Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION VI.

A married woman's deeds in what cases effectual against her husband.
Subject_3 SECT. IV.

Operation of Inhibition in taking off the effect of Præpositura.

Archibald Ker, Brewer in Edinburgh,
v.
Nicol Gibson, Ferrier and Smith there

Date: 5 July 1709
Case No. No 233.

A wife was allowed to receive ale from brewers, with her husband's knowledge, after an inhibition executed against her by him. This found relevant to make him liable to the brewers for the price of the ale.

Click here to view a pdf copy of this documet : PDF Copy

In the action at the instance of Archibald Ker, against Nicol Gibson, for payment of ale furnished to the defender's wife, and sold by her in his dwelling-house,

Alleged for the defender; He could not be liable for any ale taken by his wife, in respect she stood inhibited at his instance.

Replied for the pursuer; He was in bona fide to furnish ale to the defender's wife after the inhibition, as he had done before, not being specially interpelled or discharged by the defender, whose allowing his wife exercere tabernam, to keep an ale-house after the inhibition, was a tacit passing from the same.

Duplied for the defender; Inhibitions at the instance of a husband, against his wife, need only to be executed at the market cross, and are not to be intimated to every particular person. Nor can such solemn registered writs be taken away, but by as solemn a discharge, or renunciation thereof in writ.

The Lords found it relevant to make the defender liable, that his wife was allowed to tap and receive in ale after the inhibition; and that it consisted with the husband's knowledge that she received ale from the pursuer, and found the allegeance probable by the husband's oath.

Fol. Dic. v. 1. p. 404. Forbes, p. 339. *** Fountainhall reports the same case:

Archibald Ker having furnished several scores of barrels of ale to Nicol Gibson's deceased wife, he pursues him for payment. Alleged, 1 cannot be obliged to pay it, for she is inhibited at my instance to contract any debt, and which was duly executed, published and registered, and so was sufficient to put the lieges in mala fide not to trust her. Answered, As the inhibition was never intimated to me, so you allowed her to take in ale, and to tap and retail it in your own house, and in your own view, which was a tacit renouncing and passing from the inhibition, which would otherwise be a gin and a snare to in trap innocent people to furnish drink to her, and then you to obtrude the inhibition against payment when you had the benefit from the sale. Likeas, I furnished her before your serving the inhibition, and thought myself in tuto to continue the same, when I saw you permitted her exercere tabernam, she being præposita huic negotio. Replied, A registrated inhibition against a wife needs no other intimation; for he was not obliged to acquaint and discharge every individual brewer, and his suffering her to retail the ale gave her no power to buy it; for he made his bargains with some particular brewers, and ordered them to furnish her, of which number Ker the pursuer was none: And l. 5. § 11. D. De act. Institor. does excellently declare, that a person being employed to sell out goods and ware will not import a præpositura for buying, unless that power be expressly granted. The Lords found the inhibition registrated need no farther intimation to any party; but found it relevant scripto vel juramento, that he allowed his wife to take drink from any persons that would furnish her; and that he knew Ker, the pursuer, did furnish her after the inhibition, and yet that he did not discharge him nor interrupt; which being proved, found him liable in the price of the ale pursued for. But some thought. if he was lucratus by it, be was in that case obliged, as being in rem versum. If she had gone to a merchant's shop and taken off clothes, the inhibition would have cut off the merchant, if the husband proved that he had furnished her sufficiently conform to her quality; but his allowing her to sell ale in his own view is a quite different case.

Fountainball, v. 2. p. 510.