The opinion of the Court was by

'If the instructions respecting the testimony of Robinson were correct; and the jury were authorized by that testimony to find, that the plaintiff had been paid, it will not be necessary to consider the other points made in the case.

The argument is, that there was no testimony to prove an admission of payment, because the witness said he “ would not swear, that he did say so” ; and that his testimony is not strengthened by the expression, “ that he thought the plaintiff told him Butler had paid him.”

In the case of Sebor v. Armstrong & trustee, it was the province of the Court to decide the fact, and to give such effect to the testimony as it might deserve. The trustee must discharge himself, and the only testimony to have this effect being his declaration that he thought the paper payable to order might well be considered'as unsatisfactory. And the argument in this case might bp regarded as sound, if that were the only testimony before the *263jury upon this point. But the whole of the expressions used by the witness are to be considered, and in connexion with the conduct of the plaintiff. He says, “ he thought the plaintiff told him Butler had paid for what cloths he had sold and not brought back, was very confident he said so, but would not swear that he did say so.” The witness was speaking under the obligation of his oath, when he said, that he was very confident he said so, and that was speaking of his recollection of a fact with no slight assurance that ho was correct; and when he adds, that he would not swear to it, the idea communicated is, that he was very confident, but not certain, that the plaintiff so stated. The witness was not giving an opinion, but stating the strength of his recollection of a fact. The circumstances stated by the witness respecting the conduct of the plaintiff and Butler, after Butler's return, tend to confirm the conviction that the plaintiff had been paid.

The jury were the proper judges of the w'eight of the whole testimony upon the point; and the instructions were well suited to bring their minds to a just conclusion.

Exceptions overruled.