Dissenting Opinion.
Fenner, J.There may be error in the judgment appealed from, but I find no ground in this record for so declaring.
Nothing is involved but a question of fact. It is the proof of an account against the succession of a dead man by the sole testimony of the party claiming. No item, of the account exceeds five hundred dollars, and, therefore, under established jurisprudence, art. 2277 C. C, has no application. Stribling vs. Stewart, 19 Ann. 71; Rossignol vs. Friche, 28 Ann. 144 ; Andrew vs. Keenan, 14 Ann. 705. Even if it applied, there are not wanting various corroborating circumstances to support the testimony, notably the facts that the account was regularly kept, that the claim had been mentioned to several parties during the lifetime of the deceased, that a highly respectable witness for the defendant testifies that the claim had been mentioned to him, and that he had told the deceased defendant of it, and that the latter, while expressing *98surprise that plaiutiff should have spoken of it, did not say whether he owed the debt or not. There is no opposing testimony, except of a merely inferential and presumptive character.
There exists no legal bar to the sufficiency of the evidence, and if the district judge believed the plaintiff, it was his duty to give him judgment.
He did believe him and gave judgment accordingly.
He saw and heard him testify and had the advantage of all those direct personal impressions which influence our opinion as to the truthfulness of testimony. He was, in every way, better qualified to judge of the credibility of the witness, than we can possibly be, and I consider it a rash exercise of our appellate power to reverse his conclusion.
Had we followed the same rule of decision which guided us in the case of Smith vs. Braun, decided this day, I think the judgment would have been affirmed.
There the proof of the cause of action rested on the sole testimony of one party, which was directly and positively contradicted by the other party. The case was one of breach of promise of marriage, certainly opening a much more dangerous door to fraud, than the mere proof of money claims against deceased persons. In every point of view, the difficulty of affirming the judgment was greater than in this case. And yet, the question being one of the credibility of witnesses, we felt compelled to affirm the j udginent, because we could not say there was mcmvifest error.
The same reasons which induced me to concur in that case, compel me to dissent in this.