ROBERT GORDON MUNRO v GEORGE GRAHAM (Court of Session)

The Lord Ordinary (9th March 1839) pronounced the following interlocutor, with the annexed note:

There may be a feeling of some hardship to the defender in this case, from the consideration that the maker of the deed was his father; and that the pursuer was, at its date, but a remote substitute of entail in spe. But that is only the consequence of all the law of entailed succession. Still, if it be the pursuer's legal right to have this executry fund laid out, the defender is bound to fulfil his obligation, and the Court must enforce it according to law.

Graham reclaimed , contending, that the action ought to be dismissed, as the bill had been filed in Chancery against the defender and Mr Davidson's executors for a general accounting. The former had entered appearance, and the latter had given in answers. There were therefore parties in England against whom a decree could go out; and this case fell under the general rule, that where foreign executors have administered in a foreign country, they are only accountable there for the estate, except where they have come to reside in Scotland.

Wood , for the pursuer, having stated that the answers given in by Davidson's executors in Chancery denied their liability to account, the case was delayed on 12th June, that the defender's counsel might inquire into this.

The case being again put out to-day, Anderson , for the defender, stated, that so far as he understood the answers, the executors did not deny their liability, but only ‘submit to the Court’ whether they are liable; and at least English counsel should first be consulted as to the fair meaning of the proceedings.