*Newman v. Bradley.
Miidence.— Witness.
When evidence is given of a confession by a defendant, all that he said must be taken together, unless there are circumstances, which render improbable what he said.
An attorney may be a witness for his client, although his judgment-fee depends on his success in the canse.
In tbis case, Howell, wbo was of counsel with the plaintiff, proved tbat tbe defendant, on a citation to show cause of action, &c., acknowledged tbat he borrowed tbe money in question, from tbe plaintiff, but declared, at tbe same time, tbat be bad repaid it. Tbis was tbe chief evidence to support tbe action ; and Howell and Tod contended, tbat tbe acknowledgment was, of itself, sufficient to charge tbe defendant, but that wbat be said in avoidance of tbe plaintiff’s demand, ought to be proved. G-ilb.. Law of Ev. 51.
Levy,
on tbe contrary, urged, tbat tbe confession must be taken in tbe whole, as well tbat part which acquits tbe defendant from the debt, as tbat which tends to charge him'with it. Trials per Pais, 363. He allowed, however, tbat there were some cases, where tbe confession might properly be believed against the party wbo makes it, though rejected in those points which operate in bis favor. Upon an indictment of larceny, for instance, if tbe defendant says be bad tbe stolen goods in bis possession, but alleges tbat be bought them, tbe jury will give credit to tbe former, but disregard tbe latter part of bis confession. Tbe improbability of tbe circumstance *252alleged 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 10l.) was trilling in itself, and no circumstance of improbability attended the defendant’s relation of the fact.
Shipper, President.
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 alleges 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 see 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 anything can be gathered from the evidence, to show 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-fee depended on his success in the cause. But the objection was overruled by the court.