as set out in the three several bills of exceptions.
2. The court erred in their answer to the second and fourth
propositions, as reduced to writing and filed.
3. The plaintiff's replications do not traverse a material alle-
gation of the pleas, to wit : that the said Adam J. Ankrim was
indebted to the defendant before and at the time of the issuing
of the domestic attachment.
After argument by Dillingham for the plaintiff in error, who
cited Stark. Ev. part i. 47, part iv. 81 ; Babb v. Clemson, 10
Serg. & Rawle, 419 ; Act of December 4, 1807, Purd. Dig. 72 ;
4 Stark. 1318, and by
C. Gilpin and Tilghman, contra, who cited 3 Stark. 1301 ,
Crug v. Tuttle, 3 Conn. Rep. 250 ; Day. Rep. 126 ; Wolf v.
Carothers, 3 Serg. & Rawle, 240 ; Duncan v. Findlay, 6 Serg.
& Rawle, 235.
The opinion of the court was delivered by
KENNEDY, J. Three errors have been assigned in this case.
They, however, embrace but two questions. First, was the
court below right in rejecting the evidence offered by the plain-
392
Jan. 14, 1834.] OF PENNSYLVANIA. 349
[Ankrim v. Woodward and others.]
tiff in error who was the defendant below ? And, second, did
the court charge the jury correctly on the claim of the plaintiff
in error to be allowed to defalcate the debt owing to him by his
sou Adam Jenner Ankrim, from the claim of the defendants in
error, who sued as trustees appointed under a proceeding by
writ of domestic attachment against the son, according to our
acts of assembly made in that behalf?
On the first question, it appears that the evidence rejected by
the court was offered for the purpose of showing a treaty or
negotiation between the wife of the plaintiff in error, as his
agent, and their son Adam Jenuer Ankrim, upon the eve of his
removing to a distance, relative to his giving up a store of goods,
of the value from twelve to fifteen hundred dollars, and his books
of account connected therewith, to the father, the plaintiff in
error, that he might manage and make the best of them, and
secure to himself by means thereof a debt of about eighteen
hundred dollars, which he claimed that the son then owed to
him. It was testified by one of the daughters of the plaintiff in
error, that the son on his going away delivered to her the keys
of the store, with a request that they should be given to his
father, and to tell him to manage it in his own way, or to make
the best of what was there. That she did do so, and that on the
next morning thereafter, the father took possession of the store
a:ul books. It was also further testified by the son himself, in
his deposition, which had been taken under a rule of the court,
and was read in evidence, that on his going away he delivered
the keys of his store to his sister, for the purpose of delivering
them to his father, that he might convert the effects in the store
to the discharge of *the debt already mentioned ; to r^o-rn
the existence of which he also testified.
It appears to me, that the testimony rejected by the court
below was not only pertinent to the issue, but competent and
admissible under any view that can be taken of it. If the
mother, on behalf of the father, either with or without authority
from the father, proposed to the son to give up his store, and
his books, containing an account of the outstanding debts owing
to him for goods sold out of the same, in order to secure to the
father the debt which he owed to him, and the sou assented to
it, it would certainly tend to confirm and explain more fully the
object of the son's giving up the keys of the store afterwards.
And the father's subsequent acceptance of the keys might well
be considered by the jury as equivalent to an assent on his part
to the terms and conditions upon which the keys were originally
proposed to be delivered by the son, as well as a confirmation
of all that had been said and done by the mother in bringing
about the giving up of the store, etc. ; of which the handing over
393
350 SUPREME COUET [Philadelphia,
[Ankrim v. Woodward and others.]
of the keys would be a good symbolical delivery ; for, omnis
ratihabitio retro trahitur et mandate cequiparatur. Or suppose
that the son did not give his assent at the time of the proposal
made by his mother, but had said to her, he would consider of it,
and on the next day following, or so, had delivered the keys in
the manner testified to by his sister, might and ought not both
in fairness to be considered as parts of the same transaction, the
latter as an execution of what had been proposed the day or two
before ? It seems to me, that the whole in such a case ought to
be submitted to the jury. This, in substance, \vas the nature of
the evidence offered by the plaintiff in error, and rejected by the
court. It is said, it was not admissible because it related to
what had taken place prior to, aiid at a time different from the
delivery of the keys, and cannot therefore form any part of the
agreement, even if there were one, under which the keys were
delivered ; nor yet lead to any certain conclusion with respect to
the nature and extent of it. This objection perhaps might in
some measure be applicable, if the agreement alleged to have
been made in this case had been committed to writing, and
signed by the parties. Because, where the agreement of the
parties on the subject is committed to writing, the rational as
well as legal presumption is, that everything ultimately agreed
on by them is inserted in it. So that in the course of their
treaty certain things may be agreed on which afterwards, when
they come at the close of their negotiation to put their final
agreement in writing, are by consent modified, changed, or left
out altogether, as forming no part of it. And wherever any-
thing has been so previously agreed on, which does not appear
afterwards to be in the writing, the presumption is that the
parties by the last act of their minds on the subject, resolved
that it should not be part of their agreement, and therefore left
it out of the writing. Hence in part has arisen the general rule,
that nothing which tends to alter, contradict, or vary what is
f*'^! 1 con ^ ne( i in the writing can be given in *evidence, unless
J it be also proved that it was left out of the writing by
fraud or mistake. It may also be observed, with respect to
written agreements, that the signing and delivery thereof is the
consummation of them, which reduces their execution to a single
point of time, and everything that has been agreed on, within
the compass of the writing, beyond which we are not to look.
It is very different, however, in regard to oral agreements, which
must be collected sometimes from various conversations and acts
of the parties had and done at different times.
From a circumstance which has been mentioned, of the father
and son's not being on speaking terms at this time, the son pos-
sibly conscious that he had not treated his father and his advice
394
Jan. 14, 1834.] OF PENNSYLVANIA. 351
[Ankrim v. Woodward and others.]
with due respect, there is perhaps some reason to believe that no
formal and express agreement in detail was really entered into,
under which the keys were delivered up ; yet it cannot be doubted
but that they were given up for som purpose, and upon an un-
derstanding and agreement of some kind. That being the case,
this understanding aud agreement must, as is frequently the
case, be collected and obtained from previous conversations and
subsequent acts on the subject. Those previous conversations
and interviews must in every case of the kind be considered as
having led to and caused the subsequent acts, when they cannot
be accounted for but by referring them to those previous con-
versations ; and the whole, when taken together, may develop
pretty fully and clearly the design and intention of the parties,
which is all that is desired iu such cases.
Another objection is, that it being only evidence of what the
son, Adam J. Ankrim, said to his mother, and he being a com-
petent witness in this case for the father to prove it, it is there-
fore mere hearsay to every other, and cannot be proved by any
other than the son. This objection is founded upon an entire
misapprehension of the true character and nature of the evi-
dence. It is not what is properly called hearsay ; neither is it
evidence of a secondary character, as has been again alleged
against its admissibility. It was offered for the purpose of
proving an oral agreement, to which the son was a party. Now
it is only by giving evidence of the declarations and acts of the
parties to such an agreemant, that it can be established ; and
third persons who were present, heard what was said, and saw
what was done, are introduced and brought into court every
day to testify to all they heard and saw upon such occasions.
Their competency, and the admissibility of such testimony has
never been doubted, where the parties to such agreement are
also the parties to the suit in which the witnesses are called to
testify. As the great object of adducing testimony, is to arrive
at the truth, iu order that justice may be administered, it is dif-
ficult to imagine why the change of parties to the suit should
render a change of witnesses necessary, to prove the truth of
the same facts, as long as they are not of the parties to the suit,
nor interested in the event of it. The agreement consists of
what is said and done upon such occasions, and third persons
*who were present, hearing and seeing all that was said r*oK9i
and done, are just as capable of relating it intelligibly i
and truly as the parties or either of them would be ; and some-
times much more worthy of being relied on for truth and accu-
racy. Whether an oral agreement was made or not ; what were
the terms and conditions of it, and who were the contracting
parties, are matters of mere fact, which must be proved as other
395
352 SUPREME COURT [Philadelphia,
[Ankrim v. Woodward and others.]
facts are ; that is, by witnesses who were present at the making
of the agreement, and heard and saw all that was said and done
in respect to it. Mr. Starkie, in his Treatise on Evidence, part
iv. page 81, says, "an oral contract may be proved by any wit-
ness who was present at the time, or who heard the defendant
admit the existence of such a contract." And according to the
doctrine laid down in Gibblehouse v. Stong, 3 Rawle, 437, 1 can
perceive no good objection that could have been made to the
plaintiff in error having given in evidence the admissions of his
son made at any time before the issuing of the writ of domestic
attachment, showing that he had given his father the store and
books of accounts, towards securing the debt which he owed to
him ; or any other admissions of the son, going to show that he
had put his father in possession of the goods to dispose of them ;
and of his books to collect the money due on them. Any one
not interested in the suit would have been a competent witness
to have proved such admissions, who was present at- the time
and heard them made.
It has also been contended, that as the son's deposition was
taken by the father, and he has testified to nothing having passed
between him and his mother on the subject of the store and the
book of account and the giving of them up to his father for
any purpose whatever, that no other person can therefore be re-
sorted to by the father as a witness for this purpose. There is
nothing in this objection. The son is no more competent to prove
this matter than any other who was present at the time ; and
every other person present, with the exception of the mother, is
just as competent to prove it as the son. If a party has two or
more witnesses by whom he can prove various facts, that is, all
these various facts by each witness, he may call up one of them,
and after getting his testimony as to some of the facts only,
may forbear to examine him further as to the remaining facts ;
and if the witness does not in compliance with the obligation of
his oath, declare as he ought his knowledge of them, the party
calling him may dismiss him without it. But whoever heard
before that by doing so he had put it out of his power to prove
these remaining facts by any other witness? It cannot alter the
nature of the case, that the witness so called was so connected
with the remaining facts, that if true, he must have known their
existence, unless perchance they had escaped his recollection.
It was perfectly immaterial in this case whether the plaintiff in
error called his son to prove any of the matters which he
offered to give in evidence. They are all such as might be
proved by any other. He was therefore not bound to call his
son for such purpose if he had been standing by him. Any
396
Jan. 14, 1834.] OF PENNSYLVANIA. 353
[Ankrim v. Woodward and others.]
*other person present at the time the thing took place,
of which evidence was offered to be given, was as com-
petent as the son, and therefore the father was at full liberty to
exercise his own will in this particular. It is not like the case
of subscribing witnesses to a written contract or will, who, if
within the jurisdiction of the court where the existence of such
contract or will is controverted, must be first called by the party
wishing to establish the instrument; and until he has first
called and examined them fully touching the execution of it,
he cannot call any other witness : if, however, he fail to prove
the execution by the subscribing witnesses, he may then call
others. The reason for this is, that the subscribing witnesses
are supposed to know more about the making and executing of
the contract or will, which they have been called particularly
to attest, and for that purpose to put their names to, than other
persons whose attention and notice of the matter do not appear
to have been so particularly required. Hence the party is not
left at liberty in the first instance to call whom he pleases to
testify, but is compelled by the rule of law established in this
behalf, to adduce first the subscribing witness or witnesses, if to
be had. No such rule, however, applies to the case under con-
sideration. I am therefore of opinion, that the court below was
wrong in rejecting the evidence offered by the plaintiff in error.
On the second question, I also think that the court erred in
charging the jury. The president judge who delivered the
charge of the court to the jury, seems to have been most de-
cidedly of opinion, and so instructed them, that without an
agreement made between the father, the plaintiff in error, and
his son Adam Jenner Aukrim, by which the latter, in consider-
ation and in satisfaction of the debt which he owfd the former,
assigned, transferred, or sold to him the debts owing to him,
the son, for store goods sold and collected by the father, the
debt which the son owed to the father could not be set off or
defalcated out of the money so collected by the father. If the
father, under an oral permission or authority from the son, and
without any transfer or assignment of these debts, collected
them before the writ of domestic attachment was issued, he had
most unquestionably a right as against the son to have the
amount of the debt which the son owed to him defalcated out
of the moneys so collected. This he would clearly have been
entitled to under the provisions of the defalcation act of
1705. The father, after having collected the debts under such
permission or authority, would have stoocl indebted to the son
in the amount of the money so collected, and the son being pre-
viously indebted to the father, they would then have been mutu-
ally indebted to each other in their own respective rights, thus
397
353 SUPREME COURT [Philadelphia,
[Ankrim v. Woodward and others.]
bringing the case directly within the very letter as well as the
spirit of the defalcation act. If the son after this, and before
the issuing of the writ of domestic attachment against him, had
brought a suit against his father for the recovery of the money
so collected, the father would have had a right to set off his
r*o~ 4i debt owing to him by his *son, against the sou's claim,
-" so far as was necessary to satisfy it. Such being the
right of the father against the son, upon this statement of the
case, before the suing out of the writ of domestic attachment,
I am at a loss to conceive how the suing out of that writ could
divest the father of his vested rights, or place him in a worse
situation with respect to his debt against his son than he was
before. The defendants in error, as trustees for the creditors
of the son, by virtue of their appointment and the acts of as-
sembly relative to domestic attachments, are only invested with
those rights which existed in the son at and immediately before
the suing out of the writ of domestic attachment against him ;
and have no power or. authority beyond what he had at that
time ; unless where he before that assigned or conveyed away
his estate, or anything belonging to him, for the purpose of de-
frauding his creditors, in which case the defendants in error, by
the fifth section of the act of 1807, have full power given them
to recover and dispose of whatsoever may have been so conveyed
away, in the same manner as if the son had been seized or pos-
sessed thereof himself at the time of suing out the writ of at-
tachment. With this exception, it is manifest from the whole
tenor of the acts of assembly on this subject, that the trustees
have no right to claim what the son himself could not have
claimed at the time of suing out the writ of domestic attach-
ment. I am also further of opinion, that if the son, before the
suing out of the writ of attachment against him, had brought
an action of debt, or on the case, and declared in assumpsit for
money had and received, against his father, the father might
have set off the debt owing to him by the son, against the
claim of the son, without giving any evidence to show that he
had had even an authority from his son to collect the money ;
because the son, by bringing such an action against the father,
would have affirmed the authority of the father to collect and
receive the money, and would thereby have acquitted those who
had paid it to the father. And it seems to me likewise, that
the trustees, by bringing this action against the father, have
affirmed his authority to receive the money ; and if it was re-
ceived by him before the suing out of the writ of domestic
attachment, he would have a right to set off any debt owing to
him anterior to that time by the son. If the defendants in
error had not intended to affirm the authority of the father to
398
Jan. 14, 1834.] OF PENNSYLVANIA. 354
[Ankrim v. Woodward and others.]
receive the money, they ought to have looked to those persons
respectively from whom the father received it.
From what I have already said on this second question in
this case, it necessarily follows, that if there was an agreement
made between the father and son, by which the son assigned
the goods and debts to the father, to satisfy or secure to the
father the debt which he owed to him ; or if the son gave up
the goods and his books of account to the father for this pur-
pose, and they were accepted by the father before the suing out
of the writ of domestic attachment against the son, the father
would be entitled to have his debt satisfied out of the money
arising from the sale of the goods and the collection of the
*debts; and it would be wholly immaterial upon either r*oc~-i
of these hypotheses, whether the debts were collected "-
before or since the issuing of the writ of attachment.
The judgment is reversed and a venire facias de novo awarded,
if the defendants in error should think that they have any chance
of success in their suit, upon the principles here laid down.
Judgment reversed, and a venire facias de novo awarded.
Cited by Counsel, 3 Wh. 44, 491 ; 9 Barr, 357 ; 8 C. 125.
Approved, t> Wh 582.
Cited by the Court, 2 Wh. 245 ; 3 H. 395.
[PHILADELPHIA, JANUARY 21, 1834.]
Logan and Another against Jennings.
IK ERROR.
Where the action sounds in damages, judgment for the plaintiff on demurrer
is interlocutory, and it is necessary before final judgment, that damages
should be assessed by a jury. Until final judgment a writ of error does not
lie.
A WRIT of error having issued to the District Court for the
city and county of Philadelphia, it appeared from the record
returned to this court, that the action was trespass vi et armis
quare clausum freacrimf, brought by the defendant in error
against the plaintiffs in error. The defendants below filed a
special plea, to which the plaintiff below replied specially, and
the defendants demurred specially to the replication, assigning
various causes of demurrer.
The District Court gave judgment on the demurrer in favour
of the plaintiff below, and the defendants sued out a writ of
error.
The cause was argued upon the questions arising upon the
399
355 SUPREME COURT [Philadelphia,
[Logan and another v. Jennings.]
pleadings ; but this court having given no opinion on them, it is
unnecessary to enlarge the report by stating them.
P. A. Browne moved to quash the writ of error, because the
judgment of the court below was not final, and therefore not the
subject of a writ of error.
Norris and Rawle, contra.
The opinion of the court was delivered by
ROGERS, J. When the action sounds in damages, as in cov-
enant, trover, trespass, &c., judgment for the plaintiff, on de-
murror, is interlocutory, " that the plaintiff ought to recover his
damages," leaving the amount of them to be afterwards ascer-
tained, Lilly's Entries, 57. The case at bar is an action of
trespass vi et armis, in which, on a demurrer, the court gave
judgment for the plaintiff. It is therefore necessary before final
judgment, that the damages should be assessed by a jury. But
until final judgment, a writ of error does not lie. Metcalf 's
Case, 11 Co. 40; Russell v. Pratt, 1 Leonard, 193; Lilly's En-
tries, 57. We have been requested to give an opinion on the
r*^^fi1 Pi n ts * r aised by the demurrer, but this we do not feel
J ourselves at liberty to do. A writ of error does not
remove the record where final judgment has not been rendered.
Wilson v. Ingoldsby, 2 Ld. Raym. 1179, and Canning v.
Wright, 2 Ld. Raym. 1531. That the court is bound to quash
the writ of error, also appears from the case of Rejindoz v. Ran-
dolph, 2 Strange, 834; Vice v. Burton, 2 Strange, 891. If
the parties are put to any inconvenience by the delay, it cannot
be avoided. The plaintiff might have had his damages assessed,
notwithstanding the writ of error, or the writ would have been
quashed at an earlier day.
Writ of error quashed.
Cited by Counsel, 1 Wr. 220; 11 Wr. 349; 5 N. 510, s. 0. 6 W. N. C. 137.
Cited by the Court, 2 G. 242 ; 3 N. 240, s. C. 4 W. N. C. 426.
[PHILADELPHIA, JANUARY 21, 1834.]
Baker against Lewis.
IN ERROR.
The expression by the court, of an opinion upon the evidence, even if in-
correct, is not the subject of a writ of error. But if the court ,eive a binding
direction on the facts, and thus withdraw them from the jury, it is error
400
Jan. 21, 1834.] OF PENNSYLVANIA. 356
[Baker v. Lewis.]
To tell the jury that where a testator is of sound mind, and not under undue
influence, he has a right, which cannot be controlled, to make such disposition
of his property a.s he pleases, and that under such circumstances, the reasona-
bleness or otherwise, of his testamentary dispositions is of no consequence, is
not error. But to instruct them that the contents of the instrument are not
evidence, however unreasonable and absurd its testamentary dispositions may
be, even where its execution is impeached on the ground of fraud and imbe-
cility of miud in the testator, is error.
WRIT of error to the Court of Common Pleas of Delaware
county. The defendant in error was the plaintiff below.
The nature of the case, and the points decided, sufficiently ap-
pear from the opinion of the court, which, after argument by
Dick, 8. Edwards, and Kittera, for the plaintiff in error, and
Lewis, J. Edwards, and Tilghman, for the defendant in error,
was delivered by
ROGERS, J. This was a feigned issue, directed by the regis-
ter's court to the Court of Common Pleas of Delaware county,
to try the validity of a writing, purporting to be the last will
and testament of Azariah Lewis, deceased. The plaintiff and
principal devisee examined the three subscribing witnesses to
the will, two of whom deposed, that he was of sound disposing