Scottish Court of Session Decisions

Subject_1 ADULTERY.

Steedman
v.
Cowper

1744, Jan. 20.
Case No. No. 1.

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The question was, Whether an action of damages lies by the law of Scotland for adultery against the adulterer, and whether that civil action can proceed before a criminal prosecution? We had no difficulty as to the first; but as to the second we differed. Royston and some others thought it not competent till conviction, but it carried by a great majority, that it is competent before us in the first instance; of which opinion I was, as was the President—17th June 1743.—Adhered, 29th June, and refused a bill without answers.

Upon advising the proof in this action of damages, the defenders disputed, that the defender's adultery with the pursuer's wife was not proved. But their chief defences were, That they had proved her guilty with three other men before Couper came acquainted with her; 2dly, That from the proof, there was reason to believe that the pursuer's wife rather seduced the defender than he her. In giving our opinions, Arniston thought, that by the law of Scotland, action did not lie, as did Kilkerran; but that point was settled by our interlocutor of 17th and 29th June last. First we found the libel proved without a vote,—next we found no sufficient defence, and found the defender liable in the expenses of the former process of divorce and appeal, and of this process,—to give in an account of his damage through loss of business,—and remitted to the Ordinary to tax the same.—20th January.