{
  "id": 8687059,
  "name": "ROBERT McBRAYER& FRANCES HIS WIFE vs ABEL HILL",
  "name_abbreviation": "McBrayer v. Hill",
  "decision_date": "1843-12",
  "docket_number": "",
  "first_page": "136",
  "last_page": "139",
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      "cite": "4 Ired. 136"
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      "cite": "26 N.C. 136"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
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      "cite": "4 Dev. 468",
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      "reporter": "Dev.",
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        11276805
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      "reporter": "Dev.",
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  "last_updated": "2023-07-14T15:22:59.151638+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ROBERT McBRAYER& FRANCES HIS WIFE vs ABEL HILL."
    ],
    "opinions": [
      {
        "text": "Ruffii\u00ed C. J.\nThe statute of 18(58, Rev. Stat. c. 110, gives to a woman an action for words \u201cwhich amount to_a charge of incontinency;\u201d which imports, we think, not mere-imputation of impure desires or a lascivious disposition, but the criminal fact o\u00ed adultery or fornication. It has not pleased the Legislature to go farther, and, perhaps, it could not be safely done; though often the accusation of a propensity, or the imputation of such conduct as only evinces propensity, and'nothing more, may be as destructive to the reputation of a woman, as the most explicit charge of personal prostitution. In the case before us, with every inclination to receive the words in the sense in which they were meant by the speaker, and were or would reasonably be understood byhearers, we cannot say, that, as stated by the two first witnesses, they import a charge of the very act of adultery, but only evil thoughts in the heart, which, perhaps, only waited for opportunity to break out into open lewdness. .\nBut one cannot be at a loss as to the sense in which the words' proved by the last witness are to be received. It is to be-remarked in- the beginning, that the defendant isdiable upon these words, as if he had directly affirmed the fact to be as he says it was reported, inasmuch as he states the report or impression about the plaintiff\u2019s character as a gene-mi impression, without disclosing the name of any person from whom he received it. Lord, Northampton\u2019s case, 12 Rep. 32. And, indeed, if he had given the author, the repetition of this slander was so obviously malicious and for evil ends, that, upon the averment of those facts, it might have been left to the jury to find for the plaintiff, unless the defendant proved the fact of her guilt with him. Hampton v Wilson, 4 Dev. 468. Then the cas\u00e9is to be taken, that the defendant declared, \u201che kept McBrayer\u2019s wife.\u201d The word dkept\u201d has many significations, according to the subjects to whichdt. is applied. But it is a common and well established' sense of it, when used in reference to connexions between the sexes, to denote habitual and criminal carnal conversation, amounting to cohabitation. Every one knows at once, what is meant by the terms \u201ckept mistress;\u201d or what is laid to the-charge of a man, who is said \u201cto keep a mistress.\u201d It is not the meritorious act of providing for or maintaining a virtuous lady in her innocence: but it is the vicious one of having a wanton at his command for carnal gratification\u2014 of keeping her for sensual uses. This seems to us the natural import of the words in themselves, as the people in the country would universally understand them. But, at all events, they are susceptible of that interpretation; and therefore ought to have been left to the jury to determine \"the sense, in which they were meant by the speaker and in which the hearers understood them. Studdard v Linville, 3 Hawks, 474. Woolnoth v Meadows, 5 East. 463. That the word \u201ckept\u201d was not here used with an intent of onlysa-yingthat the defendant innocently provided for this woman, or had her in custody, or was exercising towards her any other benevolence or any proper.control over her, is evident from the circumstances and\" colloquium. He was speaking of the trial of an indictment against him for an assault on this same person, and he gives as a reason, why the husband did not prove her good character on that occasion, that it was the general impression .that he kept his wife. The meaning is plainly, that the husband could not prove his wife\u2019s good character, because the defendant kept her, and therefore her character was not good, but bad \u25a0; and in what sense bad, as meant by the defendant, no person can doubt. What else could the defendant mean, under such circumstances, but to charge a report, which -is the same thing as the charge of the fact, that the feme plaintiff had been guilty of habitual adultery with the defendant himself? The obvious import of the words is defamatory, and, under the attending circumstances, they are so plainly pointed towards the charge of this particular offence, that, unless a judge is not to use his understanding like other people, we cannot give them any other acceptation. They meant that or they meant nothing.\nPer Curiam, J udgment reversed and venire d& novo awarded.",
        "type": "majority",
        "author": "Ruffii\u00ed C. J."
      }
    ],
    "attorneys": [
      "J. G. Bynum and John H. Bryan for the plaintiff.",
      "W. J. Alexander for the defendant."
    ],
    "corrections": "",
    "head_matter": "ROBERT McBRAYER& FRANCES HIS WIFE vs ABEL HILL.\nThe Words, \u201c whichamount ttf a charge, of incontinency, \u201d and for which an action of slander is given to a woman by our act of 1808, Rev. Stat. c. 110, must import not merely a lascivious disposition, hut the criminal fact of adultery or fornication.\nTo say of a woman, that \u201cshe was kept by a man\u201d is actionable as a slander under our act of assembly.\nfie who repeals a slander, without giving h'is author, or if he gives the author, with a malicious intent, is himself liable to an action for the slander.\nThe case of Hampton v Wilson, 4 Dev. 468, cited and approved.\nAppeal from the Superior Court of Law of Rutherford county at the special term in July, 1843, his Honor Judge Dick presiding.\nThis was an action of slander, in which the declaration alleged that the defendant had charged the plaintiff\u2019s wife with incontinence: Plea, not guilty. The first witness for the plaintiff proved, that the defendant said he went to the plaintiff\u2019s house \u2014 that the plaintiff\u2019s wife asked him to go into a room to see some carpenter\u2019s work that had been done in the house \u2014 that she commenced sweeping the house \u2014 . that he put his hand upon her and she rose op and kissed him \u2014 that the children came to the door, and she said \u201cLord, what have I done.\u201d He further remarked to the witness, \u201cyou may depend upon it she is such a woman.\u201d The counsel for the plaintiff then asked the witness, what he understood the defendant to mean by the expression \u201cyou may depend upon it she is such a woman.\u201d This question was objected to by the defendant\u2019s counsel, and his honor rejected it and remarked that it was for the jury to determine what he meant. Another witness proved, that he had frequently heard the defendant say, \u201cshe was a dirty, sluttish woman,\u201d and while speaking of her he remarked \u201cthat a person might put a saucer of molasses down to the children in one end of the house and they might eat it up and come upon them before they expected it.\u201d Another witness proved that there had been an ^indictment against the defendant for an assault and battery on the plaintiff\u2019s wife before the bringing of this action, and that the defendant, while speaking to the witness about that action, said, \u201cthe reason that the plaintiff had not summoned witnesses from the South side of the river to prove his wife\u2019s good character was, that the general impression in that neighborhood was, that he, the defendant, kept the plaintiff\u2019s wife.\u201d\nHis Honor being of opinion, that the words, as proved, were not actionable, the plaintiff submitted to a nonsuit, and appealed to the Supreme Court.\nJ. G. Bynum and John H. Bryan for the plaintiff.\nW. J. Alexander for the defendant."
  },
  "file_name": "0136-01",
  "first_page_order": 136,
  "last_page_order": 139
}