Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0079.html
Cite as: [1866] ScotLR 2_79, [1866] SLR 2_79

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SCOTTISH_SLR_Court_of_Session

Page: 79↓

Court of Session Inner House First Division.

2 SLR 79

Pet.—Daniel Black

Subject_1Pupil
Subject_2Custody of.

Facts:

A petition for the custody of a pupil, who was living with his stepmother, presented by his nearest cognate, and opposed by his tutor-at-law— refused.

Headnote:

This petition prayed for the custody of an orphan pupil boy, who was born on 6th December 1858. The boy's mother died on 13th August 1860, and his father, after having contracted a second marriage in 1861, died on 29th October 1865.

The petitioner was the pupil's maternal grandfather and his nearest cognate. The application was opposed by his nearest agnate—namely, his father's brother, who was entitled to be served as tutor-at-law to the pupil.

On the application of the petitioner, Mr A. W. Robertson, C.A., was on 1st March 1866, appointed factor loco tutoris to the pupil, who was entitled to an income of from £200 to £300 a year. But since the present petition was presented, and for the avowed purpose of defeating it, the respondent had applied to be served as tutor-at-law.

Judgment:

Gifford, for the petitioner, argued that the nearest cognate was entitled to the custody. He cited Ersk. 1. 7. 6–7; Higgins v. Boyd, 7th June 1821, 1 S. 54; Gibson v. Dunnett, 10th July 1824, 3 S. 175; and Denny v. M'Nish, 16th Jan. 1863, 1 Macph. 268.

Clark, for the respondent ( Thoms with him), replied—The pupil's tutor-at-law is entitled to regulate the custody, if he be not the next heir. In this case, the pupil's next heir is his half-sister, and the respondent is taking steps to get himself served as tutor-at-law. The pupil is living at present with his step-mother, and has done so since the year 1861. She is a most suitable person to have the custody.

It was arranged that the case should be disposed of on the footing that the respondent was served as tutor-at-law.

Lord President—On this footing I have no doubt about the case. If it was a question in which the tutor-at-law had not interfered, I might require to consider it more fully. But he is here with the right to have the chief say in the matter, and all the circumstances concur in recommending the course he is taking.

Lord Deas—I am very well pleased to take the case on the footing proposed. I think that in all cases, even where the tutor-at-law appears, the custody of a pupil is a matter for the discretion of this Court. In the present case a tie has been formed betwixt the boy and his step-mother which should not be broken; and if we had here a question of discretion as to whether the tutor-at-law or the step-mother should have the custody, I am not prepared to say that I would remove the child from the custody of the latter.

Lord Ardmillan—I agree that this matter is very much in the discretion of the Court, even where the tutor-at-law has served. In this case, the respondent's interposition to prevent the removal of the pupil from his step-mother's house is perfectly legitimate.

The petition was therefore refused, with expenses.

Solicitors: Agent for Petitioner— Alex. Gifford, S.S.C.

Agent for Respondent— Willian Miller, S.S.C.

1866

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