Hogan against Bear, 5 Watts 111

The opinion of the Court was delivered by Gibson, C. J. The altercation of parties at a hearing, is the oral pleading which we are told originally obtained in the courts of common law; and admissions before a

summary tribunal are, therefore, to be handled in a manner adapted to the qualities derived by them from the occasion. The issue is not to be considered as having been made up before the disputation was exhausted; and it must be a strange rule of pleading that would preclude a party who had admitted the truth of an averment, from alleging something in turn to avoid its effect.

At the time of the defendant’s admission, it is evident he had not settled, in his mind, the shape and quality of his defence, or whether he had a defence at all; and when he tendered his plea at last, it was in strict consistence with his previous concession. It is by a party’s conclusions, and not by the balancings of his mind, that he is to be affected; and this is not peculiar to the position of parties litigant. Why is it that all things said at the time of a confession must be received?

Evidently that they may be weighed together in order to prevent the jury, as far as it is practicable, from doing what was suggested to them here — seizing on a detached expression, and deciding on it exclusively. Juries are, at best, sufficiently predisposed to treat a defence on the statute of limitations with rigour, and if they were permitted to dissever words of acknowledgement from words of qualification in the same colloquium, the statute would be of but little avail.

The argument is, that a promise to pay arises, by instant operation of law, from the acknowledgement of a precedent debt; and, in theory, there would always be an imaginable interval for its admittance betwixt the acknowledgement and any saving or protestation that had followed it. Indeed the imputed consequence could be precluded but by prefacing the acknowledgement with an emphatic denial of payment; at least, there would be enough in the absence of it to furnish a pretext to a willing jury.

But it is a rule that preliminary suggestions, or stipulations, are merged in the final conclusion; and why may not even an express promise be retracted before the consummation is reached, as well where the consideration of it is a past one, as where it is prospective? There is no magic in the act of utterance; nor any reason why an inadvertent word should be less revocable in the one case than in the other.

A promise, to- bind the party, ought to be alike, in every case, his deliberate act; and policy requires that a jury be suffered in no case to conjecture whether words of acknowledgement and words of qualification, in the same discourse, proceeded from different acts of the mind. Judgment reversed, and a venire facias dc novo awarded.