WIFE'S POWER TO GRANT LEASES. 179 however, she holds it exclusive of both the jus mariti and right of administration, she may deal with it in all respects as if she were unmarried.1 As regards heritage, the rents of which but for the Act would have fallen under the jus mariti, a wife has no power to grant by herself any deed. Her deeds may be reduced, unless brought within one of the exceptions discussed in treating of a wife's personal obligations. A Wife cannot grant a lease or do any other act of administration of her heritage. This has not been made the subject of recent decision, and Erskine speaks of it as open.2 But the ground upon which alienations have been held null is simply that a married woman is sub cura mariti, and therefore all deeds by her are null which are granted without his consent. And this reason is applicable to such an act as the granting of a lease as well as to an alienation. It can hardly be doubtful that at common law a wife has no such power. 3 It cannot be said to be equally clear if the Married Women's Property Act has made no change in this matter. For, as already pointed out, she does not seem to be prohibited from assigning the prospective rents of her heritage. It is a curious result if it should be found that a wife may gratuitously assign her rents in advance, but cannot without her husband's consent grant a lease or remove a tenant.1 Where the Wife is judicially separated, or has a Protection Order, or the Husband is civilly dead, a Wife may deal with her heritage as if unmarried.—Lord Fraser says that she may do so if her husband be insane. 6 But the case of Bold v. Montgomerie is hardly sufficient to support this, for there the husband's liferent was reserved. And Erskine states the law in more guarded language. He says: "Where the husband is from furiosity, or other disability, rendered incapable of interposing his consent as curator, the 1 Fr. i. 814; Biggart v. City of Glasgow Bank, 1879, 6 R. 470; see opinion of L.P. Inglis, at p. 481; More's Notes to Stair, p. xvii. 2 i. 6, 27; but see Cockburn v. Burn, 1679, M. 5795 and 5998. 3 Fr. i. 804. 4 Mr. Rankine does not indicate an opinion as to her power to assign rents in advance, but thinks she has no greater power than formerly to grant leases. Leases, p. 22. 5 See supra. 7 1729, M. 6002. necessity of the case may support a deed granted by the wife alone, affecting her heritage, if it be rational."1 The Court may now dispense with the husband's consent, if the wife is deserted, or the spouses are living apart.2 Capacity of Wife to grant an inter vivos Deed not to take effect till her Death.-The question is still open whether an obligation by a wife is valid if payment is postponed until after her death. 3 Erskine, Bell, and More 5 think such a deed will be sustained. The point was much considered in Miller v. Milne's Trustees, where the case of Colquhoun," founded on by Erskine, was canvassed. Erskine appears to assimilate a deed of this kind to a legacy. But his language is hardly consistent. A personal obligation incurred by inter vivos deed must be conceived of as at once binding, and continuing to bind her until her death, although the date of payment is postponed. The analogy with testaments is misleading, for these have no effect till the wife's death, when the husband's curatory falls. The view that such an obligation. is invalid is strongly put by Lord Deas. His opinion on the point was shared by Lords Neaves, Ivory, Cowan, and Mackenzie. Lord President M'Neill, Lords Ardmillan and Curriehill, and, more doubtfully, Lords Kinloch, Benholme, and Wood were of the view that it might be sustained. The Court found it unnecessary to determine the question, as, in the circumstances of that case, it was found that the obligation was personal to the grantee, and even if originally valid, could not be insisted in by his representatives. Capacity of Wife to Test.-A married woman has complete freedom to dispose of her moveable estate by mortis causa deed. As to heritage, a difficulty was felt formerly, from the fact that heritage could only be conveyed in de præsenti form. Bankton 10 accordingly thought she could not test 1 i. 6, 27 fin. 2 Married Women's Property Act (1881), § 5. 3 Ersk. i. 6, 28; Ersk. Prin. i. 6, 15. 4 Bell's Prin. 1613. 5 More's Notes to Stair, p. xviii. 61859, 21 D. 377. Colquhoun v. Lady Roseburn's Executors, 1720, M. 5973. 8 See Miller, supra, opinions of Lords Cowan and Mackenzie, p. 387. 9 Ersk. i. 6, 28; and see opinions in Miller, supra, M'Laren on Wills, i. 271. 10 i. 5, 67. WIFE'S RIGHT OF ELECTION. 181 on her heritage, a doctrine cited with approval by Lord Deas.1 But Erskine was of a contrary opinion.2 As heritage can now be bequeathed by mortis causa deed, this objection is removed, and she may, if major, test upon her heritage. Her estate is now subject to claims of jus relicti and legitim if her domicile at death was in Scotland.1 Capacity of Wife to elect between legal and conventional provisions.-This is perhaps rather a question of right than capacity in the proper sense. It It is settled that where a married woman is entitled to provisions under her father's settlement from which the jus mariti is excluded, her husband cannot in every case compel her to repudiate the conventional provisions and claim legitim.5 is a question of circumstances, and the Court will regard the wife's interest. The question will hardly come up again, for the husband would not, as formerly, obtain possession of the sum falling to his wife in name of legitim. [For Capacity of Wife as infra.] 1 Miller v. Milne, supra, at p. 402. 2 Ersk. i. 6, 28, and see opinions of Lords Curriehill (p. 399), Cowan, and Mackenzie (p. 387), in Miller, supra, Menzies, Conv., p. 39. Partner, Capacity to Sue, see 3 Titles to Lands Consolidation Act, 1868, § 20. 4 Married Women's Property Act, 1881, §§ 6, 7. 5 See Millar v. Birrell, 1876, 4 R. 87. CHAPTER XVI. HUSBAND'S LIABILITY FOR WIFE'S CONTRACTS. Wife as praeposita rebus domesticis.-There is a presumption that the person who has charge of a house is authorised by the master of it to order, on his account, such provisions and ordinary furnishings as may be necessary. The presumption arises equally whether the domestic management is in the hands of a wife, a sister, a daughter, or a paid housekeeper.1 It does not depend on the marriage relation, but is purely a question of agency. Cohabitation raises a presumption of fact that the husband assents to contracts made by the wife for necessaries suitable to his degree and estate, or to the style which he permitted her to assume, if the circumstances are such that the wife would be the natural person to give the order as agent for, and to pledge the credit of, the husband. In a recent case in the House of Lords it was laid down that the question was always one of fact. Had the wife authority in the circumstances to pledge the husband's credit? The mere fact of marriage or cohabitation does not imply a mandate. Quite otherwise is the case of the wife who has been deserted, or compelled by her husband's misconduct to leave him. Considerations of agency are here inapplicable. As the husband is bound to maintain his wife, so, if he fail to do so, any one who supplies her with necessaries is entitled to relief from the husband.4 1 Ersk. i. 6, 26; 1 Bell's Com. 479. 2 Manby v. Scott, 2 Smith's Leading Cases, 9th Ed., p. 466. 3 Debenham v. Mellon, 1880, 6 App. Ca. 24. 4 See infra, and the same would apply if husband gave wife, who was cohabiting with him, no money to buy food or clothes, per Bramwell, L.J., in Debenham, 1880, 5 Q.B.D., at p. 398. PRESUMPTION OF AGENCY. 183 The Husband may rebut the Presumption that the Wife was contracting as his Agent. He may show that he made. her a sufficient allowance, and had not as a fact authorised or acquiesced in the contract in dispute. The husband, according to the ordinary principles of agency, will be barred if he has sanctioned a course of dealing-e.g., by payment of previous accounts, and has not notified to the tradesman that he was not to give credit to the wife in future. 2 In Debenham v. Mellon it was suggested by Bramwell, L.J., that there was a distinction between articles of daily consumption such as bread or meat, and articles such as dress or jewellery. Bramwell, L.J., points out that in certain neighbourhoods, and in a certain class, it is unusual to pay ready money to butchers and bakers. In such cases it would seem unjust that the husband should be able to rebut the presumption of agency by proving that he had forbidden his wife to buy on credit. He should notify to the tradesmen that he has revoked his wife's authority to deal on the usual terms. The question is still open. The following cases illustrate the principles on which the Court has proceeded :-By necessaries are meant such articles as fairly fall within the domestic department which is usually confided to the wife. They must be suitable to the style of living adopted by the husband.1 In a case where the question was whether certain things were "necessaries " for an infant, Baron Parke said: "All such things as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one, and for such matters, therefore, an infant cannot be made responsible. But if they are not strictly of this description, then the question arises whether they were bought for the necessary use of the party in order to support himself properly in the degree, state, and station of life in which he moved."5 By the same canons will be determined what are necessaries for a wife, but it must always be kept in view that it is for the 1 Reneaux v. Teakle, 1853, 8 Ex. 6 C.P. 38; Harrison v. Grady, 13 680. L.T. N.S. 369. 2 Jolly v. Rees, 1864, 15 C.B. N.S. 628. 3 1880, 5 Q.B.D., at p. 398. + Phillipson v. Hayter, 1870, L.R. 5 Peters v. Fleming, 1840, 6 M. and W., at p. 47; Chapple v. Cooper, 1844, 13 M. and W., at p. 258. |