Jacobs v. Farrall.

From Iredell.

When a Defendant admitted the justice of an account, an action on which would have been barred by the statute of limitations, but at the same time produced an account of equal amount against the Plaintiff, which he, (Defendant,) alleged, was correct; it was held that all the Defendant said, must be taken together, and left to the Jury to believe such part as they might think proper.

•Assumpsit for goods sold and delivered. Pleas, the general issue, payment, set oif, and the statute of limitations. The Plaintiff on the trial, to prove his account, produced one Harbin, who swore that he produced to the Defendant the account, and read over the items to him, and that the ’Defendant admitted its correctness. This admission was made within three years before suit was brought $ but at the same time that it was made, Defendant alleged that lie had an account of equal amount against the Plaintiff, which he produced, but Plaintiff, who was present, denied that it was just. The Court instructed the. Jury, that the admission of the Defendant, if the witness was believed, was sufficient evidence of an acknowledgment within three years; and that the account produced by the Defendant was not proved by bis declaration, but must be proved by other evidence. A verdict was returned for the Plaintiff, for the amount of his account. A new trial was refused and judgment rendered, whereupon Defendant appealed.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The opinion of the Court below is excepted to, because the Judge separated the admission of the Defend ant, by making that part which acknowledged the Plaintiff’s account to be just evidence against the Defendant, *571ami rejecting that part which assorted he had an account of equal amount against the Plaintiff, which the Court required the Defendant to prove by other evidence.

This opinion is certainly at variance witn the whole current of authorities, which uniformly establish the principle that the whole of an admission must be taken together, to the end of discovering She true meaning; and sense of the party making it. it is highly reasonable and just that it should be so, since if a man will honestly charge himself with a debt which it could not be proved he owed, he seems entitled to credit when he swears iu his own discharge, it was decided so long ago as the time of Hale, “ that the confession of a party must be taken whole, and not by parís 3 as if to prove a debt, it be sworn that ho confessed it, but withal he said at the same time that he paid it 3 his confession shall be valid as to the payment, as well as that ho owed it.” (Trials per Pais. 363.) Tisis rule has uniformly prevailed, at law, as to the admission of tu© confession 3 bat it still rests with the Jury to decide whether they will believe the whole of it 3 for the matter of discharge may be rendered so improbable by circumstances as to make it unworthy of credit, while the other part maybe sufficient to charge the .Ocfeudani. He might allege, for example, that he had paid the debt la presence of several witnesses, none of whom when called upon, would confirm his statement. 'There is no difference in this respect, between Courts of Latf and .Equity 3 but the difference is between pleading and evidence 3 for if un answer in another cause is introduced by way of evidence in Chancery, the whole of it must be read, as it would be in a Court of Law. But when an answer is put in issue, the Defendant must prove all the facts, on which he relies for a discharge, while the Plaintiff may avail himself of every admission which he thinks material. So if, in a Court of Law, the plea confesses the scatter in demand, but avoids it by other circumstances, *572the proof of avoidance lies on the Defendant. — (13 Vesey, 47 — 2 Ball and Beattie, 382.) And the principles which govern the reading an answer in evidence in a Court of Law apply, though in a different degree, to every other confession ; and it may be affirmed, that no principle in the law of evidence is more firmly established, than that if you rely upon the confession of the party, you must take the whole confession together. There must be a new trial.