Scottish Court of Session Decisions

James Glen Edgar was married to Mary Tollance Fisher on 29th July 1881. Mrs Edgar died on 24th June 1884. There was one child of the marriage, Everina Burns Edgar, born on 26th May 1882.

After Mrs Edgar's death the child was sent by her father to reside with her maternal grandmother Mrs Fisher, and her aunt Margaret Fisher, at 2 Morris Place, Glasgow. Mrs Fisher died on 25th August 1893, predeceased by her husband. By mutual trust-disposition executed between them their whole estate was bequeathed to their children as trustees for behoof of the survivors of such children, and the issue of any who might have predeceased. At the date of Mrs Fisher's death Margaret Fisher was the only surviving child of Mr and Mrs Fisher, and accordingly she was the sole trustee under the mutual trust-disposition. The only other person interested as a beneficiary under the mutual trust-disposition was Everina Burns Edgar. In 1892, prior to Mrs Fisher's death, Margaret Fisher assumed John M'Killop and Michael Dunbar to act along with her under the mutual trust-disposition.

On 1st September Mr Edgar, who had married again in 1887, removed the said child Everina Burns Edgar from the care of her aunt Margaret Fisher, to his own home at 6 Hampden Terrace, Glasgow. On 3rd September, while the child was out for a walk, she was taken away by a youth, and Mr Edgar was unable to ascertain where she had been taken to.

Mr Edgar thereafter presented a petition in the Bill Chamber for recovery of the custody of his child, wherein he set forth the above facts, and stated that he had removed the child from the care of her aunt Margaret Fisher because he had ascertained that she was being brought under Roman Catholic influences, whereas he desired that she should be brought up as a Protestant, and further, that he had reason to believe that the youth who had taken her away was Archibald Fisher, a cousin of Margaret Fisher.

On 5th September intimation and service was ordered by the Lord Ordinary on the Bills, and the petition was thereafter duly intimated, and on 7th September was served personally on Margaret and Archibald Fisher. No answers were lodged, and on 21st September the Lord Ordinary on the Bills ( Kinnear) heard counsel for the petitioner on the question whether the Lord Ordinary on the Bills had power to exercise in urgent cases the functions of the Court in such applications. (Authorities cited—Fraser's Parent and Child, 222; Buchan v. Cardross, May 27, 1842, 4 D. 1268.) The Lord Ordinary thereafter granted an order for delivery of the child to the petitioner.

On 20th October Mr Edgar presented a second petition to the Court, in which he made the following statements:—“That after the service upon her of the said petition, and while the matters therein were sub judice, the said Margaret Fisher left her home at 2 Morris Place aforesaid, taking with her the said child. The pursuer has

Page: 77↓

reason to believe that she has removed the child outwith the jurisdiction of the Court, and is presently residing in England or elsewhere outwith the jurisdiction, and is also concealing her address from the petitioner and his agents with the intention of defeating the orders of the Court. The petitioner has used every effort to discover where she and the child are, but without success. The said Margaret Fisher was duly charged upon 26th September at her last known residence to implement the said decree of 21st September 1893, and the said Archibald Fisher junior was on same date personally charged to the like effect. The days of charge have now expired, but neither of the said respondents has done anything to implement the orders of the Court…. That the petitioner has reason to believe that the known agent of the said Margaret Fisher, Joseph Shaughnessy, writer in Glasgow, has been in communication with her since her departure from home, and is still in a position to communicate with her. The petitioner has, through his agent, applied to the said Joseph Shaughnessy for the address of his said client, but this he has declined to furnish. The petitioner also believes that the said John M'Killop and Michael Dunbar, the co-trustees of the said Margaret Fisher as aforesaid, are aware where she and the said child are to be found. That the said Margaret Fisher is possessed of or entitled to participate largely in the following heritable and moveable property, means, estate, and effects situated in Scotland in the hands of the following parties, viz., the trust estate of the said deceased George Fisher and Mrs Everina Burns or Fisher, at present standing vested in the said Margaret Fisher, John M'Killop, and Michael Dunbar as trustees. … The said Margaret Fisher is also possessed of other property in the hands of parties to the petitioner at present unknown. That portions of the said property, means, and estate and effects, and of the proceeds thereof, and the rents or income derived therefrom, is in whole or in part being remitted to the said Margaret Fisher by the said co-trustees, or by her said agent, who is also agent for said co-trustees, or otherwise in manner unknown to the petitioner, in order that she may support herself while continuing to detain the said child in hiding either within or without the jurisdiction of the Court, and to withhold the said child from the petitioner's lawful custody, and while herself continuing in open contempt of the authority of the Court. The only way of compelling the said Margaret Fisher to surrender herself to the authority of the Court and give obedience to the said interlocutor of 21st September 1893, and to such other interlocutors as the Court may pronounce in this or the petition herein referred to, is to sequestrate the whole property, means, estate, and effects within the jurisdiction which may be found to belong to her, together with the income thereof, and to interdict all parties by whom such property, means, estate, and effects or any part thereof is payable from parting in any way with the same, or the income and proceeds thereof, except as here in after mentioned, until the further orders of the Court. The domicile of the petitioner, of his said child, and of the said Margaret Fisher is in Scotland.”

The petitioner accordingly craved the Court “to appoint this petition to be intimated on the walls and in the minute-book in common form, and to be served upon the said Margaret Fisher by serving a copy hereof upon her personally in case she can be found, and if she cannot be found, by leaving a copy for her at No. 2 Morris Place aforesaid, which is her ordinary dwelling-house, and by delivery of a copy hereof for her to her known agent the said Joseph Shaughnessy, or in such other manner as your Lordships may order, and to be served in common form upon the said Archibald Fisher junior, John M'Killop, and Michael Dunbar, and to ordain the said Margaret Fisher, Archibald Fisher junior, John M'Killop, and Michael Dunbar to compear personally at the bar of the Court on such day as your Lordships may appoint, the said Margaret Fisher and Archibald Fisher junior to bring with them and deliver up to the petitioner the said Everina Burns Edgar, and the said John M'Killop and Michael Dunbar to disclose to the Court any information in their possession as to the present abode of the said Margaret Fisher or Everina Burns Edgar; and to ordain the whole respondents foresaid, if so advised, to lodge answers before the day appointed for compearance, or within such other short period as to your Lordships may seem fitting; and on resuming consideration hereof, with or without answers, to conjoin this petition with the petition by the present petitioner presented on 5th September last and hereinbefore referred to, and to deal with the said Margaret Fisher, Archibald Fisher junior, John M'Killop, and Michael Dunbar, on their appearing at the bar, as to your Lordships shall seem good; and in the event of the said Margaret Fisher failing to appear on the day appointed, then to sequestrate the whole property, means, estate, and effects situate in Scotland belonging to her and held as aforesaid or otherwise to the pursuer unknown, and the rents, income, or proceeds thereof, and to appoint such fit person as your Lordships may select to be judicial factor to receive said rents and income of the said property, means, estate, and effects, and so much of the capital or proceeds thereof as may from time to time become due and payable by parties indebted therein, and to discharge the parties liable in payment thereof, and to retain the same until your Lordship's further orders, he always finding caution before extract, but with special power to him to advance to the said Margaret Fisher on her request in writing, such sum out of the said estate coming into his hands as may be necessary to bring her and the said child from their present place of abode to Edinburgh; and further, to interdict the said Margaret Fisher, John M'Killop, and Michael Dunbar, and all other parties in possession of

Page: 78↓

estate in Scotland belonging to the said Margaret Fisher, from carrying away or otherwise parting with any of the said property, means, estate, and effects, or the rents, income, or proceeds thereof, otherwise than to the judicial factor to be appointed as aforesaid until the recall of the said sequestration.”

On 21st October the Court ordered the petition to be intimated and served as craved, and this was done. As Margaret Fisher could not be found, personal service upon her was not effected. No answers were lodged by Margaret or Archibald Fisher, but Mr M'Killop and Mr Dunbar put in a minute containing the following statements—“The minuters have taken and desire to take no part in the controversy between the petitioner and Miss Fisher. … Miss Fisher's disappearance, as also the removal of the child, occurred without the knowledge of these minuters. She did not consult them, nor has she informed them of her address. They have had no communication from her, and they have had no communication with her, nor have they sent her any money. They applied to Mr Shaughnessy, her and their agent, for information as to her address, but he informed them that he also was not aware where Miss Fisher was living. The said trustees are willing to retain or consign in bank Miss Fisher's share of the trust income if the Court makes the necessary order on them.”

Counsel for the petitioner thereafter craved the Court on 4th November to conjoin the two petitions, and, without ordaining the said Margaret Fisher to appear at the bar, at once to grant sequestration as craved. He stated that personal service of the petition on Margaret Fisher had not been effected as she could not be found, and continued to conceal her present residence. He was, however, informed that she had been seen, just before presentation of the second petition, at 2 Morris Place aforesaid, her usual dwelling-place in Glasgow as stated in the petition. In acting as she was doing, her object was evidently to evade compliance with the orders of the Court, and to retain the child until she ceased to be a pupil. Sequestration should therefore be granted forthwith. Authority— Ross v. Ross, July 18, 1885, 12 R. 1351. This course was adopted in England in similar circumstances— Miller v. Miller, 1869, L.R., 2 Prob. and Div. 13, Daniel's Chancery Practice, i. 908.

The Court thereupon pronounced an interlocutor ordaining Margaret Fisher to appear personally at the bar on 10th November, and further interdicting the minuters from making any payment to her out of the trust funds until the further order of Court.

Owing to Margaret Fisher's whereabouts remaining unknown it was found impossible to intimate this order to her personally. It was, however, intimated to her agent and to M'Killop and Dunbar, her co-trustees, and a copy was left at her usual residence. She did not appear in Court on 10th November, and counsel for the petitioner then renewed his previous motion.

At advising—