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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir, Petitioner [1868] ScotLR 5_528 (22 May 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0528.html
Cite as: [1868] ScotLR 5_528, [1868] SLR 5_528
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SCOTTISH_SLR_Court_of_Session
Page: 528↓
Court of Session Inner House First Division.
Facts:
On petition by factor loco tutoris for summary warrant to remove the pupil from the custody of his mother, who, the petitioner alleged, was not a fit person to retain the custody, and was about to go abroad with the child—warrant granted; and recommendation given to foreign authorities to aid the officers of the law in the execution of the warrant.
Muir, factor loco tutoris to Robert Kerr, petitioned the Court for warrant to remove the pupil from the custody of its mother, alleging that the mother was behaving in such a way that she ought not to be allowed any longer to have the custody of the child. Answers were lodged, and thereafter the Court remitted to the Sheriff of Ayrshire to inquire into the circumstances of the case and report; remitted the petition to the Lord Ordinary on the Bills during vacation, with power to him to pronounce any interim order that the circumstances of the case might seem to render necessary; and
Page: 529↓
authorised the Sheriff, if he should see cause, to report ad interim to the Lord Ordinary. The Sheriff reported in favour of the petitioner, the report being boxed to the Court on 12th May, and on the same day the petitioner boxed a note craving the Court to grant warrant for taking possession of the child. The agents for the respondent having ceased to act for her, the Court appointed the report and note to be intimated to the respondent personally, and sent the case to the Summar Roll. Intimation was accordingly made to the respondent.
The factor now presented a note to the Court, stating that the house recently occupied by the respondent and Milligan, to whom she had been recently married, had been shut up for some days; that they had not been seen lately; and that it was supposed they were on their way to Liverpool, with the view of going to America and taking the child with them. He therefore craved the Court to grant warrant to messengers-at-arms and Sheriff-officers to remove the pupil from the custody and charge of the respondents; to dispense with the reading of the order in the minute-book; and to authorise the warrant to be executed upon a copy of the order certified by the clerk of Court; or to decern ad interim; or to do otherwise, &c.
Clark, for petitioner, cited the case of Earl of Buchan v. Lady Cardross, 27th May 1842, 14 Jur., 415.
The Court pronounced this interlocutor:—
“ Edinburgh, 22 d May 1868.—The Lords having considered the note for William Muir of Mains Beith, factor loco tutoris to Robert Kerr of Auchengree, son of the late Bryce Kerr of Auchengree, No. 21 of process, along with the report by the Sheriff of Ayrshire, No. 17 of process, and whole proceedings, grants warrant to messengers-at-arms and other officers of the law to take the person of the said pupil Robert Kerr into their custody wherever he may be found, whether in the custody of Mrs Marion Kerr or Milligan and Joseph Milligan, her spouse, or in any other custody, and to convey and deliver the said pupil into the custody of the petitioner William Muir, to be kept by him till the farther orders of the Court; and authorise all Judges Ordinary, and their procurators-fiscal in Scotland, to aid said messengers and officers in the execution of this warrant; and recommend to all magistrates in England and elsewhere to give their aid and concurrence in carrying this warrant into effect: Farther authorise execution hereof to pass, on a copy hereof certified by the Clerk of Court.”
Solicitors: Agents for Petitioner— M'Ewen & Carment, S.S.C.