the same rules of law in relation to amount, exclusion, discharge, or satisfaction.

If the doctrine were to be held to still apply to the moveable estate of both spouses, in cases where the jus mariti is not excluded, it would also apparently now apply with equal reason to the wife's separate moveable estate, in cases where the jus mariti is excluded.

This seems to be a natural result of the provisions of the Married Women's Property Act, 1881, which practically abolishes the jus mariti, and provides "That from and after the passing of that Act (1) 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 moveable 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 thereof, as the case may be; and (2) the children of such married woman, on her death, shall have right to the same amount of legitim out of her moveable estate as is payable to them out of their father's moveable estate.

90. Jus Mariti and Right of Administration of Husbands.1. Jus Mariti is a beneficial right to the moveable estate of the wife, which, until the passing of the several statutes previously noticed,(h) uniformly arose to the husband at common law on the celebration of the marriage.

The right of administration is a curatorial right, which similarly arose to him on the celebration of the marriage in regard to such property of the wife as did not fall under his jus mariti.

Both rights have been considerably modified by recent legislation; but as in certain circumstances they still exist, we shall briefly notice their extent and effect under the former law, and their subsequent modification.

I. Law previous to recent Legislation.(i)

The jus mariti, where not excluded by law, or by any of the methods to be immediately noticed, operates as a transference to the husband, from the time of the marriage, of the whole moveable property then vested and to vest in the wife during the marriage.

This right is sometimes confounded with the right of adminis(i) See legislation noted in § 78.

(h) § 78.

tration. E.g., in Bell's Dictionary, it is stated to be "the uncontrolled power of administration of the goods in communion vested in the husband;" while Professor Erskine says: "The husband hath by the law of Scotland the sole right of administering the society goods. This right gets the name of jus mariti.”(k) Again Professor Bell says: "The jus mariti is not a liferent in the husband, but the power of administering the wife's estate, reaping the fruits and taking the rents during the subsistence of the marriage."(1) Plainly these definitions are not strictly correct. The jus mariti is a right quite distinct from the right of administration. The latter is merely a right to manage the wife's personal estate, while the former makes him practically master of that estate. The jus mariti is in fact a right of property. The transference is absolute without any legal process. In virtue of it the husband can, in his own name, and without the wife's consent, sue for, recover, and discharge, all moveable property due to the wife by third parties; and, even when he has been divorced in respect of his own adultery, he is entitled to sue for money to which his wife succeeded before the divorce(m); and he can sell, and even gratuitously dispose of, such property at his pleasure by any act or deed to take effect during his lifetime(n).

The only moveable property of the wife that does not, at common law, fall under the jus mariti are her wearing apparel, the chests or wardrobe for holding the same(o), and the ornaments proper to her person, termed paraphernalia(p); all which remain at her own disposal by will, and cannot be attached for the husband's debts(q). But, on the other hand, a wife may not sell or pledge these articles without her husband's consent.

In Cameron's case, Lord Deas, in delivering the judgment of the Court, said that the law as to what was inter paraphernalia was clearly understood, and he took it to be this:-"First, that those articles are in their nature paraphernal which are adapted for the use and enjoyment of the female spouse as distinguished from promiscuous use; second, that articles of promiscuous use may be made paraphernal by being gifted to the wife before or on the day

(k) Ersk. 1, 6, 13.

(1) Com. 1, 59.

(m) Ferguson, 30th Jan. 1877, 4 R.

393.

(n) Bell's Prin. § 1561; Ersk. 1, 6, 13; Bell's Lect. §§ 122, 792.

(0) Cameron, 5th Feb. 1876, 13 S. L. R. 278.

(p) Bell's Prin. § 1555.

(q) Ersk. 1, 6, 15; Young, 19th May, 1880, 7 R. 760.

of the marriage, either by the husband or by friends, and either by express or implied gift, if they are not out of keeping with the rank of the recipient."

In determining what subjects belonging to the wife at the date of the marriage fall under the jus mariti, regard must be had to the character of the property as at that date. For example, if, at the date of the marriage, the property was a sum of money, moveable, it would fall under the jus mariti, though it had previously been heritable; on the other hand, if the property at that date were heritable, it would not so fall under the jus mariti, unless the wife consented to the change with that view; so, also, where the wife, during marriage, succeeds to property, or acquires it by gift, the character of the property will be fixed at the date of its vesting in the wife, and no administration of it by trustees or executors can affect its character in a question with the husband (r). A bond heritably secured, to which a married woman succeeded as next-ofkin of the creditor, was held not to fall under the jus mariti.(s) But if a wife succeeds to heritable property conveyed by the testator to trustees with directions to sell before conveying to the wife, such property will fall under the jus mariti.(t) Where the wife herself during marriage sells her heritable property, with no intention to re-invest the proceeds on such property, it will fall under the jus mariti; but it will not so fall if the change be made with a view to obtaining another heritable investment. (u)

The right of the husband to the wife's moveable property is so strongly founded in law, that, in order to exclude it, the intention must be made quite clear. The presumption of law is in favour of the right; and the right continues, notwithstanding the husband's bankruptcy, or even the voluntary or judicial separation of the spouses (v); but it may be excluded in either of the following ways:

(1.) The husband may, before marriage, renounce it by deed, either wholly, or as to a particular subject.(w) After marriage, a husband, though perfectly solvent, cannot, in a question with his creditors, renounce his jus mariti.(x)

(2.) The wife may, by antenuptial contract or other deed executed

(r) Ersk. 1, 6, 13; Fraser, 1, 689. (s) Hodge, 22nd Nov. 1879,7 R. 259.

(t) Fraser, 1, 373. (u) Ersk. 2, 2, 16.

(v) Fraser, 1, 403.
(w) Bell's Lect. p. 124.

(x) Shearer, 18th Nov. 1842, 5 D. 132.

before marriage, reserve her property by vesting it in trustees or otherwise for her behoof, exclusive of the jus mariti.(y) (3.) A third party may, either before or during marriage, convey property to the wife, or to trustees for her behoof, in terms importing an exclusion of the jus mariti.(z)

An exclusion of the jus mariti in general terms is held to apply to both principal and interest, and may be made to apply to property already acquired and to be acquired by the wife. (a) Where excluded with regard to a provision under a will, the exclusion was held to extend to the residue of the estate.(b)

The property secured to a wife exclusive of the jus mariti is termed “peculium.”

2. Right of Administration.—This is not a right of property, but a right to manage such property of the wife as does not fall under the jus mariti. In virtue of it the husband's consent must be obtained to every act of administration in regard to the wife's property; and, should he refuse, the Court would, on cause shown, authorise the wife to act without him, or name another curator. The principle of the right implies that it must be exercised solely for the wife's behoof, and to save her from being hurt by her own acts.(c)

The effect, therefore of excluding the jus mariti without excluding the right of administration is, that a wife is entitled to insist that all her property shall be applied for her own behoof; but she can do no act of administration in regard to such property without consent.(d) The right of administration cannot be attached by creditors of the husband (e); and it may be excluded only "in case of the event of the husband's insolvency," leaving it intact till that contingency happens.(ƒ)

Where the jus mariti and right of administration are both excluded, the wife may deal with her property as she pleases. She may invest the same in trade, and thereby incur personal obligations which will be effectual against her personal estate, but not against herself or her husband.(g) But if the husband be unable to

(y) Ersk. 1, 6, 13.

(2) M'Laren, § 1499; 20th Nov. 1868, 7 Macp. 136.

Wilson,

(a) Hutchison, 10th June, 1842, 4 D. 1399; Biggart, 15th Jan. 1879, 6 R. 470.

(b) Bryce and Others, 2nd March, 1878, 5 R. 722.

(c) Bryce and Others, supra.
(d) Fraser, 1, 417; Bell's Lect.
pp. 122, 794; Bryce's Trustees, 2nd
March, 1878, supra.

(e) Crawcour, 3rd Feb. 1844.
(f) Annand, M. 5844.

(g) Biggart, 15th Jan. 1879, supra.

aliment the family, she is bound to do so out of her own estate; and it would appear that, even if the husband's means be adequate for that purpose, she is bound to contribute to the family expenses.(h)

Where a wife is deserted by her husband, or is living apart from him with his consent, or is living apart from him under a judicial separation, the marital rights of the husband remain intact, at common law, as regards the wife's moveable estate; but the law. has now been altered by the Conjugal Rights Act, 1861.()

II. Changes introduced by Recent Legislation.(k)

Such was the law till the recent and extensive changes introduced by the Conjugal Rights (Scotland) Amendment Act, 1861,(l) and subsequent legislation.(m)

These changes we shall here notice in their order.

(1.) Exclusion of the Jus Mariti and Right of Administration in Cases of Desertion and Separation.

By the Conjugal Rights (Scotland) Amendment Act, 1861,(n) a wife deserted by her husband may apply to any Lord Ordinary of the Court of Session, or in time of vacation to the Lord Ordinary on the Bills (extended by the Conjugal Rights (Scotland) Amendment Act, 1874, (o) to the Sheriff and his substitute) for an order to protect property which, after such desertion, she has acquired or may acquire by her own industry, or which she may succeed to, against her husband, his creditors, or any one claiming right through him; upon the granting of which Order of Protection such property shall be held to belong to her as if she were unmarried. Such Order of Protection "shall have the effect of a decree of separation a mensa et thoro in regard to the property, rights, and obligations of the husband and of the wife, and in regard to the wife's capacity to sue and be sued."

In case of separation, after a decree of separation a mensa et thoro obtained at the instance of the wife,(p) all property which

(h) Fraser, 1, 419.

(i) 1 Fraser, 780.

(k) See legislation noted in § 78. (1) 24 & 25 Vict. c. 86.

(m) These statutes are printed in full in the Appendix, with notes of decided cases, &c.

(n) Came into operation 1st Nov.

(0) 37 & 38 Vict. c. 31.

(p) Where the husband has obtained judicial separation against the wife, the jus mariti still remains under this Act (Fraser, 1, 780). A voluntary separation is not a renunciation of the jus mariti (Stair, 1, 4, 17).