LAW LIBRARY. BOOK NOTICE. The Trial of the Wainwrights. Edited by H. B. & Co. Ltd. Price 10s. 6d. net. This volume-the latest of the publishers' Notable Trial Series-has the special interest instalment of Mr W. G. M. Dobie's series of articles on "Law and Lawyers in the Waverley Novels." The mine of material for these articles has been well worked by the author, and he makes his contributions no less interesting than informative. Mr Roughead concludes his series of articles on poisoning cases tried in Scotland with one in which he discusses such well-known trials as those of Madeleine Smith, Pritchard, and Chantrelle. The comments of recent decisions deal in this number with many which are of great interest both here and in England. Scots Digest; October 1918 to July 1919. By William Dunbar, Advocate, Sheriff-Substitute at Stornoway. Edinburgh: W. Green & Son Ltd. Of a digest of case law the desiderata are that it appear with promptness and that it be accurate. In the former respect Mr Dunbar and the publishers are to be congratulated. In the latter the test will be found in daily use; but the careful work proved by this test in the case of earlier volumes will, we are confident, be found in Mr Dunbar's labours in this latest number. that it contains the last work of the late Mr The Evolution of Parliament. By A. F. Pollard, It is long since the student of constitutional history has been treated to a work on the British Constitution so fresh in its outlook and so unconventional in its attitude as this new volume from the pen of Dr Pollard. Iconoclastic in his attitude to time-worn theories and the conventional commonplaces of our college days, the author faces the difficult task of tracing the true history of the development of our Parliamentary institutions without accepting any traditional view, without examination and adopting no recognised theory until tested by the evidences. "The Myth of the Three Estates," "The Fiction of the Peerage”—such are the suggestive titles of two of his chapters. It would be beyond the scope of a short notice to consider how far the writer has succeeded in establishing his views; but the student of the subject and the general reader will find the whole work suggestive and readable. Pollard has in his last chapters some interesting reflections on how far the plasticity of our parliamentary institutions may be still sufficient to meet the developing demands of the future, and his outlook, though critical, is on the whole optimistic. Dr Committee, and the Managers of Chalmers THE LATE MR DUGALD MACLACHLAN, B L., Hospital. In all these capacities he has con WRITER, GLASGOW. We regret to record the death of Mr Dugald MacLachlan, which occurred suddenly in Glasgow last month. tinually, zealously, and with conspicuous success worked for the benefit of the Faculty; and in important incidental matters concerning the Faculty and in questions affecting individual members his ever-ready advice and assistance have been invaluable. For all these services the Faculty desire to express their grateful thanks, and they instruct the clerk to forward to Mr Fleming an excerpt from the minutes Mr MacLachlan, who was the third son of the late John MacLachlan, Kilmory, Ardnamurchan, was born there sixty-eight years ago, and his first legal experience was gained in the office of the late Mr MacLachlan, Tobermory. Subsequently he went to Glasgow and obtained the containing a copy of this resolution." degree of B.L. at Glasgow University. He began business on his own account in the year 1885 and soon established a reputation as a sound and capable lawyer, a feature of his business being a large Sheriff Court practice. In addition to the confidence of his professional brethren in his knowledge of the law, he had the confidence of a large circle of clients, by whom his death will be much deplored. For many years Mr MacLachlan was a member of the Faculty of Procurators of Glasgow, secretary and treasurer of St Columba Church, and honorary secretary and treasurer of the Glasgow Argyllshire Society. His interest in the Highlands and Highlanders was exemplified by his position as a director of the Highland Society. He is survived by his wife and a daughter. FACULTY OF ADVOCATES.-At a meeting of the Faculty of Advocates held on 11th January, the Dean (Mr A. H. B. Constable) presiding, the following resolution was unanimously adopted: "The Faculty have received with profound regret an intimation from Mr James Alexander Fleming, K.C., of his resignation of the office of Vice-Dean. For fifteen years Mr Fleming has unreservedly given his time and his outstanding business abilities to the management of the Faculty's affairs. During that period he has been chairman of the Standing Committees through which the affairs of the Faculty are mainly administeredthe Curators of the Library, the Session Cases SHERIFF-SUBSTITUTE CHANGES.-It is officially announced that, in view of retirement of Mr D. J. Mackenzie, advocate, Mr P. J. Blair, advocate, has been transferred from Paisley to Glasgow, Mr J. A. Welsh, advocate, from Greenock to Paisley, and Mr J. S. Mercer, advocate, from Kirkwall to Greenock. THE VICEROY OF INDIA. -The Scottish Bar and legal profession will observe with interest and pleasure the acceptance by the Earl of Reading, Lord Chief Justice of England, of the appointment of the post of Viceroy of India, which has just been announced. Lord Justice Reading's distinguished career is known more or less familiarly to all. An interesting ceremony took place on Wednesday last in the Lord Chief Justice's Court, when congratulations were offered to him by the Bar on his appointment as Viceroy. A congratulatory speech was made by the Attorney-General, Sir Gordon Hewart, K.C., M.P., and there was a large attendance of the Senior and Junior Bar. THE MARRIED WOMEN'S PROPERTY (SCOTLAND) ACT 1920. By W. M. GLOAG, Esq., K.C., LL.D., Professor of Law in the University of Glasgow. (Continued from p. 5.) The provision that a married woman shall be capable of suing and being sued, as if she was not married, relegates to history the somewhat technical rules which determined whether the consent and concurrence of the husband were necessary. It has been the practice, in cases where a married woman was entitled to sue without concurrence, and even where the jus mariti and jus administrationis of the husband were both excluded, to appoint a curator ad litem. But there was no absolute rule that such an appointment was necessary in Smith v. Turnbull (1894, 2 S.L.T. 354) a married woman was allowed to sue alone, and there seems no reason to suppose, under the very wide terms of section 3, that a defender would now be entitled to insist either on the consent and concurrence of the husband, or on the appointment of a curator ad litem. It may be presumed that in future a husband will not be a consenting party to an action at the instance of his wife. But this will not necessarily save him, if the action prove unsuccessful, from a decree finding him jointly and severally liable in expenses. In M'Ilwaine v. Stewart's Trs. (1914 S.C. 924) a married woman, with the consent and concurrence of her husband, brought an action of damages for personal injuries. She was unsuccessful, and decree for expenses was pronounced against the husband jointly and severally with her. It was expressly pointed out that the ground of his liability was not his consent and concurrence, but that he had taken an active and prominent part in the litigation, and had appeared as a witness on his wife's behalf. It may be suggested that this case, which appears to add a new page, applicable to husbands only, to the law of dominus litis, deserves reconsideration under the new law. Could a wife, who in similar circumstances appeared as a witness in an action of damages at the instance of her husband, be found liable in expenses? The provision that a husband shall not be liable in respect of any contract his wife may enter into or obligation she may incur on her own behalf seems to express the existing law on the subject. At common law a husband incurred no general liability for his wife's contracts or obligations, although entered into with his consent and concurrence, and although, as personal obligations, they were not binding on her. In Lennox v. Auchincloss (1821, 1 S. 22) a married woman had granted a cautionary obligation for furnishings supplied to her son, and her husband had expressed his consent. It was held that the obligation could not be enforced against either, and the case, in so far as it excluded the liability of the husband, has been accepted as settling the law. When the parties are living together, and the wife orders goods as præposita in rebus domesticis, the husband is liable to pay for them, on the ground that she is acting as his agent, and that he therefore incurs the ordinary liability of a principal for whom an agent acts; but this rule-which, it is conceived, is not affected by the new Act-depends either on proof of express authority, on authority implied by a course of dealing, or on the ground that the goods supplied were necessaries which the husband was bound to furnish. It does not involve any general right in a wife to pledge her husband's credit. In Debenham v. Mellon (1880, 6 A.C. 24) the wife of an hotel-keeper ordered clothes, which were suitable to the condition in which the parties lived. There had been no previous course of dealing, and an action against the husband failed, on proof that he had forbidden his wife to pledge his credit, and was ready to fulfil his obligation to supply her with necessary clothing. A similar decision was given in Morel v. Earl of Westmoreland ([1904] A.C. 11), when a husband, who had given his wife an adequate allowance for the upkeep of the household, was held not to be liable to a tradesman with whom she had attempted to pledge his credit. The provision as to the non-liability of a husband on his wife's contracts may, however, supply an answer to the question, considered open to doubt by Mr Walton ("Husband and Wife,” p. 242), whether a husband is liable as a contributory in respect of shares in a company in which his wife's separate property is invested. The Companies (Consolidation) Act 1908 contains no express provision on the subject, except (section 128) that he is liable when the marriage took place before 18th July 1881, and the shares were held by the wife before that date. The lapse of time has rendered the occurrence of a case of this kind exceedingly improbable; in other cases it would seem clear that the husband now incurs no liability, as a contract to take shares is undoubtedly an obligation incurred by the wife on her own behalf. It may be assumed that a married woman who, as such, orders goods for the household incurs no personal liability. It may be more doubtful whether she is personally liable if, though in fact acting with her husband's authority, she contracts ostensibly on her own behalf. In Paquin v. Beauclerk ([1906] A.C. 148) the decision turned on the construction of a section in the Married Women's Property Act 1907 (56 & 57 Vict. cap. 63)—a statute which is not applicable to Scotland-by which a married woman binds her separate estate when she contracts "otherwise than as agent." The Court of Appeal held that if a wife who had ordered goods could prove that she had done so with her husband's authority there was no case against her, and that it was immaterial whether the tradesman knew that she was a married woman or not. The case was appealed, and, as the judges in the House of Lords were equally divided in opinion, the decision of the Court of Appeal was sustained. The two dissenting judges (Lords Robertson and Atkinson) took the view, on the general principles of the law of agency, that if a married woman bought goods ostensibly on her own behalf, and was not known to be married and living with her husband, she bound her separate estate, even although her husband might also be liable, on the ground that he had authorised her purchase. In applying this decision to the provisions of section 3 (1) it must be noted that the qualification "otherwise than as agent" is not to be found in the new Act. A married woman is declared to be capable of incurring obligations "as if she were not married"; and there can be no doubt that an unmarried woman, employed as a housekeeper, but ordering goods without disclosing her position, would render herself personally liable even although she was in truth acting with the authority of her employer. Section 3, subsection (2), deals with the case where a married woman is living "apart from or deserted by " her husband, and enacts that, in entering into any contract for the supply of goods or furnishings for herself or for her children, she shall be deemed to bind her own estate in the same way as if she were unmarried, without prejudice to the right of the person who supplied such goods or furnishings to recover the price thereof from the husband, if he shall be liable therefor in accordance with the present law. Though the point was perhaps not absolutely settled there is the concurrent authority of Erskine (I. vi. 25) and Lord Fraser ("Husband and Wife," 2nd ed., I. 553) for the statement that at common law a wife living apart from her husband bound her separate estate for furnishing supplied for her own use, though not for furnishings supplied for the use of her children. The husband was (and remains) liable if she were living apart from him with his consent, or by his fault, and he did not make her an adequate allowance. He was not liable if the wife was in desertion. Section 4 lays on a married woman, if possessed of separate estate, or a separate income more than reasonably sufficient for her own maintenance, the obligation to maintain her husband if unable to maintain himself, or to contribute towards his maintenance, in the same way and to the same extent as he is under the existing law liable to maintain her. Though this was regarded by Lord Fraser ("Husband and Wife," I., 837), as a doubtful point, it is probable that there was no such obligation on a married woman before the Act. In Fingzies v. Fingzies (28 S.L.R. 6) Lord Kyllachy held that a father, who had contributed to the support of his son, could not recover anything from the son's wife, and expressed the opinion that a married woman, though possessed of separate estate, was not in any way bound to aliment her husband. It may be noted that the new provision, which renders a wife liable to aliment her husband in a question with the husband himself, or with his other relatives, goes further than the law of England, by which, under section 20 of the Married Women's Property Act 1882, her liability only arises in a question with the poor law authorities. The only remaining enactment of importance, with the exception of a general proviso that antenuptial marriage contracts are to be in no way affected, abrogates the rule, derived from the civil law and unknown to the law of England, that donations between husband and wife-inter virum et uxorem-are revocable by the donor or by his or her creditors. The Act provides (section 5): Donations inter virum et uxorem shall be irrevocable by the donor: provided that (a) this enactment shall not take effect as regards donations made or granted before the passing of this Act until the expiry of one year from and after that date; (b) any donation completed within a year and a day before the sequestration of the estate of the donor under the Bankruptcy (Scotland) Act 1913, or any amending statute, shall be revocable at the instance of the creditors of each donor. By section 7 (2) this rule applies to all estates situated in Scotland, and by the law of Scotland heritable as between husband and wife, although the donor of such estate shall be domiciled furth of Scotland. It is not to be inferred that this enactment will make it possible for a man, knowing or suspecting himself to be insolvent, to convey all his available assets to his wife, and then, provided that he can stave off bankruptcy for a year and a day, to snap his fingers at his creditors. The plea that the conveyance was revocable by him, and therefore revocable by his creditors, will indeed no longer be open, but that plea does not exhaust the resources of legal civilization. The creditors' attack will be based on the Act 1621, cap. 18, striking at dispositions in favour of conjunct and confident persons, without true, just, and necessary cause, and the onus will then lie on the wife to prove that the husband was solvent at the date of his conveyance to her. But a man who is solvent, and about to engage in some hazardous enterprise, may attempt to provide for the future by assigning the bulk of his resources to his wife, and it is very doubtful whether there is now any legal obstacle to the success of such a scheme. In Pringle's Tr. v. Wright (1903 5 F. 522) it was found that the bankruptcy laws did not touch obligations by the bankrupt in favour of his daughter, and followed by payment within sixty days of his bankruptcy. Possibly the common law doctrine of reputed ownership, if it have survived the decision in Thomson v. Scoular (1882, 9 R. 430), may in certain cases be invoked. Does the new Act, excluding the revocation of donations between husband and wife, leave any distinction of importance between the legal effects of antenuptial and postnuptial marriage contracts? The ground on which it has hitherto been held, in such cases as Shearer v. Christie (1842, 5 D. 132) and Dunlop v. Johnston (1867, 5 M. (H.L.) 22) that provisions by one spouse in favour of the other in a postnuptial marriage contract (unless they could be regarded as reasonable provisions for the wife in the event of her survivance) were ineffectual in a question with creditors has always been that such contracts were in effect donations inter virum et uxorem, and therefore revocable. The same principle has been applied in cases-e.g. Thomson v. Thomson (1838, 16 S. 641)-where a wife has been held entitled to be restored against the postnuptial renunciation of her rights under an antenuptial marriage contract, or the interest which the law secures to her in her husband's succession. The provisions in these cases, had they been made by antenuptial contract, would have been valid and effectual; as made by a postnuptial deed, they were held to be ineffectual on the ground that they were in substance donations. As that ground of judgment is no longer tenable it will probably have to be decided whether there is any other legal principle on which the distinction between the legal effects of an antenuptial and a postnuptial marriage contract, either in a question with creditors or between the parties themselves, can be rested. In concluding this survey of the new Act, one may be permitted to applaud the achievement, rare in modern times, of a statute which may be read without incessant reference to prior legislation. JOINT-STOCK COMPANIES IN SCOTLAND. The following joint-stock companies were registered in Scotland for week ending 7th January: 11553-Loudon Ltd., Motherwell (private company), to carry on the business of bakers and confectioners in Motherwell. Capital-£2000 in £1 shares. 11554-The British Brick Co. Ltd., 18 Duke Street, Edinburgh, to carry on the business of brick and tile making. Capital-£30,000 in 29,500 Ordinary shares of £1 each, and 10,000 Deferred shares of 1s. 11555-Mackay & Smith's Light Castings Ltd., Barrhead (private company), to acquire the business of iron-founders carried on by Mackay & Smith's Light Castings Co. at Barrhead. Capital-£2500 in £1 shares. 11556-John Paterson & Co. (Plumbers) Ltd. 33 Hutcheson Street, Glasgow (private company), to carry on the business of plumbers, gas fitters, tin, zinc, brass, copper, and other metal workers, electricians, etc. Capital-£10,000 in £1 shares. 11557-Caithness Talbot Ltd., 29 Robertson Street, Glasgow (private company), to carry on the business of sauce and pickle manufacturer and foreign produce importer now carried on by Caithness Talbot at above address. Capital-£20,000 in £1 shares. 11558--John Baird Ltd., 99 Milton Street, Glasgow (private company), to carry on the business of glass and glassware manufacturers, glaziers, glass cutters, etc. Capital-£50,000 in £1 shares. Vincent Street, Glasgow (private company), to carry 11559-Herbert Manford (Glasgow) Ltd., 59 St on the business of an investment company and to acquire and hold shares, stocks, debentures, etc. Capital-£500 in £1 shares. 11560-The Dispensary (Innerleithen) Ltd. (private company), to carry on business as chemists, druggists, etc. Capital-£300 in £1 shares. Subscribers-Dr Fairfax and Mrs Fairfax, Innerleithen. 11561-John Porter's Bakery Ltd., 2A Stanley Street, Govan, Glasgow (private company), to carry on business as bakers, confectioners, food specialists, corn merchants, etc. Capital-£2000 in £1 shares. 11562-Campbell, Russell & Wilson Ltd., 15 Gordon Street, Glasgow (private company), to carry on business as engineers, patternmakers, boilermakers, etc. Capital-£1000 in £1 shares. 11563-Robert Douglas Ltd., Bromknoll Street, Airdrie (private company), to carry on business as sculptors, stonecutters, and carvers, quarrymasters, builders, etc. Capital-£10,000 in £1 shares. 11564-The Nairn Fishing Co. Ltd., 10 Belmont Street, Aberdeen (private company), to take over the steam trawl fishing boat "Nairn." Capital-£6000 in £1 shares. Street, Edinburgh (private company). Capital11565-Coltbridge Bowling Club Ltd., 50 George £1000 in £1 shares. 11566-J. Hay & Sons Ltd., 58 Renfield Street, Glasgow (private company), to carry on the business of shipowners, etc. Capital-£250,000 in £1 shares. 11567-Hearnes Ltd., 48 Miller Street, Glasgow (private company), to carry on the business of enetc. Capital-£500 in £1 shares. gineers, patternmakers, boilermakers, millwrights, 11568-Welding Specialists Co. Ltd., 15 Stafford Street, Edinburgh (private company), to take over the welding business known as the Welding Specialists Co., Easter Road, Edinburgh. Capital-£3000 in £1 shares. 11569-T. & A. Constable Ltd., 11 Thistle Street, Edinburgh (private company), to take over and carry on the business of printers now carried on by Walter Biggar Blaikie and Robert Kilpatrick at 9 to 15 Thistle Street, Edinburgh, under the firm name of T. & A. Constable. Capital-£50,000 in £1 shares. 11570-The Brass and Malleable Metals Co. Ltd. (private company). Capital-£2000 in £1 shares. The subscribers' addresses are in Glasgow. |
