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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gray v. Brown [1878] ScotLR 15_639 (19 June 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0639.html Cite as: [1878] SLR 15_639, [1878] ScotLR 15_639 |
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Page: 639↓
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Terms of issue adjusted in an action of damages for seduction, where the pursuer alleged that the defender had seduced her by means of courtship and professions of honourable attachment, by which he induced the belief that he would make her his wife, but where no specific provision to marry was alleged.
This was an action of damages for seduction, in which the pursuer averred that about the summer of 1876 “the defender began to pay her attentions … an intimacy sprang up, and the defender frequently expressed to the pursuer his admiration of and love and affection for her, and conducted himself towards her as one who desired to make her his wife. His courtship appeared to be an honourable one, and the pursuer believed it to be so.” In Cond. 3 the pursuer, inter alia, averred that “the defender paid his addresses to her, and professed to entertain for her an honourable love, and the greatest esteem and regard. In consequence of his so conducting himself towards her, and she being, moreover, very young, and feeling flattered by the courtship of a man so much her superior in years, the pursuer gave her affections entirely up to the defender, and regarded him with entire trust and confidence. She looked upon him as her future husband, and on that footing permitted endearments and caresses from him. The defender took advantage of the feeling towards him on her part, which he had inspired as aforesaid, and of the trust she reposed in him, and of the belief which he well knew he had caused her to entertain that she would be his wife, to seduce her.” Cond. 4 was, inter alia, as follows “She was prevailed on to permit connection by the love for him which the defender had induced by means of his said courtship and professions of honourable attachment, and making the pursuer his wife, and in reliance upon the prospect she entertained of one day being such.”
The Lord Ordinary (
The pursued argued—It was not necessary to include in the issue the means by which the seduction was accomplished; it was enough merely to put the question, was the pursuer seduced? In the cases quoted for the defender, where the means of seduction were described, there was a specific promise of marriage, and besides in them the pursuer proposed the issue, and undertook of her own free will the burden of proof.
Argued for defender—It was settled that where a profession of honourable courtship was alleged to be the means by which seduction was accomplished, it was necessary to insert it in the issue; here what was averred amounted to this, and it ought to be inserted.
Authorities referred to— Monteith v. Robb, March 5, 1844, 6 D. 934; Kay v. Wilson's Trustees, March 6, 1850, 12 D. 845; Stewart v. Menzies, June 27, 1837, 15 S. 1198; Walker v. M'Isaac, January 27, 1857, 19 D. 340; Paton v. Brodie, December 10, 1857, 20 D. 258; Forbes v. Wilson, May 16, 1868, 6 Macph. 770; Macfarlane's Issues, 378–381; Fraser on Husband and Wife, vol. i. 504.
The Court appointed the following issue for the trial of the cause:—“Whether, in the course of the period betwixt May 1876 and October 1877, the defender courted the pursuer, and professed honourable intentions towards her; and whether by means of such courtship and professions the defender seduced the pursuer, and prevailed upon her to permit him to have carnal connection with her, to her loss, injury, and damage. Damages laid at £1000.
Counsel for Pursuer— Rhind. Agent— Wm. Spink, S.S.C.
Counsel for Defender— Campbell Smith. Agent— Adam Shiell, S.S.C.