Kelley v. Dover

“ In any action the defendant may confess the plaintiff’s action in any part thereof, and that the plaintiff is entitled to recover certain real estate, or a certain amount of debt or damages, and plead to the residue of his claim; and if the plaintiff shall afterward prosecute his action, and shall not recover more than is so confessed, the defendant shall recover his costs from the date of such confession.” Rev. Stat., chap. 187, sec. 2.

Under this provision of the law the defendant in this action has confessed the plaintiff’s action in part, and that he is entitled to recover, for the cause set forth in his count, a certain amount of damages, and has, as to the *568residue of the plaintiff’s claim, pleaded the general issue.

' This is a mere admission of the traversable allegations of the plaintiff’s count, and that damage, to the extent confessed, has resulted. It is an admission similar to that which is made by paying money into court, in proper cases, under the common rule. It seems to have been the design of the statute to provide for all actions a proceeding analogous to the common rule, but of somewhat broader reach and application, by which a defendant may protect himself against the expense’ and vexation of the proof of facts which he does not desire to controvert, and debts and damages which he is willing to admit.

"Where the claim, as in the present case, is not capable of being divided into distinct parts or items, or where, as in the case of an account, or in an action to recover a sum of money for several distinct matters, the defendant does nDt choose to single out for contestation, or for admission, particular items, but to insist upon this kind of an offer as a gross sum, the beneficial ends of the statute would wholly fail of being accomplished, if the confession of “ the plaintiff’s action, or any part thereof,” should be held for an admission of all the items of the account, as stated, and of all the facts, as alleged, and of all the matters of aggravation with which the plaintiff, in the exercise of caution and vigilance, sees fit to complete his declaration, or that there did not exist circumstances sufficient to mitigate the damages that might be presumed to be the result of the facts admitted.

We think it quite clear that the instructions given by the court at the trial were entirely correct, and such only as a just construction of the statute can sustain. The con-' fession of the plaintiff’s action admits that he, or his horse, or both, suffered a damage through the insufficiency of the bridge which the party defendant was bound to keep in repair; but it does not appear that the horse was much *569damaged by the fall, or that he was worth |200, or that the plaintiff, though hurt, was in despair, or reasonable apprehension for his life, by reason of his bruises. All these matters of mere description are admitted no further than to the extent of entitling the plaintiff to the damages confessed. Beyond that he mast prove them, or submit to take the judgment tendered, and go out of court There must, therefore, be

Judgment m the ver diet.