Patchin v. Stroud

The opinion of the court was delivered, at the circuit session iff June, by Benñett, J.

The simple question raised on the bill of except tions seems to be this, (and it is the only one which we are balled Upon t'ó ievise,) and that is whether* in a case resting *395 upon prior possession, if fifteen years or more intervene betweeri any of the acts of possession, does that per se, and as matter of law, constitute an effectual bar against the plaintiff from availing himself of the first acts of possession, even though the jury should find ■ that in the meantime there had been no actual abandonment of the first possession. We apprehend it must always be a question of fact, whether a prior possession has been abandoned or not. Lapse of time, whether it be somewhat less or more than fifteen years, might go to the jury, as furnishing sorne evidence to pfiove an abandonment, but the weight of it would be to be judged of by the jury under the circumstances of each particular case, and if; on the whole, a presumption is to be drawn of an abandonment, it is a presumption of fact and not of law. It is in analogy to á case where a suit is brought upon á bond, and lapse of time is relied upon as a defense, it is not, in such case, relied upon as a technical bar, but is given in evidence under a plea of payment; and whether the presumption of payment, from lapse of time, has been rebutted, is a question for a jury, under proper instructions; in each particular case, as they arise. In the case before us, it was assumed by the court that the mere lapse of time was, in law, an abandonment of the first possession'; and of course there is nothing in the exceptions which require us, or render it proper, to lay down any rules, or give any instructions as to what facts might be material by way of rebutting an inference attempted to be drawn from lapse of time.

Judgment reversed and case remandedj