Salmon v. Feinour , 6 G. & J. 60 ( 1833 )

Buchanan, Ch. J.,

delivered the opinion of the court.

It cannot be doubted that the opinion, to which the exception in this case was taken, is correct.

If the witness in her examination in chief had been asked, if she believed the account shown to her was correct, and if she believed the goods therein charged were sold by the plaintiff to Mary Ann Brien on the faith of FeinouPs letter of credit to her, it is very clear that she would not have been permitted to answer the questions, being entirely an inquiry into her belief of a matter in relation to which, the belief or persuasion of a witness (which may have no other foundation than the merely having heard it) is not competent testimony. Her answer therefore, that she believed the account to be correct, and that the goods were sold by the plaintiff to Mary Ann Brien on the faith of Feinour's letter of credit, in reply to the interrogatory, whether the goods were in fact so sold to Mary Ann Brien, and not whether she believed it, must be equally inadmissible; though if she had sworn to the the fact, as of her personal knowledge, her means of knowing the fact, might upon cross examination have been inquired into, and the accuracy of her testimony thus tested.

With respect to the belief or persuasion of a witness, as founded on facts within his actual knowledge, it is otherwise. On questions of identity of persons and of hand writing, it is the common and prudent practice of witnesses to swear to their belief only, which is always admitted.

This too, it will be observed, is the testimony of a witness taken under a commission and offered at the trial, when the opportunity of a further or cross examination was cut off; and if admitted, would have gone to the jury as the mere declaration of her belief, that the account was correct, and that the goods therein charged were sold by the plaintiff to Mary Ann Brien, on the credit of the letter of credit to her, from the defendant. Had she after having testified to the fact, that she had purchased sundry goods from the plaintiff in the name and at the request of Mary Ann Brien, sworn to her belief, that the goods charged in the account shown to her were the same goods, it would have presented a different question.

But there is nothing to show, that the declaration of her belief that the account was correct, &c. had any reference to the goods that she had purchased as the agent of Mary Ann Brien.

JUDGMENT AFFIRMED.