The judgment of the court was pronounced by

This is a suit similar to that of Fink v. Lewis, reported in 1 An. p. 395. The plaintiff seeks to recover the amount of a promissory note of the defendant’s, sold, after maturity, as one of the credits belonging to the insolvent Thomas Poioell. The defence is payment; and Poioell swears, as he did in the former case, that the note was satisfied by the defendant, before his (Powell’s) failure. The plaintiff adduced the same evidence by which the credibility of this witness was impeached in the case of Lewis. There was judgment in his favor, and the defendant appealed.

Tho question presented for our consideration is a question of fact, Upon which the opinion of the district judge would be entitled to great weight, if it appeared from the judgment that he had acted upon the testimony of Thomas Powell, but had not given it faith. The reasons given by the judge are as follows :

“ The Supreme Court have, in a recent case, declared Powell to be an incredible witness. We consider that decision an estoppel to any enquiry by the present court into his competency and credibility.”

These reasons are unsatisfactory. The decision of this court in a civil suit cannot render a witness incompetent to testify, though it may greatly affect his credibility. The court meant, in the former case, that the testimony of Powell, unsupported by corroborating circumstances, was not sufficient to prove any

fact. But the law must have an object in allowing him to testify, and attach some weight, however small, to his declarations, when they are consistent, made in apparent good faith, and corroborated by circumstances which render their truth highly probable. This, however, can only be ascertained in the District Court, where the witness appears before the judge.

Without expressing any opinion in relation to the corroborating circumstances alleged by the defendant’s counsel, we consider that the district judge should have received the testimony of Powell, and passed upon it; and we remand the case, in order that this error may be corrected.

It is ordered that the judgment in this case be reversed, and the case remanded for further proceedings; the plaintiff and appellee paying the costs of this appeal.