114. The distinction between heritable and moveable, or, in English phraseology, between real and personal, property being in general (see Jus Relicta) the same when applied to the rights of husband and wife as of heir and executor, will be considered under Succession.

VIII. HOW THE HUSBAND'S POWER IS EXCLUDED.

115. The conjugal power of the husband may be excluded either by the nature of the subject, by implication from the position of the other parties, by express arrangement, or under the statutory provisions of 24 and 25 Vict. c. 86.

116. A provision for the support and aliment of the wife, whether proceeding from a third party or from the husband himself, is removed beyond his control. (M'Gregor's Trustees v. M'Gregor, Jan. 22, 1820.) He cannot demand it when due by a third party, and his discharge would not be a sufficient discharge to a debtor, though, as matter of prudence, the third party should always require the husband's concurrence to the wife's discharge.

117. The wife cannot assign even an alimentary fund from which the husband's whole rights are carefully excluded, excepting perhaps in virtue of the Act 24 and 25 Vict. c. 80. A decision to this effect was pronounced, where the jus mariti was not only excluded from the fund in question, but where the husband was absent from Scotland, and where the assignation was granted in security of money advanced to him at the wife's request, to enable him to retrieve his affairs. (Rennie v. Ritchie, April 25, 1845, 4 Bell, H. of L 221.)

118. If the alimentary provision be greatly in excess of the requirements of a person in the social position occupied by the wife, it will, to the extent to which it is in excess, be attachable by the husband's creditors. (Fraser, 765.)

119. If the alimentary provision has proceeded from a third

party, by whom the power of the husband has been expressly excluded, it will not be attachable, however large, either by the husband or his creditors. (Ib.)

120. The paraphernalia of the wife, i.e. her dress, jewels, and other strictly personal possessions, do not fall under the jus mariti of the husband, and cannot be attached by his creditors. (Ersk. i. 6. 15 and 27; Stair, i. 4. 17; Bell, Prin. 1555; Fraser, 805.) They remain, however, subject to his right of administration, and she cannot give away or impignorate them without his consent.

121. Articles of furniture, though belonging to the department of the domestic economy over which the wife may be supposed to preside more exclusively, such as tea-plate and linen, even though given to her before marriage and marked with her initials, are not paraphernal. (Black v. Wood, Hume, p. 210.) A chest of drawers, on the other hand, in which the dress and ornaments of the wife were kept, was found to be paraphernal. (Pitcairn v. Peutherer, M. 5825.)

122. The character of paraphernalia may be communicated to articles not falling strictly under the above category, by being given by the husband to the wife, previous to marriage, on this express understanding. (Ersk. i. 6. 15 and 29.)

123. These articles would lose this character by his death, and might be attached by the creditors of a second husband. On the death of the wife, her paraphernalia descend to her own executors, in preference to her husband or his representatives. (Ersk. i. 6. 15.)

124. The wife may exercise over her heritable property, with the husband's consent, all the acts of administration competent to any other proprietor. She may sell, alienate, burden, or grant it in lease. She may also borrow money, and grant an heritable bond over it. But it is the husband alone who can uplift the rents and profits of the wife's estate, in all cases in which his marital powers are not expressly excluded or re

nounced. (Bell, Prin. 1594.) As the property, however, continues in the wife, he cannot alienate it or burden it with debt, so as to affect it after his own decease, nor can he grant it in feu. (Kennedy v. Watson, Nov. 29, 1848.) He may grant a lease to last during his own life, but not longer. (Grieve, June 15, 1797, M. 5951.)

125. In treating of the powers of the husband, it is necessary to remark that a distinction exists between the jus mariti and the right of administration, as the former may be excluded where the latter remains. (Fraser, 796.) In this case, the fruits and annual returns from the property belong to the wife, and the application of them must be according to her direction; but she will not be able to sue for them without her husband's concurrence, or even perform the ordinary acts of administration, such as granting leases and removing tenants, without his consent. The exclusion of the jus mariti will, however, protect the property effectually against the diligence of the husband's creditors. (Dick v. Pinkhill, M. 5999.) The jus mariti is simply the husband's absolute right to the whole moveable property of his wife, including the rents of her heritage.

126. Where both the jus mariti and right of administration are excluded, the wife becomes the independent manager of all the property thus possessed by her. (Keggie v. Christie, May 25, 1815; Gowan v. Pursell, May 17, 1822; and 24 and 25 Vict. c. 86.) [And it has been decided that a wife, in such circumstances, may invest funds in trade and incur personal obligations which will be effectual against her separate estate, but not against her husband (Biggart, 1879, 6 R. 470; Forbes, ib. 1122; Wright, 1880, 7 R. 527); and also that she may be her husband's creditor, and may rank on his sequestrated estate for advances which she may have made to him. (Laidlaw, 1882, 10 R. 374.)] But it would be very unsafe to take a conveyance of heritage from a woman except in virtue of the powers conferred on her by 24 and 25 Vict. c. 86, as explained above,

secs. 48, 52, 54 (9), without her husband's consent as her curator. (Stair, i. 4. 9; Ersk. i. 6. 14; Bell, Prin. 1562.)

127. Till the passing of the statute just referred to (24 and 25 Vict. c. 86), the marital powers of the husband were not affected by voluntary separation, or by the absence of the husband from Scotland; and it was doubted whether even judicial separation would entitle the wife to alienate or burden her property, or to exceed the limits of ordinary administration and management. (Baillie v. Letham, Elch. Annot. p. 12.)

128. "Where the husband," says Mr. Erskine, "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." (Ersk. i. 27.)

129. In order to protect a deed by a married woman from challenge, on the ground that it was executed under the influence of the force or fear of the husband, it must be ratified by an oath emitted by her, in his absence, before a judge. This duty is generally performed by a justice of the peace at his own residence. (Ante, secs. 50, 51.) The ratification, whether executed on a separate paper duly stamped, or indorsed on the deed, must be subscribed by the wife, or by two notaries when she cannot write. The attestation of the justice will not be sufficient. (Gartshore v. Brand, M. 6076.)

130. Where any doubt occurs as to the necessity of ratification, the safer course is to observe the ceremony, and the Court will sometimes authorize it, ob majorem cautelam. (Brisbane, March 1, 1850.)

131. This ratification does not bar the wife from challenging the deed on any other plea than force or fear, such as fraud (Hay v. Cumming, June 28, 1706, M. 16,507); neither is the allegation that the force or fear proceeded from third parties excluded. (Ersk. i. 6. 35.) See the converse case of Buchan v. Risk, Mar. 1, 1834, mentioned sec. 51, p. 16.

C

132. When the wife raises an action of separation or divorce, she will be entitled to a separate aliment from her husband during its discussion, and a sum for this purpose will be awarded by the Lord Ordinary. (Borthwick v. Borthwick, June 17, 1848.)

133. She will have no such claim, however, if she has a separate estate sufficient for her maintenance (Macfarlane v. Macfarlane, June 26, 1844); and, in any case, it is in the discretion of the Court to give or withhold the aliment, and to fix its amount according to the circumstances of each particular

case.

134. [Married Women's Property Act (1881).—This Act (44 and 45 Vict. c. 21) has made a revolution in this branch of the law, amounting, as far as regards marriages contracted after its passing (18th July 1881), or property coming to a married woman who has been married previously (except where such property has been disposed of by antenuptial marriage contract), to the abolition totally of the jus mariti, and partially of the right of administration.

135. [This statute, which proceeds on the preamble of the justice and expediency of extending the provisions of the Act of 1877 (supra, p. 14), enacts :

136. [In the case of marriages contracted after the passing of the Act, if the husband was at the time of the marriage domiciled in Scotland, the whole moveable estate of the wife, whether acquired before or during the marriage, is vested in her by operation of law, and is not subject to the jus mariti. The income from it is payable to her on her own individual receipt or order, but she cannot assign the prospective income or dispose of the estate without her husband's consent. (See Poë, infra, sec. 140.) When her moveable estate is "invested, placed or secured" in her own name, or in such terms as to be clearly distinguished from that of her husband, it is not to be arrestable for his debts. In the event of the husband's bankruptcy,