
    N. Davis vs. John M. Verdier.
    IVlicrc the agent of the plaintiff called on the defendant for payment of an account, within the four years, who admitted that he had bought the goods charged, but staled at the same time that he had paid for them by an order on a third person, and said that he would produce the receipt ; and the impression on the mind of the witness was, that the defendant intended to pay the amount if he could not produce the receipt, which he never did ; the Constitutional court refused to set aside a decree of the Circuit court in favor of the plaintiff, as the acknowledgment was sufficient to prevent the effects of the «taiirte 
    
    
      Summary Process on open account for a set of harness sold in 1815; price 060, to which the statute of limitations was pleade.d*
    
      Gresham Smyih testified that the defendant admitted that he had bought a set of harness from the plaintiff, but stated at the same time that he had paid for it by an order drawn on the house of Graves cs? Son, in Charleston, and the defendant said he would produce to Smyth the receipt. The application by Smyth, as the agent of the plaintiff to the defendant, was made previous to the expiration of four years from the credit given ; and the impression left on the mind of Smyth was, that the defendant intended to pay the bill, if he did not produce the receipt, though no expression of that kind ivas made. Smyth. also proved that had not the defendant stated that he had paid the order, and would produce the receipt, he, Smy th, would have put the account in suit previously to the expiration of four years.
    Upon this evidence, Mr. Justice Gantt, who presided, gave a decree for the plaintiff.
    The present motion was to reverse that decree on the ground, that the presiding Judge mistook the law in deciding that the acknowledgment of the defendant was sufficient to take the case out of the statute of limitations.
    
      
      
         See Burden vs. McElhenny, (2 Nott & McCord, 60.)— Ex’ors. of Boyd vs. Ex'ors. of Carmichael, (Do. 62;) and authorities there referred to. — R.
    
   Mr. Justice Gantt

delivered the opinion of the court.

It appears from the evidence, that when Smyth, the Ugent of Davis, the plaintiff, demanded payment of the account from the defendant, the four years had not expired, and that the present action was instituted within four years from that time. The defendant said he had paid the account, and would produce the evidence of the fact to the agent. Had the case been barred before by the- lapse of time,this acknowledgment would have been sufficient to take the case but of the statute relied on. But here the statute does not apply; the case never was barred. The defendant omitted to produce the evidence of payment at any time, either before or at the trial. The court are of opinion that the statute of limitations cannot avail the defendant, and that the decree was justified by the evidence which the trial furnished, and the law arising thereon.

Justices Bay, Nott, Cohock, Johnson and Richardson, concurred.  