¶1— It is difficult to see what the act of 1797, to limit the duration of decedents’ debts, had to do with a question of presumptive payment raised by lapse of time, or what the jury had to do with the interpretation of the rule of presumption. It was the business of the court to interpret it, and for the jury to apply it thus interpreted to the evidence. The material question raised by the assignment of error is, whether the mere poverty or insolvency of the defendant was sufficient to rebut the presumption, from the lapse of twenty years. The cases quoted on the part of the plaintiff in error show that neither the one nor the other can do so, unless it be such as to have created an abiding inability to pay during all the time. A man may be poor or insolvent, and yet contrive to pay a debt in twenty years. Whilaume v. Gorges is much stronger in circumstances of extreme destitution than-the case before us, yet Lord Ellenborough held that the presumption of payment *227was not rebutted by them. And Fladon v. Winter is consistent with it. A debtor doubtless cannot pay when he has neither the means nor an opportunity to pay; but that was not the case here. The defendant had ample opportunity; and, though poor, the proof is that he was not all along entirely destitute, though he died so. For error, therefore, in directing that insolvency or poverty alone might rebut the presumption, the cause must be sent to another jury.
¶2Judgment reversed, and a venire de novo awarded.