 1669, Chisholm, (DICT. p. 6137.), where there is any reasonable proportion between the value of the two; for as trifling inequalities ought to be overlooked in the transactions of those who are so closely united, the excess on the one side ought to be considerable, in order to found the party who TITLE VI. Remuneratory grants fall not under this de scription, nor settlements in contracts of separation. who is hurt in a right of revocation, L. 28. § 2. De don. int. vir. * 161. But where an onerous cause or remuneration is simulated, and a donation appears truly intended, the grant is revocable as a pure donation. Hence, 2dly, grants, given in consequence of a natural obligation, are not subject to revocation. Thus, as it is the husband's duty, where there has been no previous written contract, to make a rational provision for his wife, in the event of her survivance, such provision is not revocable; and if it should be immoderate, it might be revoked only quoad excessum, June 27. 1677, Short, (DICT. p. 6124.) †. And though it be no proper part of a wife's duty to provide for her husband, yet a postnuptial settlement of her estate, in favour of him and the issue of the marriage, if it shall appear rational, will probably stand secure against revocation; see July 25. 1710, Chalmers, (DICT. p. 6056.). But where the interest of the husband and wife have been settled by antenuptial contract, postnuptial 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 provision, is a donation by her to the husband. Dirl. 368 ‡; Jan. 1724, Exec. of Bairnsfather, (not reported). Every bond or disposition granted by the husband to the wife is not presumed to be gratuitous, nor consequently to be used as a cover to a donation: For many instances occur, in which a husband may truly become his wife's debtor, ex. gr. by intermeddling with such of her effects as fall not within his jus mariti, &c. And if it is to be held for law, that the husband cannot, by any deed or declaration, establish a charge against himself in such cases, the consequence must be, that the wife lies under the necessity of accepting one for her curator, who cannot by any deed effectually bind himself to account for his intromissions. In a question therefore concerning the validity of such bond or obligation, the mention, in the recital, of any probable occasion by which he became his wife's debtor, is sufficient to support it as onerous, and not revocable by the granter, if the fact be not disapproved by legal evidence. In such case, however, it may be prudent for the wife to preserve some written voucher, in proof of the truth of that affirmation in the recital; lest the granter should afterwards, upon a revocation, allege, and offer to prove, that the inserting of it was intended merely as a cover to the donation. All voluntary contracts of separation between husband and wife, by which the husband settles on her a fixed annuity for her main tenance, The contrary found where the remuneration was not the inductive cause of the donatio, but arose afterwards from the act of the law; June 17, 1774, Watson, DICT. p. 6103. + It was found, that a husband who had nothing to provide his wife in, and who, upon that narrative, had, in a postnuptial deed, renounced his jus mariti in favour of her and the children of the marriage, could not revoke the renunciation as a donatio inter virum et uxorem; Kilk. HUSBAND AND WIFE, NO. xvi. Macpherson. A postnuptial contract of marriage, between labouring persons, providing that the longest liver shall bruik all, found to be revocable as donatio inter virum et uxorem, where the whole property of any consequence, both at the date of the contract, and at the dissolution of the marriage, consisted of a house belonging to the husband; Steven against Dunlop, Feb. 1. 1809, Fac. Coll. + Leslie against Fletcher, July 5. 1676. 161 A strong decision upon this principle was pronounced by the House of Lords, reversing a judgment of the Court of Session, which had found the contract to be "in "substance a gratuitous settlement;" Hepburn, 6th June 1814, 2. Dow, p. 342. |