Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0443.html
Cite as: [1878] ScotLR 15_443, [1878] SLR 15_443

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SCOTTISH_SLR_Court_of_Session

Page: 443↓

Court of Session Inner House First Division.

Saturday, March 16. 1878.

15 SLR 443

Gulland (Henderson's Factor), Petitioner

v.

Henderson.

Subject_1Parent and Child
Subject_2Custody of Pupil where Father dead and Mother guilty of Misconduct.

Facts:

Where the factor loco tutoris of a child whose father was dead presented a petition to the Court praying that the child should be removed from the custody of the mother, who had had two illegitimate children since the death of her husband, the Court ordained the mother to give up the child to the petitioner, and appointed him to submit to the Court a scheme for the maintenance and residence of the child.

Headnote:

Mr Charles Gulland, factor loco tutoris to Robina Henderson, the child of the deceased Robert Henderson, presented this petition to have her removed from the custody of her mother Margaret Henderson, and to have her given into his custody. Mr Henderson had died about five years previously, he having at that time been married about six months. He left property to the value of about £700. The child Robina Henderson was born after his death. The mother continued to live where she had resided previously to her husband's death, since which date she had given birth to two illegitimate children.

Mrs Henderson in her answers to the petition admitted that she had given birth to the illegitimate children, but stated that she was desirous to conduct herself for the future in an exemplary manner, and she accordingly craved the Court to refuse the petition. It was further mentioned at the bar that she had not lived, and did not now live, with the paramour.

Petitioner's authorities—Fraser's Parent and Child (2d ed.) 214; Walker, March 10, 1824, 2 S. 651; A B v. C, June 30, 1837, 9 Jur. 536; Paul, March 8, 1838, 16 S. 822; Denny v. M'Nish, January 16, 1863, 1 Macph. 268; Muir v. Wylie, July 13, 1868, 6 Macph. 1125.

Respondent's authority— Kennedy v. Steel, Nov. 16, 1841, 4 D. 12.

At advising—

Judgment:

Lord President—Undoubtedly the question in this petition is one for the discretion of the Court, but in exercising that discretion we must have regard to precedent, and it is impossible to resist the cases cited by the petitioner. The factor has only done his duty in bringing the question before the Court, and I am of opinion that we must pronounce an order for the delivery of the child. But that order must he accompanied, as in the case of M'Nish, 1 Macph. 268, by an order on the factor to submit a scheme to the Court for the residence and maintenance of the child.

Lord Deas concurred and remarked—There are funds here, and if the child is to be left with the mother, she must have the funds too, and they will very likely be spent for the benefit of the bastards.

Lords Mure and Shand concurred.

When the proposals for the board and place of residence of the child were submitted by the factor to the Court—

Lord President—In the event of a change of circumstances, such as the girl going to school, the factor will understand that he will have to come back again to the Court for authority, but he may do that by motion so as to avoid additional expense.

Counsel:

Counsel for Petitioner— Gebbie. Agents— Adamson & Gulland, W.S.

Counsel for Respondent— Moody Stuart. Agents— Boyd, Macdonald, & Co., S.S.C.
1878

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