#### Barnes, Executor of Kay vs. Kelly.

THE plaintiff’s counsel produced an account, and proved t' at it had been presented to Kelly, who said, “ It is just, but I paid it by a man in Petersburg, and had I time I could prove it.” This was before bringing the present action.

The counsel for the plaintiff insisted, that though the rule in general was, that a confession is to be taken altogether, yet that part which goes in discharge, if it be a distinct fact in avoidance, ought to be proved ; and here the payment is a distinct fact; and cited Bull. N. P. 58.

The counsel e contra,

argued that the true meaning of the rule was, that the confession should be taken altogether, unless where the matter in discharge was attended with circumstances which rendered it improbable, or not to be believed, or could be disproved ; and he cited a case from Dallas.

Per curiam.-

The rule is, that a confession shall be taken altogether ; but if there are circumstances mentioned in the confession, which when examined into, disprove the matter alledg-ed in discharge, or where that matter can be disproved, the jury are to reject it, and go upon the other part of the confession only ; as where he says the account is just, but I paid it before such persons, and they know nothing of the payment; or at such a time and place, and it be proved that at that time he was not at that place, but at another far distant; or if he says the account is just, but I will prove it paid, if I have time, and he is allowed that time, and called upon to make that proof, and does not: In such and the like cases the matter in discharge will be rejected.

There was a verdict and judgment for the plaintiff.