Companies Acts, that the husband's liability was in his own right and could not be thus limited. "He is," said that learned judge, "in the position of a debtor, and not merely the husband of a debtor. He is a contributory himself, and not merely the husband of a contributory, and that liability to contribute, which is made equal to a debt of his own, cannot be affected by the Act of 1874, which only deals with the husband's liability in respect of his wife's debts. Therefore it does not touch the husband's own liability to contribute."1 3 And in the case of Hill v. City of Glasgow Bank, where an unmarried woman held shares as a trustee, and married, the names of both her husband and herself were placed upon the list. 2 There is perhaps no conflict between these cases and those of Biggart and Mrs. Matthewman. And it is submitted as a sound proposition in law that if a woman who is already married invest part of her estate, which she holds exclusive of the jus mariti and right of administration, in the shares of a company, and the company accept her as the shareholder, her separate estate will be liable to contribute, and her husband does not incur any liability. And the same result would follow if she so invested funds held by her in virtue of the Married Women's Property Act, and her husband consented to the investment. For section 78 of the Companies Act appears to apply only to women who were shareholders before marriage. It was enacted to prevent the manifest injustice of permitting a woman, who had already incurred certain liabilities to the company, to escape these liabilities by marrying. But if a company admit as a partner a woman who is already married, equity demands that she shall be considered as contracting on her own behalf, and as binding her separate estate, but not her husband. The hardship of such a case as ex parte Hatcher, has been remedied in England by an express enactment limiting the liability of a husband, married after the Act, in respect of his wife's obligations as a shareholder entered into before her marriage, "to the extent of HUSBAND AS CONTRIBUTORY. 245 all property whatsoever belonging to his wife which he shall have acquired, or become entitled to, from or through his wife."1 No such provision occurs in the Scottish Act, and, accordingly, if the reasoning of Fry, J., in ex parte Hatcher be sound, the man who marries a woman who is a shareholder makes himself liable in solidum as a contributory, in the event of the company being wound-up. The question does not appear to have been argued in Hill's case, which is further distinguishable from ex parte Hatcher, in this important respect that in Hill there was no marriagecontract, and the wife's shares passed to her husband on her marriage, whereas in ex parte Hatcher the shares were separate estate of the wife. But in the case of Hill it does not appear, from the report, that the wife's obligation to contribute was treated as an ante-nuptial debt, or that the husband's liability was limited to the amount by which he was lucratus by the marriage. On the other hand, in the previous case of Wishart v. City of Glasgow Bank, it was distinctly laid down that a husband married after 1877 was entitled to have his name removed from the list of contributories, on surrendering any property which he had acquired through his wife. It is to be observed that the husband's liability, under section 78, is expressly limited to the continuance of the marriage. 1 Married Women's Property Act, 1882, § 14, see § 13; but Lord Thring thinks it even still open whether he is not liable in solidum. CHAPTER XXIII. WIFE'S HERITABLE ESTATE. 1. Where the jus mariti and right of administration are both excluded. In this case a wife may deal with her heritage, in all respects, as if she were unmarried.1 This was 3 doubted in one case, but it underlies the judgment in Biggart, and is stated expressly, by Lord Gifford, in a recent decision. Accordingly, where the Court found that the terms of a deed of separation imported a renunciation of the right of administration, it was held that a wife's lease of her heritage. was valid. The husband has here no power, authority, or right of any kind in his wife's heritage. 4 2. Where the Wife's Heritage vested in her prior to the Act of 1881, or the operation of the Act is excluded by the Husband having made a reasonable Provision by irrevocable Deed. At common law a married woman's heritage does not fall under the jus mariti, but the husband is entitled, in virtue of that right, to the annual fruits. And he is possessed of all the powers of a proprietor over her heritage, subject to the important limitation that he cannot, without her consent, alienate the lands, or burden them beyond the period of the joint life of the spouses, or of his own life, if he enjoys the courtesy.5 The husband may, without his wife's consent, grant a lease of her lands, which will be good for the period of his 1 Biggart v. City of Glasgow Bank, 1879, 6 R. 470; Annand v. Chessels, 1775, 2 Pat. 369. 2 Gordon v. G., 1832, 11 S. 36. 3 Standard Property Investment Co. v. Cowe, 1877, 4 R. 695. 4 Keggie v. Christie, 25th May, 1815, F.C. And see More's Notes, xvii., and Fr. i. 814. 5 Kennedy v. Watson, 1848, 11 D. 171. EFFECT OF HUSBAND'S BANKRUPTCY. administration.1 period. 247 And he may assign the rents for the same The Husband's right to the Rents may be attached by his Creditors, and passes to the Trustee in his Sequestration. -The nature of the husband's right has been disputed, and the question raised whether it is heritable, and, therefore, a proper subject of adjudication, or moveable, and to be attached by arrestment. 3 But it is now settled that the right, being one which bears. tractum futuri temporis, is to be adjudged.2 The view that the husband's right is not continuous, but is merely a right to draw certain moveable funds when they fall due, is expressed in a more recent case, by Lord Fullerton. But such an adjudication, to be effectual, must expressly include the jus mariti. Ill.—A creditor of the husband led an adjudication against certain lands, as being his property, “with all right, title, and interest which the said defender has, or can claim thereto." It was afterwards found that the lands belonged to the debtor's wife, and it was held that the adjudication, with this general clause, had not competently attached the husband's right to the future rents.1 The husband's right being adjudgeable, passes to the trustee for creditors, by the general adjudication of the bankrupt statute.5 And where a wife granted a bond and disposition of her heritage, in security of her husband's debt, to which the husband was a party, "for all right or interest which I (husband) have, or can pretend in or to the said subjects, jure mariti or otherwise," it was held that this was a valid assignation of his right to future rents, and that the creditor in the bond must value and deduct this right, before being entitled to a ranking. It was contended in an old case that a wife was entitled to aliment out of the rents of her heritage in the event of her 1 Grieve v. Pringle, 1797, M. 5951; Bell's Prin. i. 1184; More's Notes, XX. ; Fr. i. 812; Rankine on Leases, p. 22. There is a conflicting decision, Gibson v. Aitken, 1798, Hume, 205. 2 Smith v. Frier, 1857, 19 D. 384; Calder v. Steele, 19th Nov., 1818, 3 Borthwick v. M'Farlane, 1844. 6 D. 1290. 4 Calder, supra. husband's bankruptcy. The argument was urged that she was really the fiar, and her husband the life-renter of her heritage, and that a fiar who has no separate means of livelihood must be alimented by the life-renter. But this was negatived.1 The husband having no right of property in the corpus or stock cannot sue or transact with reference to it.Where a husband brought, in his wife's name, a reduction of a deed ex capite lecti, which, if successful, would have had the effect of carrying certain lands to his wife, it was held that this required his wife's concurrence, and the defender was assoilzied.2 And on the same principle where a husband entered into a submission as to the validity of a deed conveying heritage to his wife, it was held that the submission was not binding on the wife, in respect she was not a party to it, and had not homologated it.3 Powers of Wife over her Heritage. As has been already stated, a wife cannot alienate or burden her heritage, or perform any act of management without her husband's consent and concurrence.1 Deeds should be executed by both Spouses.-Whenever it is proposed to alienate or burden the wife's heritage, the concurrence of both spouses is necessary. And as the husband consents not merely as his wife's curator, but as himself having an interest in the subjects, it is proper that this should be set forth. The usual style is, "I, A, wife of B, heritable proprietrix of the subjects hereinafter disponed, with the special advice and consent of my said husband, and I, the said B, for myself, my own right and interest, and as taking burden on me for my said wife, and we both with joint consent and assent," &c. It is then usual for the wife to ratify the deed. 5 A minor wife may set aside a deed granted by her with consent of her husband to her lesion. It would be obviously unjust that a wife in minority should be in a worse position as 1 Robb, 1794, M. 5900. 5 Jurid. Styles, 5th Ed., I., p. 97. See infra, "Ratification." Gibson v. Scoon, June 6, 1809, 2 Aitkens v. Orr, 1802, M. 16,140. 3 M'Cally v. Inglis, 1821, 1 S. 69. 4 Ersk. i. 6, 27; Fr. i. 804; and see supra, p. 178. F.C. |