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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lang v. Lang [1868] ScotLR 6_208 (18 December 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0208.html Cite as: [1868] ScotLR 6_208, [1868] SLR 6_208 |
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Page: 208↓
(Ante, p. 20.)
Held that a decree exhausting the merits in an action of separation and aliment was a final decree in the sense of the Conjugal Rights Act, and that after such decree is pronounced it is incompetent, both at common law and under the Act, to make a motion to the Lord Ordinary or the Court providing for the custody of children.
In this case the Court some time ago pronounced decree of separation a mensa et thoro in favour of the wife, on the ground of the husband's cruelty. The case then was brought before the Lord Ordinary on the question of aliment, and his Lordship having found the wife entitled to &100, a reclaiming note was boxed against the Lord Ordinary's interlocutor, and the Court modified the award of the aliment. The pursuer of the action (wife) then make a motion before the Lord Ordinary (Jekviswoode) praying for an order to regulate the custody of two of the pupil children of the family. The Lord Ordinary appointed the children to be under the custody of the mother. The defender reclaimed.
Pattison and Crichton for her.
Clark and Black in answer.
The Court held that the Lord Ordinary had no power, either under the Conjugal Rights Act or at common law, to entertain this motion after final decree had been pronounced in the action, and accordingly recalled the Lord Ordinary's judgment. Lord Benholme was absent, but his dissent, on the ground of the expediency of recognising the power of the Court to deal with such a matter, was intimated by the Lord Justice-Clerk.
In answer to a question by Mr Clark, it was stated by the Lord Justice-Clerk that it was not contemplated that in such an action, or in an action of divorce, there should be conditions applicable to the custody of children.
Agent for Pursuer— W. H. Muir, S.S.C.
Agent for Defender— James Young, S.S.C.
