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Rochester and Genesee Valley Railroad v. Clarke National Bank.

sons who are in possession of and exercising the powers and performing the duties of an office, under color of authority, so far as third persons are concerned, is, that such third person cannot be supposed to know all the facts, or be able to determine with any certainty the question of legal title.

When the color of authority notoriously ceases, the reason for sustaining their acts as the acts of officers de facto ceases. (The King v. Corp. of Bedf. Level, supra.)

We think that when by a judgment of the court of last resort, in a direct proceeding to determine the title of officers de facto, it has been adjudged that they have no rightful title to the office, but are mere usurpers, then, at least as to all who have notice of such proceeding and judgment, the color of authority has ceased; and this without regard to whether anybody else has been inducted into the office or not. As officers de facto there must be at least a presumption that they are rightfully in office. Such presumption cannot be said to exist after the decision of a competent tribunal to the contrary. To hold that persons who, according to the decision of the court having jurisdiction to decide so as to bind the parties and the public, are mere usurpers, may still exercise the powers and discharge the duties of the usurpers' office, is to deprive the judgment of ouster of all force or effect.

This leaves, in this controversy, the other party, composed of Hammatt and his associates as the only parties who can be said to have any color of title.

It is stated by the counsel for the appellant that the papers upon these motions were held by the justice before whom they were made until the decision of the Court of Appeals referred to, when the motions were denied, upon the assumption that that decision disposed, in effect, of the motions. We think, for the reasons above stated, this was correct.

It is stated that an appeal has been taken from the de

Whitney v. Elmer,

cision of the Court of Appeals to the Supreme Court of the United States. That circumstance cannot absolve us from the duty of following the decision. By this court the decision of the tribunal of last resort of the State must be considered the law of the land, until it shall have been reversed.

The order appealed from, in each case, must be affirmed, with $10 costs of appeal.

[Fourth DEPARTMENT, General Term, at Rochester, September 4, 1871. Mullin, P. J., and Johnson and Talcott, Justices.]

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RO 2501 66 18

WHITNEY vs. ELMER.

60 2501 51h 593

In action by a father, to recover damages for the seduction of his daughter,

evidence of a promise of marriage, made by the defendant to the daughter,

previous to the seduction, is inadmissible. If such evidence is offered in chief, by the plaintiff, and admitted as general

evidence in the cause, without qualification or limitation, it is cause for

reversal. The judge instructed the jury that "if they found that the defendant prom

ised to marry the plaintiff's daughter, before he had sexual intercourse with her, they were at liberty to consider that, with other circumstances attending her seduction; and they might also regard it as one of the circumstances of the case, in determining the damages to be recovered by the plaintiff, not for the purpose of giving damages for a breach of promise of marriage, but as one of the circumstances attending, and under which the seduction of the daughter was eflected.” The defendant's counsel excepted to this instruction, and requested the judge to instruct the jury that the plaintiff was not entitled to recover any additional damages on account of the promise of marriage; which request the judge refused. Held that the defendant was entitled to the instrnction asked for, in view of the fact that evidence of a promise of marriage had been admitted, and of the ambigu ous character of the instruction on that subject actually given.

PPEAL by the defendant from a judgment in favor A

of the plaintiff, entered upon the verdict of a jury. The action was brought to recover damages for the

Whitney v. Elmer.

seduction of the plaintiff's daughter and servant. On the trial the plaintiff gave evidence tending to prove, and from which the jury might find, that in the month of December, 1868, while Sarah Whitney, the plaintiff''s daughter, was under twenty-one years of age, at the house of Seneca Wheeler, in Portageville, in the county of Wyoming, the defendant wrongfully seduced and carnally knew the said Sarah, who was, at the time of such seduction and carnal knowledge, the daughter and servant of the plaintiff'; and that at the time of such seduction and carnal knowledge, the plaintiff resided at Attica, in said county, and the said Sarah was at the said house of the said Seneca Wheeler, visiting his family; that by reason of said carnal knowledge said Sarah became pregnant, and thereafter, and in December 1868, returned to her father's (the plaintiff's) house in Attica, where she remained until after the birth of the child with which she was so pregnant, and until the present time; that by reason of such pregnancy and the birth of said child, the said Sarah became and was sick, and to some extent unable to do or perform her duties to and for the plaintiff, as such daughter and servant; that by reason thereof the plaintiff necessarily expended some money, and he and his wife bestowed some time, care and attention upon said Sarah, incident to the birth of said child and in consequence of the sickness caused by said pregnancy and the birth of said child; that the defendant had been previously married, but his wife died in June 1867, and he was sole and unmarried from the death of said wife until after said seduction and carnal knowledge of said Sarah.

The plaintiff's counsel offered and proposed to prove, by the said Sarah Whitney, a witness for the plaintiff, that a short time previous to, and at and about the time of said carnal knowlege of the said Sarah by the defendant, the said defendant undertook and promised to marry the said Sarah Whitney, in view and consideration of her promise

Whitney v. Elmer.

to marry said defendant. The counsel for the defendant objected to the evidence, on the grounds that it was incompetent, and because this action was brought by the plaintiff to recover damages for, and in consequence of, the seduction of said Sarah, and evidence of a promise by the defendant to marry her, was not admissible in this action brought by the plaintiff, who is her father; and also on the grounds that the evidence so offered was immaterial, and there was no allegation of such fact in the complaint. The court overruled said objections and each of them, and decided that the evidence was admissible. To which ruling and decision the counsel for the defendant excepted. The plaintiff then proved, by the said Sarah, a promise made by the defendant to marry her, as stated and set forth in the offer so made by the plaintiff's counsel. Evidence was given, on the part of the defendant, tending to show, and from which the jury might find, that during the year 1867, and from that time until said carnal knowledge of her by the defendant, the general reputation and general character of the said Sarah as to chastity, was, in the neighborhood and community in which she then resided, bad. On the part of the plaintiff, evidence was given tending to show that prior to and up to the said carnal knowledge of said Sarah by the defendant, her general reputation and general character for chastity, in the neighborhood and community, was good. No specific act or acts of the said Sarah showing a want of chastity in her were proved, or attempted to be proved, by the defendant, on the trial, and no other evidence was given as to her chastity than as above stated. Evidence was given tending to prove that after the said seduction and carnal knowledge of the said Sarah the defendant married another person.

The court charged the jury that if they found for the plaintiff they should give him such damages as he had been subjected to by reason of the loss of his daughter's

Whitney v. Elmer.

services, the expenses he had been subjected to by reason of her sickness and confinement, and care and attention bestowed upon her, and the mortification and disgrace he experienced in consequence of her seduction and confinement, and in addition to those considerations, they had the right, if they deemed the case to be a proper one for that purpose, to add to such damages such further amount as they should deem to be proper by way of punishing the defendant, and as they might deem salutary and proper, by way of example and restraint upon others who might contemplate similar invasions of parental rights. That if they found that the defendant promised to marry the plaintiff's daughter before he had sexual intercourse with her, they were at liberty to consider that with the other circumstances attending her seduction; and they might also regard it as one of the circumstances of the case, in determining the damages to be recovered by the plaintiff, not for the purpose of giving damages for a breach of promise of marriage, but as one of the circumstances attending, and under which the seduction of his daughter was effected. The defendant's counsel excepted to that portion of the charge which directed the jury that they might consider the circumstance that the defendant promised to marry the plaintiff's daughter, in determining the damages the plaintiff should recover, if they found in his favor.

The counsel for the defendant requested the court to charge the jury that they should not consider the evidence of a promise made by the defendant to marry Sarah Whitney with the view of increasing the damages to be given to the plaintiff. The court refused so to charge. To which refusal the counsel for the defendant duly excepted.

The counsel for the defendant requested the court to charge the jury that if they should find that the defendant promised to marry Sarah Whitney, that fact should not

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