Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-10
oFFruIsL.
Opinions OF the Supreme cOurt Of the state
OF Tennessee. delivered at Nashville, at
DecsmbeF Term, 1858.


and Jud Imeat were feniered Ter the plalatin for
81 500 20, aad 'he case ID brought here BY an sp,
Il is alleged in behaif Of the plain,if in error.
that In the pYoSIess Ct the trial. var u errors In
terveaed in the Sinission asd rejection Of eviJeace
aad 10 the dsterainstiOss Of the Court, in regard
u the effect of the evidence also in the nslruc-
ions given to the jury Bat the chief error relied
upOa, for tbs reversal Of the Judgment, IS the
fusai Of the Court to giant trial for the
disclosed in ths afidsyiis after verdict t
The case is q peculiar ous, in all its cireum
stances The plai0tiFs ds5ghler was examined as
8 witaess en- the frisl Frou heF testimony il ap
pears that TIL Epson, the defendant, was mar
| Fied man, Hbose residsace was within half mils
Of the plaintiffs; that ths families were intimate
and defendant was the family pbysieian Of plaintiff
family; that in the summer Of lS04. while The
witness was, temporarily, en- Inmate Of DEFENDANTS
| family, an Illicit inierco commenced between
the defendant and herself, which VAS continued up
10 the fret Of September, 1857 IA Rod Of more
than three yeaIs-when she discovered thSt she bad
beeOms prsgnsn'; and The sth OF June, 1883,
vas delivered Of child, Of watch dsfendaht was
the father.
She further stated, that upon informing lhe de-
feRdant Of her c0ndiliOl be proposed 30 give her
500 90 il she Eoud sgsar the child TO one Peter
! Al. House. who bad been wishing her as sUit0T;
sud on her refusal TO do So, he proposed thst she
should take some chemical preparation TO destroy
the child; and afterwards sent her liquid Prepara-
/ tiOn in phial de-igued TO produce an abortion;
I accompanied with note, urging her 10 lake l.,
she would not sWesr the child TO House; that she
/ took one dose. and il made her SO sick she threw
the rest away
Numerous witnesses we're examined, on both
| sides. a. 10 the general character OF pls0tIfs
daughter for truth aad chastity. The Witnesses for
the plainpff seem have heard uothiug Prejudclal
TO her reputation, previous - her criminal iner-
course wi the defendant But, some OF the wiz
nesses the other side state. that before the sum
mer Of l854-the time when it is alleged her iner>
course with The defendant eomnenesd-her general
rePutstian foT chastity was bad One witness
/ George SGTver) states that st csmp meeting in
! 1853 he had sexual intercourse with her, 81
ewn solicitation Other Witnesses Getail instances
Of indeieasy of behavior, on her part; and Of lib,
trties with her person, by young mea, tolerated by
her. utterly revolving to female deliescy and ce-
/ cency.
This much of ths evidence In relation to the con-
duct and character Of the defen1snt and the person
seduced, it has been thought proper 10 state, in
VieH Of the question Of damages, hereafter to be
noticed
l. 1t is insisted that the Court erredin admitting
any evidence Of q criminal eOnnexion between the
defendant and the plaintiffs daughter, beyond the
period of three years from the commencement Of
the present aetioa- We do nOtthink so. The whole
Of the defsndsnts intercourse with the person Sc
duced, and ell the Circumstances Of the case are TO
be regarded as entire transaction and are sd-
missibe evidesos to the jury. we'll in view Of
the cnid to shoE the extent Of The injury, in Sg
graVaiiOn Of the damages.
I'd. The Court refused to adrit evidence Of the
general bad character Of the plaintiffs daughter,
alter her ssd1ctiOn In this think the CJurt did
not 1t is rue that the general eharae er OF the
person sedasei, fer chastity is involved in the IS
sue aud, if bad the defendant may avail himself
Of it in mitigation Of the damages
But this Injury mus be restricted to her general
reputation chastity, at the time Of before,
her Gpducf ian Woull Il fha az her
in the public estimation aad il would be
strous to hold ihst t5e defendant right avail himself
Of that ruined reputation caused BY his wrong
to lessen the claim Of her injured parent to dams
ges. The proposition is too revolving 70
and sense Of justice, 10 admit of discussion.
Sd. The defen liant proposed % prove, cross
examination Of the plaintiff s daughter, that she
had heard her mother charge her rather. the plain
tiff, with adultery, aud that he sd Rtted the charge
10 be true The Court properly excluded this
denee. We have recently helJ, in Reed vs.. Williams.
that ii is admissible to show that the plaintiff is
man Of prOaigate character and dissOluts habits;
but that it must be done by evidence of his general
reputation, and net Of particular instances
4th The defendant also proposed 10 prove, that the
general reputation Of the plaintiff 3 wife, and mo-
ther Of the person seduced to chastity, was oad
This evidence the court also rel jseted The general
reputation and stanlng Of the family may be shown
by the plaintiff, 1t seems, with view 20 enhance
the damages; and upon the same Principls it would
the part Of the defendent, TO diminish the damages
But the reputation Of particular member Of the
family, ether than the plaintiff or the person se~
dueed cannot be inquired into.
5.h. The next and only remaining error, which
deem it necessary cOnsider, is the refusal Of
the Court TO grant new trial.
Il appears from the bill Of exceptions, that after
the examination had been closed on both sides, and
after two arguments each side had been made
to the jury, an application was made to the Court
n
House as witness, Tor the purpose, trsi, OF dis
ered;ting George SarVer, EitGess examined by the
defendant, who proved that be had had sexual in
teroourse with the plaintiff dlnghier prior TO her
seduction by the defeudRa; and, IN tie next place,
to relieve himself from the impuiation made dpon
him in the evidence and 10 the argument, Of being
the father of the child, charged upon the defend
ant. The Court sduitted said vi ness. And he
stated in substance. that in July or August 1858,
Sarver slated in conversation with witness, that
she never had cPimina cOnnexion with plain'if 3
daughter, and that he would lay his hand on he
Bible snd swear it." Witness hkesise stated, that
he himself never had sexual intercourse with her.
But on cross examination ne a5mit,ei that he had
visited her a suitor, and that be had taken va
rOus liberties with her persou which need no: be
here stated. He likewise stated, that he had
been summoned witness fer plaintiff, but had
got of from attending, and had gone 10 the country,
and returned sgsn 10 the esurt house, during the
prOgres of the argument.
After the examination OF HOUSE, tue court oHefeO
to postpone the trial as long IS might BIS ne
cessary to Afford the defendant opportunity to pro-
Guce witnesses 70 rebut the testimony Of House.
But the defendants counsel waived the ofTeT, and
consented to proceed with the trial. upon s being
admitted BY plsintiG 5 counsel, thai Sarvsr could
prove good character, defendants counsel admit
ting at lhe same Iine that House could also prove
good charae er. Il should haVe been marked that
tue defendant was absent. lie left after the
evidence was closed and went to the country visit
his wife, who sick, be alleged, and did nJt
return until after the verdict vas rendered.
The defendant produced the sfi laVts of several
persons, setting forth the repeated and positive de-;
iarsiiobs Of House to the effect, that be had had
crimiua connexion with the Plaintiffs daughter for
a period Of twelve eighteen months; that she
was wi child sy hin; aud that he expected he
would have to leave the country on that account;
and that he had offered her a sum Of money
to swear the child 10 defendsn', Thomp5oa.
Other In alters stated il the sfiiavis we deem
necessary TO notice. We likewise pass by, without
notice. the counter afhdAYits produced BY the plain
| tiff.
The dif6euliy in the way Of holding the Circuit
! Judge to have erred, Ia refusing new tral upon
the foregoing facts grows cut Of the refusal Of the
defendants counsel to accept the offer, SO fairly and
60 properly male by The Court to give time to intro
! ducs rebutting evidence.
In ordinary cases, perhaps, party ougat 20 con-
clude by such Of his counsel, IN ms absence,
however rash or unadVsed il may have been, on the
1 part of counsel But under the extraordinary cirS
cunstances Of this particular case, we lhinK the