ment of the expenses of the application for authority to feu and of constructing roads and drains in the glebe to be feued. By the abolition of casualties in future feus, the Legislature had left that sinking fund to accrue from no other source than payments by feuars in respect of roads and drains. Counsel suggested the imposition for a period of years of a slightly higher feu-duty than that which would be normal for the glebe, the surplus over the normal to be put to the sinking fund. In that way the minister would draw his normal feuduty and the expenses of the application would affect neither the present incumbent nor any of his successors in office. When the expenses had been paid, together with the cost of roads and drains, the feu-duty would presumably be lowered to the normal.

Avizandum, 11th March 1921.

On 27th May 1921 the Court in each petition, inter alia, approved of the auditor's report and decerned the taxed amount to be a permanent burden upon the glebe of the parish, and the interest thereof to be a first charge upon the whole produce and revenue of the said glebe until the said burden should be extinguished in manner provided by the Glebe Lands (Scotland) Act 1866.

The opinion of the Court was delivered by the Lord President.

The Lord President (Clyde).—These are two petitions for authority to feu glebe land under section 5 of the Glebe Lands (Scotland) Act 1866. Owing to a practical difficulty regarding the disposal of the expenses referred to in section 18 of the Glebe Lands Act-a difficulty caused by the provisions of the Feudal Casualties (Scotland) Act 1914-we found it necessary to take these petitions to avizandum. By said section 18 the expenses of and incidental to the applying for and obtaining such an order as is asked, and also those of making the necessary streets and drains, are to be ascertained, and the amount thereof decerned to form a "permanent burden upon the glebe." The interest of the amount "until extinguished as after provided or otherwise "-is to form "a first charge on the whole produce and revenue of the said glebe."

The reference to a subsequent provision of the Act is to section 19, according to which, as long as the burden of the expenses remains unpaid, the casualties of superiority arising under the feu-contracts to be granted, together with payments from feuars in respect of the construction of roads and drains, must be invested in order to provide a sinking fund to meet the said burden, the interest of such fund being paid to the minister for the time being. When this fund becomes sufficiently large the

Petr.

May 27,

1921.

burden is to be paid off, and thereafter the COURT OF casualties become payable to the minister for TEINDS. the time being. But by section 18 of the Mackenzie Feudal Casualties (Scotland) Act 1914, casualties -Petr. are prohibited in feus granted after 10th August Simpson1914, the date of the commencement of the Act. It follows that, in the case of the applications under consideration, the whole machinery of section 19 of the Glebe Lands (Scotland) Act 1866-except as regards payments for roads and drains becomes inoperative. Section 16 of the Feudal Casualties Act contains a provision designed to meet the case of the redemption of casualties arising under feus of glebe lands; but I have not been able to discover any provision in the statute meeting cases like the present in which no casualties can ever arise or can ever be the subject of redemption. It might have been equitable that the feu-duties, being presumably larger than would be the case if the feus were subject to casualties as well as feuduties, should be laid under contribution to the sinking fund. But the statute makes no provision for this, and it is not within the powers of this Court to impose such a modification on the statutory enactments.

The only other reference in the Glebe Lands Act to the payment of the expenses of an application under section 5 is to be found in section 17. In the event of a coterminous proprietor exercising the option given to him by that section, in the form of purchase, such expenses are directed to be deducted from the price before investment thereof. This provision is intact; but the contingency on which it proceeds is, probably, only rarely realised.

The expenses must, of course, be declared a permanent burden on the glebe, and the interlocutor will be in the ordinary form. It remains a matter for consideration by the authorities of the Church whether a remedy for the state of matters produced by the Feudal Casualties Act should be sought by legislation or otherwise.

Counsel for Petitioners, Keith; Agents (for Rev. N. K. Mackenzie), J. Douglas Gardiner & Mill, S.S.C., for James Thomson, Solicitor, Dundee; (for Rev. J. S. Simpson), Henry Bower.

M. D.

Process-Husband and Wife-Divorce-Custody, maintenance, and education of pupil children-Conjugal Rights (Scotland) Amendment Act 1861 (24 & 25 Vict. cap. 86), husband - Final decree dealing with custody of and access to pupil child but not reserving right to parties to apply for further orders of the Court as to custody, etc.Subsequent application by wife to vary order as to custody Case reported by Lord Ordinary-Held that the Lord Ordinary was functus, and direction to him to dismiss the application-Held further that a final decree which contained a reservation of right of parties to apply for further orders as to custody, etc., of pupil children was capable only of interim extract.

section 9-Action of divorce for desertion at instance of

Case reported by Lord Blackburn.

Arthur Buchanan Sanderson, sometime residing at Newbury, Berkshire, brought an action of divorce against his wife, Mrs Stella Winifred Woodthorpe Robertson or Sanderson, Basil Street, London. On 12th June 1920 the Lord Ordinary (Blackburn) pronounced this interlocutor: ". . . . Finds and declares in terms of the conclusions of the libel for divorce: finds the pursuer entitled to the custody of the pupil child of the marriage and interdicts prohibits and discharges in terms of the conclusions of the summons to that effect: and in respect that it has been arranged between the parties that the said child should spend the first ten days of the Christmas holidays the first ten days of the Easter holidays and the first half of the summer vacation with the defender finds it unnecessary to deal with the question of access and decerns." On 14th December 1920 the defender lodged a minute in the action of divorce in which she averred a change of circumstances since the decree of divorce and craved the Lord Ordinary to pronounce a varied order as to the custody of and access to the said pupil child of the marriage. Answers were lodged for the pursuer and replies for the defender.

On 25th January 1921 the Lord Ordinary reported the case to the First Division.

Lord Blackburn.-It is provided by section 9 of the Conjugal Rights Amendment Act 1861 (24 & 25 Vict. cap. 86) that:

In any
action for separation a mensa et thoro or
for divorce the Court may from time to time
make such interim orders, and may, in the
final decree, make such provision as to it shall
seem just and proper with respect to the
custody, maintenance, and education of any
pupil children of the marriage to which such
action relates."

The direction of the Court is desired on the question whether when a final decree has been pronounced

in an action of divorce and in the same interlocutor the custody, maintenance, or education of a pupil child of the marriage has been dealt with, the action may still be treated as a continuing process, in which, if circumstances changed, it would be competent for the Lord Ordinary to alter or vary his previous findings with regard to the custody, maintenance, or education of the child.

In the present action I pronounced an interlocutor on 12th July 1920, in which I found the pursuer entitled to divorce on the ground of his wife's desertion. There was a conclusion for custody of the only child of the marriage, a boy aged nine. No defences were lodged to the action but the defender was represented by counsel at the proof, and it was stated on her behalf that she would have opposed the conclusions for custody, but for an arrangement which had been come to between the parties. Up to the date of the decree the boy had been in his mother's custody, and so far as the evidence in the case went there was nothing to suggest that she was unfitted to continue in charge of him. It appeared to me to be a case of a marriage between two persons utterly unsuited to one another, which resulted in the wife refusing to adhere rather than continue a life which she found intolerable. I pronounced the following finding, which included at the request of both parties the terms of their agreement as to custody: "Finds the pursuer entitled to the custody of the pupil child of the marriage and interdicts prohibits and discharges in terms of the conclusions of the summons to that effect; and in respect that it has been arranged between the parties that the said child should spend the first ten days of the Christmas holidays, the first ten days of the Easter holidays, and the first half of the summer vacation with the defender, finds it unnecessary to deal with the question of access, and decerns." This interlocutor was not reclaimed and in that sense became final, but the process is still depending before me, as only interim extract was taken. states that the pursuer has gone to reside on a farm The wife has now presented a note in which she in East Africa, leaving the child in the custody of his grandmother, and on that account she asks that my previous finding as to the custody should be altered to the extent of giving her the sole custody of the child during the pursuer's absence from this country. dismissing the note as incompetent had it not been I should have disposed of this application by that in a recent case in which a similar question

arose

M'William v. M'William Lord Sands

reported the case to the Second Division for the reason that there is an alleged practice of treating divorce cases as continuing processes for the regulation of questions of custody. This practice was also referred to before me as being well established, and I was asked to report the case instead of dismissing it, with a view to avoiding the expense of printing the proof in the event of the minuter being forced to

reclaim.

The only authority to which I was referred as supporting this alleged practice was the case of Rowat (12 S.L.T. 449), where Lord Low, after pronouncing a final decree of divorce and fixing the amount of aliment for the children of the marriage in the same interlocutor, subsequently, on a change of circumstances, issued a second interlocutor increasing the amount of aliment. There was no discussion in that case as to the competency, and there is a material distinction between the competency of

dealing with questions of aliment and of custody. A Lord Ordinary has jurisdiction to deal with questions of aliment apart from section 9 of the Conjugal Rights Amendment Act, and the continuing of the divorce action for the purpose of reconsidering questions as to aliment may be a more convenient way to deal with the matter than the raising of a new and separate action. It humbly appears to me that Lord Low was entitled to deal with the matter as he did in the absence of any objection by the parties, and his action appears to be justified by the case of Symington v. Symington (1 R. 871), to which I shall presently refer.

But a Lord Ordinary has no jurisdiction whatever with regard to custody except such as is conferred on him by the Act. In my opinion, the section only authorises him to deal with the question of custody up to and including the issue of the final decree disposing of the divorce or separation. This was expressly decided in the case of Lang v. Lang (1868, 7 M. 445), in which it was held incompetent for the Lord Ordinary to deal with the question of custody a fortnight after he had issued an interlocutor pronouncing a decree of separation but containing no mention of the custody of the children. I do not think it is possible to differentiate that case from the present on the ground that there was no conclusion for custody in the summons in Lang's case, nor do I think, as was argued before me, that the fact that the Lord Ordinary had failed to deal with the question of custody primo loco when the decree of separation was pronounced had any effect on the judgment of the Inner House. I see no reason why the decision in Lang's case should not be regarded as binding, and in face of it I do not understand how a practice should have arisen of dealing with divorce cases as continuing processes for the purpose of regulating the custody of a child.

As the circumstances which the Lord Ordinary is entitled to take into account in exercising his powers as to custody under the Conjugal Rights Amendment Act are very much more limited than those which a division of the Court may consider in an application under the Guardianship of Pupils Act 1886 (Beedie v. Beedie, 16 R. 648), it appears to me very undesirable that his power to deal with the matter should be extended beyond the pronouncing of the final decree.

In the case of Symington v. Symington (1 R. 871, 2 R. (H.L.) 42, 2 R. 974) the First Division, reversing the Lord Ordinary, found the defender entitled to a decree of separation and to the custody of the children, and in their interlocutor reserved to the parties right in the event of any material change of circumstances to apply to the Court to have the provisions as to the custody, aliment, and education revised and altered. Any further application made in terms of this interlocutor would neces

I

sarily be to the First Division, which has jurisdiction to deal with the custody apart from the Conjugal Rights Amendment Act, and this reservation, as have said, seems to justify Lord Low's action in the case of Rowat, but it does not appear to me to have any bearing on the question raised in the present

Division the case of M'William v. M'William, 1st Div. referred to by Lord Blackburn (supra), which was in the following terms:

Lord Sands.-There is no common law jurisdiction in questions of the custody of children in the Outer House. By section 9 of 24 & 25 Vict. cap. 86, it is provided

"In any action for separation a mensa et thoro the Court may from time to time make such interim orders, and may, in the final decree, make such provision as to it shall seem just and proper with respect to the custody, maintenance, and education of any pupil children of the marriage to which such action relates." was held that it was incompetent for the Lord In the case of Lang v. Lang (1868, 7 M. 445) it Ordinary to pronounce an order for the custody, maintenance, and education of children after decree of divorce or separation had been pronounced. In that case decree of separation had been pronounced for expenses. on 27th October. No decree had been pronounced Upon 13th November the Lord Ordinary, upon pursuer's motion, dealt with the question of custody. This was held to be incompetent. Notwithstanding this decision there appears, action of divorce may, after decree has been proso far as I can gather, to be an impression that an nounced, be treated as a continuous process for that in one or two cases this idea has been acted regulation of questions of custody, and I believe upon. In these circumstances it appears to me to be desirable to ascertain authoritatively whether Lang v. Lang is to be regarded as law. Two Outer Burnet (1918, 2 S.L.T. 249). House cases noted are Rowat (12 S.L.T. 449) and

The present case is an application by a father for of a female child whose custody was awarded to his the custody, owing to alleged change of circumstances, divorced wife. this way. In awarding custody to the wife I made There is a specialty in the case in the following finding:

"Finds the defender entitled meantime to the

custody of the youngest child Martha Ann Sim M William with right to the pursuer to access to said youngest child at such times as may be arranged between the parties and right to him if circumstances should arise to make it expedient in the interests of said child to apply to the Court for custody." time" and the reservation of right to the pursuer to The qualification involved in the word "meanapply to the Court on change of circumstances are what is implied in all orders of custody. I thought it right to insert them specially to accentuate the provisional character of the order which I made with hesitation and some doubt as to whether I was not the divorced spouse. I had not the form of future straining the law in giving custody of one child to procedure specially in view, and I have doubts whether if Lang be law it would be competent to create a continuous jurisdiction by the form of order. There remains the question whether, seeing that the Inner House has undoubted jurisdiction in matters of custody, they may not exercise it in this precludes the matter being dealt with in the Outer process even on the assumption that the rule in Lang

House.

If Lang were to be discarded, it would be necessary to consider the bearing of the matter upon the question of extract. In the present case the decree has not been extracted. In another depending case it has.

Sanderson v. Sanderson.

May 21, 1921.