
    *Holladay, Executor of Littlepage, v. Littlepage.
    Wednesday, June 19th, 1811.
    i. Statute of Limitations — Suspension of — Agreement of Parties. — A mutual understanding and agreement between a debtor and creditor, that suit shall not be brought upon an account until the debtor shall have gone to Europe, and returned, is a good bar to the act of limitations during his absence from this country, and may be given in evidence to ‘prevent the court’s expunging from such account items appearing to have been due five years before his death.
    2. Evidence — Parol Acknowledgment of Receipt of Honey. — Proof of a p.arol acknowledgment by a third person that he received a sum of money from-the plaintiff for the defendant’s use, may with propriety be left to the jury, as a link in the chain of circumstances; such acknowledgment having1 been made at or about a time when the defendant, or some person for him, must have paid the money in-question; and by a person competent to charge himself by an ordinary receipt. But the death of such person is not sufficient ground for admitting the evidence.
    John Carter Littlepage brought an action of assumpsit against Walter Holladay, executor of Lewis Littlepage, founded upon an account against the testator. At the trial upon the general issue, the plaintiff adduced evidence to prove sundry ite'ms bearing date prior to the year 1785. In that year, the testator made his will, and it was proved by witnesses that he acknowledged a power of attorney at the same time, authorizing the plaintiff to sell his reversionary interest in sundry slaves, which his mother held for life ; and, out of the proceeds of such sale, to pay himself the amount of an unsettled account ; without mentioning the sum. The mother was living at the time of the trial. After those items of debit had accrued, the testator went to Europe, and did not return until 1801. He died in 1802, and this suit was brought in the following year ; no suit having been before instituted. The defendant moved the court to instruct the jury to disregard all the testimony offered by the plaintiff, in support of such items of the said account as were due five years before the testator’s death, and to consider such items as expunged, according to the 56th section of the act concerning executors, &c.  but the court instructed the jury that that act was inapplicable to this case; to which opinion the defendant excepted.
    The plaintiff moreover offered in evidence the deposition of Francis Irvine, stating, among other things, that, in a conversation with Mr. Haywood, the owner, and Captain Meridith, the master of the ship in which the testator went to Europe, they both said that the plaintiff had paid the said Lewis’s passage. The defendant *moved for an instruction that this part of the deposition was inadmissible testimony; but the court refused to give such instruction, “the captain being dead whereupon a second bill of exception was filed. A verdict was found, and judgment rendered, for the plaintiff ; from which the defendant appealed.
    Botts and Wickham, for the appellant.
    Williams and Wirt, for the appellee.
    For the appellant it was insisted, 1. That the district court erred in the opinion that the 56th section of the law concerning executors was inapplicable.
    2. That even the act of limitations would have been a bar; for, having begun to run, it could not stop upon the embarkation of Lewis Littlepage for Europe. The absence of a defendant is not within the saving of the statute, where he goes away openly, and with the knowledge of the plaintiff, hut only where he absconds or conceals himself, or, by removal out of the country, &c. when the cause of action accrued, defeats or obstructs the plaintiff from bringing his action. A •debtor’s going away publicly, after giving notice to his creditor, does not obstruct his suing him, but gives full opportunity and warning to stop him by a writ.
    The power of attorney from Lewis Little-page to the plaintiff could not operate upon the cause. If it was a reacknowledgment of the debt, it ought to have been declared upon, if under seal; and if not, the act of limitations runs against it. Neither is its existence legally proved, since it is not produced ; and there is no proof of its loss, nor that it ever was delivered. But if it were properly authenticated, it would afford a presumption that the debt has been paid ; as the plaintiff, by virtue of the power, had sufficient funds in his hands.
    3. There was error in the instruction respecting the ^payment of the passage-money. The court admitted hearsay evidence of what the captain of the vessel had said; and this on the ground that the ■captain was dead. But the witness said he heard the owner say the same thing, and he was alive. Hearsay evidence is admissible only as to question of boundary, pedigree, and the like, but not as to substantive facts which may be proved by the oath of the person whose words are relied upon. Even a receipt of a third person to one of the parties to a suit, is not as satisfactory as the testimony of the person who signed it ; because he may, in fact, have received no money. But a receipt is better evidence than a mere hearsay declaration ; and that, at least, ought to have been produced.
    On the other side, the case of Brooke’s Administrators v. Shelly, 4 H. & M. 266, was relied upon to show that, imperative as the language of the 56th section of the law concerning executors is, there may be exceptions to it, so as to let in the circumstances of the case, and prevent the court from expunging. The circumstances here are that, when Lewis Littlepage was on the wing for Europe he execrated a power of attorney, acknowledging the debt to the plaintiff. This was ■equivalent to a new assumpsit, and took away all the preceding years. It looked also, prospectively, to the whole time during which the plaiutiff was to be his agent, that is, until the death of his mother ; and, therefore, prevented the act of limitations from running during all that time. The court ought not to look merely at the letter of the ■expunging act, but at its intention and spirit. These apply to cases only where the plaintiff had it in his power to sue ; but here, the agreement certainly was, that Lewis Little-page was to be permitted to leave the country without molestation. The power of attorney was executed at the moment of his departure, to take effect afterwards, and while he was gone, the suit could not have been brought.
    *As to the point that the power should have been produced ; the exception was not taken on that ground. For any thing that appears, the instrument itself may have been before the court and jury ; for it is not said, in the bill of exceptions, that all the evidence is inserted.
    2. The testimony relative to the declarations of the captain and owner was properly admitted, as part of the chain of proof, though not sufficient, in itself, if standing alone. The captain being dead, his receipt would have been good to prove payment of the passage-money, and his confession is equivalent to his receipt.
    Argument in reply. According to the argument on the other side, the act of limitations is to be moulded according to the court’s ideas of equity ! Such latitude of construction is not admissible. It has repeatedly been decided in England that the courts cannot make exceptions to the act; and that, if the saving in favour of infants, femes coverts, &c. had not been inserted, the courts could not have supplied it. There never was a stronger case for applying the act than this. When Lewis Little-page was going to Europe, why did not John Carter Littlepage (his brother) get his obligation for the money ? No demand is made after his return. There is every presumption, therefore, that this business was settled. A bond was given, perhaps, and afterwards taken in and destroyed.
    The decision in Brooke’s Administrators v. Shelly, only shows that where a new assumpsit, sufficient of itself to bear an action, is proved, the account is out of the question. But the new assumpsit must be complete, and sufficient to bear an action. Here, the power of attorney acknowledged only an unliquidated balance, and moreover does not appear to have been delivered. If it was, it ought to have been produced ; for corroborative testimony is not proper until the principal voucher is exhibited. Its non-production is plain proof that it never *was delivered. The inference is, that it was only an inchoate act, and that the debt was settled in some other way.
    The district court erred in another respect. It took upon itself to determine the weight of evidence, and decided on facts, without leaving it to the jury to judge of the credibility of the witnesses. Keel & Boberts v. Herbert, 1 Wash. 203, is exactly the case at bar.
    Wirt. That case is not applicable to this. The act requiring the court to expunge the items, necessarily confers on the court the power of judging of fact as well as law, for the purpose of determining whether each particular case comes within its scope ; and, to form this judgment, they must weigh the evidence.
    
      
       Statute of Limitations. — See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
       Evldence. — See monographic note on “Evidence” appended to Lee v. Tapscott, 8 Wash. 276.
    
    
      
       Rev. Code, v. 1, p. 167.
    
    
      
       Act of Limitations, s. 14, Rev. Code, v. 1, p. 109.
    
   April 6th. The president pronounced the following opinion of the court :

“The court is of opinion, that the testator of the appellant and the appellee having come to an understanding, and agreement, respecting the matters in controversy in this cause, in the year 1785, whereby it was plainly understood and agreed, between the said parties, that suit was not then to be brought thereupon, but that the said testator should be permitted to go to Europe, which he accordingly did, about the time aforesaid, with the privity and assent of the appellee, no suit could properly have been brought at that time, nor until the said testator’s return to this country, which happened in the year 1801; and the present suit having been instituted within a short time thereafter ; and the absence aforesaid forming a good bar to the limitation of time relied on by the appellant, under the act in this case provided ; the court is of opinion that there is no error in the instruction of the district court, contained in the first bill of exceptions.

“As to the other instruction objected to ; the court below having only decided that the testimony objected to *was admissible evidence ; the acknowledgments in question having been made at or about the time of the said testator’s sailing for Europe, and being the admissions of those who were competent to charge themselves with the receipt of the passage-money, by an ordinary receipt or acquittance ; the court is of opinion that the said testimony, on these grounds, and not on that assigned by the court below, was properly received by that court; and that the judgment of the said court be affirmed.”  