residents but absentee citizens of this state. The privilege extended by the act of 1844, being to "all persons who reside beyond the limits of this state at the passage of this act," was consequently not a mere re-enactment of the savings of the act of 1839, which had been repealed by the act of the fourteenth of January, 1843, but was an enactment in favor of a different class of persons, that is, of persons "residing beyond the limits of this state," and therefore absentee citizens of this state are excluded from the provisions of this privilege, although embraced within the saving of the act of 1839. It is true this enactment is about the same subject-matter, so far as savings against the operation of the statute are concerned, but as absentee citizens of this state are excluded from the privilege of the act of 1844, a change of policy as to the persons to be saved is indicated. And as the description of persons embraced in the act of 1844 is sufficiently broad to include foreign corporations, and there is nothing repugnant, absurd, or unreasonable in their being placed, not in a condition of superiority, but of simple equality with other creditors who reside beyond the limits of this state, we see no reason at all for holding them excluded from the privilege of two years; and it is, therefore, our opinion, that they are fairly embraced within that provision.

This enactment in favor of persons residing beyond the limits of this state at the passage of the act of December 14, 1844, was not intended to revive causes of action that were at that time barred by any statute of limitations, the words "notwithstanding such suit or suits may be barred," having reference, not to the time of the passage of that act, but to the time within the period of the two years allowed, when any suit might be commenced; thereby, in legal effect, prolonging the time of limitation on any cause of action belonging to any non-resident, not barred at the passage of the act (but which would be otherwise barred in the regular running of the statute of limitations at any time between the passage of the act and the expiration of the period of two years), to the end of that period. One of the demands sued in this action was in the latter category. Maturing on the seventh of March, 1842, it would have been barred in the onward running of the statute in March, 1845, but the legal effect of the act of 1844, having, as to this claim, prolonged the time for commencing suit till the fourteenth of December, 1846, it was not barred at the commencement of this suit. The other demand, having matured in March, 1841, was barred in March, 1844, and, being unaffected by the act of De

cember, 1844, it remains barred. The court, therefore, erred in assessing the damages to the extent of the principal and interest of both demands instead of to an amount equal to that due upon the demand alone that matured in March, 1842.

The issue joined and tried by the jury, and found for the plaintiff below, was an immaterial one. There was no error in the ruling of the court excluding testimony, nor in allowing the evidence by the printed book, purporting, as it did, to have been published by authority: Dig., p. 490, sec. 2; nor was the evidence unnecessary, as it proved the powers and capacity of the corporation to contract, although its existence and capacity to sue were admitted by the plea. The burden to discredit the book was on the defendant below: Inhabitants of Raynham v. Canton, 3 Pick. 293; Alderman and Council v. Finley, 10 Ark. 423 [ante, p. 244], decided at the present term.

Let the judgment be reversed, and the cause remanded to be proceeded with.

FOREIGN CORPORATION NEED NOT AVER ITS LEGAL INCORPORATION in an action by it: Bennington Iron Co. v. Rutherford, 35 Am. Dec. 528; Lewis v. Bk. of Ky., 40 Id. 469, and cases cited in the notes to those decisions.

FOREIGN STATUTORY LAW, HOW PROVED: See White v. St. Guirons, 12 Am. Dec. 56; Biddis v. James, 6 Id. 456; Woodbridge v. Austin, 4 Id. 740; Hunter v. Fulcher, 16 Id. 738; State v. Twitty, 11 Id. 779; Canfield v. State, 1 Id. 71; Kenny v. Clarkson, 3 Id. 336.

ABSENCE NO EXCEPTION TO STATUTE OF LIMITATIONS, UNLESS EXPRESSED: See the note to Morgan v. Robinson, 13 Am. Dec. 366, discussing this subject.

APPLICATION OF STATUTE OF LIMITATIONS TO FOREIGN CORPORATIONS.— This subject was treated in the note to Moore v. Armstrong, 26 Am. Dec., at page 73. The conclusion there arrived at, that the provisos in statutes of limitations exempting from their operation persons beyond the limits of the state included foreign corporations, and that they stand on the same footing as other foreigners or absentees, has been repeatedly affirmed. Wood, in his work on the Limitation of Actions, section 250, says: "Foreign corporations, although having general agents and transacting business in a state, come within the provisions of those statutes which make a saving as to absent debtors; for although by comity they may transact business in another state, yet they are 'citizens,' so to speak, of the state under the laws of which they are created, and, except by comity, have no legal existence else. where, and consequently are 'absent,' within the meaning of the term as used in those statutes, from every state except the one in which they have their situs." The case of Olcott v. Tioga R. R. Co., 20 N. Y. 210, cited in 36 Am. Dec. 73, established the rule in New York, and Denio, J., after an able consideration of the question, decided that a foreign corporation sued in that state could not avail itself of the statute of limitations. This rule has been approved and followed by subsequent decisions in that state, and is now unquestionably settled: Mallory v. Tioga R. R. Co., 3 Keyes, 355; Thompson v. Tioga R. R. Co., 36 Barb. 79; Rathbun v. Northern Cent. R. R. Co., 50

N. Y. 656; Boardman v. Lake Shore & M. S. R. Co., 84 Id. 157; Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261; and it has been extended in that state to a foreign railroad corporation, although it has, for the time specified in the statute before the commencement of the suit, continuously operated a railroad in New York, and has property and managing officers therein: Boardman v. Lake Shore & M. S. R. Co., 84 N. Y. 157; Rathbun v. Northern Cent. R. R. Co., 50 Id. 656. But this extension of the rule has not obtained in other states. In Alabama it was held that a foreign corporation. having a known place of business in that state, and an authorized agent upon whom process could be served as required by constitutional provision (art. 14, sec. 4). may plead the statute of limitations in like manner as a domestic corporation or a resident citizen. Brickell, C. J., said: "The true test of the running of the statute of limitations is the liability of the party invoking its bar to the service of process during the whole of the period prescribed:" Hass v. Central R. R. & Banking Co., 66 Ala. 472. And in West Virginia, also, it was held that an insurance company chartered by another state, but which was doing business in that state under their state law, and under the Virginia law of 1855-6 as well, was to be considered, for the purpose of being sued, as domiciled in that state, although the withdrawal by such a company of its agent from the state, or its failure to appoint an agent there, is a departure from the state by the insurance company within the meaning of section 18 of chapter 104 of the code of West Virginia: Abell v. Pa. Mut. Life Ins. Co., 18 W. Va. 400. And in Bank of U. S. v. McKenzie, 2 Brock. 393, the New York extension of the rule was not adhered to. In that case a note was discounted at the branch bank of the United States at Richmond, and after it arrived at maturity it was regularly protested for non-payment. An action on the case being brought by the bank against the indorser to recover the amount of the note more than five years from the date of the protest, the defendant pleaded the statute of limitations. Marshall, C. J., held that the right of action was barred by the lapse of time, the plaintiff not being, in the sense of the saving of the act, "beyond the seas or out of the country;" the contract having been made in Richmond, in their banking-house there, between the president and directors of the branch bank and the defendant, the fact of there being an office of discount and deposit of the Bank of the United States in Richmond, and of the residence of the president and directors being fixed there, must be considered with reference to this contract, as fixing the residence of the corporation itself in Richmond, and not in Philadelphia, so far as the saving of the act applied to the locality of the plaintiffs. But where the statute enacts that a defendant's absence from the state will prevent its running, but that "in the case of a foreign corporation, if it has a managing agent in the state, service of the writ may be made on him," on a question of fact arising in a suit brought more than five years after the cause of action had accrued, whether the defendant did or did not have a managing agent for the state prior to the time when the suit was brought, it is proper to charge that the time during which the plaintiff was disabled from suing by reason of the defendant having no managing agent in this state, is not to be counted as part of the five years' limitation period: Express Co. v. Ware, 20 Wall. 543.

The decisions of state courts upon the construction of statutes of limitations are binding upon the United States courts, and the New York cases and rule were followed in Tioga R. R. v. Blossburg & Corning R. R., 20 Wall 137; S. C., 5 Blatch. 387. Hall, J., in 5 Blatch. 392, commenting upon the case of Olcott v. The Tioga R. R. Co., 20 N. Y. 210, supra, said, this case "must be considered as establishing the true construction of the statutory

AM. DEC. VOL. LII-17

provisions upon which the question under discussion depends. The decision was made without dissent, by the whole bench of the court of appeals, after a most able and exhaustive argument, and after ample time for deliberation. A very elaborate opinion was delivered by one of the ablest judges of that court, and it has been before the profession and the public for more than seven years, during which many provisions of the code have been frequently modified by the legislature, without the adoption or declaration, by the legis lature or the court of appeals, of any rules of limitation, in respect to foreign corporations, different from those thus established by the court of appeals in Olcott v. Tioga R. R. Co. It is not only the settled law of the state, as declared by its highest court, but it commends itself to our judgment, as declaring the correct construction of the statute under consideration."

BIVINS v. MCELROY.

[11 ARKANSAS, 23.]

PAROL ADMISSION OF PARTY IS COMPETENT EVIDENCE only of those facts which may lawfully be established by parol evidence. It can not be received, either to contradict documentary proof, or to supply the place of evidence existing by matter of record.

IN TRESPASS QUARE CLAUSUM FREGIT, DEFENDANT'S PAROL ADMISSION OF PLAINTIFF'S TITLE is not admissible to prove his title, where the plaintiff relies upon his title, and not his possession, to sustain the action, but introduces no record evidence of it, and offers the defendant's parol admission to supply its place.

THERE CAN BE BUT ONE FINAL JUDGMENT in an action of trespass quare clausum fregit against several defendants; and if some of them should make default, and an interlocutory judgment be rendered against them, it is erroneous to render judgment against those who appear and contest. the action, without embracing the defaulting defendants.

TRESPASS quare clausum fregit against the Bivinses and others, for entering plaintiff's close, carrying off his rails, etc. Several defendants made default, and the court rendered an interlocutory judgment against them, and ordered a writ of inquiry to issue. The other defendants appeared and defended. After a trial of the cause, verdict and final judgment were rendered against those who appeared and defended, but no further action against the defaulting defendants was taken. The defendants, against whom final judgment had been rendered, appealed from an order denying a motion for a new trial. The opinion of the court states the points reserved by the defendants.

Baldwin, for the appellants.

By Court, JOHNSON, C. J. The point first to be determined, relates to the competency of the testimony to sustain the allegations in the declaration. The plaintiff below made no pretense

of actual possession of the close which he charged to have been broken by the defendants, and consequently he relied alone upon his title, by which to draw to him such a constructive possession as would enable him to maintain the action. This he attempted to show, not by the certificate of entry, or any other record evidence, but simply by parol. It was testified upon the trial that John Bivins, one of the defendants, admitted that the plaintiff had entered the land from which the rails had been removed. This admission of John Bivins was the only evidence offered tending, in the slightest degree, to establish title in the plaintiff.

The parol admission of a party, made in pais, is competent evidence only of those facts, which may lawfully be established by parol evidence. It can not be received either to contradict documentary proof, or to supply the place of existing evidence by matter of record. Thus, a written receipt of money from one as the agent of a corporation, or even an express admission of indebtedness to the corporation itself, is not competent proof of the legal authority and capacity of the corporation to act as such: See 1 Greenl. Ev., 2d ed., 243; Welland Canal Co. v. Hathaway, 8 Wend. 480 [24 Am. Dec. 51]; National Bank of St. Charles v. De Bernales, 1 Car. & P. 569; Jenner v. Joliffe, 6 Johns. 9. Nor is a parol admission of having been discharged under an insolvent act sufficient proof of that fact without the production of the record: See Scott v. Clare, 3 Camp. 236; Summerset v. Adamson, 1 Bing. 73. It was held in the case of Abbot et al., Assignees of Farr, a Bankrupt, v. Plumbe, 1 Doug. 216, 217, that in an action on a bond, or to prove a petitioning creditor's debt, which arose by bond, proof of the acknowledg ment of the obligor did not supersede the necessity of calling the subscribing witness. Lord Mansfield said: "To be sure that is a captious objection; but it is a technical rule, that the subscribing witness must be produced, and it can not be dispensed with, unless it appear that his attendance could not be procured. It was doubted formerly whether, if the subscribing witness denies the deed, you can call other witnesses to prove it; but it was determined by Sir Joseph Jekyl, in a cause which came before him at Chester, that in such case other witnesses may be examined, and it has often been done since." Ashurst, J., said: "If the evidence of the subscribing witness were to be dispensed with by this confession of the bankrupt, the defendant would be deprived of the benefit of cross-examining him concerning the time of the execution of the bond, which might be