McFarland v. Shaw, 5 N.C. 102, 2 Car. L. Rep. 102 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 102, 2 Car. L. Rep. 102

McFarland v. Shaw.

This was an action on the case for debauching the plaintiff’s daughter, and for the trouble, expences 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.

Strong, for the plaintiff.

—The examination of the woman ought to have been admitted as evidence against the defendant. The act of assembly is positive, that it shall be conclusive evidence to charge him as the father; and that is the fact now in contest between these parties. The examination and the consequent judgment formed a judicial act, done by persons having a competent authority, in a case too where the defendant was a party. But if this point should be ruled against us, we contend

2. That the dying declarations of the daughter were properly received. It is unnecessary to cite authorities to prove the uniformity with which such evidence is received in criminal cases. The same motive which led to it’s propriety there, is equally forcible here, necessity; because the fact can alone be proved by the daughter. There is, however, an authority for its admission in civil cases, in 3 Burr. 1255, where the dying declarations of Medlicott were received to prove his having forged a will.

McMillan, for the defendant.

—The only case which gives any countenance to the competency of the examination, is that of Rex v. Eriswell, 3 Term, 307; but the opinion of two Judges in that case was overruled, in 2 East 54. It is entitled to no higher respect than hearsay evidence, which is received only in certain excepted cases, probably as old as the rule itself. The correct principle is, that, except in cases of felony, and that by statute, informations or examinations of witnesses, taken before magistrates, in the absence of the party charged, cannot be admitted as evidence, either at common law, or by statute. 1 McNally 313.

It is not established as an exception to the rule of evidence in civil cases, that the dying & durations of a witness are admissible. In the case cited from Burrows, the declarations of Medlicott were received only to invalidate the effect of his signature to the will.

Strong, in reply.

—The point decided in Burrows is, that a subscribing witness to a will, acknowledged upon his deathbed, to the person giving the evidence, that he, the subscribing witness, did himself forge it; and this was held proper testimony. It is then a substantive ground of evidence.

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 daughter before the magistrates, 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 adduce no evidence to repel it’s force, or exonerate himself from the burthen. To that single object the act of 1741, expressly confines it, and the court cannot give it a greater extent, without subverting every principle of just construction, established in relation to statute, altering the common law, as well as violating the spirit and policy of the general law of evidence; for the act neither requires the putative father to be summoned, nor furnishes him with the means of having the benefit of a cross-examination. It is a question between the county and the father, who shall bear the charge of the child, and in receiving the examination for that purpose, the letter and spirit of the law are obeyed: but if it be received for any other purpose, we must wander from both, and in so doing, offer violence to the common law and inflict a wound upon private rights. Shall such examination be conclusive evidence against the father, in an action constituted as this is, between him and the injured parent, when, if the daughter had negatived his being the father, it could not have been received in his favor? The very statement of the proposition furnishes the answer. In both cases it is res inter alios acta, and cannot, on either side, be admitted for the purposes of this action.

2. The declaration made by the daughter, during her last illness, and under the apprehension of approaching death, was accompanied with an impressive solemnity,—a forcible appeal to every honest mind—a pathetic claim to confidence from the best feelings of the heart, as well as the most austere duties of the judgment, that seem to entitle it to as much consideration as any such evidence has hitherto received.

In cases where life is at stake, such evidence is uniformly received and credited, and numerous are the victims to its authority, recorded in the mournful annals of human depravity. Can the practice of receiving it to destroy life, and rejecting it where a compensation is sought for a civil injury, derive any sanction from reason, justice, or analogy? And though no direct precedent may exist to guide the court, yet it must be recollected that the law consists of principles, which precedents only tend to illustrate and confirm. In Woodcock's case the dying declarations were received, although the party wounded had not expressed any apprehensions of dying; because he had received a mortal wound, and his situation was such as would naturally preclude all temptation to falsehood. The case before us is stronger, for the woman believed she was dying and so expressed herself. It is also a circumstance in this case, upon which we chiefly ground ourselves, that the fact disclosed in her declaration could only be proved by herself; she was the injured party through whom the cause of action has arisen to the father. We give no opinion how far the dying declarations of an indifferent person, not receiving an injury, and not a party to the transaction, would be evidence in a civil case. Our decision is confined to the state of facts presented in this case; and in that we think the verdict has been properly found and ought not to be disturbed.