The opinion of the court below is excepted to because the judge separated the admission of the defendant by making that part which acknowledged the plaintiff's account to be just evidence against the defendant, and rejecting that part which asserted he had an account of equal amount against the plaintiff, which (571) the court required the defendant to prove by other evidence.
This opinion is certainly at variance with 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 the 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 in 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 parts; as if to prove a debt, it be sworn that he confessed it, but, withal, he said at the same time that he paid it; his confession shall be valid as to the payment as well as that he owed it." Trials per Pais., 363. This rule has uniformly prevailed at law as to the admission of the confession, but it still rests with the jury to decide whether they will believe the whole of it; for the matter of discharge may be rendered so improbable by circumstances as to make it unworthy of credit, while the other part may be sufficient to charge the defendant. He might allege, for example, that he had paid the debt in presence of several witnesses, none of whom, when called upon, would confirm his statement. There is no difference in this respect between courts of law *Page 320 and equity; but the difference is between pleading and evidence, for if an 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 matter in demand, but avoids it by other circumstances, the proof of avoidance lies on the defendant. (572) 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.
PER CURIAM. New trial.
Cited: Walker v. Fentress, 18 N.C. 18.