Sanborn v. Neilson

| Superior Court of New Hampshire | Nov 15, 1828

The opinion of the court was delivered by

Richardson, C. J.

We shall, in the first place, consider whether the confessions of the defendant were, under the circumstances, competent testimony.

It seems to be a well settled rule, that an offer by a party, to pay a sum of money by way of compromise of an existing controversy, is not to. be used as evidence against him. But an admission of particular facts made during a treaty for a compromise may be given in evidence as a confession. 4 Pick. 374, Gerrish v. Sweetser; 2 ditto, 285, Marsh v. Gold; 1 Esp. N. P. C. 143, Waldridge v. Kennison; Peake’s N. P. C. 5, Slack v. Buchanan; Phillip’s Ev. 78.

In the case now under consideration, the admissions of the defendant were admissions of independent facts,— admissions not likely to have been made for the purpose of buying peace, but which must have been prompted by a consciousness of their truth, and we are of opinion that they were properly left to the consideration of the jury.

But was the evidence of an offer by the defendant to take one of the children,which the plaintiff’s wife had during the period of the defendant’s supposed intimacy with her, as his own, competent evidence ? This evidence stands on ground somewhat different from admission of an independent fact. And if the defendant, without any express admission of his intimacy with the wife, had simply offered, in order to end the controversy with the husband, to take and maintain one of the children, however singular and extraordinary such an offer might have appeared, yet still we are not prepared to say it would have been competent evidence of improper intercourse between the defendant and the wife. Rut the offer in this case followed an express admission of the improper intercourse, and was evidently founded upon that admission. Now it seems to us, that the ground upon which such an offer so made is to he held to be inadmissible in evidence, is not very obvious. The reason why a mere offer of money or other thing by way of compromise is not to be evidence against him who makes it, is very plain and easily understood, — such an offer neither admits nor ascertains any debt, and is no more than saying that so much will be given to be rid of the controversy. But where the offer has been grounded upon an express admission of a fact, and that fact afterwards comes to he controverted between them, there seems to be no ground on which the evidence of the offer can he excluded. Thus if A sue B for $100, and B offer to pay $20, this offer shall not be received as evidence, because it may have been made merely for the sake of peace where nothing was due. But in such a case, if B admit expressly that twenty dollars are due, and offer to pay that sum, then it seems to us that both the admission and the offer are evidence. We are, therefore, of opinion, that the offer made by the defendant in this case was, under the circumstances, admissible in evidence.

Another question which is raised in this ease, is, whether the instructions given by the court to the jury in relation to the evidence introduced by the defendant, were correct. On this subject, the jury were told in substance, that the circumstances, that the character of the wife for chastity was bad before she was married to the plaintiff, that the plaintiff had lived with her after he had notice of her improper connexions with the defendant, that he had connived at her intimacies with other men, and had himself been false to her bed, were no answer to the action. The question is, were these instructions proper ? With respect to the wife’s character lor chastity before her marriage, it seems to be settled, that, evidence of such character goes in mitigation of the damages, but not in bar of the action. 4 Starkie, 444; Buffer’s N. P. 27.

As to the circumstance that the plaintiff lived with his wife after he had knowledge of her want of fidelity to his bed, this may be evidence that he had forgiven her offence, but is clearly no evidence that he had forgiven the offence of the defendant. We are decidedly of opinion, that this circumstance could be no answer to the action.

And the better opinion is, that the evidence of the plaintiff’s intimacy with other women, could go only in mitigation of the damages. 4 Starkie, 443; 4 Espin. N. P. C. 237; Buffer’s N. P. 27.

With respect to the plaintiff’s conniving at the intimacies of his wife with other men, the rule of law is, if the wife is suffered to live as a prostitute with the privity of her husband, and a man is thereby drawn into crimina! conversation with her, this goes in bar of the action, because the damage is without an injury. But if it he without the privity of the husband, it will go only to the damages, let her be ever so profligate. 4 Starkie, 443; Buffer’s N. P. 27.

We are of opinion, that in order to constitute a defence of this kind, it must be shown that the wife was permitted, by the husband, to live openly and publicly in a state of common prostitution, in such manner that his assent to her being a common prostitute may be reasonably presumed. This, and nothing short of this, is an answer to the action. Certainly, if a husband, either expressly or tacitly assent to the criminal connexion, he can maintain no action.

But in this case there was no evidence introduced, which showed even a tacit consent of this plaintiff to the criminal conversation which passed between his wife and this defendant; no evidence that could be submitted to a jury as furnishing any ground to presume such assent. There was some slight evidence that he bad sometimes connived at his wife’s intimacies with other men, but nothing that afforded the slightest presumption that he had ever assented that she should live as a common prostitute, or that she in fact had ever so lived.

Wq are, therefore, of opinion, that the jury were properly instructed on this subject.

It has been objected, in this case, that the instructions given to the jury in relation to the damages were incorrect. But after an attentive examination of the subject, we see nothing in those directions which we think ought to have been otherwise. Puller’s N. P. 27; 4 Starkie, 442.

We are, therefore, of opinion, that there ought to be

Judgment on the verdict.