required to make out a case against the answer. The law making parties and interested persons competent to testify is not intended to subvert the spirit of the rules of evidence in equity cases. Were it so intended, two or more plaintiffs or defendants, with a breath, could nullify a deed or other obligation, and thereby make written evidence as unstable as human memory, or as uncertain as the biased or corrupt testimony of litigant parties. If deeds and other instruments can be thus blown out of sight, it would be as well to have none of them. Where one man has an agreement with several others, evidenced by writing, he ought to feel more at rest than if the proof of it was alone in the oral testimony of interested and heated persons. If, in the attempt to overthrow the evidence of the instrument, the question involved is submitted merely as one of fact, he being a witness on one side, and the numerous opposing parties witnesses on the other, there was little or no use in reducing the contract to writing. In equity the oaths of two of the complainants will not be considered as destroying the effect of the responsive denial of the answer, unless they seem to be entitled to the weight of two credible witnesses, and in considering their weight the fact of their interest as parties must be taken into consideration. Vandegrtft v. Herbert, 18 N. J. Eq. 466. So, in a law court, the testimony in support of an equitable claim or defense should be in like manner scanned and considered. Unless care be taken in the instructions to the jury, the facts that the burden is on the party who assails the writing that the writing itself stands as evidence of the contract until beaten doWn, and that against the testimony of the party who affirms the writing, testimony equivalent to that of two credible witnesses is essential to successful assault, may escape due consideration.

The signing of the contract was not denied, and, under the rules, it was admitted in evidence. Prima facie that was the contract. All the plaintiffs had to do, in addition, was to show their performance, the breach by defendants, and the amount of damage. This they did, and in the doing of it gave no excuse, much less cause, for the court to permit the defendants to inject the matter of their defense into the testimony of the plaintiffs. Their case ought to have been fairly heard. In the cross-examination of Thomas, after it had already been latitudinous, the court permitted inquiry as to the contents of letters showing a countermand of the order by defendants, and whether he had not received such countermand. In like manner the court permitted cross-examination of Smith respecting the terms of the contract, allowed the defendants to state at length in a question the alleged oral stipulation, and ask if it was true, and if he did not say he was authorized to so make the agreement. It needs no citation of authorities to show that a party, in the cross-examination of a witness, will not be permitted to lead out new matter, constituting his own case, which he has not yet opened to the jury. Such conduct has been repeatedly denounced by the courts as unfair to the opposite party and disorderly. The admission of testimony, with respect to its order, is so much within the discretion of the court that tries the cause, and when admitted out of order it is so rare that a party has been injured thereby, that in Pennsylvania no case has been reversed for the sole reason that too much latitude was allowed in cross-examination. It was remarked in Jackson v. Ditch, 62 Pa. St. 451, that for error in permitting cross-examination a case will not be reversed unless discretion has been abused, or it is apparent that the party has been injured. Embodied in the objectionable questions was the heart of the defense. Why were such questions then pressed, if not to gain advantage? True, the answers were in favor of the plaintiffs, but, in an emphatic way, out of order. The defendants made the jury have their answer to the case, ' and placed the plaintifi's’ sole witness to the making of the contract in position to be contradicted by two of their number. We think injury is apparent, and, unless the violation of a settled rule of practice in the order of admission of testimony is not error, the third, fourth, and fifth specifications must be sustained. This case seems to be such a one as will be reversed, as intimated in Jackson v. L'itch, supra.

The matter complained of in the first and second specifications was harmless. It was only a step towards the actual defense that the defendants were about to exhibit before the plaintiffs closed. There is no error in the ruling complained of in the fifth specification. The answer of the witness was part of a conversation on a subject of which he testified in chief. Nor is the eighth specification sustained. No objection was made to the impertinent testimony therein set forth.

Much of the offer which is the subject of the seventh specification was admissible. The court was not bound to separate, and might well have refused the offer, admitting the whole was error. Therein it was proposed to prove by the witness, not only the alleged oral agreement, but that it “was the inducing circumstance on' the part of the defendants to sign the agreement, and the sole reason that they did sign it,” and that Smith’s statement induced them to enter into the agreement. It was competent to prove all that was said and done. It was for the jury to determine from what was said and done at the making of the contract whether the oral agreement, if proved, induced the defendants to sign the written one. The defendants are not permitted to testify their unexpressed intent, motive, or belief at the time they signed the contract. The thoughts of one party cannot be proved to bind the other. In Spencer v. (Jolt, 89 Pa. St. 314, the very point was decided. The same principle was applied in Jun/iata B. d: L. Ass’n v. Hetzel, 103 Pa. St. 507. Of course, had the impertinent testimony been excluded, the learned judge would not have quoted in the charge what Loose testified when he said he was induced to sign the contract on the basis of Smith’s promises. No more need be remarked of the eleventh specification.

None of the remaining assignments are well taken. The plaintifi's’ points were mostly affirmed, and no error appears in the answers. What was said in the charge was correct, and did not mislead the jury to a point without the case. If the instructions were inadequate to enable the jury to properly consider the testimony, the plaintiffs might have obtained more specific instructions by properly prepared points. The case rarely occurs where the court will be reversed for what was left unsaid if what was

said did not mislead the jury from consideration of the controlling facts in the case, provided that the points were rightly answered. It is in the power of a party to obtain specific instructions on everything pertinent to the issue. When he omits to ask them, he cannot complain because they were not given.

With reference to the twenty-second specification of error, of which much was said at the argument, we note that it is the latter part of a sentence; the answer to plaintiffs’ fourth and fifth points beginning with the word “as.” Had “that” been used instead of “as,” then the fact would clearly have been submitted to the jury. It seems a clerical error, and it is not likely that the jury understood they were not to pass upon the question of fact.

Judgment reversed, and venire facias de novo awarded.

SPRINGER c. WOOD.1
(Supreme Court of Pennsylvania. October 4, 1886.)
EVIDENCE—RECORD—EVIDENCE To CONTRADIOT.

Where the record shows a judgment against the plaintiff on the merits, proof that the plaintiff withdrew or discontinued the action would be in flat contradiction of the record, and the admission of such evidence error.2

Error to common pleas, Delaware county.

Assumpst't by John Wood against James Springer for goods sold and delivered.

On April 9. 1883, John Wood brought suit before an alderman against James Springer. The alderman’s record was made up as follows:

“May 9, 1883, plaintiff and defendant appear. Attorney for plaintiff asks to have the claim of defendant thrown out, which is refused; and, attorney for plaintiff refusing to proceed with the case, judgment is hereby publicly entered in favor of the defendant, and against the plaintifi, with costs on plaintiff. J. M. ALLEN, Alderman.”

In the suit subsequently brought in the common pleas the above record was put in evidence. In answer to defendant’s point the court (CLAYTON, J.) instructed the jury, inter alia, as follows:

“But if you find from the alderman’s record, and from the testimony you have heard, that the judgment given by the alderman was in the nature of a nonsuit,—that is to say, that the plaintiff withdrew his case, and that it was so understood at the time,—-then the judgment of the alderman was only for costs, and not conclusive of the action.”

Verdict for plaintiff, whereupon this writ was taken.

W. B. Broomall, for plaintiff in error.

The judgment of the magistrate was a bar to the suit in the common pleas. Gould v. Crawford, 2 Pa. St. 89; Law'oer v. Walls, 17 Pa. St. 75.

P. B. Carter and V. Gilp'in Robinson, for defendant in error, cited—

Keller v. Oom., Amer. Law J. 156; Blair v. McLean, 25 Pa. St. 77; Gibson v. Gibson, 20 Pa. St. 9; Chase v. Ninth Nat. Bank, 56 Pa. St. 355.

TRUNKEY, J. The docket of the alderman shows that after the plaintiff had adduced evidence to establish his claim for goods sold and delivered, and the defendant had put in a counter-demand which the defendant requested should be thrown out, judgment was entered for the defendant. It appears that the plaintiff’s attorney refused to proceed with the case because of the denial of said request. At any stage in the cause, before judgment by the alderman, a plaintiff may withdraw or discontinue his suit, or take a nonsuit, and thereupon a judgment against him for costs will not bar another action for the same demand. Blair v. McLean, 25 Pa. St. 77. Nothing in the docket entry shows that the suit was withdrawn or discontinued. On its face the docket shows a final judgment on the merits of the claim. It is formal as well as substantive. In a suit before a justice of the peace by a collector of taxes for a tax, the entry of the justice was that it appeared, after hearing, that he had not jurisdiction of the subject-matter, “therefore plaintiff for costs.” That was held to be not a formal judgment, but a substantive one, which barred recovery in another action for the same tax. The plaintiff ’s remedy was by appeal, not by another suit. Kase v. Best, 15 Pa. St. 101. Had it been true that the justice, at the time of the first suit, had no jurisdiction, the case would have been different. The giving of a false reason did not vitiate the judgment. That stood as if no reason had been expressed. Where the docket sets forth the cause of action, the docket is the best evidence, and parol evidence is inadmissible to contradict or vary it. Coflman v. Hampton, 2 Watts & S. 377. Were it admissible to contradict or vary the entries of judgments on the dockets of aldermen and justices of the peace by parol evidence, the mischief would be intolerable. The end of one litigation would often be the beginning of another before a different magistrate, and so on, until one or both the litigant parties would tire of a contest which the magistrate’s judgment could not terminate. But parol evidence is admissible to explain, not to contradict, the record, (Carmeny v. Hoober, 5 Pa. St. 305;) and that rule applies to proper docket entries of justices of the peace. When the record does not show the specific cause of action in the pleadings, the identity of the subject-matter of the action may be shown by proof dehors the record. Aiken v. Stewart, 4 Wkly. Notes Gas. 180. In this case, upon that principle, it is competent to prove the very things which the plaintiff claimed before the alderman as “goods sold and delivered,” for that is consistent with the entry, not contradictory.

Follansbee sued for a debt contracted to be paid to Follansbee 8: Walker, and defense was made on two grounds,—one upon the merits, the other that Follansbee could not maintain the action in his own name. Both were submitted to the jury, and verdict and judgment for the defendant. In a subsequent action by Follansbee & Walker, for use of Follansbee, for the same demand, it was held competent to prove by parol that the first action was decided alone on the ground that Follansbee could not recover in his own name. Follansbee v. Walker, 74 Pa. St. 306. There was no contradictiOn in that. It explained that the judgment was on the point which defeated the plaintiff because he had no right as legal plaintifl'. So, in Coleman’s Appeal, 62 Pa. St. 252, it was decided that, whenever a judgment in a former case is relied on as conclusive in another suit, it may be shown by evidence aliunde, not inconsistent with the record, that the particular point was _not adjudicated if in law judgment could have been rendered on any other. This principle has been often repeated. Where two or more pleas, distinct as to subject, are of record, and the cause was decided on the issue raised by one only, parol proof of that fact is not inconsistent with the record, and explains the judgment; and where the plaintiff’s claim is divisible, or the defendant’s set-off is divisible, the pleadings not being specific as to the things in a subsequent action if former recovery be relied on by one party, it is competent for the other to show that the particular thing was not presented and passed upon in the former action. But, where the record shows a judgment against the plaintiff on the merits, proof that the plaintiff withdrew or discontinued the action would be in flat contradiction. Such proof, if admissible, would not explain; it would falsify, the record. It was error to admit parol evidence to contradict the record, and the defendant’s first point should have been aflirmed. Judgment reversed, and venire fac'ias de novo awarded.

1. EVIDENCE—PAROL—WRITTEN CONTRACT.

A written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise or undertaking, material to the subject-matter of the contract, made by one of the parties at the time of the execlgtion of the writing, and which induced the other party to put his name to it.

2. SAME—UNDISCLOSED PURPOSE—MENTAL RESERVATION.

Where a party is charged with the commission of an act with a particular intent. he may testify what his intention was, but he cannot testify to the undisclosed purpose of his mind, or declare a mental reservation to nullify the express words of his contract.

Error to common pleas, Lancaster county.

Appeal from judgment of an alderman, wherein James Lindsay and others were plaintifis, and Joseph Cullmans and others defendants. The facts are stated in the opinion of the supreme court. Verdict and judgment for plaintifl's, whereupon defendants took this writ.

J. L. Steinmetz, for plaintiffs in error.

If one insists on a contemporaneous parol agreement, he must declare on it. Hunter v. McHose, 100 Pa. St. 38; Callan v. Lukens, 89 Pa. St. 134; Parsons v. Adeler, 8 Wkly. Notes Gas. 72; Stine v. Sherk, 1 Watts & S. 195; Miller v. Smith, 33 Pa. St. 386; Martin v. B87'6’n8, 67 Pa. St. 459. Mr. Lindsay was incompetent to testify to the inducement that led him to sign the written contract. Spencer v. Colt, 89 Pa. St. 314. '

lEdited by Henry R. Hatfield, Esq., of the Philadelphia bar.‘See note at end of case.