Vict. c. 29 the husband's jus mariti and right of administration are excluded from all earnings of his wife's industry, in whatever way acquired during the marriage, in any business carried on by her in her own name. [The Act applies only to the wife's "earnings,” and not to the stock-in-trade from which the earnings are made. (Ferguson, 1883, 11 R. 261.) For the further extension of the law by the recent Married Women's Property Act, see secs. 134-141, infra.]

49. The personal obligations of married women are invalid; and consequently they cannot, except in virtue of the powers conferred on them by the statute just referred to (24 and 25 Vict. c. 86), grant bonds, bills, or promissory notes. Even where a bill granted by a woman before marriage was discharged, and renewed by another bill after marriage, the renewed bill has been held not effectual against her. (Stair, i. 4. 16; Ersk. i. 6. 22; Fraser, 519 et seq.; Balfour v. Ewing, Mar. 5, 1831.)

50. The husband's consent will not validate the wife's obligation, because he cannot authorize her to shake off the disability which the law has imposed. But in certain cases,-as, for instance, a bond by the wife over her separate heritage,-the husband's consent will give legal completeness to the obligation, when coupled with the ratification of the wife out of the presence of the husband and before a judge. (Ersk. i. 6. 27; Fraser, 820; Menzies's Lectures, p. 37; Clerk v. Gibson, Jan. 24, 1826.)

51. The object of this ratification is to protect married women against the risk of being unduly influenced by their husbands. Its effect is to raise up a presumption that the deed was the voluntary act of the wife; but it does not seem to cut her off from the allegation, that in granting the ratification itself she was influenced by force or fear; and deeds have been reduced at the wife's instance, though ratified by her. (M'Neill v. Steel's Trustees, Dec. 8, 1829, and Menzies's Lectures, p. 40.) The authorities on this point are divided. In support of the doctrine here laid down, besides those given, are Nicolson's Ersk. i. 6.

35, and note (b), and Mont. Bell, Lect. 126; while on the other side are Bell, Com. i. 143, and Fraser, 822, and authorities cited by each. On the other hand, where a wife, with consent of her husband, disponed heritage in security of her husband's debt, but refused to execute a ratification, it was held that the deed was not reducible on the ground of non-ratification, unless force, fraud, or undue influence by the husband was proved. (Ersk. i. 6. 36; Fraser, 821; Buchan v. Risk, March 1, 1834.)

52. From the wife's inability to enter into obligations, it follows that she cannot sue or be sued at law. (Ersk, i. 6. 21.) This disability continues to subsist even after the dissolution of marriage by the death of the husband, as regards all obligations entered into during its subsistence,-the view of the law being that they never were contracted. But a bond entered into during marriage may be rendered effectual by being acknowledged and acted upon after the marriage has been dissolved. (Ersk. iii. 3. 47; Fraser, 566; Wemyss v. Stewart, Mar. 2, 1773.) And in case of separation, under the 6th sec. of 24 and 25 Vict. c. 86, the property of the wife belongs to her, exclusively of the jus mariti and right of administration, and she may contract and sue and be sued as if she were not married; [and the same will be the case under the provisions of the Married Women's Property Act of 1881 (infra, secs. 134-141).]

53. Though a wife cannot be obliged, she may insist on the fulfilment of obligations which have been entered into with her by others who were aware of her situation. This privilege belongs to married women in common with minors and pupils. Of course the wife must perform her part of the contract to the person whom she thus compels to perform his. (Fraser, 533; M'Kenzie v. Fraser, May 18, 1827.)

54. Previous to the passing of the Conjugal Rights Act above referred to, there were certain exceptions to the rule that obligations by married women are null, and these exceptions still remain.

(1.) A contract by a married woman will be effectual against her separate estate, if the subject of the debt has been applied for her own peculiar benefit in a matter which was not legally and properly a debt of the husband. Debts contracted by her before marriage, and moneys expended on improvements of her estate, or expenses incurred in the management of her property, are held to be in this position. (Harvey v. Chessels, Bell's Cases, p. 255; Fraser, 536.)

(2.) A wife can execute a testament as to her separate estate without her husband's consent; but it is doubtful if she can contract a personal obligation which is not to come into operation till after the marital power has ceased. (Miller v. Milne's Trustees, Feb. 3, 1859.) Till recently, her power of testing extended to her portion of the goods in communion; but by the Act to regulate intestate succession in moveables (18 Vict. c. 22), it is provided (sec. 6) that in case of the wife's predecease, whether testate or intestate, her representatives shall have no right to any share of the goods in communion; nor shall any legacy, or bequest, or testamentary disposition thereof by such wife, affect or attach to the said goods or any portion thereof.

(3.) Where a wife fraudulently holds herself out to be unmarried, she will be bound. (Fraser, 544.)

(4.) It has been held that, where she incurs a fine for a crime which she has committed, her separate estate may be attached for its payment; but her person cannot be attached, with this object, during the subsistence of the marriage. (Fiscal of Lanarkshire v. M'Luckie, Jan. 20, 1796, Hume's Decis.) She may be imprisoned as a criminal, but cannot be imprisoned as a debtor for her fine. In order that married women may not be deprived of the benefit of redeeming themselves from imprisonment by the payment of a fine, which would be the practical result of this view of the law, it is said to be the practice in some criminal courts to pronounce a sentence of imprisonment

B

for a specified time, unless a specified fine be sooner paid. (See Barclay's Digest, voce Marriage.)

(5.) Where the husband is civilly dead, i.e. where he has been outlawed for not appearing to stand trial for a crime, or where he is absent, and reported to be dead. (Fraser, 545.)

(6.) Where the husband is insane, his curatorial powers are at an end, and the wife may manage and even alienate her property. (Ib. 548.) See ante, sec. 46.

(7.) Where the spouses live separately, and the wife has an aliment, that aliment may be attached by a creditor for debts which she has contracted for necessaries. The husband, having supplied her with a suitable provision, will be free from all further liability. (Ib. 549.)

(8.) Where the spouses are judicially separated, the wife will have a separate aliment allocated to her by the Court; and this a creditor may attach, provided the debt incurred be for necessaries. (Ib. 551; Baillie v. Letham, M. 5998.)

(9.) Where the wife, deserted by her husband, has obtained an order from the Court of Session, under the provisions of 24 and 25 Vict. c. 86, for the protection of the property which she has acquired by her own industry, or to which she has succeeded; or where a married woman, having succeeded to property, has claimed it on her own behalf, under the 16th sec. of the same Act, the obligations to which she may have subjected such property to third parties will be valid. (Sec. 3.)

(10.) Where a wife has been compelled by ill-treatment to desert the society of her husband, she may incur a debt for necessaries, which will be binding on him; and the same is the rale where she is deserted by him. (Fraser, 638.)

(11.) When the husband is abroad, the obligations of a married woman will be effectual so far as they are for necessaries to herself and her family. If, in order to obtain a livelihood, she should, in such circumstances, commence business as a merchant, keep a tavern, or the like, she may enter into contracts relative

to such business, and these contracts may be enforced by diligence against her. As soon as her husband returns to the country, the obligations for necessaries which she has incurred may be enforced against him, but her powers of independent action cease. If she still continues to trade, she is presumed to do so with his consent, and her deeds are binding, not on her, but on him. (Churnside v. Currie, M. 6082; Orme v. Duffus, Nov. 30, 1833; Fraser, 553.)

55. Curator ad Litem.-As a wife cannot sue or be sued in her own name, except under the provisions of 24 and 25 Vict. c. 86, the Court is in use to appoint a curator ad litem to supply the place of the husband in cases in which she has a separate interest, or where he will not appear as a pursuer, or cannot be cited as a defender.

56. The general case in which a curator is appointed, is when the husband is insane, abroad, or in banishment, where his residence is unknown, where he refuses unreasonably to concur, or where the wife is obliged to institute an action against him. (Stair, i. 4. 15; Ersk. i. 6. 21; Fraser, 569.)

57. A wife will not be allowed to sue her husband except on necessary or urgent occasions, as for aliment, judicial separation, divorce, or implement of her marriage contract when he is on the verge of bankruptcy. (Ersk. i. 6. 21; Fraser, 577.)

58. The domicile of the wife follows that of the husband, and she must be cited to the court which has jurisdiction over him, except in those special cases in which she can be proceeded against separately. (Stair, i. 4. 9; Ersk. i. 2. 16, n. 22.)

59. The husband becomes liable for the moveable debts of the wife contracted before marriage, even where she had no separate estate. Amongst her moveable debts are included interest on heritable bonds, or other heritable debts, whether due prior to marriage, or falling due during its subsistence. (Fraser, 586.) By 40 and 41 Vict. c. 29 (as regards marriages made after 1st January 1878), the husband's liability for the ante