Nickle v. M'Farlane , 3 Watts 165 ( 1834 )

Per Curiam.

Presumptions from lapse of an undefined space, of time are natural, and such as generate belief by their own unassisted tendency; in which respect they differ from presumptions arising out of the lapse of a definite period — for instance, twenty years in analogy to the statute of limitations — which are artificial and generate a legal conclusion of the fact, that endures however but till it is disproved. Those of the latter class are mediate presumptions of law and fact, to be made through the medium of a jury, who are bound to draw the conclusion legally indicated, without regard to actual conviction of its truth. Those of the former class, on the other hand, are presumptions of mere fact, and fall exclusively within the province of the jury. 2 Stark. Ev. 681, 684. To these belong the presumption of payment from the lapse of less than twenty years in connexion with corroborating circumstances; and also the presumption of ouster from length of possession, as evidence of which the shortest period hitherto assumed as proper to be left to a jury is thirty-eight years. Now though there was abundant evidence to presume an ouster here, yet the conclusion was not one which the jury were bound, as instructed by the court, to draw; and in this particular the direction went too far.

Judgment reversed, and a venire de novo awarded.