Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TUTOR AND PUPIL.
Subject_3 A guardian named by a father to his natural child, entitled to demand the custody of the child from a person to whom the father had committed it.

Duncan Johnston
v.
Margaret Clerk

Date: 23 November 1785

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

[Fac. Coll. IX. 369; Dict. 16,374.]

Braxfield. If the father of a natural child maintains him, he has a right to fix the place of the child's residence; and, if the father, so also a guardian named by the father. I hesitate in determining whether such a father may not have power to name something of the nature of a tutor.

Justice-Clerk. It is admitted that the child was sent over from Jamaica to Margaret Clerk; the father certainly could have recalled the child: the naming Johnston guardian implies a like power in him.

Gardenston. The father of a natural child, providing for it, may name an administrator, if not a tutor to it.

President. I am clearly of opinion that a man cannot, in legal words, name a tutor to a natural child, but still he may name a guardian: for there is a natural, although not a civil relation between the father and the child.

On the 23d November 1785, “The Lords decerned, in the terms of the libel, the pursuer finding caution, for L.500 sterling, not to remove the child out of the jurisdiction of the Court;” adhering to the interlocutor of Lord Hailes.

Act. W. Nairne. Alt. H. Erskine.

N.B. On recollection, I had some doubt as to the propriety of demanding caution; and the President told me he had the same doubt. But the pursuer did not insist on the objection.