Scotland in a similar position of independence to that enjoyed by 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 receipt, and, as the rents of her heritage are declared to be no longer subject to the jus mariti and right of administration of her husband, a wife's tenants will get a sufficient discharge in a receipt signed by the wife alone. But the Act does not apply to the rents of heritage, the fee of which had already vested in the wife prior to its date.1 Both provisions are confined to income, and the result is that a married woman may contract and bind the income of her estate by her contracts. It is, however, expressly declared that she shall not be liable in personal diligence any further than formerly. As regards her heritable property, or the capital of her moveable estate, her capacity remains unchanged. She cannot assign the prospective income of it, or dispose of it in any way, without the husband's consent. A married woman living with her husband is only free to deal with capital when, by paction or otherwise, the jus administrationis as well as the jus mariti have been effectually excluded; or when the capital in question consists of earnings, or accumulations of earnings, gained by her in a separate business, in the sense of the Act of 1877; or of the savings of income, or, apparently, of the rents of her heritage. She is not prohibited from assigning the prospective rents of her heritage, and as the husband's right of administration is excluded as to the produce of heritable estate, it would seem that she is free to assign or dispose of such rents in advance.2 Savings from income of Separate Estate.—It cannot be said to be settled by any authority in Scotland whether such savings are separate estate in the wife, and, if so, whether she can dispose of them without her husband's consent. The first point is hardly doubtful. But it may be thought that accumulations of income accruing to capital become at once capital, on the principle accessorium sequitur principale, and that the intention of the Act of 1881 is to give the 1 Horsbrugh v. Scott, 1889, 16 R. 507. 2 § 2. SAVINGS HUSBAND'S CONSENT DISPENSED WITH. 175 married woman no power of dealing with capital. In this view it might make a difference whether the wife allowed the income of her separate estate, or part of it, to accresce to the capital, as, e.g., if the annual interest were added to a depositreceipt, 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 earnings and the savings thereof should belong to her, and not fall under the jus mariti. The case was really one of fact; but it was observed that when a husband gives an allowance in name of aliment to a wife living apart, he will be presumed to intend that any savings she may make out of it shall belong to her.1 It is, however, well settled in England that the savings of a wife's separate estate are themselves separate estate. In an old case a wife at marriage reserved power to dispose of her separate estate, and a question arose if this covered accumulations. The judgment. of Lord-Keeper North is quaintly expressed thus: "It appears not that any other estate came afterwards to the lady, and, therefore, what she died possessed of is to be taken to be the separate estate, or the produce of it, unless the contrary had been made appear; and as she had a power over the principal, she, consequently, had it over the produce of it; for the sprout is to savour of the root, and to go the same way." 2 This case has ruled the practice.3 Power of Court in certain cases to dispense with Husband's Consent.-The only other clause of the Act of 1881 which affects the capacity of a married woman is section 5, which provides that when a wife is deserted by her husband, or living apart from him with his consent, a judge of the Court of Session, or Sheriff Court, may, on petition addressed to the Court, dispense with the husband's consent to any deed relating to her estate. This gives a discretionary power to 1 Davidson v. D., 1867, 5 M. 710. 2 Gore v. Knight 1705, 2 Vernon, 534. 3 Duncan v. Cashin, 1875, L.R. 10 C.P. 554. the Court. It was held by Lord M'Laren, Ordinary, that the fact that at the date of the petition the wife was living in adultery was not an absolute bar. But the case was one where the husband had deserted his wife a few months after the marriage, and had made no provision for her maintenance. The wife's adultery was subsequent to the desertion.1 A married woman living with her husband has not, any more than formerly, capacity to contract a personal obligation.-Apart from the exceptional cases which have been enumerated, e.g., obligations granted by a wife whose husband is in penal servitude, or by a wife deserted, or engaged in trade, or obligations ad factum praestandum, the 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 mariti 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 administration of it. A contract for necessaries supplied to her does not bind her separate estate unless it is shown that she expressly pledged her own credit and not that of her husband. And contracts purely personal, and not connected with her separate estate, are null. As to all this the Act of 1881 has made no change. Accordingly, it has been held, since the Act, that a married woman who possessed estate from which both the jus mariti and right of administration were excluded had no capacity to grant a promissory note.3 And a married woman who had signed a discharge of legitim, and accepted a conventional provision, was found entitled to repudiate the discharge and recur to her legal rights, on the ground that it was granted by her without her husband's concurrence.1 But 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 1 Niven, Petr., 1883, 20 S.L.R. 587. 2 Biggart v. City of Glasgow Bank, 1879, 6 R. 470. 3 M'Lean v. Angus Brothers, 1887, 14 R. 448. 4 Miller v. Galbraith's Trs., 1886, 13 R. 764. HUSBAND'S ADMINISTRATION NOT EXCLUDED. 177 was entitled to debit the wife's account, in which the interest of her estate was lodged, with the sum in the note.1 A married woman's moveable estate, to which the Act applies, is in the same position as estate from which, by agreement, the jus mariti has been excluded but not the jus administrationis.-In this case the rule is that the husband's consent is still necessary to validate his wife's deeds, but the Court will protect her against an attempt by him to turn his curatorial power into a means of enriching himself at her expense. "A husband's jus mariti and a husband's right of administration or curatorial power are different things, and the exclusion of the one does not necessarily imply the exclusion of the other. It is always a question of intention. The husband's jus mariti virtually makes him proprietor of his wife's moveables, but his curatorial power is quite different, and must be exercised solely for her behoof, and to save her from being hurt by her own acts. In the present case, as only the jus mariti is mentioned, and not the right of administration, I think the husband's curatorial power still subsists, and that he must, simply as curator, concur in his wife's acts. But as his jus mariti is expressly cut off, and as the annuity is not subject to his debts and deeds, he cannot use his curatorial power for the purpose of getting the annuity, or any part of it, into his own hands, or under his own power. If he will not concur in the payment to his wife alone, or for her sole behoof, the Court on an appropriate application, and on cause shown, may authorise her to act without him, or may name another curator." 2 Stair draws no distinction between the jus mariti and right of administration. He says: "Jus mariti, as a term in our law, doth signify the right that the husband hath in the wife's goods. Yet it may well be extended to the power he hath over her person, which stands in that economical power and authority whereby the husband is lord, head, and ruler of the wife." But Erskine discriminates them. He says: "It also proceeds from the curatorial power of the husband, that all 1 Burnett v. Brit. Lin. Co., 1888, 25 S.L.R. 356. 2 Per Lord Gifford in Bryce's Tr., 1878, 5 R., 3 i. 4, 9. at p. 728. N deeds done or granted by a wife without his consent are in themselves null, though they should relate to her own property, and make no encroachment on any right competent to the husband." 1 A married woman cannot, without her husband's concurrence, sue or be sued, or grant any deed, or enter into any contract, with regard to her estate held by virtue of the Act. Ill. A married woman possessing estate exclusive of the jus mariti charged on a decree without the concurrence of her husband. A bill of suspension of the charge was passed simpliciter.2 Ill.-A married woman assigned as security for her husband, and during his absence from the country, a fund which had been given for her aliment, secluding the jus mariti. The deed was found void. There were here two sufficient grounds for setting aside the deed, and the House proceeded mainly on the alimentary nature of the fund. But Lord Campbell states explicitly: "I am likewise of opinion that the deed is void, on the ground that it was granted without the concurrence of the husband." 3 4 Wife's Capacity to deal with her heritage. A wife has no power to dispose of her heritage without her husband's concurrence unless it is held by her exclusive of both the jus mariti and right of administration. E.g., in one case where the husband was in America, his wife sold "certain coal," of which she was proprietrix, for £30, and reserved power to her husband to buy it back. In an action of reduction by the husband and wife together, the disposition was set aside as funditus null.5 If her heritage vested in her after the Act of 1881, or has been brought under that Act by mutual deed, in terms of section 4, it would seem that a receipt by her to tenants for rents would be sufficient. But she receives no additional capacity from the Act to alienate or burden her heritage. If, |