Majority
p. 81. Cutler against Carpenter—Certiorari from a Justice's Court.
Headnote
a witness, on ^ after having ^conversation and stated that th-.ng in it, from which he could say that it alluded to a particular time, shouldnot be permitted to express bis belief, as to that fact. And where such an answer was objected to, but admitted, the judgment was, for that reason, reversed.
Case, in the Court below, by Cutler against Carpenter, for fraud in the sale of a horse. At the sale, the defendant represented the horse good to work, as far as he knew ; whereas he was fickle, and the defendant had said, that the horse had troubled him once, in drawing hay. To shew, however, that he had not deceived the plaintiff, the defendant called a witness, who swore that, in a conversation with 7 7 the plaintiff, he said that the defendant had told him, that he
p. 82
had had one scrape with the horse; hut there was nothing in the conversation from which he could say that the plaintiff alluded to the time of the sale, as theperiod when the defendant had given him this information. He was then asked by the defendant’s counsel, what his belief was as to that fact ? This question was objected to by the plaintiff’s counsel, but the objection was overruled. He then answered that he took it, that the time of sale was meant. Verdict and judgment for the defendant.
T. Lawyer, for the plaintiff in error.
E. Holliday, for defendant.
The Justice erred in permitting the witness to state his belief, after he had sworn that there was nothing in the conversation, from which he could say that the plaintiff referred to the time of the sale.
Judgment reversed,[1]
(a) (a) When a witness may give his opinion, vid. 1 Phil. Ev. 226, and the eases there cited. The 2 Am. ed. p. 209, contains the cases more fully. In Snell et al. v. Moses et al. ( 1 John. Rep. 96 ,) a witness was allowed by Livingston, J. at nisi prius, to give his impression as to the substance of a conversation.