where any money of the wife's has been lent or entrusted to him, or become immixed with his funds, the wife ranks as a creditor after the claims of creditors for valuable consideration. The right to make private arrangement by antenuptial marriage contract remains untouched by these provisions. (Sec. 1.)

137. [The rents of the wife's heritable property in Scotland are no longer subject to the jus mariti or the right of administration of the husband. (Sec. 2.)

138. [The Act does not apply to marriages contracted before its passing (1) where the husband shall have before that time, by irrevocable deed, made a reasonable provision for his wife in the event of her surviving him; and (2) only to the effect that the jus mariti and right of administration are excluded, to the extent previously prescribed, from all estate, heritable or moveable, and income thereof, to which the wife may acquire right after the passing of the Act. (Sec. 3.)

139. [Persons married before the Act may place themselves under its provisions by voluntary mutual deed, which shall not, however, have any effect as against any debt of the husband incurred prior to its execution. (Sec. 4.)

140. [Where a wife is deserted by, or living in voluntary separation from her husband, the Court of Session, or Sheriff Court, may dispense with her husband's consent to any deed relating to her estate to which it would otherwise be required. (Sec. 5.) This section is to be held as applicable to marriages contracted before as well as to those contracted after the passing of the Act. (Poë, Dec. 13, 1882, 10 R. 356; aff. July 16, 1883, ib. H. L. 73.)

141. [The Act specially exempts from its operation "any contracts made or to be made between married persons before or during marriage, or the law relating to such contracts, or the law relating to donations between married persons, or to a wife's non-liability to diligence against her person, or any of the rights of married women" under the Act of 1877. (Sec. 8; Birnie's Married Women's Property Act.)

142. [By 43 and 44 Vict. c. 26, which extends to Scotland certain provisions of the English Married Women's Property Act of 1870, a married woman may effect a policy of assurance on her own life or her husband's for her separate use, exclusive of his jus mariti and right of administration, and which she may assign inter vivos or mortis causa without his consent. A husband may likewise effect a policy on his own life in trust for his wife and children, which shall then be beyond his control, form no part of his estate, and be exempt from the diligence of his creditors, and not be revocable as a donation, unless it be shown to have been effected with intent to defraud his creditors, or within two years of his becoming bankrupt.]

IX. SEPARATION-JUDICIAL AND VOLUNTARY.

143. The law considers conjugal adherence to be one of the most sacred duties arising from the married state; and, as a general rule, it may be stated that the only case in which a judicial separation will be granted by a court of law in Scotland, is that in which this duty can no longer be performed without danger either to life or character.

144. All the grounds for separation may thus be reduced to the two heads of cruelty and adultery.

145. Personal violence endangering life, reasonable apprehension of such violence, or anything analogous to personal violence, such as starving a wife, exposing her, injuring her health by continued unkindness, or the like, will be sufficient to authorize judicial separation. (Evans v. Evans, 1 Haggard 69; Paterson v. Russell, H. of L., 9th August 1850; Bell's App. vii. p. 337.) 146. Threatening words must be of such a character as to show a settled purpose of acting on them, not mere expressions of passing anger.

147. A false imputation of lasciviousness, made by the husband against the wife publicly and perseveringly, was held

by the Commissaries and the Court of Session to be a sufficient ground for judicial separation; but this decision the House of Lords reversed, after a three days' hearing.-Leckie v. Moir; Elch. Husband and Wife, No. 35 (1750). The correctness of this decision, however, has been called in question by obiter dicta from the bench; and opinions have been indicated that a course of harsh and contumelious usage is conceivable, which, though unaccompanied by threatenings of personal violence, would be sufficient to warrant separation. On this point, the observations of Lord Brougham, in Paterson v. Russell (sup.), are very important: "If the husband, without any violence, or threat of violence, to his wife, without any maltreatment endangering life or health, were to exercise mere tyranny, constant insult, vituperation, scornful language, charges of gross offences, utterly groundless; charges of this kind made before her family, her children, her relations, her friends, her servants; insulting her in the face of the world, and of her own domestics; calling upon them to join in these insults, and to treat her with contumely and with scorn: if such a case were to be made out, or even short of such a case, any injurious treatment which would make the marriage state impossible to be endured, rendering life itself almost unbearable, then, I think, the probability is very high, that the Consistorial Courts of this country would relax the rigour of their negative rule." But see Fraser, 894. [It has been more recently observed that the issue in an action of separation is, whether the wife has such reasonable ground for apprehension of violence as to make it advisable that she should not be forced to go back to her husband. (Graham, 1878, 5 R. 1093.)]

148. It is thus apparent that no ordinary austerity of temper, petulance of manner, rudeness of language, or even occasional passion, will be held as amounting to cruelty. Still less will the denial, however unreasonable, of indulgences, luxuries, and accommodations, be held as such; for "the Court has no scale

of sensibilities by which it can gauge the quantum of injury done and felt." (Evans v. Evans, 1 Hagg. p. 38.)

149. Habitual intoxication on the husband's part, not accompanied by personal violence, will not be sufficient; but turning the wife out of doors amounts to cruelty, and opens to her the remedy of judicial separation. [Habitual intoxication, however, coupled with violent conduct, such as to induce a reasonable fear of personal injury, has recently been held enough to entitle a wife to separation. (M'Gaan, 1880, 8 R. 279.)]

150. The husband is entitled to forbid the wife's friends from visiting her; and he may confine her to the house, or at least direct her movements so as to prevent her from going to places and engaging in pursuits of which he disapproves. Though such prohibitions, in ordinary circumstances, would unquestionably amount to a harsh exercise of the marital authority, there may be causes to justify them, of the reasonableness of which a court cannot, and ought not, to judge. (Fraser, 896.)

151. Crimes of an aggravated nature on the part of the husband, as being productive of personal danger to the wife, both physical and moral, are just causes of awarding her the remedy of separation. (Brown, ii. 29. 10.)

152. The fact of either spouse having become diseased, however loathsome may be the character of the affection, will not have this effect, except in the single case where the disease is of such a character as of itself to afford prima facie evidence of adultery. (Fraser, 890; Popkins v. Popkins, 1 Hagg. 765.)

153. Neither venereal disease, if contracted before marriage, nor impotency supervening from the effects of incontinence before marriage, nor the taint of hereditary madness, if undeveloped, will be adequate grounds for separation. (Fraser, 891.) Even confirmed insanity, if supervening on marriage, is no ground for declaring it null; though the sane spouse will of course be entitled to resort to separation, if necessary for personal safety. This, however, must be done by the authority

of a magistrate. (Belcher v. Belcher, Phillimore's Report, June 6, 1835. See Insanity.)

154. In actions of separation on the ground of cruelty, a renewal of intercourse after the acts alleged will not be held a remissio injuriarum, like the renewal of intercourse after knowledge of adultery in cases of divorce. (Macfarlane v. Macfarlane, Feb. 7, 1849.) [For the distinction between the plea of remission or condonation in defence to an action of separation for maltreatment and to one of divorce for adultery, see Graham, 1878, 5 R. 1093.]

155. Adultery is a ground for separation, which may be chosen in preference to divorce, at the option of the injured party. (Letham v. Provan, March 8, 1823.)

156. Judicial separation is competent to both spouses; though, where cruelty is the ground on which it is sought by the husband, the facts must be somewhat different from those which would be sufficient to entitle the wife to the remedy. (Kirkman v. Kirkman, 1 Hagg. 409.)

157. It has been held incompetent to pronounce judgment in an action of separation in favour of the pursuer, merely upon the admissions of the defender. (Muirhead v. Muirhead, May 28, 1846; and 1 Will. iv. c. 69, sec. 36.)

158. Judicial separation annihilates the marital power over the wife's person. She may go where she chooses; and consequently the rule of law, that the husband's domicile is hers, no longer holds; and she must be cited as if she were unmarried. (Ersk. i. 6. 21; Fraser, 906; Alison v. Catley, June 15, 1839.)

159. Except as regards the wife's separate aliment, and the property which she may hold independently of her husband, under the provisions of the Conjugal Rights Act (24 and 25 Vict. c. 86), judicial separation makes no change on the patrimonial relations of the spouses. (Alison v. Catley, June 15, 1839; Ferg. Cons. Law, p. 183.)

160. The custody of the children will be regulated by the