James Steedman, Merchant in Kinross v. Charles Coupar, Sheriff-Clerk there
Date: 17 June 1743 Case No. No 72.
Action of damages is competent before the Court of Session, at a husband's instance, against a third party for seducing his wife, against whom he had obtained a divorce.
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The pursuer having obtained divorce against his wife, before the Commissars, for her adulterous practices with the defender, brought an action against him of damages, for reparation of the injury.
Pleaded in defence, That this process was quite new and unprecedented in the law of Scotland; and however the nature of it may be disguised by words, importing it to be a civil action for damages, yet in reality it was a criminal prosecution, for the alleged crime of adultery, though the Court is not vested with any such criminal jurisdiction, as can authorise it to take proof of the alleged criminal practices, in order to convict the defender of adultery. If this process is therefore of a criminal nature, it surely is not expedient or regular for the Court to judge of it, in prima instantia. How far it might lie for recovering imaginary damages, after conviction before the Justiciary Court, may be doubted; as neither our law, authorities of our lawyers, or practice of our courts, have given any countenance to such actions. But the present question is allenarly, Whether before any such prosecution is brought, a suit lies before this Court in the first instance? With respect to which it is obvious that the husband and wife are principal offenders in such cases, as being under the strongest mutual obligations of chastity; consequently, such actions should necessarily be directed primarily against the husband or wife, which ever of them was guilty. Upon this principle it is, that when the husband or wife are convicted, they lose the provisions to which they were entitled by the contract, or provision of law. And when provisions were made with this particular view, it could scarcely have escaped the Legislature to have taken some notice of the case of third parties, had such suits as the present been deemed competent for imaginary damages. It would be a novelty surely in our law, to bring an action of assythment against a murderer before conviction; which must conclude a fortiori to the present point, where the law gives satisfaction to the injured person out of the effects of the principal offender. It is likewise one of the peculiar privileges of our law, that in all criminal matters, (petty delinquencies excepted) the person accused must be tried and convicted by his country. But if this attempt take place, this part of our constitution will be sensibly struck at. It will not be contested, that where, from the same fact, there arises both a criminal and civil action, the one does not destroy the other. Now, suppose the defender should be convicted, and decreet given against him for a certain sum, could he be prosecuted next day before the Justiciary? it is believed no man will think, that, for the same fact, he could be obliged to stand both trials before different courts; and if such is the law, whence can this proceed? if it is not, that the action now carrying on before this Court, is truly actio pænalis non rei persecutoriæ. No patrimonial prejudice arises from the fact charged against the defender, as in the case of theft, &c. though a consequential imaginary damage may be qualified, on supposition the husband takes the advantage of the law, and obtains a divorce, whereby he may want the assistance of his wife in the management of his family. But as such consequential damage does not arise immediately from the criminal fact, they cannot be the foundation of an action for imaginary damages, incapable of any certain estimation; which, in other words, is demanding a pecuniary penalty, by decreet of the civil Court, without any proper conviction of the offender. Nor can the practice of the law of England avail the pursuer, as it is peculiar to that country; and even there such actions are not pursued before the Nisi prius court, but are tried by a jury before the Judge-criminal; where the jury are both judges of the fact and of the quantum of the damages.
For the pursuer it was pleaded, That it was impossible to figure an injury of a deeper dye, or more pernicious consequences, than that of debauching a man's wife: That the; nature of an injury did not depend so much upon the patrimonial interest that may be affected by it, as upon the real hurt and blemish that the injured person may suffer in his fame, in the estimation of the world, and with regard to the peace of his family: That all injuries, whether real or verbal, afford sufficient ground of action, for reparation to the injured. If, indeed, only such injuries as affect a man's estate could give a proper rise to an action of damages, then all verbal injuries might be struck out, since no man is a shilling the poorer for being called a rogue; consequently, an injury of this nature could be estimated, and a proper reparation given to the injured person; otherwise this absurdity would follow, that a man might be injured in the most sensible manner, and yet no reparation afforded to him in law. Further, there were obligations arising ex delicto, which were the mother of actions of a mixed nature, partim pænales, partim rei persecutoriæ; in which the injured party had his choice, either to insist for reparation of the injury and damage in a civil way, or publicly, if there was a publicum judicium that concurred with it; and the only rule observed in instituting these actions was, that the same thing, whether a penalty or damages, could not be twice enacted, ne bis idem exigetur. By the civil law, which is likewise ours, the very attempting to debauch a man's wife afforded an action for redress, much more must the completion of the injury; and though suits of this nature have not been fiequent in this country, yet they are well founded, though our ancient law-books have not put any estimation upon such injuries, as that must always be regulated according to the circumstances of the case.
And, as this suit is only for damages, or reparation ad civilem effectum, the Court is surely competent, even before convicting the defender, to cognosce upon, and take proof of, the trespass from whence this process takes its rise; otherwise, in the case of theft or robbery, restitution would be barred till the offenders were convicted before a criminal court. It is admitted, a trespass of this kind affords an action upon the case in England, at common law; and it does not denote its being purely criminal, that the method used there for coming at the reparation is by a trial by jury; since, it is well known, that most civil causes are tried there in the same manner. See l. 1. § 2. D. De injur. et l. 19. ejusd. tit. Huber, in his commentary on the tit. De injuriis, lib. 1. tit. 5. Quib. modis feudum amittitur; et Reg. Mdjest. lib. 2. cap. 12. § 7. Skeen de verb. sig. verb. Ænach.
The Lords found the action competent. See Reparation.
Fol. Dic. v. 3. p. 340. C. Home, No 239. p. 387.*** Kilkerran reports this case:
After that James Steedman merchant in Kinross, had obtained a decree of divorce before the Commissaries of Edinburgh against Janet Steedman his wife, he pursued Charles Couper, sheriff-clerk of Kinross, as him who had seduced and enticed her, for damages, which was the first instance of such process in this country.
The Lords, 17th June 1743, 'Found the action competent and upon advising the proof on the 20th January 1744, “Found the libel proved, and the defender liable to the pursuer in the expenses of the process of divorce, and of the appeal to the House of Lords, which followed thereupon, and of the expenses of this process; and remitted to the Ordinary in the cause to examine the accounts of these expenses, and to report the same to the Lords; and ordained the pursuer to give in a condescendence of what damages he had sustained through the loss of his trade and business, and to condescend on the method whereby he could liquidate and instruct the same.”
