Downer v. Button, 26 N.H. 338

Eastman, J. The copy of the mortgage from Button to Francis was properly admitted. It was the common case of the use of secondary evidence, after laying the necessary foundation for its introduction. If the original was not in the possession of the defendant, nor under his control, so as to be brought into court by legal process, he had a right to the use of a copy, duly shown to be such. The mortgage was given by the defendant to Francis, to secure the payment of certain notes; and so long as Francis or his executor held the notes, the legal custody of the mortgage would be in Francis or the executor.

But the notes were transferred by indorsement to the plaintiff; and ordinarily the possession of the mortgage would follow this transfer. It might not necessarily, but the presumption would be that it did. The indorsement and transfer of the notes carried with them an assignment of the mortgage— the mortgage being a mere incident of the debt — and the legal custody of the mortgage would be in the plaintiff. Southerin v. Mendum, 5 N. H. Rep. 420; Ellison v. Daniel, 11 N. H. Rep. 274; Smith v. Smith, 15 N. H. Rep. 55.

It was essential that notice should be given to produce the mortgage ; but no time is fixed by law at which such notices shall be given. They must afford sufficient opportunity to enable the party on whom they are served tó produce the paper or record called for, if he pleases. Where the document is in court at the time of the trial, a notice to produce it immediately is sufficient to render secondary evidence of its contents admissible, if it be not produced. Droyer v. Collins, 12 Eng. Law and Equity Rep. 532.

The court, in its discretion, would undoubtedly give the party time to produce the document after service of notice, if it should be necessary. But no exception was taken that notice was not seasonably given; and the defendant having given the plaintiff notice to produce the mortgage, in whom presumptively the possession was, and having purged himself of its possession, as he might well do, (Woods v. Gassett, 11 N. H. Rep. 442,) thereby laid the proper foundation for the admission of secondary evidence, and the exception that the original should have been produced cannot prevail.

Another question raised by the case is in regard to the ruling upon the admissibility of the testimony of Fitch. This witness was introduced by the plaintiff, and was .permitted without objection, to state a portion of a conversation which he had with the defendant in relation to a settlement of the claim after the suit was brought. The plaintiff’s counsel then proposed to pursue the inquiry farther, and to ask him the sum which the defendant offered to pay to settle the matter. • This was objected to, and ruled out by the court; and we think rightly so.

The whole testimony of Fitch related to a compromise; an offer of a certain sum by the defendant to settle the claim ; and it was all inadmissible. The fact that he said he was too poor to pay more, does not change the character of the transaction as an attempt at compromise. The admission of an independent fact during a negotiation for a compromise may be given in evidence, but a mere offer to compromise is inadmissible. Hamblett v. Hamblett, 6 N. H. Rep. 333; Sanborn v. Neilson, 4 N. H. Rep. 501; Marsh v. Gold, 2 Pick. 290; Gerrish v. Sweetser, 4 Pick. 374; Gregory v. Howan, 3 Esp. 113; Wayman v.

Hilliard, 7 Bing. 101; Corey v. Bretton, 6 Carr. & Payne 462; Healey v. Thatcher, 8 Carr. & Payne 388. The last question is not so clear, but, we think, upon the whole, that the evidence was competent. The witness was acting as the agent, of the defendant, in effecting a settlement of the matters between the parties. The directions disclosed in the eleventh question and answer were given by the defendant, and acted upon by the witness in bringing about the settlement, as the answer to the fourth interrogatory shows.

He states that he gave a quitclaim deed of the premises to the plaintiff, and the deed was produced in evidence on the trial. He states, also, that the defendant was to give up all the claims he had against the farm, and was to get up all the notes and mortgages against the farm. The seventy-five dollar notes were given directly to the plaintiff, and all the notes in suit existed long before this transaction, which was in April, 1844.

The directions, then, to the witness, in regard to the notes, were but a part of the transaction in effecting the settlement, while the witness was acting as the agent in bringing about that result. They were the authority upon which he acted in regard to the notes, and the evidence was competent as showing the authority. From the necessity of the case, an agent is permitted to testify to many matters which, upon general principles, he would be prohibited from stating. ' This he may do so long as his evidence relates to matters within the scope of his authority. 1 Phill. Ev. 99, 100; 1 Greenl. Ev. § 416.

He is also a competent witness to prove that he acted according to the directions of his principal, and within the scope of his authority, when that authority is given by parol. 1 Greenl. Ev. §§ 416, 417; Lowber v. Shaw, 5 Mason 242; McGunnagle v. Thornton, 10 Serg. & Rawle 251.

In thé last case cited, the plaintiff offered the witness to prove that he was verbally authorized by the plaintiff to lease a house in question, from year to year, and did, in pursuance of the authority, let it to the defendant for the term of one year; and the court say the witness was competent to prove his own authority to let for one year, notwithstanding some loose dicta to the contrary at nisiprius. The exceptions must be overruled, and there must be Judgment on the verdict.