Page:United States Reports, Volume 1.djvu/251

240 

1788.

N this cafe Howell, who was of counfel with the Plaintiff, proved that the Defendant on a citation to fhew caufe of action&c. acknowledged that he borrowed the money in queftion, from the Plaintiff, but declared, at the fame time, that he had repaid it. This was the chief evidence of fupport the action ; and Howell and Tod contended, that the acknowledgment was, of itfelf, fufficient to charge the Defendant, but that what he faid in avoidance of the Plaintiff's demand ought to be proved. ''Gilb. Law oƒ Ev.'' 51.

Levy, on the contrary, urged that the confeffion muft 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 fome cafes, where the confeffion might properly be believed againft the party who makes it, though rejected in thofe points which operate in his favor. Upon an indictment of Larcemy, for inftance, if the Defendant fays he had the ftolen goods in his poffeffion, but alledged that he bought them, the Jury will give credit to the former, but difregard that latter part of his confeffion. The improbability of the circumftance, alledged in excufe or exoneration, is the criterion to judge from ; and in the cafe cited from ''Gilb. Law oƒ Ev.'' 51. the improbability that fo large a fum fhould be given as a reward out of fo fmail as eftate, was perhaps the ground of decifion. But, in the prefent cafe, the object (about Ł .10) was trifling in itfelf, and no circumftance of improbability attended the Defendant's relation of fact.

SHIPPEN, Preʃident. – This is the very cafe put in the books, and the rule which is founded upon it, extends generally to all civil fuits. When a confeffion is given in evidence, all that was faid muft be ftated, and the whole, generally fpeaking, ought to be taken together, unlefs fuch circumftances of improbability appear, as will render it neceffary for the Defendant to prove what he afferts in avoidance of a conceded fact. It is true, there are fome occafions when a Jury will charge a man with what he acknowledges againft himfelf, and yet refufe to credit him for what he advances in his own favor. As, if he fhould admit, that he purchafed the goods, which the Plaintiff alledges were fold to him, for what he advances in his own favor. As, if he fhould admit, that he purchafed the goods, which the Plaintiff alledges were fold to him, but infifts that he paid for them at a particular time and place, in the prefence of certain perfons ; and thofe perfons, on being examined, declare that they were prefent 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 prefent cafe, alfo, the Jury will not be influenced by the Defendant's faying he repaid the money, if they do not think it credible, or if any thing can be gathered from the evidence, to fhew that it was not paid, when he fays it was. Verdict