2

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tains any debt, and is no more than saying that he would give 201. to be rid of the action. So, in equity, it has been held, that the giving of a small sum in order to obtain the release of a right, could not be considered as an acknowledgment that a right existed; it amounts only to this "I give you so much for not seeking to disturb me." Perhaps, also, an offer of compromise, the essence of which is that the party making it is willing to submit to a sacrifice, or to make a concession, will be rejected, though nothing at the time was expressly said respecting its confidential character, if it clearly appear to have been made under the faith of a pending treaty, into which the party has been led by the confidence of an arrangement being affected; though, in this case, if the admission be merely of a collateral or indifferent fact, such as the handwriting of a party, which is capable of easy proof by other means, and is not connected with the substantial merits of the cause, it will be received.5 The American courts have held, that evidence of the admission of any independent fact is receivable, though made during a treaty of compromise."

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§ 796. In the absence of any express, or strongly implied, 721 restriction as to confidence, an offer of compromise is clearly admissible as some evidence of liability; and although the offer of a less sum than the amount demanded will not, in general, support a count on an account stated, since it may be a mere offer to purchase peace; -nor, perhaps, will an offer by the drawer of a bill, who is threatened with legal proceedings upon it, to give another bill by way of settlement, obviate the necessity of proving at the trial that he has received due notice of dis

8

1 B. N. P. 236, b.

2 Underwood v. Ld. Courtown, 2 Sch. & Lef. 67, 68, per Ld. Redesdale.

3 Thomson v. Austen, 2 D. & R. 361, per Bayley, J. Waldridge v. Kennison, 1 Esp. 144, per Ld. Kenyon,

5 Id.

6 Mount v. Bogert, Anthon, 190, per Thompson, C. J.; Murray v. Coster,

4 Cowen, 635; Fuller v. Hampton, 5 Conn. 416, 426; Sanborn v. Neilson,

4 New Hamps. R. 501, 508, 509; Delogny v. Rentoul, 1 Mart. 175.

7 Wallace v. Small, M. & M. 446, per Ld. Tenterden ; Watts v. Lawson, id.

447, n., per id.; Nicholson v. Smith, 3 Stark. R. 129, per id.

Wayman v. Hilliard, 7 Bing. 101 ; 4 M. & P. 729, S. C.

honour; yet there are occasions, as, for instance, if the drawer of a bill, whose signature is in issue, has proposed a settlement,when the fact of an offer having been made may be entitled to considerable weight. In the case of Thomas v. Morgan,3 however, where the defendant was sued for keeping mischievous dogs, which had killed three of the plaintiff's cattle, and it appeared that on being told of the injury done by them he had offered to settle for it, the court held, that though this was a fact, which in strictness should have been submitted to the jury as evidence of the scienter, it was entitled to little, if any, weight, "as it might have been made from motives of charity without any admission of liability at all." They therefore refused a new trial, though the question, whether the offer of compromise was not an admission of the defendant's liability, had not in point of fact been left to the jury, the attention of the judge at Nisi Prius not having been drawn to that particular point. After what has been said above, authorities need scarcely be cited to show, that admissions made before an arbitrator are receivable in a subsequent trial of the cause, the reference having proved ineffectual."

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§ 797. Before leaving this subject one word of caution may be 72 added respecting a man's purchasing peace, where his conduct, though strictly upright and honourable, may be subjected to mis

1 Cuming v. French, 2 Camp. 106, n., per Ld. Ellenborough. See, post, § 806. 2 Harding v. Jones, Tyr. & Gr. 135.

32 C. M. & R. 496; 5 Tyr. 1085, S. C. See, however, Sayers v. Walsh, 12 Ir. Law R. 435.

The absurd doctrine of "scienter," as applicable to mischievous dogs, no longer prevails in its entirety; though the law, notwithstanding four legislative attempts at amendment, still continues in a most unsatisfactory state. In Ireland, "the owner of every dog is liable in damages for injury done to any sheep by his dog," whether such dog be mischievous or not; 25 & 26 V., c. 59, 1, Ir. See, also, 28 & 29 V., c. 50, Ir. A somewhat similar amendment of the law has been introduced into England and Scotland, and has been extended in these countries to injuries caused by dogs to sheep or cattle; 26 & 27 V., c. 100, 1, Sc.; 28 & 29 V., c. 60. The word "cattle" here used, includes horses, Wright v. Pearson, 4 Law Rep., Q. B. 582; 38 L. J., Q. B. 312; 10 B. & S. 723, S. C.

5 Gregory v. Howard, 3 Esp. 113, per Ld. Kenyon; Slack v. Buchannan, Pea. R. 5, per id.

interpretation. Such a course is always pusillanimous, seldom gains its immediate object, and, if it fails, may be productive of irreparable injury to character. The council of a man who has once lent himself to such an arrangement, may feebly urge that he was actuated by motives of charity and benevolence; but the opponent will more loudly and successfully contend that his behaviour amounts to proof of a consciousness of misconduct; and the judge, while he rejects both these interpretations, will perform no easy task, should he induce the jury to ascribe it to the infirmity of one, who was reluctant to have his character and conduct questioned, and his name bandied about in the public papers. "Let this action," said Lord Ellenborough,-when Sir William Scott was sued for illegally excommunicating one Beaurain, whose animosity he had endeavoured to stifle by a gift,—“Let this action be a lesson for all men to stand boldly forward to stand on their characters-and not, by compromising a present difficulty, to accumulate imputations on their honour.1

§ 798. In regard to admissions made under circumstances of 723. constraint, the rule of law is this, that they cannot be received when obtained by illegal duress; but that they are admissible, at least on the trial of civil actions, if the compulsion under which they were made was legal. Thus affidavits sworn by a party in former legal proceedings, answers filed by him in Chancery in a former suit, evidence given by him in an action. at law, or his examination taken in bankruptcy, will be evidence against himself in a subsequent cause; and this, too, though. his subsequent opponent was a stranger to the prior proceeding,—though he himself might, had he thought fit, have success

'Ld. Eldon's Life, by Twiss, vol. ii., pp. 233–235, 2nd ed.

2 Gr. Ev. 193, in part.

3 Stock fleth v. De Tastet, 4 Camp. 11, per Ld. Ellenborough; Robson v. Alexander, 1 M. & P. 448. As to what questions a witness may refuse to answer, see post, 1453, et seq.

'As to their admissibility in criminal proceedings, see post, ?? 895-899. Grant v. Jackson, Pea. R. 203, per Ld. Kenyon; Ashmore v. Hardy, T C. & P. 501, 504, per Patteson, J.

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fully demurred to the questions,'-though they were irrelevant to the matter before the court at the time of his examination, and were put to him for the purpose of procuring evidence in an action depending against him,'-and though he had no opportunity of fully explaining the testimony he had given. This last point may be illustrated by the case of Collett v. Lord Keith, where in an action for taking the plaintiff's ship, the testimony of the defendant, given as a witness in an action between other parties, in which he admitted the taking of the ship, was allowed to be proved against him; though it appeared that, in giving his evidence, when he was proceeding to state his reasons for taking the ship, the judge had stopped him by saying that it was unnecessary for him to vindicate his conduct. The manner in which the evidence had been obtained was matter of observation to the jury; but as what was said bore directly on the issue, it could not be excluded as evidence of the fact. So, where a defendant had been examined before commissioners of bankrupts, and, though the whole of what he said had not been taken down, the portion that was reduced to writing had been read over and signed by him, this was held to be receivable against him as a statement of facts, the truth of which he had admitted.*

§ 799. It has been said that an admission, obtained under a § 724 compulsory examination, will not be evidence of an account stated; but the case in which this point arose, probably rests on the ground that the admission was there made to a third party," while to support an account stated the admission must be made, either to the person to whom the money is owing, or to some one sent by him. If, therefore, the admission were contained in an

1 Smith v. Beadnell, 1 Camp. 30, 33, per Ld. Ellenborough.

2 Stockfleth v. De Tastet, 4 Camp. 10. If the commission has been perverted to improper purposes, the remedy is by an application to have the examination taken from the files and cancelled, id. 11, per Ld. Ellenborough. 34 Esp. 212, per Le Blanc, J.

Milward v. Forbes, 4 Esp. 171, per Ld. Ellenborough.

5 Tucker v. Barrow, 7 B. & C. 625, per Littledale, J.; 3 C. & P. 90; 1 M. & R. 518, S. C.

Breckon v. Smith, 1 A. & E. 488; Bates v. Townley, 2 Ex. R. 156, 157.

answer to interrogatories, which is clearly an answer to the plaintiff in the suit, it would most probably be regarded as good evidence of an account stated.1

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$ 800.2 Passing now to a consideration of the nature of ad- 725 missions, it may be observed that no difference exists, in regard to their inadmissibility, between direct admissions, and those which are incidental, or made in some other connexion, or involved in the admission of some other fact. One or two cases illustrative of this rule have already been noticed, while treating of admissions made by solicitors; but it may here be added, that in an action by the assignees of a bankrupt against an auctioneer, to recover the proceeds of a sale of the bankrupt's goods, the defendant's advertisement of the sale, in which he described the goods as "the property of D., a bankrupt," was held to be a conclusive admission that D. was a bankrupt, and that the defendant was acting under his assignees. So, where a party, with a view of suing out a commission of bankruptcy against a trader, made an affidavit that the trader owed him 1007., and was become bankrupt, he was not allowed afterwards to dispute the bankruptcy, when he was himself sued in trover by the assignees of the bankrupt, appointed under a second commission, for the price of some flour which he had clandestinely received from the trader, and applied to the dischage of his own debt.5

801. Other admissions are implied from assumed character; 726 for, whenever the existence of any domestic, social, or official relation is in issue, any recognition, whether by word or deed, of that relation, is primâ facie evidence of its existence, as against the person making such recognition. This rule is more frequently

1 See Bates v. Townley, 2 Ex. R. 157, per Alderson, B.

2 Gr. Ev. 194, in part.

4

Maltby v. Christie, 1 Esp. 342, as explained by Ld. Ellenborough in Rankin v. Horner, 16 East, 193.

Ledbetter v. Salt, 4 Bing. 623; Harmer v. Davis, 7 Taunt. 577. See post, ? 856, ad fin. Gr. Ev. 195, in part.

7 Dickinson v. Coward, 1 B. & A. 677, 679, per Ld. Ellenborough; recognised by Ld. Lyndhurst in Inglis v. Spence, 1 C. M. & R. 436.