Scottish Court of Session Decisions

These two cases between the same parties, the one at the instance of Mrs Hood for aliment against her husband William Hood, the other at the instance of the husband, the said William Hood, against his wife and a Mrs Glennie, for custody of his children, were heard and advised together.

The first-named action, that for aliment, was on a previous occasion before the Court ( vide ante, p. 79), when, though it was held that arrears of aliment were due to the wife in terms of a voluntary contract of separation, entered into between her husband and her, the decision of her claim for interim aliment was, under the circumstances, postponed, in order to give the husband an opportunity of proving the bona fides of the revocation of the said contract of separation, which he alleged he had made since the date of the summons. Accordingly, in compliance with the order of the Court, contained in their interlocutor of November last, the defender was communicated with, and a minute was now put in by his agents, in which it was stated that a reply had been received from him, dated Sherbrook, Upper Canada, December 5 1870, that the information conveyed by this letter was to the effect that the appellant had been for some time in the service of the Grand Trunk Railway, and was receiving 24 dollars a month, that he was shortly about to leave that service and proceed to a better appointment in the United States, though he could not at present give the amount of his expected wages, and did not state what part of the United States he was going to. That he was ready and desirous to receive his wife and children, and to afford them a home with him in the States. That he was ready to pay their passage out to Sherbrook, in Upper Canada, which was his present address, and to which communications for him were to be sent. He added nothing, however, about his future address, or about the date of his leaving Canada for the United States. The minute accordingly craved that, in respect the appellant had judicially revoked the voluntary contract of separation, and had now shown himself willing and ready to receive back his wife, and to make arrangements for her joining him, the action should be dismissed.

Fraser, for the respondent, contended that this should be granted, as the only ground upon which the Court had formerly sustained the pursuer's claim was the subsistence of the contract.

Black, for the appellant, argued that no proof of the appellant's bona fides had yet been given.

In the second action, that at the husband's instance, for custody of the children of the marriage, two in number, aged respectively five and three years, the circumstances were the same as previously narrated in the first stage of the former case, ( vide ante. p. 79). The respondent in this action, Mrs Hood pleaded inter alia. 1, “This action is not competent in the Sheriff-Court, particularly as the averments made, with regard to the petitioner, raise the question of expediency, in deciding which of the parents should have the custody of the children, and it should therefore be dismissed, with expenses. (2) “The petitioner not residing in this country, and not having authorised this action to be raised, it should be dismissed, with expenses.”

The Sheriff-Substitute ( Comrie Thomson) at first sustained the jurisdiction of the Court, and on appeal the Sheriff ( Jameson) pronounced the following interlocutor:—

“ Edinburgh, 15th February 1870.—The Sheriff having heard parties' procurators on the respondent's appeal, and having considered the process, dismisses said appeal, and adheres to the interlocutor appealed from.

Note—The Sheriff has no doubt of the competency of this application. Whether it will be right to grant it will depend on the facts and circumstances, which have not yet been ascertained. In the case of Harvey v. Harvey, 24th July 1850, in this Court, and referred to by the Lord Justice-Clerk in giving judgment in Harvey, 15th June 1860, 22 Dunlop 1198, the Sheriff (Mr Davidson), in the first instance sustained his jurisdiction; but after the circumstances were disclossed, and it appeared that the petitioner had been divorced on the ground of adultery, he found that this Court was not competent to deal with that state of matters, and dismissed the application.”

Thereafter, on a record having been made up, the Sheriff-Substitute sustained the first plea in law for the defender, and dismissed the petition. On appeal, the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 23 rd July 1870.—The Sheriff having considered the petitioner's appeal, with his reclaiming petition, answers thereto, and whole process, recals the interlocutor appealed from in so far as it sustains the first preliminary plea in law stated for the respondents, to the effect that the action is incompetent: Finds that the competency of the original application has been already sustained in this Court by interlocutor of the Sheriff-Substitute, of date 15th December 1869, affirmed by interlocutor of 15th February 1870; but finds that it appears from the closed record that the

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children, of whom the petitioner claims the custody, are at present, and have been since the separation of the parties, under the care of their mother, against whose character and fitness to take charge of them no allegations are made, and that they are of the tender ages of five years and three years respectively: Further, finds it admitted that the petitioner is furth of Scotland, and in Canada: Finds that this Court has no jurisdiction to grant the warrant craved by the petitioner, which would have the effect of removing the said pupil children out of Scotland: Therefore, and quoad ultra, adheres to the interlocutor appealed from, dismissing the petition, and finding the petitioner liable in expenses, and decerns.

Note—The competency of the original application was sustained in the first instance, for there can be no doubt that the Sheriff can, in a summary petition, regulate the interim custody of children. Had it appeared that the respondent, without cause, had capriciously removed the children from their home, and from their father's custody, the petitioner might have been entitled to the warrant he craves. But the record discloses a very different case, and therefore the action has been dismissed.”

Against this interlocutor the pursuer appealed to the Court of Session.

Fraser, for the appellant William Hood, contended that the action was competent in the Sheriff-court, and that the writers upon Sheriff-Court practice cited against this view, confounded this action with proper consistorial causes. That if this action was competent, then there was no doubt as to the right of the father at Scotch law to the custody of his children, unless under the exceptional circumstances of a case such as that of Harvey, 22 D. 1198.

Keir, for the respondent Mrs Hood, argued that the action was incompetent in the Sheriff-Court, that the extreme limit of the Sheriff's jurisdiction in these matters is merely to retain the status quo, or restore it if disturbed by recent violence. He referred to M'Glashan's Sheriff-Court Practice, p. 35; Dove Wilson's Sheriff-Court Practice, p. 15; and Fraser on Parent and Child, p. 81; and contended that the exercise of such a discretionary power as was here required was only competent to the nobile officium of this Court.

Lord President—It is a very common thing to confound the nobile officium of this Court with its equitable jurisdiction. I think you are doing so here

Fraser, for the appellant, farther stated, that if their Lordships were against him in these preliminary points, and were going to dispose of the case on the merits, he then offered to go to proof upon the allegations on record; if this were refused, the case must be decided entirely upon the ground that the appellant was abroad, which he submitted could not be done.

At advising—