Holbrook and Archer, Assignees, vs. Allen.-Opinion of Court. It is true, that if the subject matter of this case was not within our jurisdiction, we should be bound to notice it, though the party were thus estopped by their own consent from raising the objection, but we do not so consider it. The maxim that consent will not give jurisdiction, is misunderstood, if it is supposed to mean that none of the forms prescribed as the ordinary mode of prosecuting appeals, may be waived by consent. The Supreme Court cannot take original jurisdiction, even by the consent of the parties, but they can hear and determine an appeal from a final judgment of the Circuit Court, either when brought up regularly, according to certain prescribed forms, or when those mere forms are dispensed with by agreement. In 1st Florida Reports, 271, the Chief Justice, delivering the opinion of the court, says: "The correct rule in the cases tried by the court, sitting as a jury, would seem to be, that, where facts alone are submitted, and the court has only to weigh the evidence and determine accordingly, no writ of error lies; and where mixed questions of law and fact are presented to the court for its decision, no writ of error lies, unless the court is called upon to decide questions of law, or such questions of law arise necessarily out of the facts, and are distinctly presented to the court upon them, so that the decision of the points of law will decide the merits of the cause, and the decision of the court is wrong." In this case, such was the fact, and the submission of the agreed facts to the court for its judgment on the law, was precisely equivalent to a demurrer to the evidence. The same rule is sanctioned in the case of the Southern Life Insurance and Trust Company v. Gray, 3d Florida Reports, 262. 5th Cranch, 358. 3d Cranch, 174. The petition for a rehearing must be denied. Porter, Executrix, vs. Ferguson.-Statement of Case. MARY ANN PORTER, EXECUTRIX, APPELLANT, V. GEORGE W. FERGUSON, APPELLEE. The declaration of a party, made at the time of transaction, and expressive of its character, motive, or object, are indicative of a present purpose and intention, and are admissible in proof, like any other material facts. Letters written and sent by a principal to his factor, with the goods consigned to his care, are indicative of the purpose and intention of the principal in regard to them, and are admissible in evidence, to show the instructions and orders given to the factor, or agent. An instruction or charge given by the court, which has nothing to do with the issue produced by the peadings, is erroneous. The jury should respond or charge, to the issue of fact made by the pleadings. An instruction therefore, which is outside the case, having a tendency to mislead or divert the minds of the jury from the true matter in controversy, is good ground of reversal. Appeal from a judgment of the Circuit Court of Monroe county. This was an action of assumpsit, brought by the appellee, George W. Ferguson, against the appellant, executrix of Joseph Y. Porter, and was tried at the Fall term of the court, in the year 1850, HON. JOSEPH B. LANCASTER, Judge of the Southern Circuit, presiding. The declaration sets forth an alleged verbal agreement between Ferguson and Porter, by which the former undertook to make and send, from time to time, the latter, who was a merchant at Key West, arrow root, for shipment thence to New Orleans; and a promise, on the part of Porter, to receive the arrow root, and ship it to the port of New Orleans, for sale in that market, for and on account of Ferguson. The declaration then avers that plaintiff, in compliance with his agreement, sent to Porter seventeen hundred and twenty-five pounds of arrow root, worth $140, Porter, Executrix, vs. Ferguson.-Statement of Case. which was received by him, but which, contrary to his agreement, he shipped to Charleston, in the Fall of 1846, and that it was lost at sea. By reason whereof, the defendant became liable to pay to plaintiff the value of the said arrow root. The defendant pleaded non assumpsit. At the trial of the cause in the court below, the plaintiff introduced Thomas J. Ferguson as a witness, who was sworn, and deposed to the contract, as laid in the declaration. On the part of the defendant, John W. Porter, who was a clerk at the time of the alleged contract of defendant's testator, being sworn. as a witness, contradicted in every important particular the testimony of plaintiff's witness.According to the testimony of J. W. Porter, it appeared that defendant's testator undertook to make advances, and did make advances, upon arrow root sent to him by Ferguson, and that the agreement between them was, that Porter was to take the complete management and control of the arrow root-sell it in any manner he might think proper, and to the best advantage, and ship it, if he pleased to do so, from Key West to any port where he might deem it expedient to sell it, or which he might think best for plaintiff's interest; and that, in the exercise of the discretionary power which he had under the agreement, he shipped the arrow root in question to Charleston, hearing that it was a better market than New Orleans at that time. There was no other material or important evidence introduced or offered on the trial of the cause in the Court below. The Court gave instructions, which presented the true issue to the jury; but, at the request of the counsel for plaintiff, the following instruction in substance was also given, viz: "If the jury believe from the testimony, that it was the usage of trade for consignees for shipment at Key Porter, Executrix, vs. Ferguson.-Opinion of Court. West to insure on goods of others sent to them for shipment, without instructions as to insurance, and that J. Y. Porter shipped the arrow root in question without insuring it, and it was lost at sea, he was liable for the loss, and they ought to find for plaintiff." To this charge, defendant's counsel excepted; and this instruction (among other errors alleged to have been committed by the court below on the trial of the cause, all of which are noticed in the opinion of this Court,) is assigned for error. Verdict and judgment for plaintiff in the court below. Towle & Papy, for Appellee. THOMPSON, Justice, delivered the opinion of the Court. Several grounds of error are assigned upon the transcript of the record of the proceedings and judgment in this cause, which will be noticed in their order. 1. The first error assigned is upon the admission of the affidavit of the respondent, to prove the loss and destruction of certain original letters of Porter, the testator of appellant, so as to let in secondary evidence thereof. This point was very properly surrendered and abandoned by the counsel for appellant on the argument here. The affidavit of a party, as to the loss of a deed, document, or other writing, after evidence of the existence thereof by other testimony, is clearly admissible. 1st Greenleaf on evidence, Secs. 349, 558, and authorities cited in the margin. 2. The second error assigned is founded upon the exception taken at the trial to the introduction of the letters of respondent to Porter, which were produced by the appellant under a rule, and offered in evidence by the respondent. These letters appear to have been written at the opening, and during the continuance of the correspondence between accompanied the respective consignments of the goods as the parties as principal and factor, and which seem to have Porter, Executrix, vs. Ferguson.-Opinion of Court. they were, from time to time, made. The declarations of a party, made at the time of a transaction, and expressive of its character, motive, or object, are regarded as verbal acts, indicating a present purpose and intention, and, therefore, admitted in proof, like any other material facts. 1st Greenleaf on Evidence, $108. These letters are to be considered as a part of the res gestae, having been written and sent by the principal to the factor, with the goods consigned to his care, and are indicative of the purpose and intention of the principal in regard thereto. They are the instructions and directions of the owner of the property to the factor, his agent, and if they are not proper evidence, it is difficult to conceive how a factor could ever be made responsible to his principal for a deviation from the orders given. It is true, they are not conclusive evidence, for the factor may have refused to receive the consignment under the instructions, or may have insisted on some modification, or alteration thereof; but this is for him to show. Upon every point of view, the testimony was properly received, and this exception is overruled. 3. The third assignment of error is upon the exception taken at the trial to allow question to be put to the witness, John W. Porter. This witness was introduced for the purpose of impeaching the credit of Thomas J. Ferguson, the witness for the plaintiff below; and the question propounded was, "Have you the means of knowing the general character of Thomas J. Ferguson, and if yea, from such knowledge, would you believe him upon oath ?" The question being objected to by plaintiff's counsel, was ruled to be improper, and disallowed by the court. In the English Courts, the practice is, to propound the question to the impeaching witness, in the precise terms employed in the questions asked of the witness here, and involving in its scope the entire moral character of the person in question. See Phillips on Evidence, 292. Mr. Greenleaf, |