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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Suttle v Ross [1838] CS 16_1108 (5 June 1838)
URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1108.html
Cite as: [1838] CS 16_1108
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SCOTTISH_Court_of_Session_Shaw
Page: 1108↓
v.
D. F. Hope— Anderson.
Sol.-Gen. Rutherfurd— Speirs.
Subject_Jury Trial—Facility, Fraud, and Lesion.—
In a redaction of a testamentary writing on the ground of facility, fraud, and lesion, an issue was prepared, Whether the writing was procured to the lesion of “the granter;” the granter was deceased, and her representative was pursuer; on the day of trial, the presiding Judge discharged the order for trial in respect that the issue should have been whether the writing was to the lesion of “the pursuer;” it afterwards appeared that the issue had been framed in conformity with the terms adopted in all similar actions, and the cause was anew appointed to be tried under the said issue.
Facts:
Sequel of the case reported ante, p. 429, which see. The issue having been then adjusted, the day of trial was fixed, but on that day the Lord President, who was to try the cause, intimated that the issue appeared to be informally framed, as it put the question whether the deed was executed to the lesion of “the granter,” Miss Suttie, who was now deceased, whereas it ought to have been whether it was to the lesion of “the pursuer.” The order for trial was then discharged, “in respect that the issue bears that the deed in question was granted to the lesion, not of the pursuer, but of ‘the granter’ of the deed.” 1
On now resuming consideration of the cause, it was intimated by the Lord President, that, as the form of the issue in such cases appeared always to have been in similar terms with the form in this instance, he should no longer press the informality of it, but would assent to the cause being tried in terms of it.
It was accordingly arranged that the trial should take place under the existing issue, at the ensuing Jury Sittings in July.
Solicitors: A. Smith, W.S.— Ker and Dickson, W.S.—Agents.
_________________ Footnote _________________
1 Mar. 21, 1838. See Macfarlane's Jury Trial Reports, 1. 35.