“ 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 j 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 *321was 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.”