Page: 822↓
Subject_Pupil—Parent and Child—Jurisdiction—Contempt—Process.—
1.On the application of a factor loco tutoris, a pupil ordained to be removed from the custody of his mother, who after the death of her husband had had a natural child, and to be placed under the care of a third party: 2. The mother having carried the pupil out of Scotland with the view of evading the order of Court, and her place of residence being unknown,—warrant granted to the Judge Ordinary to examine certain parties as in a precognition with regard to their knowledge of her residence, and also to officers of the law for apprehending her, and detaining her in custody as guilty of a contempt of the jurisdiction of the Court: 3. Authority refused to be granted to the Lord Ordinary on the bills (the application being made at the close of the Session), to receive the examinations in question, and grant orders thereupon.
William Paul, factor loco tutoris to Alexander Mackintosh, a pupil of about ten years of age, presented a petition, stating that the pupil's mother, Mrs Mackintosh, had become pregnant since her widowhood, and consequently was disqualified by misconduct from any longer having charge of the boy; 1 and praying to have it found “that the petitioner is entitled to the personal custody of his pupil, by virtue of his office and appointment of factor loco tutoris, or, at least, that he has the power of fixing the residence of his pupil for the purpose of education; that the respondent has no legal right to the custody of the pupil, or at least that she has disqualified herself for being his custodier; and farther to ordain the respondent and all others whomsoever forthwith to deliver the petitioner's
pupil into the personal custody of—,for the purpose of his suitable education, subject to the future directions and superintendence of your Lordships, and the petitioner, as factor loco tutoris, or the petitioner's successors in office, under certification.” _________________ Footnote _________________
1 Walker, March 10, 1824, ante, II. 787 (new ed. 651).
Mrs Mackintosh, in answer, admitted having had a natural child since the death of her husband, but contended that Paul was not entitled, in virtue of his office of factor loco tutoris, to the custody of the pupil in preference to the mother. 1
The Court pronounced this interlocutor (June 13, 1837):—“Ordain the respondent forthwith to place the pupil under the care and in the custody of the Rev. Dr Alexander Gray, minister of the gospel at Kincardine, therein to remain till the farther orders of the Court thereanent, and with certification, that, if this order shall not be complied with, or in any way resisted, the necessary authority and power will forthwith be granted to the petitioner for carrying it into immediate effect, and decern ad interim”
Thereafter Mrs Mackintosh, having, along with the pupil, quitted her residence in the neighbourhood of Edinburgh, and left Scotland, with the view of evading the order of Court, their Lordships, “in respect of the pupil having been improperly and without warrant carried out of Scotland, granted warrant to messengers, &c. to take his person into their custody, wherever he can be found, and to convey and deliver him into the custody of the Rev. Mr Gray, and recommend to all magistrates in England and elsewhere to give their aid and concurrence in carrying this warrant into effect.”
Mr Paul, after various ineffectual enquiries, having obtained in London traces of Mrs Mackintosh and the pupil, and also some information from her agents in Edinburgh, now presented a petition and complaint, with concurrence of the Lord Advocate, praying the Court “to grant warrant to the Judge Ordinary of the bounds to examine upon oath and take the depositions of two persons, Stewart, residing near Edinburgh, and Reid in Peterhead, relative to their knowledge of the present residence of Mrs Mackintosh, or where she may be found, and of all other witnesses whose testimony on the same subject may be offered by the petitioner; and to grant authority to the Lord Ordinary on the bills in the ensuing recess to receive such examinations; and farther to grant warrant to all officers of the law to apprehend Mrs Mackintosh, and bring her before the Judge Ordinary for examination, and thereafter prohibit and discharge her from interfering farther with the pupil, during his pupilarity; and to inflict punishment on her for her illegal abstraction of the pupil and contempt of Court.”
_________________ Footnote _________________
1 Robertson v. Elphinstone, May 28, 1814, F.C.; Erskine, I. 7, 7.
The Court pronounced the following interlocutor:—“Grant warrant to the Judge Ordinary of the bounds to enquire as to the present residence of the within designed Mrs Jean Gordon or Mackintosh, or where she may be found; and to examine, as in a precognition, the said—Stewart, and the said—Reid,with regard to their knowledge of the said matter, and all other witnesses whose testimony on the same subject may be offered by the petitioner; refuse the petition so far as it craves authority to the Lord Ordinary on the Bills to receive such examinations in the ensuing vacation; and farther grant warrant to all officers of the law to apprehend the said Mrs Jean Gordon or Mackintosh wherever she may be found, as guilty of a contempt of the jurisdiction of this Court, and to detain her in custody until liberated in due course—quoad ultra supersede the petition until farther order; and ordain all execution necessary, to pass hereon in form as effeirs.”
Solicitors: Cunningham and Walker, W.S.—Agents.