All damages recoverable for injury to the person, reputation, or credit of either spouse fall into the community. But if the husband joins with another in the commission of a tort upon the wife, then the cause of action belongs to the separate estate of the aggrieved consort, although, of course, the marital relation precludes a recovery against the offending member of the community.

The right of action for damages for personal injuries sustained by a married woman, commune en biens, belongs exclusively to her husband, and she cannot sue for the recovery of such damages in her own name, even with the authorization of her husband.

Under the régime de la communauté the right of action belongs to the husband as chef de la communauté, and can be exercised by him alone. (McFarran v. Montreal Park and Island R. W. Co., 30 S. C. R. 410.)

The plaintiffs, husband and wife, common as to property, brought an action claiming damages for bodily injuries suffered by the wife in consequence of a fall. A demurrer on the ground that the wife had improperly been made a party to the suit, the right of action belonging to the husband alone as head of the community, was sustained. (Troude v. Meldrum, Q. R. 20 S. C. 531.)

The husband is head and master of the community, his dominion and power of disposition being subject to but a single limitation, namely, that he shall not alienate with intent to defraud the wife. He may bestow it upon charity, or even squander it on unworthy objects, or in the gratification of extravagant tastes or luxurious indulgences. 1292.)

He is the sole managing partner, and may alienate all community property by gift or otherwise inter vivos without the consent of the wife.

Such being the character of the husband's right and interest, the question would naturally arise, What is there left for the wife? She has during coverture no vested proprietary interest in the community, nor any voice in the management of its affairs, but only an inchoate right or expectancy. Her status has been compared to that of an heir with reference to the property of his ancestor.

Her interest is merely a "potential" one; if the husband dies before disposing of the community property, the wife becomes absolutely entitled to one-half thereof; this right cannot be defeated by the will of the husband. (Arts. 1293, 1361.)

It must be observed, however, that one very substantial right of the wife during the community is that she may apply for separation as to property for good cause, and that from this point of view her interest is not entirely of a "potential " character.

This community can only be dissolved during the lifetime of the spouses by civil death or by a judicial separation; they cannot effect it by any voluntary act. The only ground for the judicial" séparation de biens" is when the wife's interests are in danger, and there is reason to fear, owing to the disordered state of the husband's affairs, that his property will not be sufficient to satisfy what the wife has a right to recover or get back. (Art. 1311.)

The right to claim it is a personal one of the wife's, and cannot be demanded by her creditors, even with her consent. (Art. 1315.)

The effect of a séparation de biens is to give to the wife the uncontrolled disposal of her property, absolutely as far as movables are concerned, but as to immovables not without the consent of the husband, or, upon his refusal, without being judicially authorized. (Art. 1318.)

But a wife, séparée de biens, must contribute in proportion to her means and to those of her husband, to the expenses of the household as well as to those of the education of their common children; these expenses she must bear alone, if the husband is without means.

The disadvantages of the system of community are so many, and the system itself so complicated, that marriage contracts stipulating for separation as to property are becoming almost universal in the Province; and even in the case of persons who possess little or no property, it is usual for that reason to have contracts providing that the consorts shall not be subject to the regime of community of property.

were

The recent cases in England of DeNicols v. Curlier, [1900] A. C. 21, and In re DeNicols, [1900] 2 Ch. 410, emphasize the importance of this. In these cases two French people were married in Paris, without any special contract, and, therefore, their proprietary relations governed by the Code Napoleon. They were poor at the time of marriage. They afterwards removed to England. When the husband died, he left an estate valued at $3.500,000. His widow survived him, and not being satisfied with the provisions made for her by his will, brought these actions to have her rights declared as to both personalty and realty left by her husband. The Courts decided that the rights of the married pair in each other's property were not affected by the change of domicil from France to England, that the Code rule as to community followed. them, and that the widow was entitled to one-half the property, whether real or personal.

The same principle will, of course, apply to the cases of persons who, being domiciled in the Province of Quebec, marry there without a special contract and afterwards remove to another Province, and die there.

Suretyship.

"A wife cannot bind (s'obliger) herself either with or for her husband, otherwise than as being common as to property; any such obligation contracted by her in any other quality is void and of no effect." (Art. 1301. See 2 Rev.

Leg. 321.)

The

origin of this article is generally, and apparently correctly, ascribed to the Velleian senatus consultum of the Roman law, adopted in the reign of the Emperor Claudius.

The design of this law was the protection of all women from incurring obligations on behalf of other persons, no distinction being made between maid, wife, or widow; propter sexus imbecillitatem.

Before the conquest of Canada this Velleian law had been abolished in France, and was not therefore in force in Canada. In the year 1841, however, it was reintroduced by the Parliament of Canada (4 V. c. 30, s. 36), and has been em

bodied in the Code Civil, though it is not found in the Code Napoleon; limited in Quebec, however, to the case of married women. Wide as the language of the Code Civil appears, it is in practice limited to an obligation by way of suretyship of a wife with or for her husband, and does not prevent her from paying, or making sacrifices of her property for the purpose of paying, the debts of her husband.

"There is nothing in the law to prevent her from paying the debts of her husband and from disposing of her property to do so." (Bank of Toronto v. Perkins (1881), 1 Q. B. R. 357.)

"The result is now familiar to the profession, that a payment made by the wife is perfectly lawful. Wherever the rule of the Roman law prevailed, she could renounce; she could pay; but she could not engage or bind herself." (Gorrie v. Ogilvie (1881), 5 L. N. 261. See also Hamel v. Parent (1876), 11 App. Cas. 121.)

It should be observed that the Code forbids an obligation "with" as well as an obligation "for" the husband, and examples of the former are not unknown. The case of Leclere v. Ouimet (19 Rev. Leg. p. 78) furnishes an instance. There the husband and wife were joint indorsers of a note in which neither was interested, and the obligation of the wife was held to be null.

It may be asked why prevent a wife from running the risk of losing her means in the future, while she is free to dispose of all in the present.

The reason is well put by Mr. Justice Meredith in the case of Dame Baudria et vir v. McLean (6 L. C. Jur. 65), in giving judgment in the Court of Appeal: "To me the intention of the Legislature seems as plain as it is reasonable. We all know the dangerous consequences of the contract of suretyship. And a wife when asked to become the surety of her husband is placed in a position of peculiar difficulty. How can she doubt the honesty of her husband? And she is only too ready to believe the assurance that when the debt matures, there will be ample means to meet it without troubling her.

I have no doubt that there are some, if not many, women who would have sufficient determination to refuse to alienate

their own property, and who might yet be induced to become security for the debts of their husband; indeed, I think there are not a few husbands who would be glad to extend their credit by the use of the names of their wives, and who yet would not ask their wives to bind themselves or their property in a more direct manner. The object of the Ordinance seems to me to have been to guard married women against the danger to which I have referred.

"That law has, therefore, declared in effect that married women shall not become security or incur any liabilities otherwise than as commune en biens for debts or obligations' entered into by their husbands; leaving at the same time the rights and powers of married women in other respects unimpaired.

"Facilius se obligat mulier quam alicui donat."

"The law declares that all contracts entered into by the wife, as surety in any way for the debts of her husband, are absolutely null and void: any contract, therefore, which she may so attempt to make, although disguised under a different name and made to appear as an obligation for an individual debt of her own, is in fraud and violation of the law." (Mercille v. Fournier, 7 R. J. R. 9.) Even though the wife herself represented to the lender that the money was for herself, it does not estop her from proving the truth, and thereby evading liability. (Rhéaume v. Caille (1878), 1 L. N. 340.) This is on the ground of public policy.

But the wife is not incapacitated from entering into obligations together with her husband, so long as they are for her own business or her sole benefit, either in the ordinary course of a business in which husband and wife are jointly or where money is directly advanced to the wife, in which case the husband joining in the obligation is virtually security of the wife.

interested,

There is nothing, therefore, in Art. 1301 to prevent the wife who has been duly authorized (either by her husband or judicially), from entering into obligations for her own business, even jointly and "solidairement" with her husband.

There has been much difference of judicial opinion as to how far a defence under this article is available where the