¶1 after stating the case. The defendants were *5 in our opinion entitled to the instruction asked, that there was no evidence upon which the jury could find the credit entered before the presumption, and thus render it competent proof of actual part payment then made, and there was error in refusing it. The law governing the case is well settled in this state by the adjudications in Williams v. Alexander, 6 Jones, 137, and Woodhouse v. Simmons, 73 N. C., 30, cited in the argument for the plaintiffs, and in Grant v. Burgwyn, 84 N. C., 560.
¶2 It is equally well settled that it is controlled by the former statute of limitations and is not affected by any provisions of the new. C. C. P., § 16. Johnson v. Parker, 79 N. C., 475; Blue v. Gilchrist, 84 N. C., 239, and numerous references in the notes to section 16 in Tourgee’s Code and his Statutory Adjudications.
¶3 There is error and must be a new trial, and it is so ordered. Let this be certified.
¶4 Error.. Venire de novo,