The plaintiff was a single woman. The words alleged in the declaration were that "he," the defendant, "would give anyone $25 that would get her (the plaintiff) a young one." The words were spoken in October, 1856.

Further, it was alleged, and stated by two witnesses, that the day after Christmas, 1856, the defendant said of the plaintiff, "she had got a new sweetheart, Wesley Dean's Pete; it used to be Ben Lucas and sometimes Jake Calicoat"; that all three of these persons, Pete, Ben, and Jake, were slaves, belonging to persons of the surnames attributed to them, and lived in the neighborhood of the plaintiff.

Another witness testified that in June, 1857, after suit brought, he was asked by the defendant whether he thought the plaintiff would injure him, and on receiving an equivocal reply, he said "he would do her some," for he had been told she had two or three black children.

There was much contradictory testimony as to whether the defendant had used the language ascribed to him by the plaintiff as being used in December, 1856.

The plaintiff offered to prove that before suit was brought the defendant paid two persons by the name of Haltom and Northcott $200, and they executed bond in the penal sum of $1,000 to indemnify the defendant against any judgment the plaintiff might recover against him. This was offered to confirm the plaintiff's witnesses as to the speaking of the words in December, 1856, and as an admission that he was guilty of speaking the words. This testimony was objected to by the defendant and rejected by the court. Plaintiff excepted.

The court instructed the jury that the words spoken in October were not actionable. Plaintiff excepted.

That as to the words spoken the day after Christmas, 1856, it was left to the jury to decide whether they were spoken or not, and, if so, whether it was the intention of the defendant, in the use of the language, to charge the plaintiff with having had sexual intercourse with the the said slaves, or either of them; that if such was the meaning the plaintiff would be entitled to their verdict. Plaintiff again (34) excepted.

That as to the words spoken after suit brought, the jury ought to regard them in aggravation of the damages, if they should find that the defendant intended to impeach the plaintiff's chastity in relation to either of the slaves; but they were not the foundation of the action, and could not be heard to explain the testimony antecedent to the bringing of the suit. Plaintiff again excepted.

Verdict and judgment for the defendant. Appeal by the plaintiff.

MANLY, J.

The evidence offered by the plaintiff on the trial of this cause and rejected by the court was properly rejected.

The bond taken by the defendant to indemnify himself against an adverse result of the suit was offered as pertinent to prove the plaintiff's case — the speaking of the words. If pertinent at all, it must be an admission of guilt, and we do not think such an interpretation can be fairly put upon it. While it has been held of late, and especially by the American courts, that admissions of a certain class, made upon a negotiation for a compromise, are competent, mere propositions upon such a negotiation to pay for one's peace have uniformly been excluded. Indeed, there seems to be a marked distinction between an admission of particular facts and an offer of a sum of money to buy peace. If a direct offer to the party complaining, to buy peace, be excluded, no good reason is perceived why a security taken from an indifferent person, as an indemnity, should not also be excluded. If the first be excluded as impertinent and of no weight, so ought also the last. In the case of Bumgarner v. Mauney, 32 N.C. 121, it is decided that the record of the removal of a cause from one county to another is not relevant (35) nor proper evidence to be submitted to a jury on the trial of a cause. The principle there settled seems to be the same with that involved in the point now before us — that an act done to secure one's self against the contingency of loss in an impending lawsuit is not, of itself, an admission of anything that ought to be received and weighed by the jury. Such acts might be calculated to prejudice a party, but could not shed any legitimate light upon the issues of a cause.

The only rule of evidence which seems to be in conflict with this general principle is the admissibility of a culprit's flight to prove his guilt. This act, however, is of a higher and different order of significance than such as we have been considering, and in the judgment of our courts has been apparently regarded as an exception to the rule.

We entirely concur with his Honor in the court below in the opinion which he expressed as to the character of the words spoken in October. They do not charge incontinency, and, therefore, are not actionable. Incontinency means want of restraint in regard to sexual indulgence, and imports, according to our statute definitive, illicit sexual intercourse. The worst interpretation that can be put upon the words is a charge of a wanton or lascivious disposition, and the words do not necessarily imply that.

With respect to the third exception, that is, the instructions of the judge as to the words spoken the day after Christmas, we are also of opinion there was no error. These words may have been intended to convey to the hearers a charge of incontinency. They are susceptible of that meaning, but that is not the only one which may be put upon them. In the mildest sense, it is true, they are grossly indecent and insulting, but may, nevertheless, signify something short of an actual surrender of her person to the embrace of any one of the slaves mentioned, viz., a grossly depraved and wanton inclination. And the imputation of such a temperament is not a charge of incontinence, as was settled in McBrayer v. Hill, 26 N.C. 136. The words used being ambiguous and capable of a double interpretation, it was proper for the judge to leave it to the jury to decide, under the circumstances, whether (36) it was intended thereby to charge the plaintiff with having had sexual connection with either of the slaves mentioned. Woolworth v. Meadows, 5 East, 463, is the leading case upon this point, and establishes the principle here stated, and has since been followed, we think, with uniformity.

The fourth and last exception presents the point whether certain words used by the defendant after the suit was commenced may be considered by the jury as an explanation of certain other words spoken before, and which constituted the foundation of the action. This exception is based upon the hypothesis that the words for which the action was brought were not, in themselves, or connected with the circumstances under which they were spoken, sufficiently pointed or significant to convey the idea of incontinence, and thus amount to a slanderous charge; but the words afterwards used gave them this point and significance. The fallacy of the point made in the exceptions seems to us manifest. Words to be actionable, must convey to the minds of hearers, at the time, some slanderous charge, and if unsusceptible of such a sense, or if not taken in that sense, then they cannot be helped or interpreted by subsequent words, or acts, so as to make the former words the foundation of a suit. This would be applying the doctrine of relation to cases not heretofore supposed to be within its range.

We think there was

PER CURIAM. No error.

Cited: Reaves v. Bowden, 97 N.C. 32; S. v. Moody, 98 N.C. 672; McCall v. Sustair, 157 N.C. 181; S. v. Howard, 169 N.C. 313.

(37)