Kelsey v. Bush & Viele

2 Hill & Den. 440

Opinion

By the Court,

Bronson, J.

If the whole admission of the defendant is taken together,

Footnotes

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(a) it shows that there was no liability on his part; or, at the least, that he was entitled to some abatement from the price of the stove, and the justice has given judgment for the whole amount of the note with interest. It is true, that the court and jury are not always bound to give equal weight and importance to every part of the admission. If that part of the confession which discharges the party is in itself highly improbable, or if there be evidence aliunde, though but slight, tending to discredit it, the jury may believe one part of the confession and reject the other. (See Newman v. Bradley, 1 Dall. 240; Ives v. Bartholomew, 9 Conn. R. 390; Rex v. Clewes, 4 Carr. & Bayne, 221; Rex v. Steptoe, 4 id. 397.) (b) But here there was nothing improbable or suspicious in that part of the confession which went to discharge the defendant, and all the other' evidence in the cause tended to confirm its truth. The case falls directly within the principle of several decisions of this court, where the judgment of the justice has been reversed because he did not allow the party the benefit of the whole confession taken together. (Carver v. Tracy, 3 John. R. 427. Wailing v. Toll, 9 id. 141. Credit v. Brown, 10 id. 365. Hopkins v. Smith., 11 id. 161. And see Fenner v. Lewis, 10 id. 40. Smith v. Jones, 15 id. 229.) I think the justice erred on this point; and the other questions made on the trial need not be ‘'onsidei’ed.

Judgment reversed.

The general rule is, that where the admission of a party is resorted to as evidence against him, he is at liberty to call out the whole conversation of which the admission was a part. But the additional conversation should be relevant to the matter in issue, and must relate to the point or fact called for on the part of his antagonist by questions on his side. (See Garey v. Nicholson, 24 Wend. 351, 2; Prince v. Samo, 7 Adolph. Ellis, 627 ; Sturge v. Buchanan, 10 id. 598.)

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See also Cowen & Hill’s Notes to Phil. Ev. pp. 158, 294 to 231, 247 to 249