
    Alfred Lewis vs. Ebenezer Freeman.
    The testimony of a witness that he thought the plaintiff told him that a certain sum of money had been paid to the plaintiff, was very confident he said so, but would not swear that he did, is a statement of the strength of the recol? lection of a fact by the witness, and is admissible evidence.
    Exceptions from the Court of Common Pleas, Remngton J, presiding.
    Assumpsit upon a contract of the following tenor. “ Mr. Alfred Lewis. Sir, if ypu will let Andrew C. Butler have one hundred dollars worth of oil cloths, and take back what he cannot sell at the same price he takes them, I will be responsible for what he may sell, August 15, 1836. Ebeneser Freeman.” The oil cloths were delivered to Butler, and one point made in the defence was, that the plaintiff had been paid. To prove the payment the defendant introduced one Robinson, who testified, that after Butler ¡returned from peddling out the oil cloths, the witness had a^ conversation with the plaintiff, who informed him that Butler had done well in carrying out the cloths, and had made enough, reckoning in the cloths brought back, to pay for the load and twenty-five or thirty dollars more; that the cloths he brought back were but a small part of the load ; that Butler had made enough to save to himself twenty-five dollars, and desired to take another load ; that the plaintiff doubted the propriety of letting him have another load on Freeman’s order, but concluded to let him have one on certain conditions, and thought that Freeman would suppose himself liable for the second load. The witness on being questioned by the defendant as to the admissions of the plaintiff in that conversation, testified, “ that he thought the plaintiff told him, Butler had paid him 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 plaintiff contended, that upon the testimony of Robinson, the jury could not legally return a verdict for the defendant on the ground that Butler had paid for the cloths.
    The Judge instructed the jury, that as witnesses must use their own language in conveying their meaning, and as they express themselves with different degrees of clearness, and use different degrees of paution in the phraseology they adopt, it was for the jury to give their language a fair exposition; that if the testimony of Robinson had proved to their reasonable conviction that the plaintiff had knowingly and deliberately admitted that he had received full payment for the first load of cloths from Butler, they plight thereupon find a verdict for the defendant.
    Pther points were made at the trial, and the jury returned a verdict on each. They found on this, “ that Butler did on his return from his first trip deliver over to Lewis cloths and money enough to pay up for the hundred dollars worth of cloths delivered on thp strength of Freeman’s guaranty.” The plaintiff filed exceptions.
    
      
      Wells, for the plaintiff.
    
      Robinson did not, and would not testify that the plaintiff had received payment. There was no other evidence on this point, and the Judge informed the jury, that they might find the fact from his testimony. He testified, that he would not '.swear to it, and the jury ought not to affirm what he would not swear to. Nor is it supported by his saying he thought the plaintiff had told him. “ I think,” is not sufficient affirmation of a fact. Sebor v. Armstrong, 4 Mass. R. 206.
    
      May, for the defendant.
    The jury have found that Butler upon his return paid for the cloths which he had upon the strength of the defendant’s guaranty, and the evidence in the case justifies the finding. At any rate the jury were the judges of the weight of evidence, and such testimony as that of Robinson has been held to have been properly submitted to the consideration of a jury in several cases. Harding v. Brooks, 5 Pick. 244; Aylwin v. Ulmer, 12 Mass. R. 22; Griffin v. Brown, 2 Pick. 304. But laying the part of Robinson’s testimony objected to out of the ease, the jury were authorized to find a payment from the admissions of the plaintiff and other circumstances, as related by the witness.
   The opinion of the Court was by

Shepley J.

'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 jury 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.  