majority">Balcom, J.

The judgment of the justice should not be reversed on the ground that the whole admissions of the defendant, taken together, show that there was no liability on his part. If the evidence had shown but the simple declaration of the defendant, that “he had the goods, but paid for them,” the evidence would not establish a right of action. There was enough in the statements of the defendant to warrant the justice in disregarding his assertions that he had paid the account. He at one time claimed he had the plaintiffs’ receipt for the samé, and at another time, when one of the plaintiffs was present, he pretended he paid it to a man he did not know, in Edgerton’s bar-room. The justice might well distrust the defendant’s memory as to his paying the account to any person; and besides, a payment to a stranger not shown to have had authority to receive the money, could not affect the case. The decision of the justice falls within the rule “that if a part of the confession goes to discharge the party making it, and is highly improbable, or there be evidence aliunde tending but slightly to discredit it, the jury or magistrate may reject it and give effect to the other part.” (Kelsey v. Bush & Viele, 2 Hill, 440. 2 Cowen’s Tr. ed. by Barb. 411. Dorlon v. Douglass, 6 Barb. 451.)

The position that the defendant waived his defense of the statute of limitations is equally untenable. The account was *338made a part'of the complaint; and the answer, including that of the statute of limitations, was written upon the back of it. And although this defense was not mentioned on the trial, or the cause summed up, or any point stated on which the defendant claimed judgment in his favor, or a rejection of any portion of the account; and although it entirely escaped the attention of the justice till after he had rendered the judgment, still I am of the opinion there was no waiver of this defense; any more than of the others written upon the account. It would be a dangerous precedent to establish, that upon such a state of facts a party should lose a legal defense appearing from the evidence. I think nothing short of the express consent of a party should be allowed to waive a cause of action, or a de-. fénse set forth in the pleadings, in a justice’s court. ' Any thing less might lead to abuses, and the memory of the magistrate might be substituted for the written pleadings of the parties, or his entries of their substance in his docket..

[Delaware Special Term,January 14, 1856.

Items of the account amounting to §1.65 were included in the judgment, which accrued more than six years prior to the commencement of the action, and no fact was proved to avoid the statute of limitations. The judgment must therefore be reversed for that sum and affirmed as to the residue. (Code, § 366.) Owing to the peculiarities appearing in the case, no costs are allowed to either "party on this appeal. (Code, §§ 368, 371.)

Balcoyi, Justice.]

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