I think that the case of M'Laurin v. Stafford , December 17, 1875, 3 R. 265, 13 S.L.R. 174, is an authority for that view. It was said for the defenders that that case had never been followed. It may be that a similar case has never come up for decision, but I know of no reason why the authority of the judgment (which was the unanimous judgment of Seven Judges) should be doubted. No doubt the deed in question in this case is not of the same kind as in the case of M'Laurin , but they have this vital element in common that in both cases the deed was granted gratuitously.
In form the first issue proposed by the pursuer is that which was adjusted by the Court in M'Laurin's case, and I think that it ought to be approved. I would, however, suggest that the word ‘import’ should be used instead of the word ‘substance.’
The second issue proposed by the pursuer is—Whether the pursuer was induced to grant the said deed by misrepresentation or concealment on the part of Donald Macgregor, Solicitor, Oban.
I know of no authority for such an issue, and I do not think that it can be granted. It is not any or every misrepresentation or concealment which will justify the reduction of even a gratuitous deed. It might be proved that the pursuer was fully aware of the import and effect of the
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I therefore propose to allow an issue in the form approved by the House of Lords in the case of Stewart v. Kennedy , namely, whether in granting the said deed the pursuer was under essential error as to its import and effect induced by Donald Macgregor, Solicitor, Oban.
The pursuer proposes a third issue to the following effect:—‘Whether the said deed was granted by the pursuer gratuitously without independent advice, and without adequate information in regard to her rights in the estate of her brother John Stuart M'Caig.’
That appears to me to be practically a repetition of the issue of essential error with the exception of the part which refers to the absence of independent legal advice, and the fact that the pursuer had no independent legal advice, although it may be very important upon the question of essential error, is not, in my judgment, in itself a ground of reduction. I shall therefore refuse the third issue proposed.”
The defenders reclaimed, and argued—(1) This was a typical case for trial by proof before a judge and not by a jury. It imported a serious charge against a professional man and involved intricate questions of law. The first impression of the Lord Ordinary was to send it to a jury, and this was the correct procedure— Weir v. Grace December 13, 1898, 25 R. 739, 35 S.L.R. 566. (2) In any event, the first issue should not be allowed. Essential error alone was not a sufficient ground for reducing a deed. M'Laurin v. Stafford , supra , was not applicable.
Counsel for the pursuer and respondent was not called on.
Lord Justice-Clerk —I do not think it necessary to call for any further argument. This case seems to be very similar to that of M'Laurin , 3 R. 265. The action is brought to reduce a deed which is said to have been signed under essential error as to its import. The deed was entirely gratuitous, and I think the pursuer is entitled to the two issues in the form allowed by the Lord Ordinary. As regards the mode of trial, I am of opinion that the Court should not interfere with the judgment of the Lord Ordinary in such a case except on very strong grounds indeed. I think there are no such grounds here, and that the case should be tried by jury as the Lord Ordinary has decided
Lord Young , Lord Trayner , and Lord Moncreiff concurred.
The Court adhered.
Counsel for the Pursuer and Respondent— Salvesen, K.C.— Cullen. Agents— Alex. Morison & Company, W.S.
Counsel for the Defenders and Reclaimers— The Lord Advocate (Dickson, K.C.)— Younger. Agents— Morton, Smart, Macdonald, & Prosser, W.S.