Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-03-14

in the name Of Henderson. as personal represents
tive of the estate Judgment for the plaintin' oe'
eral errors are assigned. ,...
l. On the trial. Nancy Cruze, the person seouce
was offered as a witness for the plaintiff and ohJec
| ton being made to her competency, on tne SrOu"
that the mother having died pending tne SUM- in'es
tate, the witness distributes "a ~ s.':.
and consequently interested IN tne event " VI -
To obviate this objection, the witness executed ~
| lease whereby .sshe relinquished to her oro.ner
and sisters All the interest she had, or might nav
in any verdict or Judgment that might De RENDERED
in the case &cr This release was oDJSeesu 70 q
insufficient 10 remove the incompeteney, pae ine oo
lection was overruled. .o1o...
Is the possible contingency, thatjudgment mlgnI Dc
rendered against the plaintiff for Costs on lSure u
the action, in which event, the estate o, winch .le
witness distributes, would De haoie Iol S ~
ayment of the costs andeonseQuently an hteres. uu
not reach or effect If the premises De SCUM Inc
conclusion follows of course, and the result "oulu
be that the witness Distribute did not possess ihe
power, BY any form ofrelease to remove her lncon-
potency. For Il this be admitted to be disquaiiiy
ing interest it could only be removed by enureiy
dischargng her from liability for costs IN the event
of a Judgment against the plaintiff.
1t might be sufficient for the present case slnpy
80 state, that the record does not show tnat mrs
Cruze upon her death LEFT any estate whatever 70 De
distributed. consequently the sole ground Oh 'ns
supposed inconpetency is swept away.
1t is not so questioned, that the release executeo
by the witness is operation to divest, ne OF All m
terert in the recovery in this action.
1t is unquestionsbly valid objection tsst the
witness would, In event, be liable 70 the cosss
OF the action, and the magnitude or degree OF tne
interest ie unimportaut l Greenleaf Ey- SEQ 4Vl.
La general legstee heir OF disributee IS ineempe-
tent without release in any action aiiecung tne
estate 1. d 1892 And release Of his claim or IN
tercst in the subject matter OF the particular SUIT
viii be insufficient, because, il the action Ials' the
- IL n as
must also release his interest in the residue OF tue
estate or the estate must be released from all claim
for the costs, ID 428, at least the witness mus De
released from all liability for costs IN the parcu-
lar suit in which he is offered But 1t Is obvious
inst if there be nothing to release except an inte
rest in the subject matter of the suit, the release
need only apply to that.
The question is not raised BY The fact that the
interest of the witness was required On the subject
mstter subsequent TO the commencement Of me SUR
The witness cannot want0nly or in bad falth by
interest acquired pending the suit, deprive the
party of the benefit of his testimony. But suisse
quent interest of the witness created bona de IN the
usual and lawful course of business or by operation
OF law will be as efectual to disquallfy as pre-
existing interest Id. sec. l67 AIS.
2. The next error assigned is, the ruling OF the
Court, that the witness Moore was privileged to de-
cline answering the general question put TO MIN py
the defendants counsel-Nwhether he knew OF any
man having had sexual intercourse with the wit
ness. Nancy Cruze"? The witness refused TO an
swer the question; but stated that he did not know
said witness until six months before her child was
born" Tins case is settled by the case OF Reed VS.
Williams 5. Sneed $50.
1t ia well settled that where it reasonably ap-
pears that the answer will have tendency TO ex-
pose the witness to penal liability, 20 any kind
of punishment, to a criminal charge the witness
is not bound to answer the question. If the fact to
which he is interrogated forms but link In the
chain Of testimony which would convict hum he is
protected; without being required to explain
how he might be criminated by the answer.
If it be one of series Of questions the answer to
all of which would establish his crmlnalty, he can
not be compelled to answer that or any one OF the
series i Greenleaf Ev. Sec 43l, and No T. And the
court is bound to instruct him. whether his answer
would tend to criminate expose him, Id. The
ruling of the court correct inasmuch as by the
act Of l74l ch. II, 9. FoTcuon is declared to
be penal offence.
Sd. The last error insisted on is in the charge of
the court. His Honor, among other things, stated
to the Jury in substance that if any other person
had had intercourse with Nancy Cruze before her
alleged seduction by the defendant but that fact re-
manned unknown to the defendant. as well as to the
public, at the time of her seduction SO her charac
ter reputation not affected thereby at the
time she was seduced by the defendant; then the
fact Of such intercourse with different person
prior to her seduction by the defendant should not
be looked to by the jury in mitigation OF the dam
ages in this action.
This principle though saidlto be incorrect, is not
shown to be so by any authority or eUeR by any
reason satisfactory TO our minds. The application
Of the principle admitted TO be rigid one, but
still we think it is correct in law, in ethics and IN
reason.
So far as the intrinsic nature and complexion Of
the wrong ethc in a legal point of view, depenes
upon the dRDtS of the defendant, and in so far as
its consequences to to the friends of the person Sc
iuced or the public concerned-how can it be main |
ad hiatt Io dan IN bp a
Dre-erisd,t fact of which defendant and the public
at the time of the injury for which damages are |
sought TO be recovered alike utterly ignorant
The character or reputation Of the female seduced
in the estimation of the public could not possibly
have been prejudlced by the existance of secret
locked up until after her seduction in the bosoms OF
the immediate parties.
And as the material injury in view of the damages
is what the standing and reputation of the per-
son. before and at the time of the seduction it would
seem to be unreasonable if not absurd to permit |
the defendant to avail himself of the matter, in nit
igation of his own wrong, which so far as was
known TO him, to the public had then no exist
ence and could not therefore possibly have had any
influence upon his motives or conduct; nor could 1t
in any way have have affected public sentiment in
regard to the person, or have inflicted any wound
upon the honor of her family.
Upon the hypothses of the charge, it was the de-
PENDANTS act alone that blasted the reputation of the
female But for the notoriety, and consequent deg
Of chastity, surprising the fact to have been So
might in all probability, have bee revealed,
brought in judgment against her before the public.
The principle Of the charge is n new principle.
The charge only applies an established principle
to new state of facts The general principle 10
that evidence is admissible Of facts and circum-
stances, which go in agravation mitigation OF the
INJURY Itself But the facts and circumstances offer
ed for this purpose ought to be those only which
belong to the act complained Of 2. Greenleaf EV.
see 26G.
Tested by this rule. the change is unquestiOnably
correct. The defendant could not pallate his
wrong On the ground that the person seduced had
before suffered her chastity TO be violated for as to
him. as well as to her family and public she stood,
at he time, of her seduction. with reputation
no: only untranished but unsupported; and as
though there never had been any such alteration,
on her part from the path of virtue.
Most clearly, then this was mott fact or circum-
stance properly belonging TO the act complained Of
or to the issue to be tried.
Judgment affirmed MCKINNEY.
trina cnnv TaSt. " r CASyRIJ Clerk