The evidence, offered by the defendant, of statements and declarations made by him at the time when he delivered to the witness the promissory note which the latter had given to the plaintiff’s intestate, was properly rejected. Nothing which was said by him on that occasion constituted any part of the act of delivery, or had any tendency to illustrate, characterize or explain it. On the contrary, the account which he gave of the manner in which he became possessed of the note was a mere narrative of a past transaction; and there was therefore no ground for holding it to be admissible as forming a part of the res gestw.
The testimony of the president of the Lancaster Bank in relation to the facts which the defendant proposed to prove by him does not appear to have been objected to. It was clearly admissible and ought to have been received, and therefore the question of fact involved in the issue should have been submitted to the jury to be determined by them. Many of the facts and circumstances proved, and offered to be proved, by the defendant, had a tendency to show that at the date of the note declared on he was no otherwise indebted to the plaintiff’s intestate than as he then took upon himself the payment of the note which had been previously given by his son; and that it was for this purpose only that he successively wrote and signed the note now in suit, and the note which was discounted and paid at the Lancaster Bank. If it is true that each of them was made on no other account, and for no other object, and upon no other consideration than this, there can be no pretence for saying that the payee is entitled to receive the contents of both. The payment of the note at the Lancaster Bank was, upon that assumption, a full and complete discharge of the entire indebtedness of the defendant, and the payee held the other note without having given or offered any consideration therefor. Of course he could not in such case maintain an action upon it. But this was the very point in controversy between the parties, and the precise question of fact involved in the issue to be tried. It was therefore to be submitted to the jury. And *250it was clearly within their province to deduce the inferences which were to be drawn from all the facts proved at the trial. And if, in view of the whole evidence laid before them, including both that which was actually produced and that also which was tendered and offered by the defendant, they should have found that the note declared on was given without consideration, and should accordingly have returned a verdict for the defendant, we are by no means prepared to say that their conclusion would have been so obviously and clearly erroneous as to have made it the duty of the court to interpose and set aside their verdict. For these reasons the defendant has good cause of exception to the ruling of the presiding judge in the court below, his objections thereto must be sustained, and a new trial granted. Exceptions sustained.