McFarland v. Shaw

• Decision Date: 31 January 1815
• Citation: 2 Car. L. Rep. 102,4 N.C. 200
• Parties: McFARLAND v. SHAW.
• Court: North Carolina Supreme Court

4 N.C. 200

2 Car. L. Rep. 102

McFARLAND

v.SHAW.

SUPREME COURT OF NORTH CAROLINA

JANUARY TERM, 1815

1. In an action by a father for the seduction of his daughter, her examination taken before two magistrates for the purpose of charging the putative father with the maintenance of the child under the act of 1741 (1 Rev. Stat., ch. 12, sec. 1) is not admissible evidence against the defendant to prove the fact of seduction.

2. In an action by a father for the seduction of his daughter, he may give in evidence the dying declarations of the daughter, charging the defendant with having been her seducer.

CASE for debauching the plaintiff's daughter, and for the trouble, expense, and loss of service incident thereupon.

To prove that the defendant did debauch and get the plaintiff's daughter with child, the plaintiff's counsel first offered the examination of the daughter, Catharine McFarland, deceased, which was taken before two magistrates, wherein she charged the defendant with having been the father of a child with which she was then pregnant, in order to charge the defendant with the maintenance of said child, according to the act of Assembly. Objections were made to this testimony, and the presiding judge decided it to be inadmissible. The plaintiff then offered to prove the declarations of the daughter, in her last illness and made in view and expectation of death. To this evidence, also, the defendant objected; but the objection was overruled.

The plaintiff then proved that the daughter was sick in childbed for about ten days, at his house, which was her usual place of residence; that three medical gentlemen were called to her; two of whom attended her together, and the other some time afterwards; that several times during that illness she declared that the defendant was the father of the child with which she was then pregnant; and that after all hope of life was gone, she desired that defendant might be sent for, and upon being informed that he would not see her, exclaimed: "I am going; He will soon go, too—where he will be obliged to see me, and will not dare to deny the truth." Upon this evidence, the jury found for the plaintiff.

1. If the said examination of the daughter was admissible in evidence, then the verdict to stand.

2. If neither the examination nor the declarations of the daughter, which were received, should be deemed admissible, then the verdict to be set aside and a new trial granted.

TAYLOR, C. J. This action is brought by the father for an injury done to him by the loss of his daughter's service, in consequence of her seduction by the defendant and incidental illness. The examination of the father before the magistrate is made evidence against the putative father solely for the purpose of charging him with the maintenance of the child; and so far it is conclusive evidence, because he can...