LAW. 



66$ 



t-i discover themselves even before marriage, upon the 



* publication of banns ; after which the bride, being no 



"~' ~~ longer tut juris, can contract no debt, nor do any deed 



either to the prejudice of her future husband, or even 



to lier own. But it is not enough for this purpose 



that the banns have been published at the bridegroom's 



parish-church ; the notification must be also made at 



the bride's, in order to interpel persons from contract. 



ing with her. 



Stpmtc ' ! If the husband should either withdraw from his 

 arnonjr of wife, or turn her out of doors, or if continuing in fa- 

 mily with IK r, he should by severe treatment endanger 

 her life, the commissaries will authorize a separation 

 a until et toro, and give a separate alimony to the 

 wife, suit iblc to her husband's estate, from the time of 

 uch separatum, until either a reconciliation or a sen- 

 tence of divorce. 



Wife i< 12. A wife, while she remains in family with her 



husband, is considered as prcepotita nrgotiu domesticis ; 

 and, ooosevniciitly, may provide things proper for the 

 family ; for the price whereof the husband is liable, 

 though they should be misapplied, or though the hus- 

 band hould have given her money to provide them 

 elsewhere. 



Inh:'.;tioo A husband who suspects that his wife may hurt his 

 *" fortune by hi^'h living, may u:,e the remedy of inhibi- 

 .igainst her. by which all persons are interpelled 

 from contracting with her, or giving her credit : Af- 

 ter the comp!' n diligence, whereby the /war- 

 fotitura falls, the wife cannot bind the husband, unless 

 for snch reasonable furni-hings as he cannot instruct 

 that he provided tier with aliumlr. A* every man, 

 and consequently every husband, has a right to re- 

 move his managers at pleasure, inhibition may pass at 

 the suit of the husband against the wife, though he 

 should not offer to justify that measure by an actual 

 proof of the extravagance or prufutcness of her temper, 

 if- IS. As to the rights granted by the wife affecting 

 her her estate; she has no moveable estate, except her 

 paraphernalia; and those she may alien or impigno 

 rate, with content of the husband as curator, oth< 

 not. She can even, without the husband, bequeath by 

 testament her share of the goods in communion ; but 

 she cannot dispose of them inter rirot, for she her-elf 

 has no proper right to them while the marriage sub- 

 i*T h*rlu- uts. A wife can law fully oblige herself, in relation to 

 bk niut. ^gg heritable estate, with consent of her husband ; for 

 though her person is in some sense sunk by the mar- 

 riage, she continues capable of holding a real estate; 

 and in such obligations, her estate is considered, and 

 not her person. A husband, though he is curator to 

 his wife, can, by his acceptance or intervention, au- 

 thorise rights granted by her in his own favour ; for a 

 husband's curatory if not intended only for the wile's 

 advantage, but u considered as a mutual benefit to 

 both. 



Diioliiii4 14. By the law of Scotland, agreeably to the rules of 



of nut. our holy religion, marriage cannot be dissolved till 



**** death, e\ ; roceeding either upi/n the 



head of adultery, Matth. xix. 8, 9. Mark x. 11. or of 



wilful desert vii. \~>. 



by dots 15. Marriage is dissolved by death, either within 



r r ' year and day of its being contracted, or after year and 

 Jay. |f it U dissolved within year and day, all rights 

 granted in comidtration of the ir come void, 



and things return to the same condition in which they 

 stood before the marriage. The tocher returns to the 

 * ife, or tlioie from whom it came ; and all the inter- 



est, either legal or conventional, arising to the wife in Law 

 the husband's estate, returns to the husband or his of Scotland. 



16. Upon the dissolution of a marriage after year and after year 

 day, the surviving husband becomes the irrevocable and da J" ; 

 proprietor of the tocher ; and the wife, where she sur- 

 vives, is entitled to her jointure, or to her legal provi- 

 sions of terce, and jus relictce. If a living child be pro- afterbirth 

 created of the marriage, who has been heard to cry, the of a living 

 marriage has the same effect as if it had subsisted be- chlld ' 

 yond the year. The disputes that might arise from the 

 dissolution of a marriage within the year, are generally 

 prevented by a clause in marriage-contracts, that the 

 interest of the husband and wife shall continue, though 

 the marriage should be dissolved sooner without a. liv- 

 ing child. 



17- Divorce is such a separation of married persons Dissolution 

 during their lives, as looses them from the nuptial tie, by divorce 

 and leaves them at freedom to intermarry with others. U P OI > adul- 

 Marriage being by the canonists numbered among the ter y* 

 sacraments, is reckoned a bond so sacred that nothing 

 can dissolve it. In the case of adultery itself, they al- 

 low only a separation from bed and board ; and even 

 by our law, neither adultery nor wilful desertion are 

 grounds which must necessarily dissolve marriage; they 

 .".re only handles, which the injured paity may take 

 hold of" to be free. Cohabitation, therefore, by the in- Divorce ex- 

 jured party, after being in the knowledge of the acts eluded by 

 of adultery, implies a passing from the injury; and cohabita- 

 no dnorce can proceed which is carried on by collu- tion altec 

 sion betwixt the parties, lest, contrary to the "first in- y< 



stitution of marriage, they might disengage themselves 

 by their own consent. As by divorce the nuptial tie 



- lim-ed, the guilty person as well as the innocent 

 may contract second marriages ; but in the case of di- 



1 1 pon adultery, marriage is by special statute pro- 

 hibited betwixt the two adulterers, 1600, c. 20, a doc- 

 trine borrowed from the Roman law. 



18. Where either party has deserted from the other Divorce 

 for four years together, that other may by 1573. c. 55, upon wilful 

 sue for adherence before the commissaries, whose de- desertion, 

 crec the session may enforce by letters of horning. If 



have no effect, the church is to proceed first by 

 admonition, then by excommunication ; all which pre- 



-teps are declared to be a sufficient ground for 

 pursuing a divorce. In practice, the commissaries pro- 

 nounce sentence in the adherence after one year's de- 

 sertion ; but four years must intervene between the 

 fir-t desertion and the decree of divorce. By the in- 

 structions, 1666, c. 2, the inferior commissaries can on- 

 Iv judge in the previous action of adherence; the di- 

 vorce must be carried before the commissaries of Edin- 

 burgh. 



1 ;i. The legal effects of divorce on the head ofdeser- its effects, 

 tion, are particularly defined by 1573, c. 55, by which 

 the party offending forfeits the tocher and the donct- 

 tiones propler nuptias, (as to which see Nov. 117- c. 8. 

 2.) By these, when applied to our law, must be un- 

 dcr-t'MHl the provisions that the wife is entitled to, ei- 

 ther by law or by paction, in consideration of the 

 toi-her ; and the inclining of the act is, that the offend- 

 in;: husband shall restore the tocher, and forfeit to the 



li her provisions, legal and conventional ; and on 

 the other hand, the offending wife shall forfeit to the 

 husband her tocher, and all the rights that would have 

 belonged to her in the case of her survivance. This, 

 Lord Stair, I. 4. 20, judges to be also the rule in di- 

 vorce upon adultery, as it was by the Roman law. But 





