Scottish Court of Session Decisions

Mrs Anne Graham Burder and John M'Gruther, as factor loco tutoris of Charles Campbell Graham, severally obtained brieves from Chancery, addressed to the Sheriff of Perthshire, for serving Mrs Graham and the pupil, respectively, heir of tailzie to the late Robert Graham Burder of Feddall. Mrs Graham presented a bill of advocation under the 11th section of 1 and 2 Geo. IV. c. 38, which was passed, and the process was remitted to the Lord Ordinary on the bills,

M'Gruther, on behalf of the pupil, instituted a declarator of illegitimacy against Mrs Graham, and the claim was contingent upon success in that action. Mrs Graham was assoilzied; and, as M'Gruther could not effectually carry on the service of the pupil, he desisted from farther procedure, Mrs Graham then moved the Lord Ordinary to remit to the Sheriff to proceed with her brief of service, in respect, that the competition which gave rise to the advocation no longer existed. The other party refused to consent to this. His Lordship was doubtful whether he had power to do so, and he “made avizandum to the Lords of the First Division of the Court, with the view of reporting verbally to their Lordships the difficulty under the 11th section of the act of Parliament, 1 and 2 Geo. IV. c. 38, of remitting the case to the sheriff of Perthshire, seeing that it has been already advocated to this Court.” Their Lordships were unanimously of opinion, that the Lord Ordinary had no power to remit to the sheriff, but must proceed in the cause.