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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ross v. Sinhjee [1891] ScotLR 29_63 (29 October 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/29SLR0063.html
Cite as: [1891] ScotLR 29_63, [1891] SLR 29_63
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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v.
Facts:
A married woman, with concurrence of her husband, brought an action against a man resident in Scotland, in which she averred that before her marriage, and while a servant in a house in London rented by the defender, she had been seduced by him and had, as the result thereof, borne a child after her marriage. She claimed damages for the seduction, aliment for the child, and inlying expenses. The defender, while denying the truth of the pursuer's averments, stated that by the law of England the pursuer's claims were excluded, and pleaded that the questions between the parties fell to be determined by that law. The defender was allowed a proof of that statement, at which two English barristers were examined for him, and no evidence was led for the pursuer.
Thereafter it was held that as by the law of England a woman had no right of action for damages on the ground of seduction, and only a limited statutory claim for aliment and inlying expenses conditional upon her being a single woman, the action fell to be dismissed.
In September 1890 Mrs Elizabeth Sarah Williams or Ross, wife of and residing with George Ross at 109 Stamford Street, London, with consent and concurrence of her husband, brought an action against His Highness Sir Bhagvat Sinhjee, the Thakor Sahib of Gondal, in the province of Gujarat and Presidency of Bombay, India, K.C.S.I., LL.D., sometime residing at 71 Chester Square, then at 3 Belgrave Crescent, Edinburgh, concluding for damages on the ground of seduction, for aliment for an illegitimate child, and for inlying expenses.
The pursuer averred that the defender had rented the said house in London from
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May to September 1887, that she was one of the servants in that house, that he had seduced her while there, and that as a result thereof she had borne a child on 13th February 1888. She also averred that the defender, knowing she was pregnant, had left for India in August 1887, intimating that he would do nothing for her unless she kept the matter quiet. On September 1887 she married her present husband, to whom she had been engaged for several months.
The defender, while denying the truth of all the pursuer's material averments, stated—“By the law of England neither of the pursuers has any right or title to sue for damages in respect of seduction of the female pursuer, and any person who has seduced the female pursuer is not liable in damages to the pursuers either jointly or separately. By the said law the defender is not liable either for inlying expenses to the pursuer or for aliment for an illegitimate child.”
The defender pleaded, inter alia—“(2) The questions between the parties fall to be determined by the law of England; and in respect of the said law, which excludes the pursuer's claims, the defender should be assoilzied.”
The Lord Ordinary (
Their evidence as to the law of England sufficiently appears from the note of the Lord Ordinary, who pronounced the following interlocutor:—“Finds that the acts complained of took place in England, and that it is proved that the law of England recognises no claim at the instance of the pursuers, or either of them, in respect of inlying expenses, aliment, or damages for seduction: Therefore dismisses the action, and decerns: Finds the defender entitled to expenses, &c.
“ Opinion.—The pursuers of this action are a married couple domiciled in England, and the defender is an Indian prince temporarily resident in Scotland. The pursuers' allegations are that the defender, while residing in London during the summer of 1887, seduced the female pursuer, who was then a servant in his house, and that in consequence, on 13th February 1888, she gave birth to a child of which the defender is the father. The conclusions of the summons are for inlying expenses and aliment and a sum of £2000 in name of damages.
The claim is made in somewhat remarkable circumstances, for the pursuer's story is that Mrs Ross yielded to the advances of the defender at a time when she was engaged to her present husband, that they married while she was pregnant, that they at first registered the child as the husband's, though they afterwards had this entry cancelled and registered it as illegitimate, and that Mrs Ross wrote letters to the defender in which she not only concealed the fact of her marriage, but represented that her affianced husband had given her up in consequence of the birth of the child. These circumstances are by no means favourable to the pursuer's claim, but they do not, except indirectly, affect the questions which I have now to decide, viz.—(1) Whether the rights of parties fall to be determined by the law of England? and (2) What that law is with regard to them?
It will be convenient that I should take the second question first.
It is established by the uncontradicted evidence of Mr Asquith, Q.C., and Mr Brodie-Innes that by the law of England a woman who has been seduced has no right of action against her seducer, and that the only action for seduction known to the English law is an action at the suit of the parent or employer of the person seduced, the foundation of the action being the loss of the woman's services to her parent or employer. It follows from this that the plaintiff must be able to show that the woman was in his service, actual or constructive, at the time of the seduction, and also at the time of her confinement; and this of course excludes the notion of any right of action at the instance of a husband who has married the woman after her seduction. Further, it appears that by the common law of England, the mother of a bastard child has no claim against the father for inlying expenses or aliment, and that the only statutory right to such payments is that conferred by the Acts 35 and 36 Vict. c. 65, and 36 Vict. c. 9—a right which is strictly limited to the case of a single woman. Neither the male nor the female pursuer would thus have a right of action in England against the defender (assuming the truth of all they say) in respect of inlying expenses, aliment, or seduction. That being so, one can quite understand the desire of the pursuers, apart from the circumstances of the defender's temporary residence here, to bring their action in Scotland.
But the question remains, whether the rights of parties fall to be determined by the law of England? I am of opinion that they do.
It is, I think, a principle of the law of Scotland, in accordance with the weight of opinion among writers on international law, that no action can be maintained in the courts of this country on account of a wrongful act committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it was committed as well as by the law of this country. That is the principle of Lord Shand's judgment in the case of Goodman v. London and N. W. Railway Co., Outer House, March 6, 1877, 14 S.L.R. 449, where the widow of a domiciled Scotsman who had been killed on the line of an English railway founded jurisdiction against the company, and brought an action of damages three years after the accident. Lord Shand held that the grounds of action having arisen entirely
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Lord Shand's judgment was not reclaimed, for the case was compromised. But I am not aware of any decision in Scotland to the contrary. It was contended that the case of M'Larty v. Steele, 8 R. 435, is to an opposite effect. That was a case of slander uttered in Penang by one domiciled Scotsman against another, and the Court disallowed a counter issue putting the question, whether according to the law of Penang no reparation for oral slander was due unless special damage was proved? But the judgment, as I read it, proceeded on the footing that slander was a wrong both by the law of Penang and the law of Scotland, and that the kind of damage necessary to be proved was a matter incidental to the remedy which always falls to be determined by the lex fori.
The same principle affords an explanation of the case of Scott v. Seymour, 32 L.J. 61, which was an action brought by one British subject against another for an assault committed at Naples, and in which the law of Naples was unsuccessfully pleaded as excluding the action. Mr Justice Wightman expressed the opinion that damages might be recoverable in England even although no damages were recoverable in Naples. But the other Judges rested their decision on the narrower, and, as I venture to think, the safer ground, that the plea failed to show that damages might not be recoverable as incidental to the proceedings alleged to be pending in the Neapolitan Courts. That case cannot therefore be regarded as an authority for the proposition that the law of England will sustain an action of damages for an act which is not wrongful by the law of the country in which it was committed. If it were so regarded, it would be inconsistent with the later English case of Phillips v. Eyre, 1869, L.R., 4 Q.B. 225, and L.R., 6 Q.B. 1….
I therefore hold that as the pursuers claims relate to matters for which they would have no right of action in England they cannot maintain here.”
The pursuer reclaimed, and argued—(1) As to the seduction—It was not settled that there could not be a right of action in a court where such right was recognised because the courts of the place where the act complained of was committed did not recognise the right. The opinion of Justice Wightman in Scott v. Seymour, 1862, 32 L.J. Exch. 61 (continuation of case, reported 5 Hurl. & Colt. (1862), 219), was to the contrary effect. The other Judges had reserved their opinions on this point— cf. Westlake's International Law, secs. 196 and 199. This was an act “not justifiable by the law of country where it was done,” and damages could be recovered for it “consistently with the principles of English law.” The law of England recognised a right of action for seduction; that was enough. Possibly it could not be brought by the same persons as in Scotland— e.g., not by the woman herself—but that was a matter of form to be determined by the lex fori. See Lord Jeffrey's opinion in Callendar v. Milligan, June 20, 1849, 11 D. 1174; and Lord Justice-Clerk Moncreiff's dictum in p. 1063, in Horn v. N.B. Railway Co., July 13, 1878, 5 R. 1055. The case of Goodman was in the Outer House, and the defenders afterwards compromised it for £700— M'Larty v. Steele, January 22, 1881, 8 R. 435; Savigny (Guthrie's 2nd ed.), pp. 251, 253. A man by change of domicile might become subject to a right of action not otherwise competent against him— cf. Don v. Lippmann, May 26, 1837, 2 S. & M'L. 682. (2) As to the claims for inlying expenses and aliment—The law of England recognised such claims at the instance of the woman herself. The only limitations to be considered were those recognised by the lex fori. It was said she had lost her right of action by marrying, but even if the law of England was to be regarded, a right to apply to the justices of the peace arose whenever she became pregnant. She had a vested right which she was unable to make good owing to the defender's leaving the country. She was entitled to make her claim now that the defender had returned, although as a fact she had been married in the meantime.
Argued for respondent—The wrong complained of had been done in England, and there no right of action for seduction at the instance of the woman was recognised. The claim for inlying expenses and aliment was under a statute passed in connection with the administration of the poor laws with the view of relieving the ratepayers. It was a limited right competent only to a single woman. To entitle the pursuer to proceed she would need to show not only that a wrong had been done, but also that she would have had a right of action in the courts of the country where that wrong had been done—“A wrongful act committed by the defendant, and actual or legal damage to the plaintiff”—Addison on Torts, p. 1. She would have had no right of action whatever against the respondent in England, and no such right emerged against him merely by his coming to Scotland. See Bar's International Law (Gillespie's ed.) pp. 272, 360, and 429; The “Maria Moxon,” May 3, 1876, L.R., 1 Prob. Div. 107, and cases of Phillips v. Eyre, and Goodman, referred to by the Lord Ordinary.
At advising—
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The defender is an Indian prince residing in Edinburgh, who some years ago took a furnished house in London with servants, who became his servants. The pursuer was one of the female servants in that house, and she states that he succeeded in seducing her, and that in consequence she gave birth to a child. She also states that at that time she was engaged to a man who is now her husband, and whom she married when she was some five months advanced in pregnancy. The Prince having returned to Scotland she sues him here for inlying expenses, for aliment for the child, and for a large sum as damages for her seduction.
These are the facts. The two questions which have been determined by the Lord Ordinary, and which have to be determined by us, are, whether the relation of parties falls to be determined by the law of England, and if so, what the law of England is. With regard to the latter question, evidence as to what the law of England is has been given by Mr Asquith, Q.C., of the English bar; that evidence has been concurred in by Mr Brodie Innes, a member of both the English and Scottish bar, and no contrary evidence has been led. According to that law, the pursuer has no right to sue for anything but aliment, and until recently she could have made no demand upon the defender at all. The only action competent by way of reparation for seduction is one at the instance of the father or employer of the woman seduced, and is laid upon the loss of service incurred by him through her being laid aside and unable to undertake her duties. Until the Act 35 and 36 Vict. c. 65, that was the only action that could by any possibilty be brought against a person charged with having acted as the defender here is said to have done. By that Act, however, the right was given to a woman to make a claim for aliment against the father of her illegitimate child by application to the justices of the peace, but it was a right conferred only upon a single woman.
In these circumstances, and that being the state of the law of England, the question comes to be, whether this pursuer has any right of action in Scotland against the defender. She has no such right against him by the law of England, because by Act of Parliament her right to sue for aliment has been absolutely barred by the fact that she is not now a single woman but a married woman, and having no right under that Act. She has no other right of action because that is the only Act giving a woman herself the right to sue. The only remaining question is, whether the case falls to be determined by the law of England. If it does, it is clear that the pursuer has no case at all, and I am of opinion that it does fall to be determined by the law of England.
The Lord Ordinary has carefully gone over the cases to which we have been referred, and in the opinion he expresses in regard to these cases I entirely concur. In the case of Scott v. Seymour, the opinion of Mr Justice Wightman does seem to favour the argument of the pursuer, but the Court decided the case upon other grounds, and the opinion of Mr Justice Williams is adverse to that of Mr Justice Wightman. The judgment in the case of Goodman in this Court, although decided by only a single Judge—Lord Shand—is of weight if we agree with it. It was peculiar in this respect. It was an action brought by a woman against a railway company for injuries to her husband sustained in England and resulting in his death. In England such an action is competent only if brought into Court within three years. The pursuer brought the action in Scotland after the lapse of three years, and Lord Shand held—and I think rightly—that the case fell to be determined according to English law, and that as by that law the action was not then maintainable, it should be dismissed. I am of opinion, applying the same reasoning, that this action is not maintainable by the law of England, and that accordingly it is not maintainable here, and ought to be dismissed.
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It is certain that by the law of England, where this alleged wrong was done, the act complained of is not recognised as a wrong giving right to an action of damages, and if the pursuer has no right there she acquires no right of action against the defender by the fact of his coming to Scotland.
The other claims are for aliment and inlying expenses. By statute a woman has a right by application to a justice of the peace to make these claims, but that right is limited to single women. We cannot give a higher right of action than the English statute confers, and as the pursuer is not a single woman she cannot take advantage of that statute.
The Court adhered.
Counsel for the Pursuer and Reclaimer— Salvesen— Wilson. Agent—— Thomas M'Naught, S.S.C.
Counsel for the Defender and Respondent— D.-F. Balfour, Q.C.— Dickson. Agents— Tods, Murray, & Jamieson, W.S.