Scottish Court of Session Decisions

“ Opinion.—In this case the conclusions for declarator of marriage are disposed of in the Inner House, and I have now heard counsel on the claim of damages for seduction, and the answers to that claim on the part of Mr Macadam's representatives. The law of Scotland undoubtedly recognises a right of action at the instance of that injured woman for indemnification against such a wrong, and it is not disputed that after the death of the wrongdoer the liability to make compensation will be transmitted against his representatives. If it were necessary to give a reason for the legal recognition of such actions, I might refer to Sir Hay Campbell's exposition as quoted by Lord Fraser—H. & W. i. 503. It may suffice to say that a moral injury will in general give rise to a claim of reparation where it is accompanied by civil injury—as, for example, the suffering in the estimation of friends and of society, loss of employment, injury to future prospects, and the like. And in such cases the reparation will not be confined to the actual pecuniary loss which the pursuer may be able to prove, but will expand into what is known as solatium or satisfaction to the conscience and injured feelings of the suitor.

In the case with which we are concerned, if an action of damages had been brought against Mr Macadam within a reasonable time subsequent to the letter of 26th February 1858, on the ground of seduction under promise of marriage, I do not doubt that a jury would have given the pursuer an award of damages, and that a verdict of damages in such a case would have been sustained. But in my opinion the present action must fail, because the action was not brought within a reasonable time after the claim had arisen, and because the circumstances are sufficient to establish the defence of presumed discharge or abandonment of the claim which is maintained by Mr Macadam's representatives. Were it not for the interest that attaches to this case, and the possibility that it may hereafter be referred to on this point, it would not be necessary to say anything regarding the reason which I have put first in order. I have, however, a very strong opinion that in the interest of justice and fair dealing, not less than of the peace of families, we ought not to give any encouragement to claims of this nature when put forward at a period remote from the occurrences to which they relate. In the present case I have the less hesitation in expressing myself strongly on this subject, because this is precisely a case in which one can discuss the general question without appearing to reflect on the conduct or motives of the pursuer, who certainly has my sympathy in her endeavour to obtain a better provision than the deceased Mr Macadam was able to make for her. All the facts of the case have been made public through the proof that was taken in the declarator of marriage, and the prosecution of this claim can do no injury to the reputation or feeling of anyone which has not already been done. But in this respect the case is very exceptional. It is almost impossible that such a claim can be publicly put forward after a long interval of time without the risk of inflicting irreparable injury on those against whom it is preferred—injury possibly greater than the wrong for which redress is to be sought. In such cases it must be remembered that the merits of the action depend in large measure on the view which may be taken of her case by the lady herself. She knows best whether she was a willing lover, or whether she was compromised through arts to which her inexperience or weakness left her exposed. It is, I need hardly observe, very much against the best interests of the injured woman that wrongs of this kind should become known to the public; and if, either in the knowledge that she is not a victim of seduction, or in the conviction that she has nothing to gain by exposure, a woman who has had immoral relations with a man elects to be silent on the subject, and to make no pecuniary claim against him, my view is that her silence, if unexplained, ought to be sufficient to put her out of Court. More especially would this hold true where she comes forward after an interval of more than 20 years, when injury to feelings may be supposed to be effaced by the lapse of time, and when there can be no interest to prosecute the action except the pecuniary interest. I see nothing in the evidence to suggest that the present pursuer ever would have brought an action of damages against Mr Macadam in his lifetime. She was evidently much attached to Macadam, and had no desire either to give him annoyance or to extort money from him. But if such a claim were to be made or intimated in any similar case the considerations which I have stated would in my judgment lead to its rejection. These considerations constitute the first, and in my view sufficient, objection to the claim, because if the claim could not have been successfully preferred in Mr Macadam's lifetime it can be in no better position after his death. But, as already indicated, there are also circumstantial reasons which operate as a bar to the present claim. The pursuer remained in the service of Mr Macadam as his housekeeper. I do not imagine that any employer would retain in his service a person who held over him an action of this description, nor could the servant honestly accept employment without either relinquishing the claim of damages or giving her employer notice that it was in reserve. But according to the evidence no suggestion of such a claim was ever communicated to Mr Macadam, and I think that by remaining in his service Miss Maloy condoned the injury. That the immoral relation continued is nothing to the purpose. They understood each other. They were willing to maintain relations which were not consistent with good morals, but which to a person in the pursuer's situation in life probably involved no social humiliation. She was provided for during Macadam's life, and I am satisfied she never meant to bring, and never could have brought, such an action after accepting the position in his establishment which she held during his life. I say nothing in this connection about the legacy of £1000 which Mr Macadam left to the pursuer, because if the pursuer were a creditor on the estate I rather think that the legacy would not be viewed by the law as a satisfaction of the debt. It may, however, be taken into view along with other elements as evidence of a kind of intimacy which is entirely inconsistent with the present claim.

Something was said on both sides regarding

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