Court, in the exercise of a sound discretion, and they will pronounce an order for custody though there be no conclusion to that effect in the summons. (Symington, 1874; 1 Rettie, 871.) Where the husband commits the wrong, they will, in the general case, be given to the wife till the girls be twelve and the boys seven years of age. (Lindsay, March 6, 1860; Fraser, 908.)

161. The separation may be recalled by the same Court which granted it, on proof of the fact that the cause for which it was granted no longer exists. (Ib. 907.)

162. It may also be recalled by mutual consent, which may be either express or implied. Thus, where a wife, having obtained a decree of separation, returned to the society of her husband before an aliment was modified to her, and lived with him for four years, it was found that a remission of the decree by implication had taken place. (Winton v. Grieve, May 15, 1830.)

163. Lawburrows is a remedy of which those spouses may avail themselves who are unwilling to proceed to so extreme a measure as separation, and who, notwithstanding, feel that they stand in need of the protection of the law. (Fraser, 910.)

164. There is this difference between this remedy as applied to husbands and wives, and to parties unconnected with each other, that whereas in the latter case it is enough if the party injured swear that he dreads bodily harm, in the former the petition must be served on the wrong-doer, and its whole averments supported by proof, before the prayer of the petition will be granted. (Taylor v. Taylor, June 25, 1829.)

165. Voluntary separation is the remedy adopted where the spouses live unhappily together, but where neither has acted towards the other in such a manner as to warrant judicial separation, or where, though such has been the case, they are unwilling to expose their failings in a court of law. (Ersk. i. 6. 30; Fraser, 911.)

166. By our ancient law, a contract of voluntary separation was regarded as null, on the ground that, being inconsistent with the duty of adherence incumbent on married pairs, it was contra hmos mores. This doctrine is still adhered to, to the extent of not enforcing such contracts with regard to future time, though they will be held as having regulated the rights of parties as regards the past.

167. The contract of separation narrates the intention of the parties to live separately, and sets forth the causes of separation. This latter is a point on which the injured party should carefully insist, so as to facilitate his obtaining a judicial separation should the voluntary contract be revoked. Either party may revoke the deed during marriage. (Ib. 912.)

X. DONATIONS BETWEEN HUSBAND AND WIFE.

168. By our law, donations between husband and wife are allowed; but they are revocable at the instance of the donor, or the creditors of the donor, at any time during the subsistence of the marriage. The object of this rule, which in a modified form we borrowed from the Roman law at a very early period, is to prevent the spouses from despoiling themselves or their heirs from mutual affection. (Reg. Maj. lib. ii. c. 15, secs. 10, 11; Dig. lib. xxiv. tit. 1, sec. 1; Stair, i. 4. 18; Ersk. B. i. tit. vi. sec. 29; Kidd v. Kidds, December 10, 1863; 2 M. 227.)

169. Though the bride has no power to execute deeds in favour of third parties, to the bridegroom's prejudice, donations between bride and bridegroom are irrevocable. (Fraser, i. 347 and 473.) Of such gifts Lord Fountainhall said, not without apparent reason, that "bonds granted inter sponsum et sponsam in æstu amoris are more to be reputed donations, and more exorbitant than what are given after marriage, there being a greater eclipse of the use of reason at that time than afterwards."

But the contrary has long been settled law. (Stair, i 4. 18; Ersk. i. 6. 29; Fraser, 917.)

170. After the marriage is dissolved by divorce, there is no impediment to grants by either party to the other, and such donations would be irrevocable. (Dig. xxiv. 1. 35 and 64 ; Fraser, ib.; Murray v. Livingstone, Moo. 328.) But previous donations are held to be revoked by the divorce of the donee for adultery. (Ersk. i. 6. 31; Fraser, 952.)

171. If a deed between husband and wife do not contain the recital of an onerous cause of granting, it is presumed to be a donation. (Bell's Prin. 1616.) This presumption, however, may be redargued by contrary proof, and its only effect is in fixing the burden of proof upon the party against whom it bears. (Fraser, 925.) Should it appear that a provision and not a donation was truly intended, the provision should be allowed to stand, being liable to be reduced only quoad excessum. In a question between the donee and the donor's creditors, however, a provision to the wife could scarcely be allowed to take effect during the subsistence of the marriage, since the husband is bound by law to support her. (Dunlop, 1867, 5 M. H. L. 22.

172. The renunciation of the jus mariti without onerous cause is a donation which the husband will be entitled to revoke. (Fraser, 932.)

173. A donation will be tacitly revoked by the donor doing anything which is plainly inconsistent with its continuance in the hands of the donee; but revocation will not be inferred from a voluntary, or even a judicial separation, between the (Ib. 951.) Revocation is barred by divorce for adultery. (Bell's Prin. 1619.)

spouses.

174. The predecease of the donee does not effect a revocation of the gift, which passes to his heir; but no length of enjoyment by the heir will, in the case of heritage, deprive the donor of his right of revocation. (Fraser, 952.) A third party

acquiring from the donee by a singular and onerous title, would be protected from revocation.

175. A general conveyance of property does not infer a tacit. revocation. (Ib. 953.) Ratification by the wife does not render a donation by her to the husband irrevocable. (Ersk. i. 6. 35; Bell's Prin. 1619.)

XI. DISSOLUTION OF MARRIAGE.

176. Marriage is dissolved in two ways: by death, and by divorce.

1. Death.

177. Where the marriage is dissolved by the death of either of the spouses, the other is at liberty to marry again immediately, there being no "year of grief" imposed on the widow by the law of Scotland, as there was by the law of Rome. (Dig. iii. 2. 1; Code 5. 9. 1 and 3; Lord Mackenzie, in M'Grigor v. M'Grigor's Trustees, March 2, 1839, F. C.)

178. If the widow is pregnant, or affects to be so, in circumstances such as to give rise to a reasonable suspicion that a supposititious heir is about to be palmed off as the issue of the deceased husband, it is said that a medical examination will be ordered on application to the Court of Session. (Ross v. Gray, M. 16,455 (1699); and other authorities cited by Fraser, Parent and Child, 2.)

179. The widow is entitled to aliment from the husband's representatives till the first term of Martinmas or Whitsunday after his death. The principle of this rule is, that the law holds. the husband's domestic establishment not to be broken up till the term following his death, and the wife receives aliment on what may be regarded as a fiction of his continued existence.

180. The widow's mournings are included in the provision to

which she is thus entitled; and being part of her husband's funeral expenses, they are preferable even to the debts of creditors. (Sheddan v. Gibson, May 15, 1802.)

181. The claim for aliment on the part of the widow does not possess a preference over the claims of the husband's creditors, and cannot compete with them. (Bell's Com. 634; Fraser, H and W. 966; Buchanan v. Ferrier, Feb. 14, 1822.)

182. It will not be invalidated by the fact that the wife possesses separate property of her own. (Ib.)

183. It was till recently the rule in Scotland, that if the marriage were dissolved within year and day, without the birth of a living child, it should not be regarded as a completed contract, and that the parties should stand, as regarded their interests in each other's estates, on the same footing in all respects as if no marriage had ever taken place. We have already mentioned (ante, sec. 112), that, in so far as moveable property is concerned, this rule has been altered by a recent statute. Though the subject is not free from doubt, there seems reason to believe that the 7th section of the statute referred to (18 and 19 Vict. c. 23) is general in its application, and consequently that the old law is altered as to heritage also. (Fraser, 1083.)

184. The surviving spouse is entitled to certain provisions both from the heritable and moveable property of the predeceaser.

185. Terce is a liferent accruing to the widow in one-third of the heritage in which the husband died infeft as of fee, not merely nominally or in trust. (Ersk. ii. 9. 44; Reg. Maj. lib. ii. c. 16, sec. 5.) It corresponds to the English dower, and, like it, is of "reverend antiquity." (See the history of terce well given in Fraser, 1079. It originated in a Teutonic, not a Roman custom.)

186. If a special provision has been granted to the wife, either by ante-nuptial or post-nuptial settlement, or by any other