VI. HOW THE HUSBAND CEASES TO BE LIABLE FOR THE

WIFE'S DEBTS.

91. Inhibition is a species of legal notification to which the husband must resort, in order to free himself from liability for his wife's acts in those cases in which his consent is presumed by the law. It is in his power to resort to this expedient whenever he wishes to depose his wife from the office of domestic manager which the marriage has conferred; and he may use it according to his pleasure or caprice, with reason or against reason. The object of conferring this arbitrary power on the husband, is to prevent the necessity of exposing domestic quarrels to the judgment of a court or a jury. (Stair, i. 4. 15 and 17; Ersk. i. 6. 26; Bell's Prin. 1566; Fraser, 629.)

92. The inhibition is in the form of a judicial prohibition, addressed to the wife, forbidding her to dispose of her husband's effects, or contract debts, and to the lieges in general, forbidding them to buy his goods from her, or give her credit. (Jurid. Styles, 2nd ed. vol. iii. p. 540.)

93. The inhibition must be executed both against the wife and the public. The first is effected by a messenger-at-arms serving a short copy on her at her residence; the second, by publication at the head burgh of the shire where the husband resides, and by registration either in the particular register of the shire, or in the general register of inhibitions at Edinburgh. (Fraser, 631.) By the Court of Session Act, 1868, sec. 18, the Land Registers Act, 1868, sec. 16, and the Titles to Land Consolidation Act, 1868, sec. 155, considerable changes have been made in the law in regard to inhibitions. It is enacted that publication at the head burgh is no longer necessary, though still competent. It is thought that, from the terms of these enactments, an inhibition against a wife is included in them; but, apart from any practice or decision to the contrary, the prudent course is to execute these writs according to the older forms.

94. No particular intimation of the inhibition to the merchants with whom the wife was in the habit of dealing is necessary; and it will be operative against them even should they be ignorant of its existence. The effect will be the same though the merchants be resident abroad, it having been decided that the "diligence, being regular according to the law of Scotland, must be effectual against all mankind." (Topham v. Marshall; M. App. v. Inhibition, No. 2.)

95. The only exception to the validity of an inhibition is where the husband fails to provide the wife with a sufficient maintenance. In that case she may contract in so far as is necessary for her own subsistence. (Gordon v. Sempill, M. App. Husband and Wife, 4.)

96. Even after inhibition, the wife may contract with her husband's consent; and this consent may be inferred from his knowing and approving of her transactions. (Kerr v. Gibson, M. 6023.)

97. Private notice to a tradesman, in so far as the particular instance is concerned, is equally effectual with inhibition. (Buie v. Gordon, Feb. 23, 1827.)

98. Where the husband and wife have separated, either by mutual consent or in consequence of maltreatment by the husband, the law will no longer presume that the wife has his authority for incurring debts for domestic purposes. The only grounds on which a tradesman will be entitled to recover from the husband, in such circumstances, will be that the debts were incurred for the wife's personal maintenance. (Ersk. i. 6. 19, 25, 26; Fraser, 635, 638.)

99. Where a husband has turned his wife out of doors without justifiable cause, he cannot exempt himself from the obligation to maintain her by an advertisement in a newspaper cautioning the public not to trust her; nor, beyond the particular instance, by notice to individuals not to give her credit. (Ib. 641.) Where, however, he has turned her out for adultery, he is only

bound to aliment her on an order from Court to that effect, and a tradesman's account for furnishings supplied to her thereafter could not be recovered from the husband; "her adultery having destroyed her implied agency to bind her husband by her contracts for necessaries." (Ib. 645.)

100. But where the wife, without sufficient cause, leaves the husband, he is not bound to furnish her with a separate aliment, nor will he be liable for the debts which she contracts for that purpose. (Ib. 641.)

101. Where a wife went to London without her husband's consent, it was found that he was not liable even for her necessary furnishings whilst there; but the case is an old one. (Countess of Caithness v. The Earl, M. 5886; Fraser, 642.)

102. In order that the husband's liability for aliment may continue, the wife must assign such a cause for leaving him as a court or a jury can entertain, and not such as has its existence only in the mind of a fanciful and capricious woman.

Connal, June 18, 1833.)

(Connal v.

103. Adultery on the part of the husband, or the introduction of a prostitute into his house, will be sufficient. (Horwood v. Heffer, 3 Taunt. 421.)

104. If no inhibition has been used, and no notice given to the tradesman, the onus of showing that he knew of the separation will lie on the husband.

105. It has been held in England, that if the tradesman was aware of the fact of separation, he must accept the onus of showing that it took place in such circumstances as not to free the husband from liability. (Fraser, 643.)

106. If during her desertion the wife become insane, the husband is bound to maintain her, because from that moment she no longer has the will to violate the duty of conjugal adherence; and she is held no longer to do so. (Scott v. Selbie, Jan. 20, 1835.)

107. Where the husband has made a suitable allowance for a

separate establishment to the wife, tradesmen who deal with her must rely on this allowance alone; and no intimation will be required to free the husband from liability. (Stair, i. 4. 16; Ersk. i. 6. 25.)

VII. OF THE COMMUNITY OF GOODS.

108. The community of goods amongst the Teutonic races, to whom its origin has been traced, was an actual partnership between the spouses, bringing along with it equal rights both to the property and management of the common fund. On being adopted by the customary law of France, the doctrine of the communio underwent an entire change. The husband became "lord of the moveables and conquest heritage," and the wife's right resolved itself into a claim to a certain portion of them (a half or a third) after his death. The name, no longer retaining its original signification, continued to hold its ground in France, and was imported into Scotland towards the end of the reign of Charles II. by the lawyers, who were then almost invariably educated in France. But the arrangement regarding the moveable property of the spouses which had formerly prevailed in Scotland, being not very dissimilar to that which had grown up in France, underwent no very serious alteration; and the doctrine of the community of goods, though supported by the high authority of Lord Stair, never was accepted in Scotland to the extent of establishing an equality of rights between the parties, or extensively affecting the marital powers of the husband.*

109. The true doctrine of the law of Scotland, and that which has since been followed in the courts, was laid down in 1842. "The absolute power of use and disposal being in the husband,"

* This interesting speculation, the soundness of which has not been universally admitted, will be found at full length in Fraser, H. and W. 649 et seq.

said the consulted judges, "we must consider the goods, nominally in communion, as truly his, not at all the wife's property." (Shearer v. Christie, Nov. 18, 1842.)

110. In accordance with this view, it has been further decided (Fisher v. Dickson, June 16, 1840; affirmed April 6, 1843) that the claim of a wife on the estate of the husband, after his death, is not a claim to the division of a common fund, but simply a right of debt by which the wife becomes a creditor of the husband's executors. The same doctrine has been applied to the claim of the children for legitim, hereafter to be mentioned.

111. In apparent consistency with the doctrine of a community of property, the husband, till the passing of the recent Moveable Succession Act, was bound, in the event of the wife predeceasing him, instantly to account to her heirs for her half of the goods. By that Act (18 Vict. c. 23), in accordance with what we have seen to be the true principle of the husband's proprietary, it is provided (sec. 6) that, "where a wife shall predecease her husband, the next of kin, executors, or other representatives of such wife, whether testate or intestate, shall have no right to any share of the goods in communion, nor shall any legacy, or bequest, or testamentary disposition thereof, by such wife, affect or attach to the said goods, or any portion thereof."

112. Another provision which was borrowed by our law from that of France was to the effect that, if the marriage was dissolved within a year and day, without a living child, all that either spouse had received from the other must be returned. By the 7th section of the Act to which we have just referred, the distinction between this case and the case of a marriage which has endured for a longer period is removed.

113. The proprietary powers of the husband are confined to the moveable estate of the wife: whatever the law of Scotland holds to be heritable, remains the property of the wife. (Stair, i. 4. 9; Ersk. i. 6. 12.)