Scottish Court of Session Decisions

This was an action at the instance of Nellie Gray, domestic servant, against John Miller, hotelkeeper, Ayton, in which the pursuer claimed damages on the ground of seduction.

The pursuer averred that she was an orphan, twenty-one years of age, and had been in the service of the defender, who was a married man, from October 1897 till March 1901.

The pursuer further averred—“(Cond. 2) Prior to going to Ayton the defender carried on a wine and spirit merchant's busidess in Kirkintilloch, his dwelling-house being situated above his business premises. (Cond. 4) The defender was frequently the worse of drink, and on such occasions his wife, who assisted him in his shop, sent him up to his house to sleep off the liquor. On these occasions the defender made lewd and improper suggestions to her. He attempted to kiss the pursuer both in his house and in his shop, situated in Kirkintilloch aforesaid, but was always repulsed by the pursuer, who regarded his advances with disgust. The pursuer, who was young and inexperienced, did not fully realise the object of the defender's conduct, but she preserved her chastity. (Cond. 5) The defender persisted in his improper conduct, and finding that his devices were unsuccessful, he proceeded to exercise his authority over the pursuer as her employer. Accordingly about the middle of the month of August 1900, the defender, when in his house alone with the pursuer, who had not at the time attained majority, insisted on having connection with her. The pursuer became alarmed, and informed the defender that she would tell his wife unless he left her alone. The defender thereupon threatened to kill the pursuer if she did anything of the kind, and acted towards her in a masterful manner. The defender seized hold of the pursuer, forced her down on a bed, and succeeded, partly by threats, partly by solicitations, partly by masterful ascendancy over the pursuer, both as her employer and as being so much her superior in years and position, in inducing her to allow him to have connection with her. The pursuer only surrendered herself to the defender with great reluctance, and in great anguish and distress of mind, but the defender paid no attention to her tears and expostulations. The defender also made professions of love to the pursuer, and made pretence that no harm would ensue from what he did, and succeeded in inducing her to allow him to have sexual connection with her. The pursuer was afraid to tell the defender's wife what happened, and she had no friend to consult, her parents, as aforesaid, being both dead. The defender maintained his masterful ascendancy over the pursuer, and in his said house in Kirkintilloch in the end of the same month, and on several subsequent occasions, the pursuer yielded to his demands, and allowed the defender to have sexual intercourse with her, being induced so to surrender herself through fear of the defender, and by reason of his continued and anxious solicitations, and through the dominating character and the influence exercised by the defender over her, both as her senior and as her employer, to yield to his demands. The defender thus by artful practices, continued solicitations, and the exercise of authority and force over an inexperienced and dependent female, seduced the pursuer. …

The pursuer also averred that as the result of the acts of connection averred she became prognant, and was delivered of a child on 18th May 1901.

The pursuer pleaded—“(1) The defender having seduced the pursuer as condescended on, is liable in reparation as concluded for.”

The defender pleaded—“(1) No relevant case.”

Page: 257↓

The Lord Ordinary ( Kincairney) on 5th November 1901 approved of the following issue:—“Whether between October 1897 and March 1901 the defender seduced the pursuer, and prevailed upon her to permit him to have carnal connection with her, to her loss, injury and damage? Damages laid at £500.”

The defender reclaimed, and argued—The pursuer had not set forth a relevant case. The essence of seduction was fraud. It was therefore necessary for the pursuer to aver that she had been induced to surrender her virtue relying upon a promise of marriage, or at least that the defender had professed honourable love towards her leading her to expect marriage—Fraser on Husband and Wife, i. 503; and opinion of Lord President Campbell in Bennett v. Ninian, ibid. cit.; Linning v. Hamilton, 1748, M. 13,909; M'Candy v. Turpy, March 3, 1826, 4 S. 520; Stewart v. Menzies, June 27, 1837, 15 S. 1198; Kay v. Wilson's Trustees, March 6, 1850, 12 D. 845; Walker v. M'Isaac, January 29, 1857, 19 D. 340; Gray v. Brown, June 19, 1878, 5 R. 971, 15 S.L.R. 639. The pursuer's case was that the defender had overcome her resistance partly by solicitation and partly by force. But that was not in law a relevant averment of seduction.

Counsel for the pursuer were not called upon.