{
  "id": 11273842,
  "name": "AULAY McAULAY v. JOHN F. BIRKHEAD",
  "name_abbreviation": "McAulay v. Birkhead",
  "decision_date": "1851-12",
  "docket_number": "",
  "first_page": "28",
  "last_page": "32",
  "citations": [
    {
      "type": "nominative",
      "cite": "13 Ired. 28"
    },
    {
      "type": "official",
      "cite": "35 N.C. 28"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "4 Phil. 218",
      "category": "reporters:state",
      "reporter": "Phil.",
      "opinion_index": -1
    },
    {
      "cite": "7 Ired. 346",
      "category": "reporters:state",
      "reporter": "Ired.",
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        8693839
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/29/0346-01"
      ]
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    {
      "cite": "12 Ired 348",
      "category": "reporters:state",
      "reporter": "Ired.",
      "case_ids": [
        8693469
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/34/0348-01"
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  "analysis": {
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    "char_count": 9110,
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    "simhash": "1:b0a3eef0f5da27fd",
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  "last_updated": "2023-07-14T16:11:31.390339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "AULAY McAULAY v. JOHN F. BIRKHEAD."
    ],
    "opinions": [
      {
        "text": "PeaRsqn, J.\nThe gravamen of the action is, that the defendant had connection with the plaintiff\u2019s daughter, who \u25a0was sixteen years of age, and a member of his household, and in contemplation of law, his servant; whereby she became pregnant, and was delivered of a child, by reason of which he lost her services. The plaintiff, having proven these allegations, made out his case, and was entitled to damages to some amount.\nWhatever bearing the forward and indelicate conduct of the plaintiff\u2019s daughter ought to have had, on the question of damages, it certainly had none on the question of his right of action. In respect to him, she had no ldght to consent, and her act in assenting to, or even procuring, the criminal connection was a nullity; so the defendant must stand as a wrongdoer, from whose act the plaintiff has suffered damage. There is damnum et injuria.\nThis is a full answer to the defendant\u2019s exceptions to the charge. The exceptions to the evidence relate to. the question of damages. If, in this action, the plaintiff is confined to the damage, suffered by the loss of service, it is clear that the character of the plaintiff and his family, and the pecuniary \u201c circumstances\u201d of the defendant, are not relevant to the injury, and the exception of the defendant to the evidence is well founded.. But, if the plaintiff has a right to ask for, not merely the damage suffered by the loss of service, but for such an amount as will be a fit compensation (as far as dollars and cents can atone for it) for a parent\u2019s injury and a deserved punishment for a breach of social duty, then it is equally clear, that the character of the plaintiff and his family and the pecuniary \u201c circumstances\u201d of the defendant are relevant, and that his Honor did not err in allowing these facts to be put into the possession of the jury.\nThat exemplary damages can be given in an action of this kind, is not an open question. An attempt was made in Gilreath v Allen, 10 Ire. 67, to open the question in .an action of slander, but the Court hold, that the matter is settled, and observe, \u201cit is fortunate, that-while juries endeavor to give ample compensation for the injury actually sustained, they are allowed such full discretion as to make verdicts to deter others from flagrant violations of social duty.\u201d To enable juries properly to exercise this discretion, it is necessary to put them in possession of all the facts and circumstances connected with the parties as well as the act. If the plaintiff and his family are respectable \u2014 that is, 'have a good general character, the jury should know it, so as to enable them to judge of the degree of suffering and agony inflicted on them ; and if, on the contrary, he is de based, and has, by his conduct, exposed h'imself to the injury, the defendant, in mitigation of damages, is at liberty to prove it. So, if the defendant,, besides violating the ordinary social relation, has violated the more intimate rela. tion of a boarder, or a teacher, or a physician, the Jury should know it, so as to apportion the punishment. And, for the same reason, they should know his \" pecuniary circumstances.\u201d A thousand dollars may be a less punishment to one man, than a hundred dollars to another.\nIt was said, in the argument, that evidence of general character is not admissible, except in such actions as put character in issue ; and, consequently, such evidence could only be received in actions of Slander. The expression is used in'several of the text books, but it is ill-conceived and inaccurate. Character is not put in issue, in an action of Slander, under the general issue. The speaking of the words is put in issue, under the plea of justification. If the words import a particular charge, the specific offence only is put ih issue. Sharpe v Stephenson, 12 Ired 348. If the words are general, only a specific offence, of the kind embraced under the general charge, is put in issue. Snow v Wicker, 7 Ired. 346.\nCharacter is not brought into the question, except upon, the inquiry as to damages. Evidence of general character is not admissible, except in those actions where the Jury may, in its discretion, give exemplary damages. In su.ch actions, upon the inquiry as to damages, for the purpose of regulating the discretion of Juries, they should be put into possession of all the circumstances connected with the grievance. Thus, the general character and conduct of the plaintiff and his family, and the pecuniary circumstances of the defendant, are relevant, and may be brought into the question, by either party.\nPee Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "PeaRsqn, J."
      }
    ],
    "attorneys": [],
    "corrections": "",
    "head_matter": "AULAY McAULAY v. JOHN F. BIRKHEAD.\nIn an action on the Case, for the seduction of the plaintiff\u2019s daughter, it io competent for him to give in evidence, on the question of damages, the character of his own family, and, also, the pecuniary circumstances of the defendant-\nIn such an action, it is not competent for the defendant to sheiv that the daughter consented willingly to the seduction, or even that she, in fact, seduced the defendant, \u2014 her consent not depriving the plaintiff of his right of action.\n, Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1851, his Honor Judge Bailey pre-\nTbifi was an action on the Case, brought by the plaintiff against the defendant, for the seduction of the plaintiff\u2019s daughter. The only witness, offered in proof o\u00ed the seduction, was the daughter, herself, who stated, in substance, that she was about sixteen years of age, when the defendant came to board at her father\u2019s house; that, after he had been there about one month, \u2014 without any previous advances made to her by the defendant, \u2014 any presents made, or any particular attentions on his part, \u2014 she fell in love with him; that, being seated in the piazza, after dark, one evening, the defendant came out of the hall room to the piazza, where she was sitting, and told her he wanted to have to do with her; upon which she got up out of her chair, and went into an adjacent bed room, and lay down upon the bed, and the defendant then had connection with' her; that, on two other occasions, afterwards, he had connection with her; that, by some of these connections, she was begotten with child, of which she was afterwards delivered ; and that, on none of the occasions, was force used, nor any other persuasion, by the defendant, than as before stated, but that she yielded at once to the defendant\u2019s suggestion.\nThe plaintiff then offered to prove the general good character of himself and his family, which was objected to' by the defendant, but allowed by the Court. The defew^lant' also proved, by permission of the Court, after objection by the defendant, that the defendant was a man of some substance.\nThe defendant insisted, that the witness was not to be believed, but, even if believed, her statement did not establish any seduction.\nHis Honor charged the Jury, that, if they did not believe the witness, the plaintiff could not recover. B\u00fat, if they believed her story, the seduction was established,\u2014 that if the defendant asked the witness to have to do with him, however readily she might have assented, it was still seduction. The defendant\u2019s counsel then asked His Honor to charge the Jury, that, if the witness herself was the seducer, the plaintiff could not recover. His Honor replied, there was no evidence of that kind to be left to the 3 ury.\nA verdict having been rendered for the plaintiff, a rule, to show cause why a new trial should not be granted, was moved for by the defendant, upon the grounds, First, Error in the Court in receiving evidence of the conduct and character oi the plaintiff\u2019s family.; Secondly, Error in receiving evidence of the defendant\u2019s pecuniary circumstances; Thirdly, Error in saying, that, if the Jury believed the statement of the witness, the plaintiff was entitled to recover ; Fourthly, Error in saying, that if the defendant asked the witness to have to do with her, that was, of itself seduction, however readily she may have assented; Fifthly, Error in refusing to charge, that, if the witness seduced the defendant, the plaintiff could not recover.\nThe rule was discharged, and judgment rendered for the plaintiff, according to the verdict, and the defendant appealed.\nStrange, for the appellant, contended, that character in civil cases, could only be given in evidence, when put directly,d\u00edi issue; and cited 2 Stark. 215, and Saund. on Plead, and Ev., 438 ; secondly, that it could not be called seduction, when the woman yielded without entreaty, persuasion, \u00e1te. Clark v Fitch, 2 Wen. 459. \u2014 that mere connection was not, of itself, seduction ; thirdly, that there was error in the Judge, in saying that there was no evidence of seduction on the part of the woman.\nD. Reid, for the appellee, replied, that the rule of evidence, as to character, in cases like this, was an exception to the general rule ; Bedford v McKowl, 3 Esp. 119, 2 Stark. 721,4 Phil. 218, 5th U. S. Dig. 750, 2 Marsh. Rep.; secondly, that the injury was to the father, and the consent of the daughter could not take away his right to redress."
  },
  "file_name": "0028-01",
  "first_page_order": 36,
  "last_page_order": 40
}