Scottish Court of Session Decisions

Lord Justice-Clerk—My Lords, with regard to the question whether or not this cheque would by itself have been a good ground of action, it is not necessary to say anything, since the proof has disclosed the consideration for which it was given.

It is quite clear that this girl had been seduced by the defender, and that she had asked for some money, partly perhaps as a solatium for the injury done her, and still more as provision for herself and child (whose birth might be expected in a short time), since she was at once to quit the situation she held in the defender's father's house. In these circumstances the defender granted the cheque, showing that he thought that something was due from him to the pursuer.

The real reason of the granting of the cheque was no secret, and as to it there can be no question; but, then, the defender attached a condition, that the girl was to leave her situation and not to mention his name in connection with the matter.

The girl did leave the house, but before doing so she admitted to her mistress, the defender's mother, on being asked, that the defender was the person who had brought her into the situation in which she then was. Regarding this admission as a breach of the condition he had imposed, the defender withdrew from the bank all his money, so that when the cheque was presented there were no effects to meet it.

I do not think the defender was entitled to attach such a condition as this to the payment of the cheque; and further, the fact that the admission was wrung from the girl does not entitle the defender to refuse payment of a cheque granted for so serious a consideration as has been shown to exist here.

Lord Neaves—This is a somewhat peculiar case, and the defender is in rather a curious situation. It is quite clear that he had had connection with the pursuer; she was with child to him, and he wished to get her out of the house, where she was in the circumstances obviously unfit to remain. But then, if he did so, he was bound to provide for her; he makes no provision except granting the cheque, and giving her £5 in ready money, attaching the condition that she should not mention his name. The mother of the defender having been warned by one of the other servants as to the pursuer's condition, asks her who had “taken advantage of her,” when the pursuer acknowledges that it was the defender. But then the pursuer did not go and voluntarily trumpet the matter about, but only admits it when closely questioned by her mistress.

It is not possible to take the view that this man had validly imposed upon this woman the obligation of placing herself in so very unfavourable a position as this condition-would reduce her to.

But it is abundantly clear that there were quite sufficient grounds for the granting of this cheque.

Lord Ormidale—I am of the same opinion. If it were necessary for the pursuer to prove the consideration for which this cheque was given she has abundantly done so.

But then there was the condition attached, which the defender says she contravened, so as to justify him in preventing her getting the money. I think it is a very open question whether it is competent to prove by parole evidence the existence of a qualifying condition in the face of such a document as we have here.

Lord Gifford—I am of the same opinion. The action is for the contents of a cheque granted to a person by name, which goes some length in showing a transaction between the parties.

But on the various grounds stated it is clear that the pursuer was entitled to something. As to the question of secrecy, I think it was a condition incapable of being fulfilled, and indeed there might be circumstances in which it would be positively illegal for a person in the situation of the pursuer to conceal the name of the father of her child.

Decree in terms of the conclusion of the summons.