The following is the testimony objected to: David Reiff, testified-" Miller asked me for corn for planting. I gave it to him. He said when I wanted the money I should present my bill to the old man." William Hurlock, testified-"Miller contracted with me in Philadelphia, and he also contracted with the others. I should look to Marshall for my money." Miller said 2. The Court erred in admitting in evidence the declarations of John X. Miller, made to Valentine Bieber, in the absence of both plaintiff and defendant, in regard to a contract with the plaintiff, and stating what that contract was. Valentine Bieber, testified-"Miller once told me the bargain. I think he said plaintiff had the same bargain that I had. He said he would give me what he gave Bobst. He gave him $10 a month." The case was argued by Samuel S. Young, Esq., for plaintiff in error, who cited 1 Yeates 502; 2 Whart. 340; 4 Rawle 291; 6 Watts 487. Henry W. Smith, Esq., for defendant in error, contended that the offer and the testimony must be considered as a whole, and that there was abundant evidence of ratification on the part of Marshall, and also evidence sufficient to establish the fact of the agency. He contended that the order of admitting evidence was discretionary with the Court below: 9 Barr 195; 3 S. & R. 311; 7 Barr 126; 4 Id. 310; 3 Harris 464. The opinion of the Court was delivered by WOODWARD, J.-Agency is often to be made out as an implication from circumstances, and in such cases declarations of the agent tending to prove the agency ought not to be admitted until other evidence has been given which leads to the same conclusion; for although the rule of law is, that whenever the act of an agent is admissible, it is competent to prove what he said about the act whilst doing it; yet it is also true that his authority to speak cannot be proved by his declarations. He may be called as a witness to prove his authority, if by parol, but for this reason his declarations cannot be relied on to establish it. Where, however, evidence has been given which tends clearly to establish the relation of principal and agent, and the Court sees it would be a fair presumption for the jury to make, it is not error to admit the declarations of the agent in connection with acts, even though they tend to establish the agency. As part of the res gestæ, they are competent, but should not be used as establishing the agency; for before one man's words can bind another, the authority to speak should be shown. And when evidence with such double aspect is offered, in one of which it is competent and in the other it is not, the proper course is to receive it, and control its effects by suitable instructions given to the jury. The charge of the Court in this case is not brought up, and therefore we presume it was exactly what it ought to have been; and if it was, there was no error in receiving the evidence contained in the bill of exceptions, for it proved that Miller carried on the farm for his father-in-law, the defendant, who paid hands hired by Miller, and thus confirmed his acts in making such contracts as that sued on here. Miller's declarations that Marshall was to pay the hands, were properly admitted in connection with such facts, and we are not to presume that the Court omitted to control their effect. There being no error apparent in the record, the judgment is affirmed. See Jordan v. Stewart, 11 Harris 244; Woodwell & Co. v. Brown et al., 8 Wright 121; Fawcett v. Bigley, 9 P. F. Smith 411. In the Supreme Court of Pennsylvania—Harrisburg. (Vol. II., p. 46, 1854.) 1. Mere indulgence of the principal debtor will not discharge the surety. 2. Where the holder of a note agrees with the maker to accept the amount in small payments, the endorser is not thereby discharged. 3. Where the defendant pleaded that such agreement was made after the maturity of the note, and the evidence tended to establish the fact otherwise, it was held that the defendant had no right to complain of an intimation of the Court, that the facts were as stated in his plea. ERROR to the Common Pleas of Blair County. This was an action of assumpsit commenced by James Grier, and prosecuted to judgment after his death by his administrator, against Henry L. Patterson, the plaintiff in error, on his endorsement of a promissory note drawn by William Root, payable to the order of Patterson. The defendant plead specially-1st, that the endorsement was for accommodation, and that it was agreed between the parties that defendant should not be held liable; 2d, that after the maturity of the said note, said plaintiff made an agreement and arrangement with William Root, the drawer of said note, by which he contracted and agreed with said Root, without the consent of defendant, to receive from him the amount of said note in a number of payments, thereby giving time to the said Root, &c. On the trial, the plaintiff proved the execution of the note, the plaintiff's endorsement, demand, and notice of protest. The defendant then called George W. Patterson, who stated, that in a conversation between Grier and the defendant, Grier admitted that he had not complied with his agreement about the note; that he had agreed to sue on it, if it was not paid, but that he had given Root time, and agreed to take it in small payments. The plaintiff gave several letters written from Patterson to the plaintiff, requesting him to sue Root on the note. The note fell due in March; several of the letters were written in July following. The letters also contained promises on the part of Patterson to pay the amount, if it could not be made by a suit against. Root. The Court below (Taylor, P. J.), instructed the jury, that if the agreement between the parties, that Grier should not be held liable if the money could be collected from Root (if there were any such agreement) was made without any new consideration, and after the liability of Patterson had become fixed by the dishonor of the note, the plaintiff was entitled to their verdict for the amount of the note and interest. The defendant's counsel excepted to the charge of the Court, because they expressed an opinion to the jury on the facts, that the arrangement was made after the maturity of the note; and because they charged that the arrangement made between Grier and Root would not discharge the endorser. The case was argued by Mr. Banks for the plaintiff in error, and by Mr. Scott for defendant in error. The opinion of the Court was delivered by WOODWARD, J.-The defendant, sued on his endorsement of Root's note, pleaded that he was discharged by virtue of an agreement for further time, which, without his consent, Grier had made with the drawer after the maturity of the note, and now assigns for error that the Court misled the jury in submitting "whether the evidence does not show that any understanding or arrangement on the subject of collecting the money from Root must have been made after the dishonor of the note." If this was a leading of the jury at all, it was to the very fact pleaded by the defendant, and though I cannot but think erroneous, because from the terms of the agreement, as proved, I cannot see how it could have been after the maturity of the note, yet it is not a misleading of which the defendant has any right to complain. But we are of opinion that the agreement, whether made before or after the dishonor of the note, was not such as would discharge the endorser. The only proof we have of it consists in the admissions of Grier at a settlement of accounts with Patterson, in November, 1847. Those admissions, as detailed by the son of Patterson, were, that "Mr. Root was a good, clever fellow, and he had given him time, and agreed to take it in small payments." There was no consideration suggested or admitted. He had given him time. Mere indulgence of the principal debtor, it has been often ruled, does not discharge the surety. He had agreed to take it in small payments, an arrangement calculated to encourage payments, which, being without consideration, was not binding. According to the admissions of Grier, there was no point of time when he had tied up his hands and deprived himself of the right to sue Root. This is the test which determines the continued liability of the surety short of the period when the statute of limitations would discharge him, as is abundantly shown by the cases cited at bar; and hence it follows that, in submitting the defence to the jury at all, the Court erred in favor of the defendant, and of this he had no reason to complain. The judgment is affirmed. See Simpson's Case, 6 Binn. 300; Dehaff v. Turbett et al., 3 Yeates 157; Cope v. Smith, 8 S. & R. 112; Weidman v. Weitzell, 13 Id. 96; Todd v. Blair, 3 P. R. 440; Johnson v. Thompson, 4 Watts 446; Rhodes v. Frederick, 8 Id. 448; Brubaker v. Okeson, 12 Casey 519; Richards v. Com., 4 Wright 146; P., Ft. W. & C. Railroad Co. v. Shaeffer, 9 P. F. Smith 350. In the Supreme Court of Pennsylvania-Harrisburg. COMMONWEALTH v. MATHES. (Vol. II., p. 50, 1854.) An indictment against a person for keeping an oyster cellar without license, under the Act of 12th April, 1851, need not set forth that the sales amount to more than $500 annually. ERROR to the Quarter Sessions of Lancaster County. This was a demurrer to an indictment by the defendant in error. The indictment alleged that the said Andrew Mathes, on the first day of January, A. D., 1853, did keep an oyster cellar without having obtained license, &c. The defendant demurred, because the indictment did not set forth that his sales amounted to more than $500 per annum. The Court below, Long, P. J., entered judgment for the defendant. The case was argued by John S. Thompson, District Attorney, for the Commonwealth, and by George W. Kline, for defendant in error. The opinion of the Court was delivered by LOWRIE, J.-We cannot support the judgment on the demurrer to this indictment, because we believe that those who keep oyster cellars, beer houses, &c., without having first obtained a license from the county treasurer, are guilty of a transgression of law, though their annual sales do not amount to $500. Let it be conceded that this is a casus omissus in the Act of |