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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Guthrie v. Guthrie [1906] ScotLR 43_371 (09 February 1906)
URL: http://www.bailii.org/scot/cases/ScotCS/1906/43SLR0371.html
Cite as: [1906] ScotLR 43_371, [1906] SLR 43_371
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SCOTTISH_SLR_Court_of_Session
Page: 371↓
Court of Session Inner House First Division.
(Case reported by Lord Ordinary to Inner House.)
v.
Facts:
In an action of divorce at the instance of a husband against his wife, the Lord Ordinary granted decree and found the pursuer entitled to the custody of a female pupil child, the only child of the marriage. The defender having left the house where she had been residing, taking the child with her, and no information as to her whereabouts being obtainable by the pursuer, he applied to the Lord Ordinary to grant warrant to officers of law to take the child into custody and deliver her to him.
The Lord Ordinary being of opinion that the order craved could not competently be pronounced in the Outer House, reported the case to the First Division.
The Court, in the circumstances stated by the Lord Ordinary, pronounced the interlocutor craved, but was of opinion that it could not competently have been pronounced in the Outer House. Leys v. Leys, July 20, 1886, 13 R. 1223, 23 S.L.R. 834, followed.
In an action of divorce for adultery at the instance of Alexander Hunter Guthrie, grocer's assistant, 13 Tolbooth Wynd, Leith, against Mrs Margaret Little or Guthrie his wife, then residing with her mother at 50 West Bowling Green Street, Leith, the Lord Ordinary ( Ardwall) on 27th January 1906 pronounced decree of divorce, and found the pursuer entitled to the custody of Agnes Little Guthrie, the only child of the marriage. At the date of the decree the said child was nearly four years of age.
The defender having failed to deliver the child the pursuer applied to the Lord Ordinary for a warrant to officers of law to take the child into custody wherever it might be found and to hand it over to him.
On 9th February 1906 the Lord Ordinary reported the case to the First Division.
His Lordship stated that since the date of the decree complaint had been made by the pursuer that he had been unable to obtain the custody of his child; that for reasons stated by the defender's counsel he (his Lordship) had twice continued the case and appointed a place and date at and on which the child should be handed over to the pursuer; that the pursuer went on the date specified to the place appointed for delivery, but the defender failed to appear or to hand over the child; that on 31st January the defender left her mother's house taking the child with her; that continued inquiries as to her whereabouts had been made without success; that neither her father nor her mother knew anything of her movements; that no information about her could be obtained from her law-agent, her neighbours, or the police; and that in these circumstance he had reported the case as, in his opinion, a mere order ad factum prcestandum would not be sufficient. His Lordship also stated that he thought the course followed in the case of Leys v. Leys, July 20, 1886, 13 R. 1223, 23 S.L.R. 834, might be suitably followed here, but that, in his opinion, the interlocutor there pronounced could not competently be pronounced in the Outer House.
[In answer to the Lord President, counsel for the pursuer stated that the defender's counsel and agent had both retired from the case.] .
The precedent for it is in the case of Leys v. Leys, 13 R. 1223. The only question is as to the expediency of granting it at this stage. I am clearly of opinion that it is expedient to do so. This seems to be a deliberate attempt to evade the orders of the Court. It would only be to make the evasion of these orders more easy and to cause further delay if we were to compel the pursuer to wait till he could obtain extract of the interlocutor pronounced by the Lord Ordinary and then charge.
I am therefore of opinion that the interlocutor which Loi'd Ardwall has suggested should be pronounced.
The Court pronounced this interlocutor:—
“The Lords in respect that it is reported by the Lord Ordinary in the cause that the defender had left her father's house, where she had been formerly residing, on Wednesday, 31st January 1006, taking with her the pupil child of the marriage, to the custody of which the pursuer was found entitled by the Lord Ordinary's interlocutor of 27th January 1906; that continued inquiries have been made to discover her whereabouts without success; that her father and mother state that she left their house on said 31st January 1906 and that they know nothing of her movements since, and that her law-agent, the police, and neighbours in the district can give no information concerning her since that date: Grant warrant to messengers-at-arms and other officers of law to take into their custody the person of the pupil child, Agnes Little Guthrie, wherever she may be found and deliver her into the custody of the pursuer; and authorise and require all Judges Ordinary in Scotland and their procurators-flscal to grant their aid in the execution of this warrant, and recommend to all magistrates elsewhere to give their aid and concurrence in carrying this warrant into effect; and authorise execution to pass on a copy of this deliverance and warrant herein contained, certified by the Clerk of Court; and decern ad interim.”
Counsel for the Pursuer— J. G. Jameson. Agent— P. F. Dawson, W.S.