Scottish Court of Session Decisions

This was an action of damages for breach of promise of marriage and seduction. The pursuer, after stating that the defender visited her repeatedly at her father's house, and began to court her with a view to marriage, alleged that “the defender continued paying his addresses to the pursuer, and to reiterate his love and attachment to her, until one occasion in the month of July 1864, when he offered to marry her, and she accepted him. The subject of their marriage had been frequently talked of before July 1864, but it was not till then that it was finally resolved upon. The defender, in the winter of 1865, and in her father's house, taking advantage of the ascendancy which he had acquired over the pursuer, and the feelings of love and affection for him with which he had inspired her, as well as of his position as the accepted suitor and promised husband of the pursuer, prevailed upon the pursuer to allow him to have carnal connection with her, and succeeded in having carnal connection with the pursuer; and the pursuer was thus seduced by the defender.”

The pursuer proposed issues founded on the two grounds of action. The defender objected to any issue being granted, and the Lord Ordinary ( Barcaple) reported the case with the following note:—

“The defender objects that there is not a relevant case for an issue, either of breach of promise or seduction. The Lord Ordinary had to dispose of precisely the same question, on a plea to relevancy, in the case of Craig v. Tennent, in which a reclaiming note was boxed to the First Division of the Court on 23d January 1863. The issue of breach of promise was afterwards withdrawn, and the case went to trial on the issue of seduction, without a judgment of the Court upon the point. But the withdrawal of the issue of breach of promise will not obviate the objection to relevancy, which applies equally to both branches of the case. The Lord Ordinary adheres to the opinion expressed in his note in the case referred to, which is appended:—

‘ Note.—In this action of damages for seduction and breach of promise of marriage, the pursuer makes sufficient averments to support the conclusions of her summons. But the defender pleads that the action cannot be maintained, in respect that the pursuer avers that the defender promised to marry her, and that carnal connection followed thereon. The promise is denied by the defender, as well as all the other material averments. Such a promise could be proved for the purpose of establishing a marriage only by writing (which in the present case is not alleged to exist), or by the oath of the defender. The woman, in such circumstances, is not compelled to betake herself to what may be the hopeless remedy of an action of declarator of marriage, which must be rested upon the oath of the defender, who denies the promise. The Lord Ordinary thinks that she may insist for damages, both for seduction and for breach of promise. It is only a promise proved either by writing or by oath that, when followed by copula, constitutes marriage. The pursuer of the present action does not undertake such a proof; and, consistently, she does not conclude for declarator of marriage. The Lord Ordinary is of opinion that her averments must be construed and dealt with in reference to the conclusions of the action.”