Opinion
MARCH TERM, 1788.
IN this case Howell, who was of counsel with the Plaintiff, proved that the Defendant on a citation to shew cause of actionc. acknowledged that he borrowed the money in question, from the Plaintiff, but declared, at the same time, that he had repaid it. This was the chief evidence to support the action; and Howell and Tod contended, that the acknowledgment was, of itself, sufficient to charge the Defendant, but that what he said in avoidance of the Plaintiff's demand ought to be proved. Gilb. Law of Ev. 51.
Levy, on the contrary, urged that the confession must be taken in the whole, as well that part, which acquits the Defendant from the debt, as that which tends to charge him with it. Tri. per Pais. 363. He allowed, however, that there were some cases, where the confession might properly be believed against the party who makes it, though rejected in those points which operate in his favor. Upon an indictment of Larceny, for instance, if the Defendant says he had the stolen goods in his possession, but alledges that he bought them, the Jury will give credit to the former, but disregard the latter part of his confession. The improbability of the circumstance, alledged in excuse or exoneration, is the criterion to judge from; and in the case cited from Gilb. Law of Ev. 51. the improbability that so large a sum should be given as a reward out of so small an estate, was, perhaps the ground of decision. But, in the present case, the object (about £.10.) was trifling in itself, and no circumstance of improbability attended the Defendant's relation of the fact.
This is the very case put in the books, and the rule which is founded upon it, extends generally to all civil suits. When a confession is given in evidence, all that was said must be stated, and the whole, generally speaking, ought to be taken together, unless such circumstances of improbability appear, as will render it necessary for the Defendant to prove what he asserts in avoidance of a conceded fact. It is true, there are some occasions when a Jury will charge a man with what he acknowledges against himself, and yet refuse to credit him for what he advances in his own favor. As, if he should admit, that he purchased the goods, which the Plaintiff alledges were sold to him, but insists that he paid for them at a particular time and place, in the presence of certain persons; and those persons, on being examined, declare that they were present at the time and place mentioned, but that they did not fee the Defendant make any payment to the Plaintiff: here, undoubtedly, the rule ought not to operate.
In the present case, also, the Jury will not be influenced by the Defendant's saying he repaid the money, if they do not think it credible, or if any thing can be gathered from the evidence, to shew that it was not paid, when he says it was.
Verdict for the Plaintiff; owing, I believe, to some slight testimony, that seemed to repel the idea of the Defendant's having repaid the money.
When Howell offered himself as a witness. Levy objected that he was interested, inasmuch as his judgment see depended on his success in the cause. But the objection was over-ruled by the court.