¶1delivered the opinion of the court.
¶2It 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 *322opinion 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.