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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macleod v. Macaskill [1919] ScotLR 72 (19 November 1919) URL: http://www.bailii.org/scot/cases/ScotCS/1919/57SLR0072.html Cite as: [1919] ScotLR 72, [1919] SLR 72 |
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Page: 72↓
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In an action of damages for seduction the Court allowed an issue where the pursuer averred—“That night the defender, taking advantage of his position as her master and the circumstance of their being alone in the house, as well as by his assurances of the sincerity of his affection for her, and by representing that he would do her no harm, prevailed upon the pursuer to allow him to have carnal connection with her, and succeeded in having carnal connection with her. …”
Jeanie MacLeod, pursuer, brought an action of damages against Kenneth MacAskill, defender, for seduction, in which the pursuer averred—“(Cond. 1) The defender is a farmer, and is tenant of the farm of Glen Ebost, Bracadale. For some time he had charge of his father's farm of Glen-mackaskill, Horlosh, Skye. The pursuer, who is twenty-six years of age, went to Glenmackaskill Farm in November 1917 to act as housekeeper to the defender. The only other person who stayed in the house Was a herd boy named Angus M'Leod.… (Cond. 2) After the pursuer had been there some time the defender began to pay her marked attention and endeavoured to win her affection. He tried to get her to go out walks with him on Sundays, and pressed his company upon her at every opportunity. On a Sunday about the beginning of March 1918 the defender met the pursuer when she was walking on the hill. He was then so persistent in his attentions to her that the pursuer threatened to leave his service unless he desisted. (Cond. 3) On the following Tuesday, the defender, unknown to the pursuer, sent the herd boy home for the night, so that there was no one in the farmhouse but the pursuer and the defender. That night the defender, taking advantage of his position as her master and the circumstance of their being alone in the house, as well as by his assurances of the sincerity of his affection for her, and by representing that he would do her no harm, prevailed upon the pursuer to allow him to have carnal connection with her, and succeeded in having carnal connection with her.…”
The defender pleaded, inter alia—“The pursuer's averments being irrelevant, the action should be dismissed.”
On 17th October the Lord Ordinary (
Sands ) allowed the following issue for the trial of the cause:—“Whether, in the course of the period between December 1917 and March 1918, the defender, taking advantage of his authority and influence as her employer and by his professions of sincere affection for her, seduced the pursuer and prevailed upon her to permit him to have carnal connection with her, to her loss, injury, and damage?”The defender reclaimed, and argued—The facts averred by the pursuer were insufficient to prove seduction— Hislop v. Ker, 1690, M. 13 908; Linning v. Hamilton, 1748, M. 13, 909; Steicnrt v. Menzies, 1837, 15 S. 1198; Forbes v. Wilson, 1868, 6 Macph. 770, 5 S.L.R. 501; Gray v. Brown, 1878, 5 R. 971, 15 S.L.R. 639; Gray v. Miller, 1901, 39 S.L.R. 256; Cathcart v. Brown, 1905, 7 F. 951, 42 S.L.R. 718; Brown v. Harvey, 1907 S.C. 588, 44 S.L.R. 400.
Argued for the respondent—The facts averred by the pursuer were sufficient to prove seduction. There was no case in the books where an action of damages for seduction had been held to be irrelevant, The pursuer was at least entitled to a proof before answer. A proof before answer was allowed in Murray v. Eraser, cit. Reid v. Macfarlane, 1919, 56 S.L.R. 482, and Gray v. Miller, cit., per Lord Trayner at p. 257, were also referred to.
The pursuer, who is twenty-six years of age, says she went to act as housekeeper to the defender, who is a farmer in Skye, and that the only other person who stayed in the house was a herd boy. In condescendence 2 she says the defender began to pay her marked attention and pressed his company upon her at every opportunity. When she was out walking he met her, and he was then so persistent in his attentions to her that she threatened to leave his service unless he desisted. That was on a Sunday in March 1918; and then the next averment we have is that on the following Tuesday—that is to say, within forty-eight hours or thereby after she had threatened to leave his service—“the defender, unknown to the pursuer, sent the herd boy home for the night, so that there was no one in the farmhouse but the pursuer and the defender,” and then it is alleged “that night the defender, taking advantage of his position as master and the circumstance of their being alone in the house, as well as by the assurances of the sincerity of his affection for her, and by representing that he would do her no harm, prevailed upon the pursuer to allow him to have carnal connection with her, and succeeded in having carnal connection with her.”
Now in the issue two considerations are founded on, namely, taking advantage of his authority and influence as her employer and his professions of sincere affection for her. I think that on the cases that have already been decided we could not safely, in face of averments such as I have referred to, deprive the pursuer of the opportunity of having the case investigated.
Page: 73↓
Accordingly I think we must adhere to the Lord Ordinary's interlocutor and refuse the reclaiming note. No exception was taken to the issue, which will stand as adjusted by the Lord Ordinary.
There is nowhere on this record any allegation of the usual arts and wiles which are averred in actions of this sort—professions of courtship and affection with a view to marriage. There is no averment of threats of violence or of actual violence such as occur in some of the cases. There is no averment, as occurs in others of the cases, of a gradual process of debauching and corrupting the mind of the woman ultimately seduced. There is, as your Lordship has pointed out, merely the baldest averment that the man taking advantage of his position as the employer of the girl, who was his servant, overcame her scruples. It seems to me that in allowing this record to pass, as I think it may pass, we are going almost to the extreme limit of indulgence.
The Court adhered.
Counsel for the Reclaimer (Defender)— Wilton, K.C.— King Murray. Agent— D. Maclean, Solicitor.
Counsel for the Respondent (Pursuer)— Morton, K.C.— Forbes. Agent— Alexander Ross, S.S.C.
