Scottish Court of Session Decisions

The Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100), sec. 28, enacts—“Any interlocutor pronounced by the Lord Ordinary as provided for in the preceding section, except under sub-division (1), shall be final, unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court, by whom the cause shall be heard summarily;…” The Codifying Act of Sederunt 1913, c. ii, 5, provides—“ Review of Lord Ordinary's Interlocutors.—The provisions of the 28th section of the Court of Session Act 1868 shall apply to all the interlocutors of the Lord Ordinary referred to in the foregoing section, so far as these import an appointment of proof or a refusal or postponement of the same.” The Criminal Law Amendment Act l885 (48 and 49 Vict. cap. 69), sec. 5, is quoted supra in rubric.

Miss Kate Murray, daughter of and residing with Alexander Murray, schoolmaster, The Schoolhouse, Birnie, near Elgin, pursuer, with consent and concurrence of the said Alexander Murray as her curator and administrator-in-law, brought an action for damages in the Court of Session for £750 against David Fraser, farmer, Bardonside, Birnie, near Elgin, defender, on two alternative grounds, and lodged two issues, the first based on seduction, the second in the following terms:—“2. Whether in or about the month of December 1912 the defender, contrary to the provisions of the Criminal Law Amendment Act 1885, sec. 5, sub-sec. 1, wrongfully had carnal connection with the pursuer, to her loss, injury, and damage?”

The defender, inter alia, pleaded—“The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

On 7th February 1914 the Lord Ordinary ( Anderson) sustained the defender's first plea-in-law and dismissed the action.

Opinion.—“… 1. I shall consider first the claim made under the first issue, which is the familiar case of a claim for damages for seduction

I therefore hold, on the first branch of the pursuer's action, that she has not stated a relevant case entitling her to the first proposed issue.

2. I have now to consider the second issue which has been proposed.

This issue is based on the provisions of section 5 (1) of the Criminal Law Amendment Act 1885 (48 and 49 Vict. c. 69).

This Act has now been in operation for nearly thirty years, during which period there must have occurred numerous cases like the present, and yet no one has till now thought of bringing an action on this ground.

The proposition of the pursuer is that the mere fact of the connection having taken place will, if the woman is under sixteen, make the man liable to her in damages as for a personal wrong to her. However precocious in vice the woman may be, whatever temptations she may have held out to her paramour to induce him to possess her, she will nevertheless, according to the pursuer's contention, if under sixteen, be entitled to mulct him in damages as for a wrong. This anomaly may also present itself that the man may free himself from criminal responsibility under the proviso of section 5, and nevertheless be compelled to pay damages in a civil action.

The pursuer's counsel emphasised the point that the girl is not punished by the statute as a wrongdoer, and that this must be because she is made by the statute incapable of consenting to the act of connection. Certainly the consent of the female will not free the man from the penal consequence of the statute, but it does not follow that such consent will not free him from civil liability. The latter point must be determined by the rules of the common law, which have not been altered by the statute. The Act of Parliament must be held to have been passed in the public interest, although indirectly it has doubtless benefitted the female sex. But where an Act of Parliament creates new statutory offences one expects to find a full statement in the measure of all the penal consequences which follow from the breach of its provisions. It is not stated expressly that one of those consequences is that an offender is to be liable civilly for damages in addition to being subject to the statutory penalties, and I am of opinion that this civil responsibility cannot be read into the Act by implication.

I therefore disallow the second issue.”

The pursuer reclaimed, and, after an interval of eleven months, the case was heard by the Extra Division.

The question of issues was not argued, but in view of certain amendments made by the pursuer on record, the case was of consent remitted back to the Lord Ordinary for proof before answer.

At advising—