Scottish Court of Session Decisions

On 15th November 1895 Mrs Minnie Green or Borthwick raised an action against Robert Forrester Borthwick. The conclusions of the summons were as follows:—“Therefore the Lords of our Council and Session ought and should find facts, circumstances, and qualifications proven relevant to infer marriage between the pursuer and the defender, and find them married persons accordingly; and therefore decern and ordain the defender, the said Robert Forrester Borthwick, to adhere to and cohabit with the pursuer, and treat and entertain her in all respects as his lawful wife: But if it shall be found that the pursuer is not married to the defender, then and in that case the defender ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer of the sum of £3000 sterling on account of the defender having refused to implement and fulfil a promise of marriage made by defender to the said pursuer, and on account of the defender having seduced the pursuer.”

The pursuer pleaded in her first two pleas-in-law that marriage having been duly constituted between the pursuer and defender, declarator ought to be pronounced to that effect; and 3. “Or alternatively, the defender having promised to marry the pursuer, and having failed to carry out his promise to her, and having seduced her, decree ought to be pronounced against him in terms of the alternative conclusions of the summons.”

The defender lodged defences, in which he denied both marriage with the pursuer and breach of promise and seduction.

On 21st December 1895 the Lord Ordinary ( Stormonth Darling) closed the record and allowed a proof.

On 31st December the pursuer died intestate, and on 30th March 1896 her brother George Green was appointed her executor-dative.

Thereafter the executor-dative lodged a minute craving the Lord Ordinary “to sist him as pursuer in room and place of the said Minnie Green or Borthwicx.”

On 31st October 1896 the Lord Ordinary pronounced the following interlocutor:—“Sists George Green, executor-dative to the deceased pursuer Minnie Green or Borthwick, as pursuer in room and place of the said deceased Minnie Green or Borthwick, conform to minute of sist … and allows the parties a proof of the averments on record relative to the conclusion of the summons for damages for breach of promise and seduction, to proceed on a day to be afterwards fixed.

Note.—The defender's counsel admits that an executor has a good title to insist in an action of damages for injury to person or character, provided it has been raised by the deceased person before his death. This rule is well settled, and is not affected by the fact that under the judgment in Bern's Executor v. Montrose Asylum, 20 R. 859, a different rule holds where the deceased person has died without raising the action. Accordingly, if the present action had been one simply of damages for breach of promise and seduction, there could have been no doubt of the executor's right to be sisted as a pursuer in room of the defunct. But it is said that the executor has no such right, because the leading conclusion is for declarator of marriage. I assume that this is a conclusion so purely personal to the woman that, especially when founded on promise subse-quente copula, it could not be insisted in by anyone else. Indeed the executor here avows his intention, if he be sisted, of prosecuting the action only to the effect of recovering damages. I am quite unable to see why the presence of this conclusion in the summons should affect the executor's right to be sisted. Once he is sisted he can elect to proceed only under the conclusion for damages, just as the deceased could have done. There is nothing inconsistent in the two conclusions, because the proof of promise, in order to establish marriage is of a much more stringent kind than the proof of promise to obtain damages for breach, and the deceased herself, while maintaining the promise to the fullest extent, might well have despaired of establishing it by the writ or oath of the defender.

Accordingly, the executor, in the course which he proposes, need not contradict or abate one word of the averments which the deceased instructed her advisers to make. He might conceivably be met (though I have

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no reason to suppose that he will be met) by a proposal on the part of the defender to amend his pleadings to the effect of submitting that there was a marriage, but that is an answer which might equally be made although there was no conclusion for declarator. Whether such an averment would avail the defender after closing the record on the footing that there was no marriage, is a different question, which has nothing whatever to do with the form of the action. On the record as it stands, the parties have joined issue on the question whether the admitted connection was mere concubinage, or a surrender of the woman's person induced by a promise of marriage, and I am of opinion that the executor is entitled to be sisted in order to prove that it was the latter, and thus to recover the pecuniary damages which in that case (failing marriage) would have been due to the deceased.”

The defender reclaimed, and argued—It was conclusively settled that an executor is not entitled to institute an action personal to the deceased whom he represents, even where damages are sought, as in an action of damages for seduction or breach of promise— Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859. If an action of damages for personal injury had been raised during the lifetime of the deceased, her executor was entitled to carry it on after her death. The present was not an action of damages. The leading conclusion of the summons was one for declarator of marriage. That was a conclusion entirely personal to the status of the original raiser of the action, and was barred by her death, and could not be continued by her representative—Bell's Principles, s. 1534; Fraser's Husband and Wife, p. 1145. The representatives of the defender in such an action could be sisted if the defender died after the raising of the action— Ritchie v. Ritchie, March 11, 1874, 1 R. 826. But the representatives of the pursuer could not be sisted where the pursuer of such an action died during its progress. The conclusion for damages was subsidiary to the conclusion for declarator of marriage, and could not be proceeded with till the first conclusion was disposed of— Stewart v. Menzies, February 4, 1836, 14 S. 427; Robertson v. Henderson, November 19, 1833, 12 S. 70. The pursuer having died, it was impossible to dispose of the first conclusion, and the whole action therefore fell.

Argued for the defender—The conclusions of the action were alternative. This was shown by the pleas-in-law for pursuer. The conclusions were separable and destructive of one another. The first conclusion referred to an entirely different matter from that specified in the second, and the one could not be taken along with the other. The executor proposed to drop the declaratory conclusion, and the defender would be relieved of that conclusion. The declaratory conclusion having been dropped, the action would proceed as if it never had been there at all.

At advising—