Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

hufoatu!. To fecure the grantees againft this danger,
ratifications were introduced, whereby the wife, appear¬
ing before a judge, declares upon oath, her huftand not
prefent, that ihe was not induced to grant the deed tx
vi aut metu. A wife’s ratification is not abfolutely ne-
ceffary for fecuring the grantee: Law indeed allows the
wife to bring reduction of any deed Ihe has not ratified,
upon the head of force or fear ; of whLh, if Ihe brings
fufficient evidence, the deed will be fet afide ; but if Ihe
fails in the proof, it will remain efFeftual to the receiver.
20. Marriage, like other contracts, might, by the
Roman law, be diffolved by the contrary confent of par¬
ties ; but, by the law of Scotland, it cannot be diflblved
till death, except by divorce, proceeding either upon
the head of adultery, or of wilful defertion.
21. Marriage is difiblved by death, either within year
and day from its being contraffed, or after year and
day. If it is diflblved within year and day, all rights
granted in confideration of the marriage (unlefs guard ¬
ed againft in the contraft) become void, and things re¬
turn to the fame condition in which they flood before
the marriage ; with this reftri&ion, that the hufband is
confidered as a 6a»a fide poflefibr, 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 confidera¬
tion of his family expence during the marriage. If things
cannot be reftored on both fides, eqaity hinders the re-
ftoring of one party, and not the other.
22. Upon the diflblution of a marriage, after year and
day, the furviving hufband becomes the irrevocable pro¬
prietor of the tocher and the wife, where fhe furvives,
is intitled to her jointure, or to her legal provifions.
She has alfo right to mournings, fuitable to the hufband’s
quality ; and to alimony from the day of his death, till
the term at which her liferent provifion, either legal or
conventional, commences. If a living child be procrea¬
ted of the marriage, the marriage has the fame effetft as
if it had fubfifted beyond the year. A day is adjedted
to the year, in majorem evidentiant, that it may clearly
appear that the year itfelf 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 courte'y competent to the furviving hufband is ex¬
plained below, Tit. xvi 28.
23. Divorce is fuch a feparation of married perfons,
during their lives, as loofes them from the nuptial tie,
and leaves them at freedom to intermarry with others.
But neither adultery, nor wilful defertion, are grounds
which muft neceflarily diflblve marriage ; they are only
handles, which the injured party may take hold of, to
be free. Cohabitaition, therefore, by the injured party,
after being in the knowledge of the adts of adultery, im¬
plies a pafling from the injury ; and no divorce can pro¬
ceed, which is carried on by collufion betwixt the parties,
left, contrary to the firft inftitution of marriage, they
might difengage themfelves by their own confent : and
though after divorce, the guilty perfon, as well as the
innocent, may contradl fecond marriages; yet in the
cafe of divorce upon adultery, marriage is by fpecial fta-
tute prohibited betwixt the two adulterers.
54. Where either party has deferred from the other
W. 895
for four years together, that other may fue for adherence.
If this has no effedt, the church is to proceed, firft by
admonition, then by excommunication ; all which pre¬
vious fleps are declared to be a fufficient ground for pur-
fuing a divorce. De fraxi, the Commiflaries pronounce
fentence in the adherence, after one year’s defertion ;
but four years muft intervene between the firft defertioa
and the decree of divorce.
25. The legal effedts of divorce on the head of defer¬
tion are, that the offending hufband 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 hufband her tocher, and all the
rights that would have belonged to her, in the cafe of
her furvivance. This was alfo efteemed the rule in divor¬
ces upon adultery. But by a decifion of the court of
S'effion 1762, founded on a tradl of ancient decifions re¬
covered from the records, the offending hufband was al¬
lowed to retain the tocher.
Tit. 7. Of Minors, and the'v Tutors and Cu¬
rators*
1. The ftages of life principally diftinguiffied in law
are, pupillarity, puberty or minority, and majority, A
child is under pupillarity, from the birth till fourteen
years of age, if a male, and till twelve, if a female.
Minority begins where pupillarity ends, and continues
till majority, which, by the law of Scotland, is the age
of twenty-one years complete, both >n males and females:
But minority, in a large fenfe, includes all under age,
whether pupils, or puberes. Becaufe pupils cannot in
any degree ad for themfelves, and minors feldom with
difcretion, pupils are put by law' under the power of tu¬
tors, and minors may put themfelves under the diredion
of curators. Tutory is a power and faculty to govera
the perfon, and adminifler the eftate of a pupil. Tutors
are either nominate, of law, or dative
2. A tutor nominate is he who is named by a father,
in his teflament or other writing, to a lawful child.
Such tutor is not obliged to give caution for the faithful
difcharge of his office ; becaufe his fidelity is prefumed
to have been fufficiently known to the father.
3. If there be no nomination by the father, or if the
tutors nominate do not accept, or if the nomination falls
by death or otberw fe, there is place for a tutor of law.
This fort of tutory devolves upon the next agnate ; by
which we underlland he who is neareft related by the fa¬
ther, though females intervene.-
4. Where there are two or more agnates equally near
to the pupil, ; he who is intitled to the pupil’s legal fuc-
ceffion falls to be preferred to the others. But as the
law fufpeds, that he may not be over careful to preferve
a life which /lands in the way of his own intereft, this
fort of tutor is excluded from the cuftody of the pupil’s
p- rfon, which is commonly committed to the mother,
while a widow, until the pupil be feven years old ; and,
in default of the mother, to the next cognate, i. e. the nigheft
relation by the mother. The tutor of law muft be at
lea/l twenty-five years of age. He is ferved or declared
by a jury of fworn men, who are called upon a brief iflu-
ing