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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shearer v. Alexander [1875] ScotLR 12_333 (23 February 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0333.html Cite as: [1875] ScotLR 12_333, [1875] SLR 12_333 |
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Page: 333↓
[Sheriff of Argyllshire.
A person who has seduced a woman is not entitled to attach a condition—that she will not reveal his name—to a cheque granted as an alimentary provision to the woman and as reparation for the loss of her situation.
This was an appeal from the Sheriff of Argyllshire. The appellant Alexander Shearer, who is a joiner at Innellan, is respondent in the action in which the appeal is taken, the pursuer being the present respondent—Mary Alexander, domestic servant in Glasgow. That action was raised to enforce payment of the contents of a cheque for £35, which was granted to the pursuer by the defender on 5th September 1873. The cheque was on the City of Glasgow Bank, and on her presenting it for payment it was dishonoured—the defender having withdrawn his money from the bank. He defended her action against him on the ground that, she having accused him of having seduced her, he gave her the cheque and £5 in money on condition that she should not make his name public, instead of which she immediately showed the cheque to different persons in his father's hotel at Innellan, where she was then in service, and told his mother that he was the father of a child with which she was then enceinte. In these circumstances,
Page: 334↓
the. Sheriff-Substitute ( Speirs) allweod parties a proof of their averments, while the Sheriff ( Cleghorn), on appeal, recalled the order for the proof, and found that the cheque was sufficient evidence of debt, and that the defender was bound to pay the pursuer its amount. The defender appealed to the Court of Session, and, at the close of last session, amended his defences on payment of the expenses. On the case being called again thereafter, it was submitted for the appellant that as the action founded only on the cheque, it was irrelevant, a cheque not being in itself a document proving debt on the part of the drawer to the payee. Their Lordships, after hearing counsel, ultimately allowed the case to stand over to allow the respondent's (pursuer's) counsel to consider the advisability of putting on the record a statement as to the value for which the cheque had been granted. This statement was afterwards put in, and a proof allowed thereon. The proof was recently taken before Lord Gifford. At advising—
It is quite clear that this girl had been seduced by the defender, and that she had asked for some money, partly perhaps as a solatium for the injury done her, and still more as provision for herself and child (whose birth might be expected in a short time), since she was at once to quit the situation she held in the defender's father's house. In these circumstances the defender granted the cheque, showing that he thought that something was due from him to the pursuer.
The real reason of the granting of the cheque was no secret, and as to it there can be no question; but, then, the defender attached a condition, that the girl was to leave her situation and not to mention his name in connection with the matter.
The girl did leave the house, but before doing so she admitted to her mistress, the defender's mother, on being asked, that the defender was the person who had brought her into the situation in which she then was. Regarding this admission as a breach of the condition he had imposed, the defender withdrew from the bank all his money, so that when the cheque was presented there were no effects to meet it.
I do not think the defender was entitled to attach such a condition as this to the payment of the cheque; and further, the fact that the admission was wrung from the girl does not entitle the defender to refuse payment of a cheque granted for so serious a consideration as has been shown to exist here.
It is not possible to take the view that this man had validly imposed upon this woman the obligation of placing herself in so very unfavourable a position as this condition-would reduce her to.
But it is abundantly clear that there were quite sufficient grounds for the granting of this cheque.
But then there was the condition attached, which the defender says she contravened, so as to justify him in preventing her getting the money. I think it is a very open question whether it is competent to prove by parole evidence the existence of a qualifying condition in the face of such a document as we have here.
But on the various grounds stated it is clear that the pursuer was entitled to something. As to the question of secrecy, I think it was a condition incapable of being fulfilled, and indeed there might be circumstances in which it would be positively illegal for a person in the situation of the pursuer to conceal the name of the father of her child.
Decree in terms of the conclusion of the summons.
Counsel for the Appellant and Defender—The Dean of Faculty ( Clark), Q.C. and Mackintosh, Agents— Lockhart & Espie, S.S.C.
Counsel for the Respondent and Pursuer— J. C. Smith and Rhind. Agent— Allan Macaskie, S.S.C.
