#### ALFRED NEAL, BY HIS FATHER AND NEXT FRIEND, DAN. B. NEAL, v. BENJAMIN THORNTON.

October Term, 1894.

*Cross-examination. Offer of settlement.*

In an action for trespass to the person the plaintiff introduced his father as a witness, who testified that the defendant assaulted the plaintiff, his minor son, and broke his arm. Held, that the defendant could not show upon the cross-examination of this witness, as affecting his credibility, that witness, who had employed the doctor, offered to settle the case for the doctor’s bill if the defendant would settle then without farther ceremony.

Trespass for assault and battery. Plea, not guilty. Trial by jury at the May term, 1894, Windsor county, Thompson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepts.

*French & Southgate*for the plaintiff.

The offer of compromise could not be shown, x Greenl., Ev., s. 192; 2 Starkie, Ev., 38;. *Gerrish*v. Sweetzer, 4 Pick. 374-377.

*William Batchelder*for the defendant.

*222START, J.

The plaintiff in opening his case improved his father as a witness, and his testimony tended to show that the defendant assaulted the plaintiff and broke his arm. On cross-examination, as bearing upon the credibility of the witness, the defendant was allowed to show, subject to the plaintiff’s exception, that the witness offered to settle for the doctor’s bill for setting and caring for the plaintiff’s arm if the defendant would settle then without any further ceremony. It appeared that the father employed the doctor and paid him.

This offer was not an admission of any fact relating to the extent of the plaintiff’s injuries, about which the witness had testified differently, but an offer to compromise a claimed cause of action, provided the defendant would then pay the sum named without further ceremony. The offer being thus conditioned, it was error to allow the jury to consider it for the purpose of impeaching and discrediting the witness. Such offers are usually made with a view of obtaining friendly and amicable adjustment of differences, and for the purpose of avoiding prolonged and expensive litigation. Peace and friendship are of such worth that a man, for the sake of preserving such relations, will forego his strict legal right and submit to an abatement from his just claim. The offer which a man makes under such circumstances does not represent his judgment of what he ought to receive at the end of litigation, but what he is willing to take and avoid it. The fact that a man has offered to compromise and settle a just claim íor a sum less than that to which he is legally entitled, for the purpose of preserving friendly relations and avoiding litigation distasteful to him, does not tend to impeach him when he is called to testify respecting the same subject matter while asserting his claim according to his strict legal right, and is not admissible for that purpose. *Harrington*v. Lincoln, 4 Gray 563 ; *People*v. Genung, 11 Wend. 20. The fact that the witness had offered to com*223promise his claimed cause of action for what he had paid out for doctor’s bills could not be legitimately considered for the purpose of impeaching him.

*Judgment reversed and cause remanded.*