Scottish Court of Session Decisions

In December 1885 the firm of Duncan M'Lean & Sons, wholesale provision merchants, Glasgow, finding themselves in financial difficulties, convened a meeting of their creditors, and offered them a composition of 8s. in the pound, payable by four instalments of 2s. 6d. at two months, 2s. 6d. at four months, 2s. 6d. at six months, and the remaining 6d. at eight months. Mrs M'Lean, the wife of Duncan M'Lean, apartner of the firm, signed promissory-notes along with the firm for the third instalment. The creditors, amongst whom were Angus Brothers, produce merchants in Glasgow, accepted the offer. The firm thereafter resumed business, but in March 1886 they were obliged to stop payment, and sequestration was awarded on 19th March. The promissory-note granted to Angus Brothers became due on 17th July 1886, when Angus Brothers caused it to be protested for non-payment, recorded the protest, and gave Mrs M'Lean a charge thereon.

Mrs M'lean brought this suspension of the charge for payment on the following ground, which was thus stated in her second plea-in-law—“The complainer as a married woman could not validly sign the promissory-note charged on, and the charge ought therefore to be suspended.”

The respondents pleaded—“(2) The said Mrs M'Lean being possessed of means and estate exclusive of the jus mariti and right of administration of her husband at the date of granting said promissory-note and now, the said promissory—note constitutes a valid obligation against her and her estate.”

The Married Women's Property (Scotland) Act 1881 (40 and 41 Vict. c. 29), by section 1, sub-section 2, enacts—“Any income of such estate” ( i.e., the whole moveable or personal estate of a wife married after the date of the Act) “shall be payable to the wife on her individual receipt or to her order, and to this extent the husband's right of administration shall be excluded, but the wife shall not be entitled to assign the prospective income thereof, or, unless with the husband's consent, to dispose of such estate.” Section 2 enacts—“Where a marriage is contracted after the passing of this Act, the rents and produce of heritable property in Scotland belonging to the wife shall no longer be subject to the jus mariti and right of administration of the husband.” Section 8 enacts—“This Act shall not affect 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 recited Act.”

The Bills of Exchange Act 1882 (45 and 46 Vict. c. 61), section 22 (1) enacts—“Capacity to incur liability as a party to a bill is co-extensive with capacity to contract.”