Fry v. Leslie

• Decision Date: 08 January 1891
• Parties: Fry. v. Leslie.
• Court: Virginia Supreme Court

12 S.E. 671

87 Va. 269

Fry.

v.Leslie.

Supreme Court of Appeals of Virginia.

Jan. 8, 1891.

Seduction—Infancy as a Defense—Evidence— Appeal—Record.

1. A plea stricken out by the court forms no part of the record on appeal unless preserved in a bill of exceptions.

2. Infancy is no defense to an action for seduction.

8. In an action for seduction, defendant's letters to the girl, containing strong implied admissions of his guilt, and discussing the best means for concealing her condition, are admissible.

4. It is not admissible to show by a witness who Knows nothing of the girl's general reputation for chastity that he had heard that she and the other females at her home were unchaste.

5. Where defendant, on his examination in chief, omits to give the details of certain liberties which he states the girl took with him on the night of seduction, these details are properly excluded when offered on the redirect examination, even though it was sought to discredit him in the cross-examination.

6. It is inadmissible to show mere loose language and immodest remarks by the girl to other young men.

7. Where specific acts of impropriety, not going to the extent of cohabitation with other men, are sought to be shown, but the facts constituting these acts are not set out in the bill of exceptions, it will be presumed that the ruling excluding the evidence was correct.

8. Under Code Va. § 3390, declaring that if a verdict does not allow interest it shall be allowed from the date of the verdict, the judgment on a verdict for damages in a seduction case must allow interest from the date of the verdict, when interest is not given by the verdict.

9. Where the plea of the statute of limitation has been stricken out by the court, error cannot be predicated on the court's failure to instruct as to its effect.

Error to circuit court, Loudon county.

J. W. Foster and J. H. Alexander, for plaintiff in error.

C. H. & R. H. Lee, for defendant in error.

Lewis, P. 1. The first assignment of error, which is that the circuit court erred in striking out the plea of infancy filed at rules, is not well taken. Even if the plea were before us as a part of the record, the objection could not be sustained. This is an action ex delicto, as every action by a parent founded upon the seduction of his or her daughter must be. 4 Minor, Inst. 440; White v. Campbell, 13 Grat. 573; Parker v. Elliott, 6 Munf. 587, Gilmer, 33. Such is the appropriate form of the action at common law, and our statute, now carried into section 2896 of the Code, which provides that "an action for seduction may be maintained without any allegation or proof of the loss of the service of the female, by reason of the defendant's wrongful act, "merely affects the quantum of proof. The action itself remains as itwas (i. e., it belongs to the same class of actions as) before the statute was passed. Lee v. Hodges, 13 Grat. 726; Clem v. Holmes, 33 Grat. 722. Hence, in such a case, the plea of infancy is of no avail, for an infant is liable for a tort, —that is, an injury not arising out of a breach of contract, —just as an adult is. Accordingly, in Lee v. Hefley, 21 Ind. 98, which was an action for seduction, it was held that the answer of the defendant, that at the time of the commission of the act he was an infant, constituted no defense, and was therefore demurrable; and such is the well-settled doctrine of the common law. 1 Minor, Inst. 495; Cooley, Torts, 103; Conk-lin v. Thompson, 29 Barb. 218. Besides, the defense of infancy, being a personal privilege, cannot be interposed by a stranger, as seems to have been the case here. Keane v. Boycott, 2 H. Bl. 512. An infant defendant, moreover, must appear by guardian ad litem, and not by attorney. 1 Chit. Pl. 428; 1 Minor, Inst. 432-475. But the plea is no part of the record. It was stricken out, and a plea that is stricken out. by the court is as though it had never been tendered, unless it is made a part of the record by a bill of exceptions, or by an express order of the court; and, if it is not a part of the record, then the action of the court in striking it out is not a subject of review in the appellate court, as nothing dehors the record can be looked to or considered. In this respect, a plea stricken out stands upon the same footing as a rejected plea, as to which the rule is well settled. In White v. Toncray, 9 Leigh, 347, certain pleas tendered by the defendant were rejected, without any exception to the action of the court being taken, and the question afterwards arose whether they were a part of the record, which could be brought up by a certiorari. It was held that they were not. The court said that merely placing them among the papers in the case did not make tbem a part of the record, and that they could have been made so only by a bill of exceptions, or by a special order of the court, identifying them, and setting forth on the order-book the reasons for rejecting them. It was said, moreover, that, by not excepting, the defendant must be presumed to have acquiesced in their rejection., and that the presumption was they were rightly rejected, as the court was not called upon to sign a bill of exceptions, in which the reasons for its action would have been stated. See, also, Herrington v. Harkins, 1 Rob. (Va.) 602; Bowyer v. Hewitt, 2 Grat. 193; Improvement Co. v. Karn, 80 Va. 589; Morris-sett's Case, 6 Grat. 673; Lawrence's Case, 86 Va. 573, 10 S. E. Rep. 841; Offtendinger v. Ford, 86 Va. 917, ante, 1. In the present case, it is true, an entry on the order-book states that to the action of the court in striking out the plea the defendant "excepted;" but that was nothing, in effect, but "saving the point, " so to speak, and having the evidence of the fact entered on the record. It certainly cannot perform the office of a bill of exceptions; and, although the plea (or, rather, what purports to be the plea) is copied into the transcript by the clerk, that does not supply the defect. The record proper, as Prof. Minor says, consists merely of the pleadings in the case, the issue, the impaneling of the jury, the verdict, and the judgment; and it is not within the province of the clerk to add to the record. 4 Minor, Inst. 742; Improvement Co. v. Karn, supra. A case in point is Scott v. Lloyd, 9 Pet. 418. In that case the defendant's counsel objected at the trial to acer-tain question being put to a witness, and, upon his objection being overruled, as was stated on the record, he excepted. The supreme court, however, speaking by Chief Justice Marshall, said: "Although the defendant's counsel objected to the question, and said he excepted to the opinion of the court, no exception was actually prayed by the party or signed by the judge. This court, therefore, cannot consider the exception as actually taken, and must suppose it was abandoned." To the same effect is Pomeroy's Lessee v. Bank, 1 Wall. 592. In that case one of the parties, as appeared from an entry in the minutes of the case, excepted at the trial to a certain ruling of the court, and afterwards claimed the benefit of the exception in the supreme court. But his contention was not sustained, the court saying that such an entry could only be regarded as evidence of the right of the party seasonably to demand a bill of exceptions, and that was not the same thing as a bill of exceptions, and had never been so considered in any jurisdiction where the rules and practice of the common law prevail.

2, 3. This view of the subject is not only decisive of the first assignment of error here, but equally so of the second and third assignments, which relate to the rejection of the plea of the statute of limitations, tendered by the guardian ad litem, and of the two pleas—one of infancy, the other of the statute—afterwards tendered by the defendant himself, upon attaining his majority.

4. The next objection, which is founded upon the defendant's first bill of exceptions, is to the action of the court in admitting in evidence the two letters from the defendant to the plaintiff's daughter, written while he was at school in Rockingham county, and set out in full in the bill of exceptions. The ground of this objection, as stated here, is that there was nothing in the case to show that, when the letters were written, the defendant knew anything of any improper conduct on her part in his absence, or of her actual condition, except from her own letters, and bob constat she was not pregnant by another man. This objection is clearly without merit. The letters not only do not assert the defendant's innocence, but, on the contrary, they contain the strongest implied admissions, at least, of his guilt. They discuss plans for the concealment of her shame, —one of which was marriage; and to this the only objection mentioned was, not the character or impurity of the girl, but the cutting short of his education, and the consequent loss of the advantages in life which an education would give him. "What would you think of me, " he asked her, "as a common laborer? You would be even more dis-satisfied than I." So, although he tells her he had been advised that marriage was "the quickest way out of it, " he concludes that the best way was for her to adopt another plan that had been suggested to him, which was for her to go to a house in Washington or Baltimore, to be there delivered, and where no questions would be asked. "You do the last, " he writes her, " and write me when you go, and I will try to be with you, " etc. There is nothing in the record as to any improper...