faries of Edinburgh; but that practice is now in difufe.

25. The commiffaries retain to this day an exclufive power in judging of declarators of marriage, and of the nullity of marriage; in actions of divorce and of non-adherence; of adultery, baftardy, and confirmation of teftaments; because all thefe matters are still confidered to be properly confiftorial. Inferior commiffaries are not competent to queftions of divorce, under which are comprehended queftions of bastardy and adherence, when they have a connection with the lawfulness of marriage, or with adultery.

26. Commiffaries have now no power to pronounce decrees in absence for any fum above L.40 Scots, except in caufes properly confiftorial; but they may authenticate tutorial and curatorial inventories; and all bonds, contracts, &c. which contain a claufe for registration in the books of any judge competent, and protests on bills, may be registered in their books.

SECT. V. Of MARRIAGE.

I. PERSONS, when confidered in a private capacity, are chiefly diftinguifhed by their mutual relations; as hufband and wife, tutor and minor, father and child, master and fervant. The relation of husband and wife is constituted by marriage; which is the conjunction of man and wife, vowing to live infeparably till death.

2. MARRIACE is truly a contract, and fo requires the confent of parties. Idiots, therefore, and furious perfons, cannot marry. As no perfon is prefumed capable of confent within the years of pupillarity, which, by our law, lafts till the age of 14 in males, and 12 in females, marriage cannot be contracted by pupils; but if the married pair fhall cohabit after puberty, fuch acquiefcence gives force to the marriage. Marriage is fully perfected by confent, which founds all the conjugal rights and duties. The confent requifite to marriage must be de præfenti.

3. It is not necessary that marriage should be celebrated by a clergyman. The consent of parties may be declared before any magiftrate, or fimply before witneffes, which, if copula follows, constitutes a marriage; and though no formal confent should appear, marriage is prefumed from the cohabitation, or living together at bed and board, of a man and woman who are generally reputed husband and wife. A man's acknowledgment of his marriage to the midwife whom he called to his wife, and to the minifter who baptized his child, was found fufficient prefumptive evidence of marriage, without the aid either of cohabitation, or of habite and repute. Children may enter into marriage, not only without the knowledge, but even against the remonftrances of a father.

4. Marriage is forbidden within certain degrees of blood. By the law of Mofes (Leviticus xviii.), which, by the act 1567, c. 15, has been adopted by us, cousins-ge:man, and all remoter degrees, may lawfully marry. Marriage in the direct line is forbidden in infinitum. Marriage alfo, where either of the parties is naturally unfit for generation, or ftands already married to a third perfon, is ipfo jure null.

5. To prevent bigamy and incestuous marriages, the church has introduced proclamation of banns, that all perfons who know any objection to the marriage may offer it. When the order of the church is obferved, the marriage is called regular; when otherwife, clandeftine. Marriage is valid, when entered into in either of these ways; but when clandeftine, there are certain penalties impofed upon the parties, as well as on the celebrator and witneffes.

6. By marriage, a fociety is created between the married pair, which draws after it a mutual communication of their civil interests, in as far as is neceffary for maintaining it. As the fociety lafts only for the joint lives of the focii; therefore rights that have the nature of a perpetuity, which our law ftyles heritable, are not brought under the partnership or communion of goods; as a land eftate, or bonds bearing a yearly intereft: It is only moveable fubjects, or the fruits produced by heritable fubjects during the marriage,' that become common to man and wife.

7. The husband, as the head of the wife, has the fole right of managing the goods in communion, which is called JUS MARITI. This right is fo abfolute, that it bears but little resemblance to a right of adminiftering a common fubject. For the husband can, in virtue thereof, fell, or even gift, at his pleasure, the whole goods falling under communion; and his creditors may affect them for the payment of his proper debts; fo that the jus mariti carries all the characters of an affignation, by the wife to her husband, of her moveable eftate. It arifes ipfo jure from the marriage; and therefore needs no other conftitution. But a ftranger may convey an eftate to a wife, fo as it shall not be fubject to the husband's adminif tration; or the husband himself may, in the marrage contract, renounce his jus mariti in all or any part of his wife's moveable estate.

8. From this right are excepted paraphernal goods, which, as the word is understood in our law, comprehends the wife's wearing apparel, and the ornaments to her proper person; as necklaces, ear-rings, breaft or arm jewels, buckles, &c. Thefe are neither alienable by the hufband, nor affectable by his creditors. Things of promifcuous ufe to husband and wife, as plate, medals, &c. may be come paraphernal, by the husband's giving them to the wife, at or before marriage; but they are paraphernal only in regard to that hufband who gave them as fuch, and are efteemed common moveables, if the wife, whofe paraphernalia they were, be afterwards married to a 2d husband; unless he fhall in the fame manner appropriate them to her.

9. The right of the hufband to the wife's moveable eftate, is burdened with the moveable debts contracted by her before marriage; and as his right is univerfal, fo alfo is his burden; for it reaches to her whole moveable debts, though they fhould far exceed her moveable eftate. Yet the husband is not confidered as the true debtor in his wife's debts. In all actions for payment, he is the proper defender: The husband is only cited for his intereft, that is, as curator to her, and adminiftrator of the fociety goods. As foon therefore as the marriage is diffolved, and the fo

fhare of the goods in communion. A wife can lawfully oblige herself in relation to her heritable eftate, with confent of her husband. A hufband, though he be curator to his wife, can, by his acceptance or intervention, authorise rights granted by her in his own favour.

18. All donations, whether by the wife to the husband, or by the husband to the wife, are revocable by the donor; but if the donor dies without revocation, the right becomes abfolute. A grant made by the husband, in confequence of the natural obligation that lies upon him to prowide for his wife, is not irrevocable, unlefs in fo far as it exceeds the measure of a rational fettlement; neither are remuneratory grants revocable, where mutual grants are made in confideration of each other, except where an onerous caufe is fimulated.` All voluntary contracts of feparation, by which the wife is provided in an yearly alimony, are effectual as to the time past, but revocable either by the husband or wife.

19. As wives are in the strongest degree subject to the influence of their husbands, third parties, in whofe favours they had made grants, were frequently vexed with actions of reduction, as if the grant had been extorted from the wife through the force or fear of the hufband. To fecure the grantees against this danger, ratifications were in troduced, whereby the wife, appearing before a judge, declares upon oath, her husband not prefent, that she was not induced to grant the deed ex vi aut metu. A wife's ratification is not absolutely neceffary for fecuring the grantee: Law indeed allows the wife to bring reduction of any deed he has not ratified, upon the head of force or fear; of which, if the bring fufficient evidence, the deed will be fet afide; but if fhe fails in the proof, it will remain effectual to the receiver.

20. Marriage, by the law of Scotland, cannot be diffolved till death, except by divorce, proceeding either upon account of adultery, or of wilful desertion.

21. Marriage is dissolved by death, either with in year and day from its being contracted, or after year and day. If it is diffolved within year and day, all rights granted in confideration of the marriage (unless guarded against in the contract) become void, and things return to the fame condition in which they food before the marriage; with this reftriction, that the husband is confidered as a bona fide possessor, in relation to what he has confumed upon the faith of his right; but he is liable to repay the tocher, without any deduction in confideration of his family expente during the marriage. If things cannot be reflored on both fides, equity hinders the restoring of one party and not the other. In a cafe, which was, a few years ago, before the court of feflion, it was de termined, after a long hearing in prefence, that where a marriage had been dulolved within the year without a living child, by the death of the hufband, the widow was entitled to be alimented out of an estate of which he died possessed, though there were no conventional provifions ftipulated in favour of the wife.

22. Upon the diffolution of a marriage, after year and day, the furviving husband becomes the irrevocable proprietor of the tocher; and the wife,

where the furvives, is entitled to her jointure, or to her legal provifions. She has also right to mournings, fuitable to the husband's quality; and to alimony from the day of his death till the term at which her life-rent provifion, either legal or conventional, commences. If a living child be procreated of the marriage, the marriage has the fame effect as if it had fubfifted beyond the year. A day is adjected to the year, in majorem evidentiam, that it may clearly appear that the year itself is elapfed; and therefore, the running of any part of the day after the year has the fame effect as if the whole were elapfed. The legal right of courtesy competent to the furviving husband is explained below; CHAP. II. SECT. IX. § 28.

23. DIVORCE is fuch a feparation of married perfons during their lives, as looses them from the nuptial tie, and leaves them at freedom to intermarry with others. But neither adultery, nor wilful defertion, are grounds which must neceffarily diffolve marriage; they are only handles, which the injured party may take hold of to be free. In the cafe of divorce upon adultery, marriage is, by a special statute (1600, c. 20), prohibited betwixt the two adulterers.

24. Where either party has deferted from the other for four years together, that other may fue for adherence. If this has no effect, the church is to proceed, firft by admonition, then by excommunication; all which previous fteps are declared to be a fufficient ground for purfuing a divorce. De praxi, the commiffaries pronounce fentence in the adherence, after one year's defertion; but four years must intervene between the first desertion and the decree of divorce.

25. Te legal effects of divorce on the head of desertion are, that the offending husband fhall reftore the tocher, and forfeit to the wife all her provifions, legal and conventional; and, on the other hand, the offending wife fhall forfeit to the husband her tocher, and all the rights that would have belonged to her in the cafe of her survivar ce. This was also esteemed the rule in divorces upon adultery. But by a decifion of the court of fef. fion, in 1762, founded on a tract of ancient deci. fions recovered from the records, the offending husband was allowed to retain the tocher! SECT. VI. Of MINORS, and their TUTORS and

CURATORS.

1. THE ftages of life principally distinguished in law are, pupillarity, puberty, or minority, and majority. A child is under pupillarity, from the birth to 14 years of age if a male, and till 12 if a female. Minority begins where pupillarity ends, and continues till majority; which, by the law of Scotland, is the age of 21 years complete, both in males and females; but minority, in a large fenfe, includes all under age, whether pupils or puberes. Because pupils cannot in any degree act for themselves, and minors feldom with discretion, pupils are put by law under the power of tutors, and minors may put themfelves under the direction of curators. Tutory is a power and faculty to govern the person, and administer the estate, of a pupil. Tutors are either nominate of law or dative.

the nature of their trust, authorise the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's eftate; and where a tutor or curator makes fuch acquifition, in his own name, for a lefs fum than the right is entitled to draw, the benefit thereof accrues to the minor. It seems, however, that fuch purchafe would be confidered as valid, provided it were bona fide acquired at a public fale; for in fuch cafe the tutor or curator is in fact meliorating the fituation of his ward by enhancing the value of his property by a fair competition. In general, it feems to be the genius and fpirit of our law, that tutors and curators fhall do every thing in their power towards the faithful and proper difcharge of their refpective offices.

12. Perfons named to the offices of tutory or curatory, may either accept or decline: and where a father, in liege pouftie (when in a state of health), names certain perfons both as tutors and curators to his children, though they have acted as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the confequences of their neglect in any part of their duty from the time of their acceptance. They are accountable finguli in folidum, i. e. every one of them is anfwerable, not only for his own diligence, but for that of his cotutors; and any one may be fued without citing the reft; but he who is condemned in the whole, Las action of relief against his co-tutors.

13. From this obligation to diligence, are excepted, 1. Fathers or adminiftrators in law, who, from the prefumption that they act to the best of their power for their children, are liable only for actual intromiffions. 2. Tutors and curators named by the father in confequence of the act 1696, with the fpecial provifos, that they fhall be liable barely for intromiffions, not for omiffions; and that each of them fhall be liable only for himfelf, and not in folidum for the co-tutors; but this power of exemption from diligence is limited to the estate descending from the father himself. Tutors or curators are not entitled to any falary or allowance for pains, unless a falary has been exprefsly contained in the teftator's nomination; for their office is prefumed to be gratuitous.

14. Though no perfon is obliged to accept the office of tutor or curator, yet having once accep. ned, he cannot throw it up, or renounce it, without fufficient caufe; but, if he fhould be guilty of mifapplying the minor's money, or fail in any other part of his duty, he may be removed at the fuit of the minor's next in kin, or by a co-tutor or co-curator. Where the mifconduct proceeds merely from indolence or inattention, the court, in place of removing the tutor, either join a curator with him, or, if he be a tutor nominate, they oblige him to give caution for his paft and future management.

15. The offices of tutory and curatory expire alfo by the pupil's attaining the age of puberty, or the minor's attaining the age of 21 years complete; and by the death either of the minor, or of his tutor and curator. Curatory alfo expires by the marriage of a female minor, who becomes thereby under the coverture of her own husband.

After expiry of the office, reciprocal actions lie at the inftance both of the tutors and curators, and of the minor. That at the inftance of the minor is called actio tutela direča, by which he can com pel the tutors to account; that at the instance of the tutors, actio tutela contraria, by which the minor can be compelled to repeat what has been profitably expended during the adminiftration; but this laft does not lie till after accounting to the minor; for till then the tutors are prefumed intus habere, to have effects in their own hands for answering their disburments.

16. Deeds either by pupils, or by minors having curators, without their confent, are null; but they oblige the granters, in as far as relates to fums profitably applied to their ufe. A minor under curators can indeed make a teftament by himself; but whatever is executed in the form of a deed inter vivos, requires the curator's confent. Deeds by a minor who has no curators, are as effectual as if he had had curators, and figned them with their consent; he may even alienate his heritage, without the interpofition of a judge.

17. Minors may be reftored against all deeds granted in their minority, that are hurtful to them. Deeds, in themfelves void, need not the remedy of reftitution; but where hurtful deeds are granted by a tutor in his pupil's affairs, or by a minor who has no curators, as thefe deeds fubfift in law, reftitution is neceffary; and even where a minor, having curators, executes a deed hurtful to himself with their confent, he has not only action against the curators, but he has the benefit of reftitution against the deed itself. The minor cannot be reftored, if he does not raife and execute a fummons for reducing the deed, ex capite minorennitatis et læfionis, before he be 25 years old. Thefe 4 years, between the age of 21 and 25, called quadriennium utile, are indulged to the minor, that he may have reasonable time, from that period when he is first prefumed to have the perfect ufe of his reafon, to confider with himself what deeds done in his minority have been truly prejudicial to him.

18. Queftions of reftitution are proper to the court of feffion. Two things must be proved by the minor, in order to reduce the deed: 1. That he was minor when it was figned; 2. That he is hurt or lefed by the deed. This lefion muft not proceed merely from accident; for the privilege of reftitution was not intended to exempt minors from the common misfortunes of life. It must be owing to the imprudence or negligence of the minor or his curator.

19. A minor cannot be restored against his own delict or fraud; e. g. 1. If he fhould induce one to bargain with him by faying he was major. 2. Reftitution is excluded, if the minor, at any time after majority, has approved of the deed, either by a formal ratification, or tacitly by payment of intereft, or by other acts inferring approbation 3. A minor, who has taken himself to bufinefs, as a merchant, fhopkeeper, &c. cannot be restored against any deed granted by him in the course of that bufinefs, efpecially if he was proximus majorennitati at figning the deed. 4. According to the more common opinion, a minor cannot be restored in a question against a minor, un

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