CHRISTIAN STEWART v JOHN MENZIES (Court of Session)

The Court having found, at the previous advising, that there was no proof of the constitution of a marriage betwixt these parties, the Lord Ordinary heard parties on the alternative conclusions of the summons, as to the claim of damages for seduction, when his Lordship pronounced the following interlocutor and note:

‘The Lord Ordinary having heard the counsel for the parties on the concluded proof, as to the remaining or alternative conclusions of the summons, under which the pursuer claims damages on the ground of seduction, and made avisandum, finds, that there is no sufficient proof to warrant such a conclusion, and therefore sustains the defences, assoilzies the defender from this conclusion also of the summons, and decerns, but finds no expenses due.’

It is impossible to deny that the tenor of these documents gives a certain colour to those allegations, and gives the case somewhat of a painful character, in respect to the defender. But the Lord Ordinary, though he cannot but regret that this part of the cause could not be sent to the appropriate tribunal of a jury, has not felt that he should be justified in finding, upon this evidence alone, that a case of seduction had been made out.

The Lord Ordinary has no wish to encourage farther litigation in this painful case, but he thinks that the defender, after writing these letters, is not justified in casting this young woman on the world without some provision. There may be a defence of turpis causa, if the intercourse continued after the date of the last letter; but if it then terminated, he does not see why action should not lie for the provisions there stipulated; at all events, he has no idea of allowing any expenses in this process.’

The pursuer reclaimed , but the Court adhered , on the grounds stated by the Lord Ordinary, and the defective statement in the summons, as to the nature of the seductive arts used.