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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pet. - Darling [1867] ScotLR 3_323 (19 March 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0323.html Cite as: [1867] ScotLR 3_323, [1867] SLR 3_323 |
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Page: 323↓
Question—whether an inhibition by a wife against her husband, founded on a claim of aliment, under a decree of separation and aliment, is competent, the aliment having been regularly paid, and the husband not being vergens ad inopiam.
This was a petition for recal of an inhibition which had been used against the petitioner by his wife, who had, in the year 1865, obtained decree of separation and aliment against him, the aliment awarded being £55 yearly during the joint lives of the parties. The petition prayed for absolute recal, and made no offer of caution, and it was therein alleged that the aliment had been regularly paid to the petitioner's wife in terms of the decree. In her answers, the wife did not dispute this fact, but alleged that her husband was in course of disposing of his heritable property (which formed his sole source of income), and that he had, just before the inhibition was used, advertised his dwelling house with its fixtures for sale. She alleged that he also desired to dispose of his furniture, and that it was his intention to remove to some place abroad, animo remanmdi, and to place his person and effects beyond the jurisdiction of the Courts of this country. On behalf of the petitioner, it was denied that he was about to go abroad, but it was conceded that he had disposed of a considerable part of his property, and that he was in course of disposing of other portions when the inhibition was used—with the explanation that he was so acting for the purpose of making a more profitable investment of his money.
Fraser and Scott, for the petitioner, argued that the inhibition was incompetent:—1. The wife's claim was a future debt, and inhibition cannot proceed upon a future debt unless the debtor is vergens ad inopiam, which is not alleged here; 2 Bell's Com. 144. 2. A wife should not be allowed in this way to the up her husband's property.
Solicitor-General and MacLean for the wife, cited Stair, 1, 4, 15; Glenbervie, 16th July 1638, M. 6053; A. v. B., 15th June 1678, M. 6054; Geddes v. Geddes, 14th March 1862, 24 D. 794.
Some of the Judges regarded the question raised by the petitioner as one of great importance, but the petitioner offered to find caution to pay the aliment in all time coming, and it became unnecessary to decide it.
The inhibition was recalled on caution being found, and the wife was found entitled to expenses.
Agents for Petitioner— Watt & Marwick, S.S.C.
Agent for Respondent— John Leishman, W.S.
