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Mackay, Advocate. Two volumes, royal 8vo. £3, 12s. Murray's Notaries Public. The Law Relating to Notaries Public, with Forms of Instruments. By J. C. Murray. 8vo. 12s. Campbell's Mercantile Law. Principles of Mercantile Law in the Subjects of Bankruptcy. Cautionary Obligations, Securities over Moveables, Principal and at, Partnership, and the Companies Acts. By EL \ aky CAMPBELL, Advocate. Second Edition, revised and enlarged. 8vo. 12s. Trayner's Maxims. Latin Maxims and Phrases. Collected from the Institutional Writers on the Law of Scotland and other Sources. By Johh Tkaynku, one of the Senators of tin- College .if Justice. Third Edition. 8vo. 21s. A HANDBOOK OF PRESCRIPTION A HANDBOOK OF PRESCRIPTION ACCORDING TO THE LAW OF SCOTLAND BY J. H. MILLAR EDINBURGH WILLIAM GREEN AND SONS 31 a to JDubligljcrtf 1 893 4M p t - 2-Co THE RIGHT HONOURABLE LORD MONCREIFF SOMETIME LORD JUSTICE-CLERK P 11 EFACE This little volume is based throughout upon the late Mr. Napier's copious and exhaustive Commentaries on the Lew oj Prescription, a work which must always be valuable as a repository of profound learning and ingenious argument, but which would, perhaps, have possessed greater practical utility had it been somewhat less diffuse. Many cases bearing upon the subject of Prescription have been decided during the forty years that have elapsed since Mr. Napier's book was published; and to most of these it is hoped that reference will be found in the following pages. The accepted sources of doctrine and information have, of course, been freely drawn upon, and need not here be particu- larised. I am bound, however, to pay a special acknowledgment to that portion of his great work on Landowners!^ in which Mr. Kankine has treated of the Positive Prescription. 1 have also to record my unfeigned gratitude to my friends Mr. Baillie and Mr. Blackburn for their kindness in undertaking, and their, diligence in performing, the task of verifying the references ; as well as for offering many valuable suggestions. It need scarcely be said that for all errors the author alone is responsible. ''• "■• ™-' 1st October 1S93. CONTENTS List of Cases cited, ..... xviii List of Statutes quoted and referred to, . . xxxvi PART I THE LONG PRESCRIPTION CHAPTER I THE STATUTES INTRODUCING PRESCRIPTION What Prescription is, Act 1469, c. 28, Act 1474, c. 54, These not applicable to Heritage, Act 1594, c. 218, CHAPTER II THE ACTS 1617, c. 12; AND 37 AND 38 VICT. C. 94 Act 1617, c. 12, 37 and 38 Vict. c. 94, § 34, . Positive and Negative Prescription, . CHAPTER III OF THE POSITIVE PRESCRIPTION Its Functions, . Its Conditions : Title and Possession, Good Faith not required, But the conditions must coincide, PAGE 1 ib. 2 ib. 3 :» ib. L2 ib. CONTENTS CHAPTER IV OF THE PRESCRIPTIVE TITLE Alternative Titles allowed by the Act, (1) Charter and Sasine, (2) Sasine proceeding on Eetours, etc., . The Production must be ex facie Valid, The Sasine must be Registered, ' Falsehood ' an Intrinsic Nullity, Changes in the Law, .... Burgage Tenure abolished by 37 and 38 Vict. c. 94, § 25, Registration of the Deed or of Notarial Instrument equivalent to Infeftment by 31 and 32 Vict. c. 101, . Provision of 37 and 38 Vict. c. 94, § 34, Adjudication as a Title for Prescription, Prescription runs from Expiry of the Legal, . Not from Date of Infeftment on the Adjudication, Adjudication not an ' ex facie Valid Irredeemable Title ' in sense of 37 and 38 Vict, c. 94, § 34, . 14 ib. 15 17 18 ib. 19 ib. ib. 20 21 22 23 CHAPTER V OF PRESCRIPTIVE POSSESSION Title must be clothed with Possession, And Possession must be referable to Title, ' Part and Pertinent,' . Possession as determining a Right, . And as interpreting — Crown Grants, Barony Titles, and Base Rights to Regal in. . Charters to Burghs, . Explained by Use, The Right claimed must be consistent with the Titl Bounding Charters, . Possession must be Full, Unequivocal, and Specific, Continuous, Peaceable, and Exclusive, Forty Years formerly necessary, Twenty Years now sufficient, 24 ib. 25 27 28 ib. 29 30 31 33 34 35 36 38 39 CONTEXTS \i Possession either Natural or Civil, Wadsetter and Reverser, Landlord and Tenant, . Superior and Vassal, . Liferent er and Fiar, . Conjunction of Possession, Vesting by Survivance, 40 ib ib. 41 42 H 16 CHAPTER VI OF PRESCRIPTION IN CASES OF DOUBLE TITLE Two Titles in One Person, . Innes of Auchl uncart, . The Mackerston Case, . More modern Cases, . In all these Cases there is Adversity of Interest, Cases where there is no Adversity of Interest, Smith and Bogle, . . ■ ■ ■ Elsieshielh Case, ..■••• Panmure Leases Case, as illustrating doctrine of Double Title, Ascription of Possession, . • Prescriptive Consolidation,' . Elibank v. Campbell, . Earl of Glasgow v. Boyle, Walker v. Grieve, ■ ■ ■ ■ 47 ib. 48 4!) 50 51 52 ib. 53 55 57 ib. 58 ib. CHAPTER VII OF THE EXTENDED APPLICATION OF THE ACT L617, C, Leases, ■ Teinds, . Title and Possession in Teinds, Patronage, . Servitudes, . Servitudes as enjoyed by Burghs, Possession of a Servitude must be Unequivocal, Thirlage, 61 63 ci 66 67 68 69 70 CONTENTS CHAPTER VIII OF PRESCRIPTION OF CERTAIN RIGHTS INDEPENDENT OF THE STATUTE, AND IN PARTICULAR OF PUBLIC RIGHT-OF-WAY Immemorial Possession without Title, Prescription at Common Law, Public Kight-of-Way, Theory of Implied Grant unnecessary, Conditions of Possession, Entry and Ish at Public Places. Definite Track, Possession the Measure of the Right. . Must continue for Forty Years, The Solum belongs to the Proprietor, CHAPTER IX OF THE NEGATIVE PRESCRIPTION It totally extinguishes certain Rights, But not Rights of Property, . Rights of Action distinct from Rights of Property, Res Merae Facultatis, Servitudes not Res Merae Facultatis, . Rights affected by the Statutes, Duke of Buccleuch v. Officers of State, Application of the Negative Prescription to Teinds, Rights of Heritors inter se, Reversions, Terminus a quo, Warrandice, . Effect of Partial Eviction, CHAPTER X OF EXCEPTIONS AND REPLIES TO THE STATUTE 1. Non Valens Agere, Not a valid reply to the Positive Prescription, But unquestionably so against the Negative,- Though strictly Equitable and not Statutory, . Non valens agere vi major e, CONTENTS Xlll 2. Mental Disability, . :!. Minority, . Bargany case, 37 and 38 Vict. c. 94, § 34 4. Ex facie Nullity, . 5. Falsehood, . fi. Interruption, Of Positive Prescription, Of Negative Prescription, Judicial : (1) By Citation, (2) By Action, . (3) By Diligence, Extra-Judicial, Hay v. King's Advocate, . Diligence by, or Acknowledgment Partial Interruptions, In Annual Rents, etc., And Adjudications, to, Putative Creditor, 102 103 1"! 106 ib. ib. 107 ib. 108 ib. ib. 109 ib. ib. 112 113 ib. ib. Art 1579, c. 81, Act 1579, c. 82, Art 1579, c. 83 PART II THE SH0BT PRESCRIPTIONS CHAPTER XI OF THE TRIENNIAL PRESCRIPTION § 1. SPUILZIKS AND EJECTIONS £ 2. REMOVINGS ^ 3. CERTAIN C \' BES OF DEBT I 15 n<; I If CONTENTS ij 4. OPERATION AXD EFFECT OF THE STATUTE 8 Confined to Mode of Proof, What is Pursuit 1 Broad Interpretation of the Statute, Procedure after the Three Years, Leslie v. Mollison, Cullen v. Smeal, 'Eliding' Prescription, Minority, § 5. DEBTS AFFECTED BY THE STATUTE I. House-maills, II. ' Mennis Ordinars : III. Servants' Wages, IV. 'Merchants' Accounts, . V. Other the Like Debts, . Debts not affected by the Statute, Employment must be in Ordinary Course, Account to be taken as a Whole, The Debt must not be founded on Written Obligation, PAGE 117 118 120 121 L22 125 ib. ib. 126 ib. 127 ib. ib. 129 130 )bligation, 132 § 6. the Terminus a quo Prescription runs from Close of Account, Effect of Debtor's Death, Identity of Creditor, .... § 7. WRIT OR OATH OF TARTY 'Party,' ..... Writ of Party, .... Account Books as Writ of Party, Date of Writ, . Oath of Party, .... Whun Documents imported into Oath, Intei pretation of Oath, 'Intrinsic' and 'Extrinsic' Quality, Coivbrough v. Robertson Stipulation at time of Contract as to Extinction, Subsequent Agreement as to Extinction, Subsequent Agreement to forgive Debt, 132 134 135 136 137 139 ib 141 142 143 144 ib. 145 ib. 147 CONTENTS Compensation, . • • ■ • . 1 4 1 ( Qualification of Constitution, ..... ib. Judicial Admission in lieu of Oath, . • - .14!) Rule that Judicial Admission supersedes Oath may he carried too far, L50 And the Court has thrown grave doubt on it, . .1 52 CHAPTKK XII OF THE QUINQUENNIAL PRESCRIPTION ^ 1. ARRESTMENTS Act 1669, c. 9, . • • • • • .154 1 and 2 Vict. c. 114, . . . - • • & § 2. STIPENDS AND RENTS Act 1669, c. 9, • 155 Stipends, ...-•••• *&• Rents, .... ... 156 Reference to Oath, ....... 157 ^ 3. BARGAINS CONCERNING MOVEABLES Act 1669, c. 9., ....... 158 Contracts to which it applies, . . . • . ib. Writ or Oath of Party, . . • >'>■ § 4. CERTAIN ACTIONS Act 1669, c. 9., . .... 159 Actions to which it applies, . . • • • . ib. ^ 5. MINORITY None of the Prescriptions of Act 1669, c. 9. to run againsl Minors. L60 jj 6. [NHIBITK 37 and 38 Vict. c. 94 § 42, . . • • • & CONTENTS CHAPTER XIII OF THE SEXENNIAL PRESCRIPTION 12 George in. c. 72, . 23 George ill. c. 18, . Terminus a quo, .... Ktt'ect of the Statute, .... Bill destroyed as a Document of Debt, But the Debt contained in the Bill may be sued for, And the Bill may be produced, Is Prescription barred by Action raised within the Six Years The Decisions say, Yes, .... There must be Diligence or Action to exclude Prescription, Writ of Debtor, ..... After Six Years, the Bill is no longer unum quid, Oath of Debtor, ..... Judicial Admissions, .... Extrinsic Quality, . . . . . Intrinsic Quality, ..... Years of Minority of Creditor not to be Counted, PAUE 161 ib. ib. 162 ib. 163 ib. 166 167 16!» 170 173 ib. 174 ib. 176 177 CHAPTER XIV OF THE SEPTENNIAL LIMITATION ^ 1. LIMITATION OF CAUTIONARY OBLIGATIONS Act 1695, c. 5, Obligation extinguished after Seven Years, . What is a Cautionary Obligation ? . Intimation of Bond of Relief, Certain Cautionary Obligations not affected by the Act, Molleson v. Hutchison, .... Minority not deducted, .... 178 179 ISO 181 182 ib. 184 § 2. PRESCRIPTION OF CITATIONS Act 1669, c. 10, 184 a WTENTS CHAPTER XV OF THE DECENNIAL PRESCRIPTION Act 1 696, c. 9, Extinguishes Right of Action, .... CHAPTER XVI OF DECENNAUS ET TRIENNALIS POSSESSIO Churchman's Title presumed from Possession, CHAPTER XVII OF THE VICENNIAL PRESCRIPTION § 1. CRIMES Hume's Doctrine, ...... § -2. RETOURS Act 1617, c. 13, ..... Its Relation to Act 1617, c. 12, It only excludes one < Claiming to be the True Heir, . Years of Minority to be deducted, :37 and 38 Vict. c. 94, § 13, . $ 3. HOLOGRAPH WRITINGS Act 1669, c 9, ..... Holograph Writings good for nothing after Twenty Years, The Prescription excluded by Action or Diligence, . Does not run against Miners, 185 ib. 186 188 189 190 191 192 ib. 193 ib. 194 195 CHAPTER XVIII OF PRESCRIPTION IN RELATION TO INTERNATIONAL LAW Prescription of Heritage, Prescriptions affecting the Remedy, Prescriptions affecting the Claim, Prescriptions forming a Condition of the Contract, Index, ..... b L96 ib. 1!)7 198 L99 LIST OF CASES CITED A A r. B (1589), 3. (1618), 2. Aberdeen, Magistrates of, University of, v., 34. University of, v. Magistrates of, 34. Abernethy, Ker v., 15, 17. Aberscherder, Minister, etc. of, v. Minister, etc. of Gerarie, 2. Abinger, Lord, Mackintosh v., 64, no. Advocate, Lord, v. Balfour, 56, 65. V. Lord Blantyre, 29. Buchanan & Geils v., 29, 39. ■ v. Cathcart, 29. — — Cheape v., 64, 91. v. Lord D andas, 9, 66. — - Farquharson v., 128. y . Graham, 10, 20, 67. v. Hall, 41. Hay v., llO, 111. v. Hebden, 29. ■ — — v. Hunt, 25. v. Lord Lovat, 29, 36. ■ r, M'Culloch, 28, 38, 41. M'Douall v., 28. — v. Earl of Mansfield, 17, 66. ■ Milne's Trustees v., 25. V. Sinclair, 29, 38. Agnew v. Macrae, 176. V. Magistrates of Stranraer, 26. Aikenliead & Hunter v. Aitken, 73. Aikman, Auld v., 124. Aikmans & Paterson v. Walker, 130. Ainslie, Cameron v., 69. .Aitken v. Finlay, 149. Aitken, Hunter & Aikenliead v., 73. v. Malcolm, 109. Alcock v. Easson, 122, 124, 127, 145, 152. Alexander v. Badenach, 180, 184, 198. Allan v. Brander, 103, 105. v. Ormiston, 171, 173. Allardyce, Taylor v., 126. Allison, Paul v., 174. Anderson, Grant v., 194. v. Hally, 150. Laing v., 127. M'Kercliar v., ISO. v. Nasmyth, 22. v. Wood, 184. Andersons v. Low, 13. Angus, Brunton v., 129. Arbroath, Guild ry of, Gray v., 74. Arbuthnot v. Douglas, 169. Argyll, Duke of. v. Campbell, 126. Douglas v., 127. v. M'Naughton, 16, 45. Armour's Trustees, Galbreath v., 78. Armstrong v. Johnstone, 163. Nobles v., 15S. Arnot, Karl of Leven, v., 194. Arrol, Gellatly v., 87. Arrott, Campbell v., 125. Athole, Duke of, Robertson v., 21, 41. Torrie v., 75. xVuchincloss, Watson v., 169. Auchindachy, Creditors of, v. Grant. 104. Aucliterniucbty, Magistrates of, r. Officers of State, 31. Auld v. Aikman, 124. LIST OF CASES CITED Auld v. Hay, 1 2. Barns /■. Barns' Trustees, 89. Ayton o. Monypenny, 49, 104. Aytoun, Bryson v., 150. — v. Magistrates of Kirkcaldy, 1 ."-. 24. Barr v. Edinburgh and Glasgow Railway Company, 130. Batchelor's Trustees v. Honeyman, 127. v. Stoddart, 133. Bathgate Brewers, Earl of Hope- toun, r. 71. B B, A v. (1589), 3. (1618), 2. Badenach, Alexander v., 180, 184, Baxter, Carlyle v., 61. Bayn, 128. Beaumont v. Lord Glenlyon, 73. Beck v. Learmonth, 134. Belhaven, Lord, Johnston v., 109. 198. Bell v. Herdman, 181. Baikie, Heddle v., 157. Kinloch /•., 106. Nishet v., 156, 157. Bailie v. Menzies, 103. Berry's Reps. v. Wight, 129, 142. Bertram /•. Stewarts Trustees, 136, Baillie v. Cochrane, 90. 137. v. Doig, 169. Bethune, Crawfurd v., 36, 86. M'Intosh v., 156, 157. Fergusson v., 163. V. Young, 116. Horsburgh v., 171. Bain /•. Officers of State, 65. Birtwhistle, Sloan v., 120. Baird v. Magistrates of Dundee, 89. Black v. Black, 173. v. Fortune, 68, 106, 126. v. Mason, lot. v. Little's Trustees, 177. Miller v., 1 47. r. Shand's Creditors, 172. Blackadder v. Milne, 127, 130, 132. V. Minister of Poimont, 65 Blai-"-. Balfour, 146. Baker, Gedd v., 17, 23. Bald v. Buchanan. 58. Dundas v., 67. V. Horn, 169. Balfour, Lord Advocate v., 56, t 5. M'Neil c, 164, 172, 177. Blair v., 146. v. Sutherland, 1 12. Johnston v., 21. Blake v. Turner, 171. Lumsdaine v., 50, 55. Bland v. Short, 12!». V. Simpson, 175. Blantyre, Lord, Lord Advocate v., Balgony, Lord, Lindsays v., 2. Ballantyne, Campbell v., 172. Balmerino, Lord, v. Hamilton, 113. 29. Blasquez, Bracken v., 1 27. Bogle, Buchanan v., 104. Balvaird v. Watson, L82. Cochrane v., 21. Bank of Scotland v. , 193. Gordon /'., 1 68. v. Taylcr's Trustees, 171. & Smith, Gray V., 52, 56. Bankes, Mackenzie v., 77. Banks, Mowal v., L93. Bontine v. Graham, 58. Duke of Montrose v., 28. Banner v. Gibson, 77. Borthwiek r. ( 'raw ford, 1 82. Barclay, Buchan <\, 170. V. Scott, 1 L6. Burt v., 75. Turnbull v., 111. Bargany Case (Fullarton v. rymple), 104, L91. Barker v. Kippen, 135. Dai- Boyd, Duke of Buccleuch <\, 1 1. - v. Fraser, I 7:'.. 1 So es '■. 1 lenderson, 156. HANDBOOK OF PRESCRIPTION Boyes' Trustees v. Hamilton, 131. Boyle, Earl of Glasgow v., 56, 58. Bracken v. Blasquez, 127. Bradly, M'Laren v., 129. Braid v. Douglas, 28. Brand v. Charteris, 69. Brander, Allan v., 103, 105. M'lnnes v. 89. Breadalbane, Marquis of, v. Camp- bell, 67, 112. v. M'Gregor, 69, 75. v. Sinclair, 98. Breadalbane's Trs., Home v., 98. v. Sinclair, 98. Brechin, Magistrates of, Leslie v., 139. Bremner v. Campbell, 184. Briggs v. Swan's Executors, 89, 109. British Linen Company v. Drum- mond, 197. Broddelius r. Grischotti, 162. Brodie, Brown v., 126. v. Mann, 74, 97. v. Shedden, 170. Broughton v. Weston, 135, 150. Lord, 70. Brown v. Brodie, 126. v. Brown, 127. v. Crawford, 194. ■ Ligertwood v., 126. v. Macfarlane, 158. v. M'Intyre, 175. v. Mitchell, 77. v. Paterson, 122. Scott v., 163, 169. Simpson v., 194. Brown Brothers, Stewart v., 73. Bruce v. Bruce-Carstairs, 59. of Kennet, 69. Spence v., 21. Bruce v. Stein (1769), 71. 0. (1793), 184. Bruce Stewart, Scott v., 12, 18, 96. Brunton v. Angus, 129. Bryson v. Aytoun, 150. Torrance v., 133. Buccleuch, Duke of, v. Boyd, 11. v. Cunynghame, 10, 12, 18, 106. v. Magistrates of Edinburgh, 25. v. Erskine, 34, 80. v. Officers of State, 86, 90. Buchan v. Barclay, 170. Earl of, Lindsay v., 168. Buchanan, Bald v., 58. v. Bogle, 104. v. Magistrates of Dunfermline, 139. & Geils v. Lord Advocate, 29, 39. M'Culloch v., 81. v. Macdonald, 170. Smith v., 198. Snodgrass v., 53. Budge, Solicitor of Teinds v., 63. Buik, M'Laren v., 118. Burdekin, Robertson v., 197. Burden, Macdonald v., 141. Burgy v. Strachan, 40. Burnet, Irvine v., 63. Burntisland Case, 31. Burt v. Barclay, 75. v. Burt, 92. Butchart v. Mudie, 129. Butter v. Gray, 97. C Cairns, Denovan v., 162, 167. Caitcheon v. Ramsay, 21, 45. Caledonian Railway Company r. Chisholm, 121. White v., 128. Cameron v. Ainslie, 69. Chisholm Batten v., 87. v. M'Ewen, 154. Camerons v. Macdonald, 184. Campbell, 42. v. Arrott, 125. Campbell, Duke of Argyll v., 120. — — v. Ballantyne, 172. LIST OF CASKS CITED i 'ampbell r. Breadalbane, Marquis of, ('hat to r. Moir, 63. 67, 112. Cheape v. Lord Advocate, 1. Catto's Trustees, Rocca v., 192. ( Jowbrough <-. Robertson, 145. Cauvin's Eospital, Governors of, v. Cowie's Executrix, Ross u., L33. Falconer, 86. ( Jraigiehall, Eope Vere v., l!». ( ';ivcs v. Spence, 184. ( Jrawford, Brown i?., L94. Chalmers, Leek v., 12, 7". r. Durham, 45. v. Walker, 132. Macdonald v., 171, 175. ( hainbers v. Law, 12. v. M'Michen, L8. Oharteris, Brand <•., 69. Menzies, km;. < lhatto /■. Lockhart, <;7. v. Simpson, L54. HANDBOOK OF PRESCRIPTION Crawford's Trustees v. Haig, 168. Deans of Chapel Royal v. John- Crawfurd v. Bethune, 36, 86. stone, 79. Borthwick v., 182. Dempster, Cleghorn v., 70. Crichton v. Campbell, 143. Denovan v. Cairns, 162, 167. Drummond v., 177. Dickson, Millers v., 9, 46, 100. Crighton, Gaylor v., 148. Dobie & Dow, Shaw v., 117. Cubbison v. Hyslop, 83, 107. Dobson, Young v., 31. Cullen v. Smeal, 123, 125, 153, 167. Doig, Baillie v., 169. Cutnine, Ewing v., 169. Don v. Lippman, 196, 198. Cuming, Earl of Fife's Trustees v., Donaldson v. Ewing, 128. 26. Home v., 194. Stewart v., 96. v. Murray, 137. v. York Buildings Company, Donaldson's Trustees v. Forbes 68. 113. Dougall, Dundee Harbour T ustees Cumming v. Irving, 15. v., 88. Cumming's Trustees v. Simpson, 126. Douglas, Arbuthnot v., 169. Cuninghame, Cuninghame's Trustees V. Duke of Argyll, 127. v., 50, 51. ■ Braid v., 28. Cuninghame's Trustees v. Cuning- ■ Campbell v., 149. hame, 50, 51. v. Douglas, 49. Cunningham v. Curators, 185. Graham v., 87. Muir v., 194. Heron & Co. v. Grant's Trus- Strahorn v., 156. tees, 162. Cunynghame, Duke of Buccleuch v., v. Richardson, 168, 169. 10, 12, 18, 106. v. Riddick, 180. Currie, Whyte v., 133. Stewart v., 184. Cuthbertson v. Lyon, 184. Douglas, Stuart v., 121. v. Young, 75. Dow & Dobie, Shaw v., 117. Cutler r. M'Lellan, 22. Drummond, British Linen Co v., 197. v. Crichton, 177. inpany D Kinnaird v, 70. v. Lees, 163, 171. Daes v. Scougal, 156. v. Stewart, 129. Dalhousie, Earl of, v. M'Inroy, 36. Drymen, Heritors of, r. Offi :ers of Dalrymple v. Earl of Stair, 56. State, 93. Fullarton v., 104, 191. Drysdale v. Johnstone, 181. Dalyell v. Dalyell, 51. Paton v., 80. Mettev., 143. Dalziel v. Lord Lindores, 195. Dangerrield, Traill v., 72, 187. Darnley v. Kirkwood, 123, 152, 162, 174. Davidson v. Earl of Fife, 72, 74. v. Hay, 140. v. Watson, 126. i Deans v. Steele, 130. Duff, Earl of Fife v., 94, 102, 121. Hunter v., 170. Duff v. Innes, 156. Dumfries, Provost of, Maxwell v. T 30. Dunbar, Forbes v., 184. Dunblane, Bishop of, 186. Duncan v. Forbes, 136, 137. ■ v. Lees, 76. LIST OF CASES CITED Duncan, Thomson c, 145. Lord, Thomson v., 126. Dundas, Lord Advocate v., 9, 66. r. Blair, (17. Dundee, Constable of, v. Laird of Strathmartin, 116. Harbour Trustees r. Dougall,88. Harris c, 7". Magistrates of, Baird v., 89. Police Commissioners of, Jamie- son v., 27. Presbytery of, v. Magistrates of, 34. Dundonald, Earl of, Marquis of Clydesdale v., 44. 60. v. Dykes, 81, 83. Dunfermline, Magistrates of, Buch- anan v., 139. Palace Case (Lord Advocate v. Hunt), -2o. Dunlop, Heritors of, Mure i\, 61. Dunmore, Earl of, Middleton v., 45. 57. Dunn v. Lamb, 11'.), 121. Dunse v. Hay, 68. Durham, Crawford v., 45. r. Durham, 52. Moncreiff v., 130. Dyce v. Hay, 70. Dykes, Earl of Dundonald v., 81, 83. Dysart, Magistrates of, Sinclair r.,68. E Earlsferry, Magistrates of, v. Mal- colm, 7'). Earlshall, Earl of Southesk v., 28. Easson, Alcock v., L22, 124, 127, 145. 152. Easton r. Hinshaw, 169. Eddie v. Monkland Railways Com pany, 118. ■ Edgar v. Maxwell, 52, 101. Edinburgh, City of, Lear month p., 64 Magistrates of, Duke of Bui leuch v., 25. Edinburgh, Magistrates of, Hill v., 30. Officers of Ordnance c., v 2. v. Scott, 88. Edinburgh and Glasgow Railway Company, Ban »., 130. Edmonstone v. Jeffray, etc., 25. Eglinton, Earl of, v. Eglinton, 4 1, 90. Fullerton v., 28. Wallace r., 107, 190. Elder v. Hamilton, 123, 134. Elgin, Magistrates of, v. Robertson, 87, 108. Elibank, Lord, v. Campbell, 58. Elliot V. Maxwell, 96. Ellis v. White, L39. Elsieshiells Case (Edgar v. Maxwell , 52. Errol, Earl of, Ferrier v., 117, 121. Erskine, Duke of Buccleuch v., 3 4, 80. Nielson v., 43, 46. Ettles v. Robertson, 168. Ewart v. Murray, 158. Ewing v. Cumine, 169. Donaldson r., 128. M'Kinlay v., 184. Eyemouth Case (Home i\ Young . 31. Fairie, Russell v., 170. Fairliolm v. Livingstone, 156. Falconer, Governors of < lauvin's Hos- pital v., 86. Smith v., 125, 136, 138, 1 I" Falconer's Representatives, Cooke v., :»7. Falkland Case, 68. Farquhar, Kim-aid's Crs. v., L8 I. Farquharson v. Lord Advocate, i Farrar v. Leith Banking Company, 107. Ferguson, ( lochrane v., 157. Fergusson v. Bethune, 163. /•. Gracie, 2 I. Ferrier v. Earl of Errol, 117, 121. HANDBOOK OF PRESCRIPTION Ferrier, Mitchell v., 147, 150. Fife v. Innes, 144. Earl of, Davidson v., 72, 74. Fife, Earl of. v. Duff, 94, 102, 121. r. Earl of Sea field, 63. Fife's, Earl of, Trustees, v. Cuming, 26. v. Sinclair, 36. Galbreath v. Armour's Trustees, 78. Magistrates of Campbeltown v., 30. Gallie v. Eoss, 184. Galloway, Liston v., 73. v. Moffat, 176. - — — Sheriff of, Neilson v., 72. Garden v. Kigg, 109, 169. Finlay, Aitken v., 149. Fisher v. Ure, 134. Ga}dor v. Crighton, 148. Gedd v. Baker, 17, 23. Fiske v. Walpole, 138. Geddes, Hunter v., 142. Fleming, Grant v., 129. v. Howden, 33. v. Miller, 95. Geils & Buchanan v. Lord Advocate, Eoss v., 126. 29. Fogo, Colquhoun v., 65, 94. Forbes, Donaldson's Trustees v., 68. Gellatly v. Arrol, 87. Gemrie, Minister, etc. of, Minister, v. Dunbar, 184. etc. of Aberscherder v., 2. - Duncan v., 136, 137. Gibson, Clarkson's Trustees v., 164. r. Forbes, 78. Gilmour v. Stuart's Rejiresentatives, - v. Livingstone, 9, 36, 86 ■ v. Wilson, 70. Forster, Paxton v., 167. 136. Glasgow, Earl of, v. Boyle, 56, 58. University of, Maxwell v., 93. Fortune, Baird v., 68, 106, 12 6. Glassford v. Mackenzie, 15. Fortune's Executors v. Smith 128. Glen v. Scales' Trustees, 10, 15. Fothringham, Gray v., 190, 192. Fowles, Montgomery v., 109. Frame, MTndoe v., 163. Glenlyon, Lord, Beaumont v., 73. Gloug r. M'Intosh, 155. Gobbi v. Lazzaroni, 121, 129, 158. Fraser, Boyd v., 1 73. Goodall r. Hay Newton, 143. v. Fraser, 175. Goodlet, Livingstone v., 20. v. Grant, 28, 38. Gordon v. Bogle, 168. v. Hogg, 15. v. Gordon, 104. — r. Urquhart, 1 69. Frazer v. M'Keich, 126. v. Grant, 35. v. Innes, 150. Freer v. Paterson, 129. French v. Pinkstan, 43, 56. French's Trustees, M'Arly v., 30. ■ v. Kennedy, 63. Lockhart v., 92. v. Pratt, 143, 176. Fullarton v. Dalrymple, 104, Fullarton r. Earl of Eglinton, v. Hamilton, 191. 191. 28. Gordon, Duke of, Macdonnell v., 37, 67, 81, 82. Govan, Paden v., 148. Fyfe v. Carfrae, 143, 173. v. Miller, 142. Governors of Cauvin's Hospital v. Falconer, 86. G Gadzat, Laird of, Lord Cat) of George Watson's College . Hinshaw, Easton v., 169. Hinton v. Hobbs, 23, 39. Hobbs, Hinton v., 23, 39. Hob}-, Magistrates of Renfrew v., ^ s . Hogg, Fraser v., 15. v. Low, 15(i. Home v. Donaldson, 194. v. Young, 31. Home, Earl of, Clerk v., 40. Earl of Marchmont v., 45, 113. Honey man, Batchelor's Trustees v., 127. Hope, National Bank v., 168, 169. Hopetoun, Earl of, v. Bathgate Brewers, 71. r.York Buildings Compauy,109. Hope Vere r. Craigiehall, 49. Hopkirk, Neill & Company v., 128, 137. Horn, Blair v., 169. Home v. Marquis of Breadalbane's Trustees, 98. Horsburgh v. Beihune, 171. Hotson v. Threshie, 131. Houston, Stewart v., 81. ■ v. Yuill, 173. Howden, Fleming v., 33. Wood?'., 162, 171, 172. Howison v. Howison, 184. Hozier v. Hawthorne, 77. Huber v. Steiner, 198. Hunt, Lord Advocate v., 25. Hunter & Aikenhead v. Aitken, 73. - v. Duff, 1 70. . v. Geddes, 142. Hunter v. Lord Kinnaird's Trustees, 147. - Macandrew v., 138, 140, 141. Saunders v., 73. /■. Smith, 56. r. Thomson, 158, 165. Hutchieson, Incorporation of Wrights v., 190. Hutchison, Molleson v., 182. Hysloji, Cubbison v., 83, 107. Innes of Auchluncart, 8, 'u Duff v., 156. Fife v., 144. Gordon v., 150. Wilson v., 108. Irvine v. Burnet, 63. Mercer v., 185. Irving, dimming v., 15. Ivory, Smith v., 144. Jackson v. Cochrane, 142. Macdonald v., 157. Jatfray v. Duke of lloxburghe, 68. Jameson r. Sharp, 155. Jamieson v. Clark, 89. v. Police Commissioners of Dundee, 27. Jeft'ray, etc., Edmonstone v., 25. Jenkins v. Murray, 74, 75, 76. v. Robertson, 75. Johnston r. Balfour, 21. r. Lord Belhaven, 10:). Law v., 146. v. Scott, 128. Johnstone, Armstrong v., 163. Deans of Chapel Royal v., 1\K Drysdale v., 181. Younger v., 43. Jolly, Campbell v., 133, 142. v. Macneill, 166. Jones, Williams v., 197. LIST OF CASES CITED Keith, Nicolson v., 95. Lord, M'Kerrel v., 42. Kelso v. Duke of Roxburghe, 88. Kennanl v. Wright, 159. Kennedy, Gordon v., 63. Graham v., 176. v. M'Dougal, 135. Ker v. Abernethy, 15, 17. Kerr's Trustees v., 162, 163. V. Magistrates of Kirkwall, 129. Kermack v. Kermack, 79, 109. Kerr's Trustees v. Ker, 162, 163. Kibbles v. Stevenson, IS. Kilbucho, Minister of, 126. Kilmarnock, Magistrates of, r. In- habitants of, 31. ■ Lord, Whitefoord v., 102. Kincaid's Crs. v. Farquhar, 184. Kinghorn, Magistrates of, Earl of Moray v., 34. King's Advocate. See Advocate, Lord. Kinloch v. Bell, 106. Roche id v., 81. Kinnaird r. Drununond, 70. Kinnaird's Trustees, Lord, Hunter v., 147. Kippen, Barker v., 135. Kirkcaldy, Magistrates of, Avtoun v., 15, 24. Greig v., 30. Grahame v., 31. Kirkwall, Magistrates of, Ker v., 129. Kirkwood, Darnley v., 123, 152, 162, 174. Knapperny, Walkingshaw v., 194. Knockdoliau v. Tenants of Partick, Knox v. M'Caul, 148. Kyle, Stevenson v., 128, 138, 140. J, Laidlaw v. HamiltOD, 163, 173. Laing v. Anderson, 127. Land), Dunn v., 1 19, [21. Lamond, Ralston v., 166. Lang, ( lampbell v., 76. Stirling v., L63, L64. Lauder v. Oolmslie, 2. v. M'Gibbon, I 19. Lauderd.de, Duke of, v. Tweeddale, Marquis of, 102. Laurie's Trustees, Murray v., 173. Law, ( ihambers v., I 2. v. Johnston, I 16. Lazzaroni, Gobbi v., 121, 129, 158. Learmonth, Leek v., 134. v. City of Edinburgh, (I I. v. Duke of Bamilton, 63. Mackenzie v., 69. Leek v. Chalmers, 12, 70. Lees, Drummond v., 163, 171. - Duncan v., 7<». — Sanderson v., 31, 70. Leith Banking Company, Farrar v., 197. Lennard v. Meyer & Mortimer, 1 18. Lennox v. Hamilton, 98. Leslie v. Magistrates of Brechin, 139. v. Mollison, 122, 123, 124, 128, 132. v. Earl of Moray, 92. Leven, Earl of, r. Arnot, 194. Graham v., 129. Li^eitwood v. Brown, 126. Lindores, Lord, Dalziel /-., 195. Lindsay v. Earl of Buchan, 168. Lindsay v. Moffat, 170. v. Robertson, 37. Stewart r., 21. Lindsays v. Lord Balgony, 2. Linlithgow, Magistrates of, r. Mil chell, 88. Lippinann, I Inn v., L96, 198. Liston v. Galloway, 7;:. Little v. Graham, L37. Ritchie v., 149. Little's Trustei s, Baird <•., 177. Livingstone, Fairholui <•., 15C Forbes /•., !», 36, 86. v. Goodlet, 20. HANDBOOK OF PRESCRIPTION Lockhart, Chatto v., (ji. — — v. Gordon, 92. Macdonald, v., 11, 42, 49. M'Ghie v. Tinkler, 126. M'Gibbon, Lauder v., 149. M'Gregor, Marquis of Breadalbane v., — v. Mitchell, 163. Longmuir v. Longmuir, 126. Lord Advocate. See Advocate, Lord. Loudon, M'Dowall v., 128. 69, 75. MacGregor r. MacGregor, 171, 172. v. Stewart, 128. M'Indoe r. Frame, 163. Lovat, Lord, Lord Advocate v., 29, 36. Low, Andersons v., 12. Hogg v., 156. M'Innes v. Brander, 89. M'Inroy, Earl of Dalhousie v., 36. M'Intosh, Baillie v., 156, 157. Lowden, Sandys v., 127. Lumsdaine v. Balfour, 50, 55. Lutefoot v. Prestoun, 97. Lyon, Cuthbertson v., 184. v. Mitchell, 135. ■ Gloug v., 155. M'Intyre, Brown v., 175. Duke of Montrose v., 29. Mackay r. Carmichael, 128, 133. Lord Reay v., 53. — v. Ure, 125, 144. M'Keich, Frazer v., 126. M Mackenzie v. Bankes, 77. Glassford v., 15. M'Alister, Nicolson v., 157. v. Learmonth, 69. Macandrew v. Hunter, 138, 140, 141. v. Macartney, 184. MArly v. French's Trustees, 30. M'Pherson v., 30. Macartney, Mackenzie v., 184. M'Barnet, Stuart v., 28, 36. - v. Renton, 36. v. Robertson, 22. M'Caul, Knox v., 148. M'Kerchar v. Anderson, 180. M'Coll, Reid v., 34. M'Kerrel v. Lord Keith, 42. M'Culloch, Lord Advocate v., 28, 38, Mackerston Case (Macdougal v. Mac- 41. dougal), 48, 54, 104. — v. Buchanan, 81. Mackie, Magistrates of St. Monance Macdonald, Buchanan v., 170. v., 34. Camerons v., 184. v. Burden, 141. Mackinlay v. Ewing, 184. v. Mackinlay, 127, 158. v. Crawford, 171, 175. Newlands v., 144. — v. Jackson, 157. Mackinlay v. Wilson, 127. v. Lockhart, 11, 42, 49. Mackinnon v. Macdonald, 191. Mackinnon v., 191. Mackinnon v. Mackinnon. Macdonnell v. Duke of Gordon. 37, Mackintosh v. Lord Abinger, 64, (!(!. 67, 81, 82. v. Moir, 77. MacDouall v. Lord Advocate, 28. v. Taylor, 129. M'Dougal, Kennedy v., 135. v. Macdougal, 48, 54, 104. Macdougall v. Campbell, 128. Macdowall r. Loudon, 128. M'Ewen, Cameron v., 154. M'Farlane v. Brown, 158. — Graham v., 154, l(ii>. Warrand's Trustees v., 36. M'Kissock, AVallace v., 128, 138. M'Lachlan /■. Henderson, 167. MacLagan, Stocks v. 179, 180. M'Laren v. Bradly, 129. v. Buik, 118. M'Lean, Saddler v., 129. v. Morrison, 77, 87. M'Lellan, Cutler v., 22. LIST OF CASES CITED M'Lellan v. Menzies, 103. Mu nay »., 60. Macleod r. PatersoD, 66. v. Smith, 79. Meldrum, Shepherd /'., 121. Menzies, Bailie v., 103. Crawfurd v., 106. M'Lellan v., 103. M'Math ,: Campbell, L54. Mercer v. Irvine, 185. M'Michen, Crawford v., 18. V. Reid, 78. M-Nair. Walker !>., 130. M'Naughton, E;trl of Argyll v., 16, 45. Merry, Richardson v., 131. Mette v. Dalyell, 143. Meyer & Mortimer v. Lennard, 148. Macneal, M'Neill v., 46, 100. Middleton v. Karl of Dunmore, 45, M'Neil r. Blair, 162, 172, 177. 57. M'Neffl, Campbell v., 121. Jolly v., Kit!. r. Macneal, 46, 100. M'Nicol v. M'Niell, 17(». Mill V. Skene. 87. Miller v. Baird, 147. Fvfe v., 1 12. Geddes v., 95. M'Niell, M'Nicol v., 17<>. M'Pherson v. Mackenzie, 30. Scottish Eights of Way Society v., 75. Smith v., 128. v. Storie, 88. Millers v. Dickson, 9, 46, 100. v. Short, 182, 183. v. Williamson, 139. Macrae, Agnew /•., 176. Milne. Blackadder v., 127, 130, 132. Cruden & Co., Ross v., 25, 33. M'Rankin v. Schaw, 181. M'Tavish /-. Lady Saltoun, 170. M'Tier, Carnegie v., 27. v. Smith, 36. Milne's Trustees?;. Lord Advocate, 25. v. Ormiston's Trustees, 165, 166, Maderty, Locality of, 65. Malachi, Pea; son v., 89. Malcolm, Aitken v., 109. Magistrates of Earlsferry v., 70. 167, 168. Minto, Earl of, Henderson r., 69. v. Pennell, 87, 94. Mitchell r. Brown, 77. Mann, Brodie v., 74, 97. v. Ferrier, 147, 150. Mansfield, Earl of, Lord Advocate v., 17, 66. Magistrates of Linlithgow /•., 88 — — Lockhart v., 163. March mont, Earl of r. Earl of Home, Lyon v., 135. 45, 113. Mitchell's Trustees, Smith r., 129. Marshall, Cooper v., 141 Moffat v., 133. Mitchells v. Moidtrys, 136, 139. Moffat, Galloway v., 176. Martin, Hamilton v., 127. Lindsay '•., 1 70. Wilson v., 27. V. Marshall, 133. Mason, Hlack v., 104. Masterman, Strathern v., 197. Moir, Chatto v., 63. Mackintosh v., 77. Maule v. Maule, 15, 53, 55, 61, L04. v. Sommers, 150. Molle v. Riddel, 53. Molle on v. II iitchison, 182. Maxwell, Edgar v., 52, 101. Mollison, Leslie v., 122, 123, 121. Elliol v., 96. L28, 132. v. Provosl of Dumfries, 30. Moncreiff v. 1 Durham, L30. v. University of Glasgow, 93. Monkland Railways <'")'•, Eddie v., Reid v., L80. 1 18. Mealls, Gow's Trustees '•., 68. Monro, N icolson <•., 1 29. HANDBOOK OF PRESCRIPTION Magistrates of Monro, Pitmedden v., 109. Monteith v. Pattison, 181. Montgomery v. Fowles, 100. Montrose, Duke of, r. Bontine, 28. v. M'Intyre, 29. Magistrates of, Carnegie v., 34. Monypenny, Ayton v., 49, 104. Moray, Countess of, v. Earl of Wemyss, 26. Earl of, Kinghorn, 34. . Leslie v., 92. v. Feuars of Ness, 28. Morison v. Robertson's Executors 150. Morrison, M'Farlane v., 77, 87. Napier's Trustees v., 74, 75. v. Yorstoun, 112. Zuille v., 52. Morrison's Trustees, Nisbet's Trus tees v., 137, 139. Mortimer & Meyer v. Lennard, 148. Wink v., I 17. Morton, Waddel v., 129. Morton's Trustees, White v., 75. Moultrys, Mitchells v., 136, 139. Mowat v. Banks, 193. Mudie, Butchart v., 129. Muir v. Cunningham, 194. Muirhead, Executors of, Somerville v., 128, 132. Munro v. Graham, 129. v. Munro, 16, 96. Murdoch, Thomson v., 74. Mure of Caldwell v. Heritors of Dunlop, 61. Murray, Donaldson v., 139. Ewart v., 158. Jenkins v., 74, 75, 76. — v. Laurie's Trustees, 173 v. M'Lellan, 40. — v. Peddie, 71. ■ r. Peebles, 68. — Sinclair v., 93. — v. Trotter, 156. - Vans v., 109, 168. . r. Wright, 131. N Nairn, Heggie v., 73. Napier v. Campbell, 79. Scott v., 25. v. Smith, 144. Napier's Trustees v. Morrison, 74, 75. Nasmyth, Anderson v., 22. National Bank v. Hope, 168, 169. Neil's Trustee, Nisbet v., 164. Neill & Co. v. Campbell, 137. v. Hopkirk, 128, 137. Neilson v. Cochrane's Representa- tives, 190, 191. r. Sheriff of Galloway, 72. Ness, Feuars of, Earl of Moray, v., 28. Newlands v. Mackinlay, 144. Nicoll, Nisbet v., 163. Nicolson v. Keith, 95. v. M'Alister, 157. v. Monro, 129. -v. Lord Philorth, 113. Nielson v. Erskine, 43, 46. Nisbet v. Baikie, 156, 157. ■ v. Neil's Trustee, 164. v. Nicoll, 163. Nisbet's Trustees v. Morrison's Trus- tees, 137, 139. Noble v. Scott, 162, 174. Nobles r. Armstrong, 158. North British Railway Company *\ Smith Sligo, 132. Young v., 10, 29, 37. Ochterlony v. Officers of State, 15. Officers of Ordnance v. Magistrates of Edinburgh, 82. Officers of State, Magistrates of Auchtermuchty v., 31 Bain v., 65. Duke of Buccleuch v., 86, 90. Heritors of Drymen v., 93. v. Earl of Haddington, 25, 33 Ochterlony v., 15. LIST OF CASKS CITED Officers of State, Speir o. 64. Peebles. Murray w., 68. Thomson v., 93. Pennell, Earl of Minto p., 87, 94. Ogilvies, Smith v., 181. Perth, Glovers of, Earl of Zetland v., Ogilvy v. Ogilvy, 2. 29. Oliphant Murray v. Ramsay, 55. Magistrates of, Presbytery of, Ormiston. Allan v., 171, 173. v., 80. v. Hill, 21. V. Earlof Weinyss, 26. Lady, Hamilton /•., 126. Presbytery of, v. Magistrates v. Hamilton, 135. of, 81 1. Ormiston's Trustees, Milne's Trustees Philorth, Lord, Nicolson /•., 113. v., 165, 166, 167,168. Pinkstan, French v., 43, 56. < Iswald, Growans '•., L85. Pitmedden v. Monro, 109. l'lavfair, Young & Company v., P 136. Pollock v. Porterfield, 89. Paden v. Govan, 14S. v. Storrie, 96. Paisley v. Wright's Incorporation, Waddell v., 58. 72. - Wilson v., 59. Panmure Leases case (Maule /\ Polmont, Minister of, Baird <\, (!5. Maule), 15, .33, 35,61,104. Porteous, Grubb v., L28. Panmure, Earl of, v. Porterfield, Pollock v., 89. v. Halkett, 66. Stewari v., 51. Partick, Tenants of, Knockdolian v., Portland, Duke of, /•. Gray, :i7. 72. Pratt, Gordon v., 1 13, 176. Pate, Graham v., 155. Prentice, Cochran v., MS 120. Paterson & Aikmans v. Walker, Prestoun, Lutefooi v., 1)7. 130. Purdie v. Lord Torphichen, 1(!, 46. Paterson, Brown v., 122. Purves, Paterson v., -4!). V. ( Vman, 154. ■ Freer v., 129. Macleod /•., 66. Q /•. Purves, 49. Queensberry, Duke of, Greig v., \*<>. /-. Magistrates of St. Andrews, 31. v. Walker, i; - v. Wilson, 82, 84. Paton v. Drysdale, 80. Ralston v. Lamond, L66. Patrick, Shedden v., 191. Ramsay, < !aitcheon '•.. 21, 15. V. Watt, 177. ( llipliant Murray v., 55. Pattison, Monteith <•., 181. ,-. Duke of Roxburghe, 28, 36. Paul '•. Allison, l 7 1. Reay, Lord, v. Mackay, 53. v. Reid, 82. Reid v. M'Coll, 3 1. Pax ton v. Forster, 167. V. Maxwell. L80. Storeys v. L63, L64, 171. Mercer v., 78. PeaCOCk, Williamson v., 1 75. Paul v., 82. Pearson v. Malachi, 89. Reid's Trustees v. Duchess of Suther Peddie, Murroy v., 71. Lund, 87. HANDBOOK OF PRESCRIPTION Renfrew, Magistrates of, v. Hoby, 88. Renuie v. Urquhart, 172. Ren ton, Mackenzie v., 36. Renton, Watson v., 198. Richardson, Douglas, Heron & Com- pany v., 168, 169. v. Lady Haddington, 198. v. Merry, 131. Richmond, Duke of, v. Earl of Sea- field, 36. Riddel, Molle v., 53. Riddick, Douglas, Heron & Company v., 180. Rigg, Garden v., 109, 169. Ritchie r. Little, 149. Robertson v. Arbuthnot, - v. Duke of Athole, 21, 41. v. Burdekin, 197. - Chisholm v., 132. v. Clarkson, 175. - Cowbrough v., 145. - Magistrates of Elgin v., 87, 108. Ettles v., 168. Jenkins v., 75. - Lindsay v., 37. v. Mackenzie v., 22. v. Robertson (1770), 114. — v. (1776), 112. Ross v., 169. ■ v. Royal Association of Con- tributors, 121. Stewart v., 175. v. Thomson, 1 74. Robertson's Executors, Morison v., 150. Rocca v. Catto's Trustees, 192. Rocheid v. Kinlocb, 81. Rodgers, Harvie v., 78, 108. Ross v. Cowie's Executrix, 133. ■ v. Fleming, 126. Gallie v. 184. ■ v. Guthrie, 123. r. Milne, Cruden & Company, 25, 33. v. Robertson, 169. v. Master of Saltoun, 127. Ross, Smith v., 97. Duke of Sutherland v., 36. Roxburghe, Duke of, Jaffray v., 68. Kelso v., 88. Ramsay v., 28, 36. v. Scott, 11. Roy c. Campbell, 167. Royal Association of Contributors, Robertson v., 121. Rule, Representatives of, 186. Russell v. Fairie, 1 70. Rutherford Scott v., 184. Rutherfurd, Wilson v., 133. S Saddler v. M'Lean, 129. St. Andrews, College of, Straton v., 65. Magistrates of, Paterson v., 65. Wallace v., 31. St. Monance, Magistrates of, r. Mackie, 34. Saltoun, Lady, M'Tavish v., 170. Saltoun, Master of, Ross v., 127. Sanderson v. Lee«, 31, 70, 76. Sands. Stein v., 195. Sandys v. Lowden, 127. Saunders v. Hunter, 73. Scales' Trustees, Glen v., 10, 15. Schaw, M 'Rankin v., 181. Scotland, Bank of. Sec Bank. Campbell v., 20. Hamilton r., 42. Scott, Borthwick v., 116. v. Brown, 163, 169. v. Bruce Stewart, 12, 18, 96. — Magistrates of Edinburgh v., 88. v. Gregory's Trustees, 131. Johnston v., 128. v. Napier, 25. Nobler, 162, 174. Duke of Roxburghe v., 11. ■ v. Rutherford, 184. v. Kirk-Session of South Leith, Stewart v., 133. LIST OF CASES CITl'.n Scott, Yuille v., ISO, 198. Smith, Fortune's Executors v., 128. Scottish Rights of Way Society v. — v. Hamilton, 128. M'Pherson, 75. — Hunter v., 56. Scougal, Daes v., 156. - v. Ivory, 144. Seafield, Earl of, v. Karl of Fife, 63. Macleod v., 79. — Duke of Richmond v., 36. — r. Miller, L28. Shand's Creditors, Black v., 172. - Milne v., 36. Sharp v. Harvey, 1 s 4. v. Mitchell's Trustees, 129. Jameson v., 155. Napier i>., 144. Shaw v. Dow & Dobie, 1 1 7. Smith v. Ogilvies, 181. Shedden, Brodie v., 170. r. Ross, 97. v. Patrick, 191. r. Stewart, 87. Shelby v. Guy, 198. Smith Sligo, North British Railway Shepherd v. Grant's Trustees, 106. Company v., 132. v. Meldrum, 121. Snodgrass v. Buchanan, 53. Short, Bland v., 129. Snody, Clyne v., 151. Millers v., 182, 183. Solicitor of Teinds v. Budge, 63. Sim, Gow's Executors v., 146, 147, Somerville v. Muirhead's Executors, 150. 128, 132. Simpson, Balfour v., 175. Sommers, Maule v., 140. v. Brown, 194. South Leith, Kirk-Session of, v. Crawford v., 154. Scott, 72. Simpson, Cumming's Trustees v., 126. Southesk, Earl of, r. Earlshall, 28. Earl of Southesk v., 158. Earl of, v. Simpson, 158. v. Stewart, 162. Speir v. Officers of State, 64. v. Walker, 130. v. Lord Willoughby D'Eresby, Sinclair, Lord Advocate v., 29, 38. 106. v . Marcpiis of Breadalbane, 98. Spence v. Bruce, 21. — Marquis of Breadalbane's Trus- Caves v., 184. tees v., 98. White v. 158. — — v. Campbell's Trustees, 95. Stair, Earl of, Dalrymple v., 56. v. Magistrates of Dysart, 68. Stanebyres, Graham v., 135. — - Earl of Fife's Trustees v., 36. State. See Officers of State. Lord, Hamilton »., 2. Steele, Deans v., 130. v. Murray, 93. Stein, Bruce v. (1769), 71. — v. Threipland, 36. , . (1793), 184. Skene, Mill v., 87. Campbell v., 121. Skirving v. Smellie, 74. v. Sands, 195. Sloan v. Birtwhistle, 120. Steiner, 1 1 aber v., 198. Smeal, Cullen v., 123, 125, 153, 167. Stephenson -■. Stephenson's Trustees, Smellie v. (,'ochrane, 127. 162. Skirving v., 74. Stevenson, Eibbles v., L8. Smith & Bogle, Gray v., 52. v. Kyle, L28, 138, 1 10. v. Buchanan, 198. 17. s tevenson, 1 75. Cheyne v., 87. Stewart, 92. — Cochrane v., L86. r. Brown Brothers, 7:; r. Falconer. 123, 136, 138, 1 10. Stewarl <■. < lampbell, 184. HANDBOOK OF PRESCRIPTION Stewart v. Cuming, 96. v. Douglas, 184. Drmumond v., 129. v. Greenock Harbour Trustees, 34. v. Houston, 81. v. Lindsay, 21. M'Gregor v., 128. r. Porterfield, 51. v. Robertson, 175. v. Scott, 133. Simpson v., 162. Smith r., 87. v. Stewart, 173. v. Walpole, 148. Stewart's Trustees, Bertram v., 136, 137. Stirling v. Henderson, 123, 174. Stilling v. Lang, 163, 164. Stiven, Thomas v., 140. Stocks v. M'Lagan, 179, 180. Stoddart, Aytoun v., 133. Storeys v. Paxton, 163, 164, 171. Storie, Miller v., 88. Storrie, Pollock v., 96. Strachan, Burgy v., 40. Strahorn v. Cunningham, 156. Strang, Wilson v., 173. Stranraer, Magistrates of, Agnew v., 26. Strathern v. MastermaD, 197. Strathmartin, Laird of, Constable of Dundee v., 116. Straton v. College of St. Andrews, 65. Stuart, Clark v., 180. ■ v. Cuming, 96. v. Douglas, 121. • v. Hill, 180. v. M'Barnet, 28, 36. Stuart's Representatives, Gilmour v., 136. Sutherland, Blair v., 112. v. Thomson, 78. — Duchess of, Reid's Trustees v., 87. Sutherland, Duchess of, v. Watson, 29. Sutherland, Duke of, v. Ross, 36. Swan's Executors, Briggs v., 89, 109. Tait, Wilson v., 181. Taylor v. Allardyce, 126. Mackintosh v., 129. Taylor's Trustees, Bank of Scotland v., 171. Tennent's Trustees, Earl of Zetland v., 35. Thain v. Thain, 33. Thomas v. Stiven, 140. Thomson v. Duncan, 145. v. Lord Duncan, 126. Hunter v., 158, 165. v. Murdoch, 74. v. Officers of State, 93. Robertson v., 174. — — Sutherland v., 78. v. Westwood, 126. Threipland, Sinclair v., 36. Threshie, Hotson v., 131. Tinkler, M'Ghie v., 126. Torphichen, Lord, Purdie v., 16, 46. Torrance v. Bryson, 133. Torrie v. Duke of Athole, 75. Traill v. Dangerfield, 72, 187. Trotter v. Clark, 149. Murray v., 156. Turnbull v. Borthwick, 144. Turner, Blake v., 171. Tweeddale, Marquis of, Duke of Lauderdale v., 102. Weatherstone v., 94. Tweedie v. Williamson, 128. V Ure, Fisher v., 134. Mackay v., 125, 144. Urquhart, Fraserv., 169. Rennier., 172. LIST OF CASES CITED Vans v. Murray, 109, 168. W Waddel v. Morton, 129. Waddell v. Pollock, 58. Walker, Chalmers v., 132. v. Grieve, 58. v. M'Nair, 130. Paterson & Aikuians v., 130. Simpson v., 130. Walkingshaw v. Knapperny, 194. Wallace v. Earl of Eglinton, 107, 190. r. Magistrates of St. Andrews, 31. v. M'Kissock, 128, 138. Walpole, Fiske v., 138. Walpole, Stewart v., 148. Warrand's Trustees '.Mackintosh, 36. Watt, Patrick v., 177. Graham v., 102. Watson v. Auchincloss, 169. - Balvaird v., 182, 183. Davidson v., 126. v. Renton, 198. Duchess of Sutherland v., 29. Wauchope v. York Buildings Com- pany, 82. Weatherstone v. Marquis of Tweed- dale, 94. Welsh Maxwell v. Welsh Maxwell, 50, 55. Weniyss, Henderson v., 72. Countess of, 159. Earl of, Magistrates of Perth v., 26. Countess of Moray v., 26. Westenra, Duke of Hamilton v., 4'.). Weston, Broughton v., 135, 150. Westwood, Thomson v., 126. White v., Caledonian Railway Com- pany, 128. Ell is v., 139. v. Earl of Morton's Trustees, 75. v. Spence, 158. Whitefoord v. Lord Kilmarnock, 102. Whyte v. Currie, 133. Wight, Berry's Representatives v., 129, 142. Williams v. Jones, 197. Williamson, MTherson v., 139. v. Peacock, 175. Tweedie v., 128. Willoughby D'Eresby, Speir v., 106. Wilson, Campbell v., 43,100, 102, 106. v. Campbell, 126. — — Forbes v., 70. r. Innes, 108. M'Kinlay v., 127. v. Martin, 27. Paterson v., 82, 84. - Pollock, 59. v. Rutherfurd, 133. ■ v. Strang, 173. v. Tait, 181. v. Wilson, 145. Wink v. Mortimer, 1 1 7. Wishart, Grant v., 147. Wood, Anderson v., 184. v. Howden, 162, 171, 17± Workman v. Young, 148. Wotherspoon v. Henderson's Trus- tees, 134, 135. Wright, Kennard v., 159. Murray v., 131. v. Wright, 109, 168, 194. Wrights, Incorporation of, /:. Hutchie- son, 190. Paisley v., 72. Wyse v. Wyse, 195. York Buildings Company, Cuming v., 113. Earl of Hopetoun v., 109. Wauchope v., 82. Yorstoun, Morrison v., 112. Young, Baillie v., 116. Cuthbertson -•.. 7;'». r. DobsOD, 31. Home v., 31. HANDBOOK OF PRESCRIPTION Young v. North British Railway Company, 10, 29, 37. & Company v. Playfair, 136. Workman v., 148. Younger v. Johnstone, 43. Yuill, Houston v., 173. Yuille v. Scott, 180, 198. Z Zetland, Earl of, v. Glovers of Perth, 29. v. Tennent's Trustees, 35. Zuille v. Morrison, 52. LIST OF STATUTES QUOTED AND REFERRED TO. PAKE Act 1469, c. 28, . 1, 8, 79 Act 1474, c. 54, 2, 8, 79 Act 1579, c. 81, 115 Act 1579, c. 82, 116 Act 1579, c. 83, 116 scq. Act 1594, c. 218, . 3,16 Act 1617, c. 12, 5 and passim hrough Part I. Act 1617, c. 13, 189 seq. Act 1617, c. 16, IS Act 1669, c. 9, 154 seq. 193 Act 1669, c. 10. 184 Act 1685, c. 14, . 159 Act 1695, c. 5, 178 seq. Act 1696, c. 9, 185 29 George n. c. 23, 6!) 12 George in. c. 72, } 23 George in. c. 18, \ 161 seq. 1 and 2 Vict. c. 114, . 154 21 and 22 Vict, c 76, . 19, 85 23 and 24 Vict. c. 143, 85 31 and 32 Vict. c. 100, 165 31 and 32 Vict. c. 101, 19 37 and 38 Vict. c. 82, 66 37 and 38 Vict. c. 94, 7, IS », 23, 39 , 46, 97 , 106, 160, 192 PART I THE LONG PRESCRIPTION (Stair, 2. 12. 1-27, and Moke's Note -\A. (Erskine, Inst, 3. 7. 1-15.) CHAPTEE I THE STATUTES INTRODUCING PRESCRIPTION Prescription — which originally signified any exception, but fntroduc tory. came latterly to be especially identified with the exceptio ratione temporis — is a plea which may be employed for the purpose either of extinguishing or of establishing a right of property. The manifest desirability of ' fixing and ascertaining property,' and of preventing forgeries, has procured it a place in the muni- cipal code of all human societies. Whether, and to what extent, prescription was originally known to the common law of Scotland is a question which shall be briefly considered here- after. (See infra p. 72.) But for almost all practical purposes it may be taken to be wholly the creature of statute ; and it is, therefore, as unnecessary here to discuss tin', Roman law of prescription, to which that of Scotland owes little or nothing, as it is to enter upon the speculation whether prescription be 'repugnant to natural equity,' or, on the contrary, 'agreeable ' to the law of nature.' The first Scots statute dealing with prescription is the Art &.cti469, 1469, c. 28, entitled, ' Of obligations to be followed within ' fortie zeir, , M. 10, 716. :i Ersk., Prin., ± 1. 15. THE LONG PRESCRIPTION abstracted and withholden upon malice of parties, — and partly as evidents not thought necessary to have been kept after so long time, by reason that the charters make mention of the procura- tories and instruments of resignation, and instruments of sasine make mention of the precepts of sasine whereupon the same pro- ceed : For remedy whereof, our said Sovereign Lord, &c, finds, decerns, and declares, that none of his Highness lieges may be compelled, after the space of forty years, to produce procura- tories or instruments of resignation, precepts of dare, constat, or other precepts of sasine of lands, or annual-rents, Avhereof the present heritable possessors, and their predecessors and authors, and other persons, by virtue of liferents reserved in the said infeftments, are, and were in possession by the space of forty years together; and that the wanting and in-laik thereof, nor none of them, shall be no cause of reduction of the infeftments granted to the proprietors, or their predecessors or authors, of the lands or annual-rents whereof the charter or charters (making mention of the resignation or resignations to have been made), and the instruments of sasine (making mention of the precepts of sasine by virtue of which the sasines were given) are extant. And wills, statutes and ordains, that this act shall be extended to all procura- tories and instruments of resignation, precepts of dare constat, or other precepts of sasine, the wanting and inlaik whereof, nor none of them, shall be no cause of reduction, nor other quarrel (question) whatsoever, after the space of forty years, where infeftments have taken effect by possession, by the said space of forty years, in manner above rehearsed, and where the charters and instruments ' of sasine are extant as said is.' The production, then, of charter and instrument of sasine, and the possession of the lands by the space of forty years together were the conditions of a proprietor's freedom from the risk of having his title reduced or quarrelled ; and this was, doubtless, a most important step towards putting heritable proprietors ' in certainty of their heritage in all time coming.' But that desirable object was not fully accomplished until the passing of ' that excellent statute of prescription,' x ' the palladium of our land proprietors,' 2 the Act 1617, c. 12, the text of which will be found in the next chapter. 1 Stair, 4. 35. 15. 2 Kames, Eluc, p. 262. CHAPTER II THE ACTS 1617, C. 12 ; AND 37 AND 38 VICT. C. 94 The Act 1617, c. 12, runs as follows :— Act 1617 c. 12. ' Ancnt Prescription of Heritable Rights. ' Our Sovereign Lord, considering the great prejudice which his ' Majesty's Lieges sustain in their Lands and Heritages, not only by ' the abstracting, corrupting, and concealing of their true evidents, in ' their minority and less-age, and by the amission thereof by the ' injury of time, through war, plague, fire, or such like occasions, — ' but also by the counterfeiting and forging of false evidents and ' writs, and concealing of the same to such a time that all means of ' improving thereof is taken away; whereby his Majesty's Lieges are ' constitute in a great uncertainty of their heritable rights, and ' divers pleas and actions are moved against them, after the expiry of ' thirty or forty years, which nevertheless by the Civil Law, and by ' the laws of all nations, are declared void and ineffectual ; and his ' Majesty, according to his fatherly care which his Majesty hath to ' case and remove the griefs of his subjects, being willing to cut off ' all occasion of pleas, and to put them in certainty of their heritage ' in all time coming, — Therefore his Majesty, with advice and con- ' sent of the Estates of Parliament, by the tenor of this present ' act, statutes finds and declares, that whosoever his Majesty's ' Lieges, their predecessors and authors, have brooked heretofore, ' or shall happen to brook in time coming, — by themselves, their ' tenants, and others having their rights, — their lands, baronies, ' annual rents, and other heritages, by virtue of their heritable ' infeftments made to them by his Majesty, or others their superiors ' and authors, for the space of forty years, continually and together, ' following and ensuing the date of their said infeftments, and that ' peaceably, without any lawful interruption made to them therein, ' during the said space of forty years; that such persons, their ' heirs and successors, shall never be troubled, pursued nor ' inquieted, in the heritable right and property of their said ' lands and heritages foresaid, by his Majesty, or others their ' superiors and authors, their heirs and successors, nor by any ' other person pretending right to the same by virtue of prior • infeftments, public or private, nor upon no other ground, THE LONG PRESCRIPTION reason or argument, competent of law except for falsehood : Providing they be able to shew and produce a charter of the said lands, and others foresaid, granted to them, or their Predecessors, by their said superiors and authors, preceding the entry of the said forty years possession, with the instrument of sasine following thereupon : Or, where there is no charter extant, that they shew and produce instruments of sasine, one or more, continued and standing together for the said space of forty years, either proceeding upon retours, or upon precepts of dare constat : Which rights his Majesty, with advice and consent of the Estates foresaid, finds and declares to be good, valid, and suffi- cient rights (being clad with the said peaceable and continual possession of forty years), without any lawful interruption, as said is, for brooking of the heritable right of the said lands, and others foresaid. And sicklike, his Majesty, with advice fore- said, statutes and ordains, that all actions competent of the law, upon heritable bonds, reversions, contracts, or others whatsoever, either already made, or to be made after the date hereof, shall be pursued within the space of forty years after the date of the same ; except the said reversions be incorporate within the body of the infeftments used and produced by the possessor of the said lands, for his title of the same, or registrated in the Clerk of Register's books ; in the which case, seeing all suspicion of falsehood ceases most justly, the actions, upon the said reversions ingrossed and registered, ought to be perpetual : Excepting always, from this present act, all actions of warrandice, which shall not prescribe from the date of the bond, or infeftment, whereupon the warrandice is sought, but only from the date of the distress, which shall prescribe, it not being pursued within forty years, as said is. And sicklike it is declared, that in the course of the said forty years' prescription, the years of minority and less age shall no ways be counted, but only the years during the which the parties, against whom the prescription is used and objected, were majors and past twenty-one years of age. And his Majesty, being careful that no person, who hath any just claim, be prejudged of their actions by the prescription of forty years already run and expired before the date of this present act, hath, with advice foresaid, granted full liberty and power to them to intent their said actions, within the space of thirteen years, next following the date hereof ; which shall be as effectual as if the same had been intented within the said space of forty years prescribed by this present act ; after the expiring of the which thirteen years this present act shall have full force and effect, after the tenor thereof in all points. And nevertheless it is THE ACTS 1617, c 12, AND 37 AND 38 VICT. c. 94 • declared that the persons,at wliose instance theforesaid actions shall • be moved and intended within the said space of thirteen years, • shall not be compelled to insist in the said actions, at the desire of ; their parties, upon the first summons and citation thereof only, ■ except that the said first summons be called and continued, and ' the defenders of new summoned thereby ; in the which case and • no otherwise, it is declared that they may be compelled to insist • at the instance of the party having interest.' The series of prescriptive enactments is brought to a close 37 and 38 by the Conveyancing Act of 1874 (37 and 38 Vict. c. 9-4), the §3 C 4 .' 34th section of which is to this effect : ' Any ex facie valid irredeemable title to an estate in land • recorded in the appropriate register of sasines shall be sufficient ' foundation for prescription, and possession following on such • recorded title for the space of twenty years continually and < together, and that peaceably, without any lawful interruption 'made during the said space of twenty years, shall, for all the ' purposes of the Act of the Parliament of Scotland, 1617, c. • 12, "Anent prescription of heritable rights," be equivalent to ' possession for forty years by virtue of heritable infeftments for • which charters and instruments of sasine or other sufficient titles ' are shown and produced, according to the provisions of the said ; Act; and if such possession as aforesaid following on an ex facie ' valid irredeemable title recorded as aforesaid shall have continued : for the space of thirty years no deduction or allowance shall be ' made on account of the years of minority or less age of those • against whom the prescription is used and objected, or of any • period during which any person against whom prescription is ■ used or objected was under legal disability. This enactment • shall have no application to, and shall not be construed so as to ' alter or affect, the existing law relating to the character or period ' of the possession, use, or enjoyment necessary to constitute or • prove the existence of any servitude or of any public right of ' way or other public right, [and shall not be pleadable to any ' effect in any action in dependence at the commencement of this ' Act, or which shall be commenced prior to the first day ot •January one thousand eight hundred and seventy-nine :] Pro- • vided always, that the possession for any space of time prior to ' the first day of January one thousand eight hundred and Beventy- ■ nine shall not have effect for the purposes of this sect inn unless ' such space of time immediately preceded and was continuous up ' to the said first day of January.' THE LONG PRESCRIPTION Positive The Act 1617, c. 12, consists of two portions: one rendering and ' ° Negative, invulnerable a certain specified written title, clothed with forty years' possession, in a competition for the right to heritable property ; the other cutting off all actions upon heritable bonds, etc., not pursued within forty years. The plea of prescription may accordingly be proponed either (1) positive 1 — i.e. in terms of the first part of the Act ; or (2) negative — i.e. in terms of the second part of the Act (taken along with the Acts 1469, c. 28, and 1474, c. 54); l and since the beginning of last century the terms Negative and Positive Prescription have been freely employed. This nomenclature has led to serious confusion, but has long been so firmly established that its abandonment would now be attended with even greater inconvenience than its retention. In dealing, however, with the Positive and the Negative Prescription as distinct branches of the subject, it is essential to bear in mind that by the former is merely meant the plea as advanced under the first, or feudal, section, by the latter the plea as advanced under the second or general section of the statute. 1 Stair, 4. 40. 20; Lines of Auchluncarf , 1695, M. 11, 212. CHAPTER III OF THE POSITIVE PRESCRIPTION (Stair, 2. U. 15-27, and Note AA. pp. cclxxvi-cclxxix.) (Ersk.. Inst., 3. 7. 1-7) (Bell, Prin., § 2002-2025 The function of the Positive Prescription is twofold: (1) It its 1 lunctions. secures the progress of titles to an estate against any one alleging a better title ; (2) It determines the extent or com- prehension of an estate, the title to which is not questioned. The essential conditions upon which the effective discharge of these functions depends are (1) a clear and distinct title ; and (2) continued and unequivocal possession. (liven, then, the statutory title and the requisite possession J^ ?^ referable to that title, the right of the party assailed is impreg- andpos- ° 3 p session, nable, even as against the Crown, 1 except on the ground of intrinsic nullity or forgery. It matters not that his infeftments have proceeded upon precepts from one who was not the true superior. Forty years' possession upon these infeftments will give a sufficient right to the subjects in question. 2 So exclusive is the nature of the prescriptive title that it will bar all inquiry into the previous origin and history of the title produced. Nullity from [extrinsic] error is not a relevant ground of ' objection to a prescriptive title.' ' The Positive Prescription ' operates by excluding all enquiry beyond the forty years into 'the previous titles and rights to the hinds.' 'All the prior ■ history of the lands is excluded.' 8 ' I bold,' says Lord 1 Act 1617, c. 12; Lord-AdvocaU J Millers v. Dickson, 1766, M. 10,937. v. Dundas, L830, 8 8. 755; L831, :; Forbes v. Livingstone, L827, 6 S. 5 VV. & s. 723. HIT ; I W. 4 8. 657. THE LONG PRESCRIPTION Moncreiff, 1 ' that it is the purpose of prescription to exclude all ' enquiry as to whether titles habile in their form upon which ' prescriptive possession has followed were in their original nature ' good or bad, and specially the enquiry whether the author •' from whom they have proceeded had power to grant them ' or not. When prescription has run, there is an absolute pre- ' sumption that they are good.' Xo enquiry into the initium possessions is necessary or competent. A party having pos- sessed an estate on a title from the Crown for more than fort}' years was held to have a prescriptive right to the subjects, though his title bore that the Crown, his author, had right only by virtue of the Act of Annexation, in which there was an express exception of the right of the Crown to the lands in question. 2 A proprietor had titles flowing from a subject superior in which his lands were described as ' bounded by the ' sea.' No crown-grant of the foreshore to that subject superior could be produced. The superior, therefore, had no right to the foreshore. Yet forty years' possession of the foreshore attribut- able to that grant a non Itabcnte potestatcm was held sufficient to establish in the proprietor of the lands a prescriptive right of pro- perty in the foreshore. 3 It is, indeed, this ' very objection which ' it is the object and especial virtue of the long prescription to ' exclude' (p. Lord Young). 4 Where part of a barony was held of the Crown, and part of a subject-superior, and where after a judi- cial sale a purchaser resigned the whole lands in the hands of the Crown, and got a Crown charter, under which several successive heirs made up titles, ignoring the subject superior, and pos- sessed for forty years, it was held in an action of reduction, improbation and declarator of non-entry raised by the subject superior, that the defender might plead prescription on the Crown charter clothed with possession, for that, though the 1 Lord- Advocate v. Graham, s Young v. N. B. Ry.Coy., 1S87, 1844, 7 D. 183, 205. 14 R. H. L. 53 ; 1885, 13 R. 314. - Duke oj Bucclench v. Cunyng- 4 Glen v. Scales' Trustees, 1881, hame, 1826, 5 S. 53. 9 R. 317. OF THE POSITIVE PRESCRIPTION feudal relation never terminated through mere non-user, there was no room for that doctrine in a case where possession was referable to a charter and sasine inconsistent with the feudal relation attempted to be set up. 1 The same view was taken by the Lord Ordinary, in the unreported case of Zockhart v. Duke of Hamilton and Others, 1890, in which the pursuer challenged the right of the Duke of Hamilton to a superiority of teinds, and the right of Mr. Wolfe Murray to the dominium utile of the teinds, founded upon a grant (free of feu-duty) by the Duke of Hamilton, admittedly fortified by possession. ' It may be,' says Lord Kinnear in his Opinion, ' that prescriptive possession upon a •' charter a non domino, although it will give a good right to ' the grantee, may be unavailing to create an estate in the ' aranter if he has no title in his own person to which he can ' ascribe the possession of his vassal. If that be so, the true ' superior may exclude the non-dominus from the dominium ■ directum. But that will not enable him to challenge, or in ' any way to affect, the right of the vassal which ex hypothesi ' has been established by prescriptive possession upon a habile ' title. Lor prescription operates not merely to secure the '• right of property, but to protect the title from question. . . . ' The extent and conditions of the right must be ascertained ' from the titles on which prescriptive possession has followed, ' and from no others. ... It appears to me to be just as ' inconsistent with the settled law of prescription to say that ' by earlier titles the teinds were held in feu of the titular for 1 payment of a feu-duty, as to say that the earlier titles would ' show that there had never been any good right to tenuis in ' the heritor or his authors. . . . The defender is entitled to ' stand upon the giant which has now been fortified by his ' Macdonald v. Lockhart, 1853, I Boyd, L890, is R. 1 ; and Duh of MacQ. 790; 25 S.J. 559. Roxburghe v. Scott, L871, 18 R. 8. See ul.su Duke of Bucclt ueh v. THE LONG PRESCRIPTION ' possession, and may refuse to look at any other title flowing { from any other author.' Good faith Bona fides, in short, is no element in the Positive Prescrip- not required, tion. ' Even granting that the titles had been derived a non ' domino, still the heir is entitled to plead prescription, whereby ' any enquiry into that fact or into mala fides is excluded ' (p. Lord Balgray). 1 ' If the title be in itself perfectly good, and ' derived from the true proprietor, there can be no need of pre- ' scription, which is only necessary to cure bad titles ' (p. Lord P. Hope). 1 ' It is the great purpose of prescription to support ' bad titles. Good titles stand in no need of prescription \ (p. Lord Braxfield). 2 If a party's title be such as may comprehend everything he claims under it, and prescriptive possession of the whole have followed, ' he cannot be called upon either to ' support that title or to contradict it by producing any older ' title or titles he may be possessed of. Nor can his position be ' varied for the worse by any production of older titles made by ' his opponent ' (p. Lord Deas). 3 So a disposition and sasine ex facie absolute, clothed with possession for forty years, are sufficient to exclude an allegation that the right originally flowed from a title qualified by a power of redemption. 4 Conditions But the two essentials, title and possession, must coincide, coincide, or prescription cannot operate. ' It is undoubted that simply ' non utendo a feudal proprietor cannot lose his right of pro- ' perty, or any of its consequents. Another party having a ' title may acquire an adverse right and interest through pos- ' session upon a sufficient title. That is quite true : but there ' must be a title ' (p. Lord Cowan). 5 A proprietor disponed a storey of a house to a purchaser in 1792. In 1793 he dis- poned the whole tenement gratuitously to his wife, who took infeftment upon the disposition in 1794. The purchaser and 1 Duke of Bucchuch v. Cunyng- 3 Autd v. Hay, 1880, 7 R. 663. hame, 1826, 5 S. 53. 4 Chamber* v. Law, 1823, 2 S. 326. 2 Scott v. Bruce Steicart, 1779, M. 5 Led v. Chalmers, 1859, 21 D. 13, 519 ; 3 Ross L. C. 334. 408. OF THE POSITIVE PRESCRIPTION his heirs possessed the storey on the personal title without taking infeftment till 1837, when the heir of the purchaser was infeft. In 1862, a singular successor of the wife, who acquired his right in 1853 and was duly infeft, raised an action of removing against the heir of the purchaser, who pleaded prescription. Here, it will be observed, one party could point to an infeftment going back for more than forty years but without possession, while the other party could point to possession for more than forty years, but possession not referable to any infeftment. It was held that neither party had established an exclusive right, and that upon a con- sequent comparison of titles the heirs of the purchaser were to be preferred as standing in right of an onerous disponee. 1 It is now necessary to consider somewhat more attentively the nature of the Title and of the Possession which are required by the Act 1617, c. 12. For convenience sake, we shall attempt, as far as possible, to discuss the two topics separately, though it is often difficult to keep them apart, and always undesirable to lose sight of their intimate connection, i Andersons v. Low, 1863, 2 M. 100. CHAPTER IV OF THE PRESCRIPTIVE TITLE trtkf iat "' e Two titles are s P ecmed D y the Act 1617, c. 12, as habile for prescription ; one of which has been settled by practice to be that which is available to singular successors ; the other to be that which is available to heirs. charter i. The first title is ' a charter of the said lands and others and sasine. ' foresaids granted to them or their predecessors by their saids ' superiors and authors, preceding the entry of the saids forty ' years' possession, with the instrument of sasine following ' thereupon.' ' By charter,' says Lord Stair, 1 ' must not be ' understood a solemn charter as it is distinguished from a ' disposition or precept, but as it comprehends these, for many ' valid infeftments have no charter, but sasine proceeds upon ' the precept of sasine in the disposition.' The word ' charter,' indeed, may be said to be understood as comprehending any deed whose form of expression is considered legally dispositive — e.g. not merely a disposition, but a procuratory of resignation or a precept of sasine separate from a disposition or charter. 2 No authority can be found in support of Lord Stair's further proposition that an obligation to infef't with instrument of sasine will afford a good title for prescription. 3 But the Court is so desirous of putting a liberal construction upon the Act, that, in the opinion of at least one judge, an invalidly executed disposition of heritage by a projDrietor, followed by a ratification by the heir apparent (which contained no words of 1 2. 12. 20. - Heriot's Hospital v. Hepburn, 1697, M. 10, 787. :; 2. 12. 20. OF THE PRESCRIPTIVE TITLE 15 conveyance) was equivalent to the disposition of that apparent heir, and therefore, though proceeding a non habi nte protestatem, was a habile title to found prescription. 1 A seisin of burgage- tenements bearing resignation to have been made in the hands of a bailie is a good foundation for a prescriptive right, the resignation and the sasine being contained in one instrument. 2 A charter restoring certain lands forfeited and annexed to the Crown under the Vesting and Annexing Acts, with infeftmenl following thereon, has been held a good title on which to pre- scribe an absolute right to an estate. 3 A sasine without its warrant is worthless as a title for prescription, 4 and of equally little value is a ' charter ' unaccompanied by instrument of sasine. 5 The instrument of sasine is the sine qud non of a prescriptive title to a feudal subject. ' Infeftment ' may mean more than the instrument. It never can mean less. Extracts of sasine have been found not to be a title for prescription, though a ' transumpt out of the official of Lothian's book ' was held to be probative 'in re tarn antiqua' \t though a charter of confirmation and new erection in favour of a Eoyal Burgh, narrating and confirming rights set forth as previously belong- ing to the Burgh, even if no sasine is produced, is a sufficient title for the magistrates to acquire a right of property upon ; s and though, as we shall have occasion to see hereafter {infra p. 61), the statute is applied by analogy to cases where sasine is incompetent or unnecessary, and that in a very thoroughgoing manner.'' 2. The alternative title admitted by the Act is, ' Where' Sasine upon . . ret ours, eft . ' there is no charter extant, instruments of sasine, one or 1 Oleny. Scales' Trustees, 1881, 9R. 5 Ochterlony v. Officers oj Sim.. 317 (p. Lord Young). 1825, 1 W. & S. 533. - K , r . ■ Ih not* Hospital v. Hepburn, Olassford v. Mackenzie, 1S29, j ( jg- ^ ^ - s - 7 s. 423. 1 Fra 784. 9 Mauler. Maule, 1829, 7 S Aytoun \. Magistrates of Kirk ■I-,".,- v. Hogg, 107!), M. H>, <•"/. « ' Nemo mutare poteat cauaam poa 908; L850, 7 Bell's Ap. 05. ' aeaaionia awn is good Roman Law, 1 1701, M. in, sio. ' but very bad Scots Law ' (p. Lord 174.",, M. 10, 789. Kermand). THE LONG PRESCRIPTION in security, and is not a right of property at all). 1 The theoreti- cal explanation of the doctrine seems to be that the positive prescription running from the time when expiry might have been declared supplies the omission to have this done and be- stows upon the adjudger's title an equivalent for declarator. 2 Why not But, since the mere lapse of the legal does not convert the from date . ofinfeft- adjudger's right into one of property, and since, nevertheless, forty years' possession from the expiry of the legal is held to be possession animo dominii, why should not forty years' posses- sion from the date of infeftment upon the adjudication suffice to establish a good prescriptive title? Struck with the difficulty of finding a satisfactory answer to this question, Baron Hume opined that prescriptive possession begins to run from the date of the investiture to which it is referable, and that adjudication followed by infeftment, on which forty years' possession has immediately followed, affords an unassailable title to heritage. But however tempting and plausible this view may be, and however inconsistent the opposite opinion may appear, it is impossible to get over the authority of Cutler v. M'Lcllan? where the Lords were all unanimous that upon a charter of adjudication prescription of the absolute irredeemable property could not run except from the expiration of the legal. Lord Monboddo added that if prescription had been pleaded against any other than the debtor or his heir it would doubtless have run from the date of sasine ; and that in a question with any- body, if the adjudger claimed no more by prescription than the redeemable right, the prescription would run from the date of sasine. With this case the later one of M'Kenzie v. Robertson* is in complete accordance. There adjudication and infeftment had been followed by possession for forty years from the date of sasine, but not from the expiry of the legal. In 1809, within forty years from the adjudication, the adjudger obtained decree 1 Anderson v. Nasmyth, 1758, M. 3 1762, 5 Br. Sup. 893 ; 1 Ross L. 10, 676. C. 204. - Napier, p. 138. 4 1827, 5 S. 648. OF THE PRESCRIPTIVE Til LE 23 of declarator of expiry of the legal without calling the pursuer, who stood in the reverser's right. In 1817 the pursuer brought a reduction of that declarator, against which the defender pleaded prescription, founded on the adjudication and infeftment clothed with forty years' possession. The Court repelled the defender's plea of prescription. The case of Gcdcl v. Baler, 1 to which Baron Hume appeals in support of his opinion, in reality makes for neither view of the question. For there the de- fender was not in a position to plead forty years' possession from the expiry of the legal owing to the deduction of minori- ties, and all that was decided was that the lapse of forty years from the date of charter of adjudication and infeftment barred the pursuer from challenging the adjudication on the ground of extrinsic nullity. No doubt, however, was expressed but that the pursuer might have alleged 'satisfied and paid within ' the legal ' at any time within forty years from the expiry of the legal. A decree of adjudication with infeftment thereon duly re- Forty years corded, even when followed by decree of declarator of expiry stm 68 ' of the legal, has been held not to be such an ex facie irredeem- liecessar y* able title as the Statute 37 and 38 Vict. c. 9-1, § 34, declares shall be a good prescriptive title when clothed with only twenty years' possession. Forty years' possession is, therefore, still necessary. 2 1 17G0, 1 Ross L. C. 200 ; M. 10, 2 Hinton v. Eobbs, 1SS3, 10 R. 789. 1110. CHAPTER V OF PRESCRIPTIVE POSSESSION Title must The second requisite of a good prescriptive right is possession be clothed „ . to • i i o /-\ ^ with ot a certain quality tor a certain length ot time. On the one hand charter and sasine without possession enjoy no peculiar privilege under the Act 1617, c. 12, in a competition of titles. A superior conveyed his superiority to another, but still re- tained it in his own titles. It was held that he reacquired it by the vassal in the lands obtaining entry from him instead of from the disponee of the superiority. His title, that is to say, plus possession through the vassal, prevailed against the infeft- ment of the disponee on which no possession had followed. 1 So where the Magistrates of a Royal Burgh had granted re- peated renewals more burgi of investitures specially containing a piece of ground in dispute, their continued possession of the subject following on charter of confirmation and new erection was held to establish in them a good prescriptive right as against the competing party to whom and to whose authors these renewals had been granted. 2 ' Can a superior,' asked Lord Cringletie, ' prescribe against a vassal a subject previously ' granted to him ? I have no doubt he can. If the vassal does ' not possess, it is an abandonment of the feu. Prescription is ' not interrupted by renewals of the grant.' Possession On the other hand, no peculiar privilege is conferred by the must be . . referable to Act upon possession, no matter for what length ot time, with- out charter and sasine. ' Possession is of no sort of importance ' in a question of prescriptive right to a feudal subject unless ' there have been a legal title on which prescription was to 1 Fergusson v. Grade, 1832, 3 Ross " Aytoun v. Magistrates of Kirk- L. C. 370. caldy, 1833, 11 S. 676. OF PRESCRIPTIVE POSSESSION 25 ' begin its course ' (p. Lord Cringletie). 1 Prescriptive posses- sion of salmon fishings in the sea will not confer a right of salmon fishings on the proprietor of a barony bounded by the sea, unless that possession can be ascribed to the barony title. 2 Possession alleged upon a minute of council (on which no title had been made up) was held to be an irrelevant plea, inasmuch as the minute was contradictory of the right claimed. 3 The Duke of Buccleuch raised an action against the Magistrates of Edinburgh for reduction of a decree of the Judge Admiral re- lative to the boundaries of conterminous oyster fishings in the Firth of Forth, combined with declarator of the extent of his right. The defenders admitted that they could not resist re- duction of the decree, but in regard to the declarator pleaded their possession as limiting the pursuer's right. The plea of possession was held irrelevant, since possession could only be referred to the decree, which was admittedly open to reduction. 4 Although possession must be referable distinctly to an in- < p av t ami feftment and to the infeftment produced, a right or subject pei nen ' may nevertheless be carried by prescription (even if it be not expressed in the prescriber's charter), which has been possessed for the statutory period as part and pertinent of another subject specially mentioned in it. Where, however, a proprietor founds on a conveyance of heritage with parts and pertinents as a pre- scriptive title to lands not mentioned in the conveyance, it is not enough for him to show that he has possessed them along with the principal lands for forty years. The 01111s lies on him of proving that he has had possession of them as part and pertinent of the principal lands. 5 So powerful is the effect of possession upon a clause of part and pertinent that it prevails in a competition against an express grant of the subject in 1 Officers of State v. Earl of Had- :; Ross v. Milne, Cruden <(• Co., dvngton, 1830, 8 S. 867, 874. See, L843, r> D. 648. too, EdmonstOTU v. Jeffroy, etc., 1886, 4 Duk> of Buccleuch v. Magistrates 13 R. 1038. of Edinburgh, L843, 5 I ». 846. n Lord-Advocate v. Hunt, 1867, 2 Milne' 8 Trustees v. Lord-Advo- 5 M. II. L. I ; Scott v. Napier, 1869, cate, 1873, 11 M. 966. 7 M. II. L. 36. 26 THE LONG PRESCRIPTION question upon which infei'tment has followed, but not posses- sion. Thus the titles to the barony of Elcho, with parts and pertinents, clothed with possession for forty years, were held sufficient to constitute a good right of property in an island in a river opposite the barony, though the island was included per expression as a separate tenement in the titles of a third party, and though a decree of declarator of property in the island had passed in 1637 in favour of that third party, who had never enjoyed possession of the subject. 1 So, too, an in- feftnient in lands with parts and pertinents was found a suffi- cient title on which to acquire by possession qud dominus a right of property in an adjoining moor not expressly included in that infeftment, and expressly included in the titles of another, and that notwithstanding an old decree finding the prescriber's right in the moor to be one of servitude only. 2 In like manner, possession for forty years as part and pertinent constitutes a good prescriptive title to property, even where the pursuer produces a tack prior to the forty years, and alleges that possession originally began upon it. 3 On the other hand, an express grant renewed in all succeeding investitures cannot be lost by failure to possess unless the competing party can produce a proper title to which his possession may be ascribed. Where the charter of a burgh of barony contained no right of fishing in a certain loch, but merely a right of harbour, although in the tenendas ' cum aucupationibus, piscationibus' was thrown in, forty years' possession of oyster fishings in the loch by the Magistrates was held not to constitute a good prescriptive right to the oyster fishings in a competition with one holding an ex- clusive right to them by charter and sasine, though not clad with possession. 4 In such cases, however, the bare title with sasine that prevails must be express and unmistakeable ; and i Magistrates of Perth v. Earl of Wemyss, 1675, M. 9636. Grant v. IVemyss, 1829, 8 S. 82. Grant, 1677, M. 10, 876. 2 Earl of Fife's Trustees v. Cum- ing, 1830, 8 S. 326. 4 Agnew v. Magistrates of Stran- 3 Countess of Moray v. Earl of raer, 1822, 2 S. 36. OF PRESCRIPTIVE POSSESSION 27 where a proprietor claimed as property the alveus of a stream which he admitted had been possessed and administered by the Magistrates of the town for more than forty years, he was required to produce a title from the Magistrates divesting them, and it was held that his mediate titles, implicitly in- cluding the atoms, not being clad with possession were of no avail. 1 But where both competing parties produce titles equally Possession habile for prescription, the state of possession will determine mining a whose is the right. Two baronies, A and B, the titles to which contained clauses of parts and pertinents, were erected into one barony, C. The proprietor sold a portion of A with parts and pertinents, and this portion was excepted, and the clause of parts and pertinents applicable thereto was omitted, from his subsequent titles. A competition arose between the heir of the seller and the heir of the purchaser as to a tract of ground belonging to A, not expressly mentioned in either of their titles, but claimed by both as part and pertinent, by the heir of the purchaser as his exclusive property, by the heir of the seller in common property with the heir of the purchaser. It was held that the heir of the seller had a good title on which to prove prescriptive possession of commonty or of a servitude ; and that as both parties claimed under clauses of part and pertinent, the extent of their rights fell to be determined by proof of the state of possession. 2 A, by contract rati tied by Act of Parliament, acquired right to certain fen-duties which had pertained to an hereditary keepership. 1 nfeftment followed, and feu-duties were paid down to within forty years of the action. Then B, a proprietor of lands, refused to pay fen- duties, on the ground that he had possessed for more than the prescriptive period upon a Ptoyal Charter converting his holding into blench, and that under this investiture the subsequent 1 Jamieson v. Police Commiasonem Carnegie v. MacTier, 1st I, C> I). of Dundee, 1884, 12 R. 300. Sec L381. Wiltionv. Martin, L843, <> i>- 7. THE LONG PRESCRIPTION Possession as inter- preting Crcnyn grants. Barony titles. titles had been made up. It was held that A had a right to the feu-duties in virtue of the constant possession that had followed on his titles, notwithstanding the lands having been held blench in the proprietor's titles for more than the years of prescription. 1 Possession then for the prescriptive period may be said to explain and illustrate the import of a grant. Thus a grant from the Crown of lands cum piscationibus with forty years' uninterrupted possession of the salmon fishings establishes an invulnerable right to these salmon fishings. 2 A proprietor infeft upon Crown charter cum piscationibus was held to have estab- lished a right to salmon fishings in the Tweed ex adverso of lands belonging to other proprietors. 3 A grant of lands with parts and pertinents is sufficient title on which to acquire by posses- sion a prescriptive right to eel-cruives in a river to which the lands are adjacent. 4 A Crown grant of lands on the banks of a loch, ' with the salmon fishings in the wester end' of the loch ' effeiring thereto,' may be set up as a title to salmon fishings ex adverso of lands belonging to other proprietors by proof of the exercise of salmon fishing for the prescriptive period. 5 Infeftment in a sheriffship, with all the casualties belonging to the office, plus possession for forty years, sufficiently instructs a right to salmon fishing. 6 Similarly, infeftment in a barony, followed by possession of the salmon fishings for the prescriptive period, will be a good title to the salmon fishings even against the Crown. 7 A ques- tion arose between the Crown and the owner of a barony as to salmon fishings in a particular part of a river. It was held not 1 Duke of Montrose v. Bontine, 1840, 2D. 1186. - Earl of Southesk v. Earlshall, 1667, M. 10, 842 ; Fullerton v. Earl ofEglinton, 1672, M. 10, 843 ; Stuart v. M'Barnet, 1867, 5 M. 753 ; 186S, 6 M. H. L. 123. 3 Ramsay v. Duke of Roxburgh . 1848, 10 D. 661. 4 Braid v. Douglas, 1800, M. Pro- perty App. i. 2 • 5 Eraser v. Grant, 1S66, 4 M. 596. 6 Earl of Moray v. Feuars of Ness Water, 1677, M. 10, 903. 7 M'Douall v. Lord • Advocate, 1875, 2 R. H. L. 49, reversing Court of Session, 11 M. 688. Lord- Advocate v. M'Culloch, 1874, 2 R. 27. OF PRESCRIPTIVE POSSESSION necessary to inquire whether the owner of the barony had by express grants acquired rights to the whole salmon fishings in the river ex adverso of his lands ; because the full possession he had had in one part of the river, in conjunction with his title, sufficed by prescription to confer a right to the salmon fishings in the whole river as vnini! quid, ex adverso of the lands in- cluded in the barony. 1 A Crown title to a barony with fishings was found to be sufficient title on which to establish by evidence of exclusive possession for the prescriptive period an exclusive right to mussel scalps betwen high- and low-water mark. 2 Barony titles which contained no express grant of foreshore, nor any description of the land by boundaries, were held, when clothed with possession, to be sufficient foundation for a pre- scriptive right of property in the foreshore. 3 A charter of barony with a clause of parts and pertinents is a sufficient title, when clothed with the requisite possession, to constitute a prescriptive right to ferry over a navigable river. 4 But it is not only upon Crown charters or upon barony titles Base rights J L < to regatta. that possession for the prescriptive period operates in this manner. A base right to salmon fishings, or even 'fishings,' will probably be converted by possession into a good prescriptive title to salmon fishings. 5 A disposition of lands and shore-ground, though not confirmed by the Crown, clad with possession for the prescriptive period, was held sufficient to instruct a pre- scriptive title to the foreshore of a navigable tidal river. And, in general, a Crown charter by progress, or even a charter from a subject, is a good title upon which forty years' possession may erect a prescriptive right to rct/<4. OF PRESCRIPTIVE POSSESSION 39 By the Statute 37 and 38 Vic. c. 94, § 34, it is enacted that n possession following on such a title as is declared by the Act y to be sufficient foundation for prescription, ' for the space of ' twenty years continually and together, and that peaceably ' without any lawful interruption made during the said space ' of twenty years shall for all the purposes of the Act 1617, c. ' 12., . . . be equivalent to possession for forty years by virtue ' of the titles ' specified in that Act. This enactment may only be pleaded in actions begun on or after 1 January 1879, and possession for any time prior to that date is to have no effect for the purposes of this section 'unless such space of time 'immediately preceded and was continuous up to the said' date. The Court has construed the language of this statute in the widest sense, and has held that twenty years' possession has been substituted for forty for all the purposes of that Act as interpreted in the decisions of the Court, e.g. the case of prescribing a right as a part and pertinent. 1 But forty years' possession from the expiry of the legal is still necessary to convert an adjudication into a good prescriptive title, an adjudication not being an ' ex facie valid irredeemable title ' in terms of 37 and 38 Vic. c. 94, § 34.' 2 A curious conflict, it may be noted, might readily enough arise between this section of the Conveyancing Act and the second, or general, portion of the Act 1617, c. 12. A party may still successfully quarrel and reduce a deed, on the ground of extrinsic nullity, at any time within forty years of its date. Yet one who had possessed for twenty years upon such a deed, would be able, supposing it to be ex facie valid, to found upon it a good prescriptive title to the lands which it purported to convey. His deed, of which the nullity had ex hypothesi been demonstrated and judicially declared, on extrinsic grounds, would if clothed with possession for the statutory period prevail over any the mosl correct pro- gress of titles. 1 Bttcltanan .r Geils v. Lord- " Hinton v. //<»/.//-, 1883, I" Et. Advocate, 1882, 9 R. 1218. LHO. o\v twenty cars. and reverser. 40 THE LONG PRESCRIPTION Possession Possession may be either natural, i.e. in the person of the natural or p VO p r i etor> or e i v il 9 i. e . ' m the person of another for behoof of the proprietor. Where one possesses in his own right, his possession can profit none but himself. Mr. Bell lays down that the possession of a disponee will profit his author ; 1 but it is submitted with great deference that this proposition is erroneous, and that, on the contrary, a disponee can by his own possession acquire a right against his author. 2 Wadsetter On the other hand, wherever one possesses in the right of another, his possession will profit that other person. 3 Upon this principle, the possession of a reverser who possessed the lands for half the prescriptive period upon a back-tack from the wadsetter was held to be that of the wadsetter, and capable of being conjoined to his ; and he having possessed for the other half of the prescriptive period in person was found thus to have acquired a good prescriptive right. 4 Similarly, where the proprietor of lands sold in an adjudication had redeemed them either before declarator of expiry of the legal, or before the running of prescription, in a question with a third party who challenged his right to the lands, he was held entitled in pleading prescription to found upon the adjudger's possession as having been prescriptive for him. 5 Landlord The simplest illustration of the doctrine is found in the case of a tenant whose possession in this respect profits not himself but his landlord. So long as a tenant continues to possess upon his tack, his possession is the landlord's possession, and he can prescribe no right of property in virtue of that possession against the landlord from whom his right flows. But if the tenant procure a grant of the lands a non domino, pay no rent, and continue in full possession for the prescriptive period, he will then be in a position to propone a good statutory 1713, M. 1GG7, M. and tenant. 1 Prin., §2005. 4 Murray v. Macltllan, - Clerk v. Earl of Home, 1746, M. 10, 934. 10, 662. a Kilkerran, voce Adjudication, 5 Burgy v. Strachan, p. 11. 1303. OF PRE SCRIP TI I 'E POSSESSION 4 1 prescriptive right to the lands which will prevail alike against the original landlord and against third parties. Though the tenant may not change his title in course of possession, and ascribe to the new title the possession that was really referable to the old one, he is free if he can to complete the full period of possession upon the new title of property. 1 Hence Lord Hermand's sweeping dictum, already quoted, that nemo mutare potest causam possessionis suae, ' is good Roman law, but very bad • Scots law.' - The equivalent of that maxim in Scots law is the proposition that no one can prescribe a right contrary to the terms of the title to which he ascribes the possession of that right. If there be a change of title, there must be a shift- ing of the ascription of possession. In like manner the possession of the vassal is the possession Superior , , . j ami vassal. of the superior in questions between the superior and third parties. The proprietor of a barony, upon a Crown charter with fishings, granted a feu charter of the lands with fishings in the tenendas. Immemorial possession was proved. It was held that the Crown charter of barony, followed by possession, was sufficient to divest the Crown of the right to salmon-fishings, and that it was immaterial whether the proprietor had possessed in person, or through his vassal. 3 On the other hand, the proprietor of a barony, with no express grant of salmon-fishings, was held not to have instructed a prescriptive right thereto, by proving that the tenants of cottages on his estate had been in use to fish for salmon in the sea for their own behoof, without paying rent. 4 As between superior and vassal, the principle that we have so often had occasion to insist upon again con- fronts us, namely, that the vassal cannot by possession prescribe a right contradictory of that contained in the title to which his possession is to beascribed. Failure to exact, feu-duties or the 1 Grant v. Grant, 1677, M. 10, Lord-Advocate v. M'Cvlloch, 876. 1874, 2R. '-'7. 2 Robertson v. Duke of Athole, ] l Lord-Advocate v. Hall, 1873, Rose, L. C. 208. H M- 967. 42 THE LONG PRESCRIPTION like will not imply a dereliction of his right by the superior, or an interruption of his possession, for the vassal's possession is his. It has long been settled law that ' the possession of a ' superiority is not by uplifting feu-duties or casualties ; but if ' the vassal has possessed upon a right derived from the superior ' or any of his authors, then his possession is in the construction ' of £he law accounted the possession of the superior.' x With this doctrine it seems quite impossible to reconcile the case of M'Kerrel v. Lord Keith, 2 where a series of investitures bearing a reddendo of £12 Scots was found insufficient to alter an old blench tenure in respect of want of possession of the £12 Scots. While, however, failure to pay feu-duties for forty years will not avail to destroy the feudal relationship, or to impair the superior's right, still, if the vassal obtain a charter from some one other than the true superior, and possess upon that for forty years, at the same time paying no feu-duty to the true superior, the vassal will have acquired a good prescriptive right against the true superior, and their feudal relationship will be extin- guished. 3 So a right to burgage tenure was found to have been gained by forty years' possession upon burgage titles, not the less easily, that the party claiming the superiority could pro- duce no feu-charter or disposition. 4 It is in this sense that, in the phrase of Lord Armadale, 'a change of tenure may be ' gained by prescription.' Liferenter In the same way, the possession of the liferenter is that of the fiar. In 1678, the Earl of Argyle disponed the estate of Otter to Colin Campbell, expressly reserving a life-rent of part of the lands, which had been constituted, not by the Earl nor by his author, but by a party from whose heir the estate had been adjudged by the Earl's author, and whose representative claimed the lands as verus dominus against the Earl or those in his right. Colin Campbell obtained a Crown charter of the whole 1 Campbell, 5 Br. Supp., S12. MacQu. 790; 25 S. J. 559; Pater- son, 274. 2 1801 > Hume > 458 - 4 Hamilton v. Scotland, 1807, 3 Macdonald v. Lockhart, 1853, 1 Hume, 461. OF PRESCRIPTIVE POSSESSION 43 estate of Otter in the same year 1678, and was infeft thereon. The charter made no reservation of the life- rent in the dispositive clause, nor was it mentioned in the precept or the instrument of sasine. About the same time Colin Campbell, by means of an excambion with the life-rentrix, obtained possession of the liferent lands. He possessed the lands down to 1759, when an action was raised against him at the instance of a representative of the verus dominus, from whom the estate had been originally adjudged. The question arose, Was Colin Campbell's possession of the liferent lands to be attributed to the charter and sasine of 1678, or to the assignation by the life-rentrix of the liferent flowing from the verus dominus ? The Court of Session held that the defender had not produced enough to exclude the pursuer's title to the liferent lands ; that, in fact, possession by a liferenter, or by one possessing in right of a liferenter, cannot be counted against the party from whom the liferent flowed. But the House of Lords, while not opposing this view, gave judgment for the defender, on the broad ground that by his charter and sasine, clothed with possession, he had instructed a good prescriptive right to the lands, and that it would be ' highly ' inexpedient and endless for courts to make enquiries about the ' origin of possession after it was continued for forty years, and ' complete heritable titles in the possessor's person.' l The rule that possession by the liferenter cannot operate to the prejudice of the granter of the liferent, or of his representatives, was affirmed in Nielson v. JErskine, 2 and is implicit in the early case of Yowivjrr v. Job nstone* There the assignee of an heir challenged the right of a competing heir, who pleaded prescription upon forty years' possession of the lands by a life-rentrix, whose grant (lowed from one of whom the rival heirs each claimed to be the representative. The heir pleading prescription could only benefit by the possession of the life-rentrix (the grant not having ' Campbell v. Wilson, 1770, 5 Br. - 1823,2 8. 216. Supp. 543. See also French v. Pink stav, 1835, L3S. 743. 1665, M. LO, 925. 44 THE LONG PRESCRIPTION proceeded from him) in so far as he stood in the original pro- prietor's (and granter's) right. And as the true representation of that original proprietor was just the de quo quaeritur, the Court held that in a competition between heirs, the possession of a liferenter, whose right had flowed from the defunct to whom both pretended to be heirs, was not profitable to either to the prejudice of the other; and that the liferenter's possession should be interpreted to be the possession of him who should be found the lawful and righteous heir. But the possession of a liferenter by reservation is not to be accounted the possession of the fiar. 1 Conjimc- Where there is an habile feudal title preceding the forty- possession, years' possession, and where the party pleading prescription can connect his own possession with that investiture even in the person of another, his own possession may be conjoined to that of his author so as to make up the requisite prescriptive period. One who was infeft on a general conveyance from another (who was infeft and possessed as institute under an invalid entail), and who completed the years of possession in his own person, was held entitled to conjoin his possession to his author's, and thus connect with that author's infeft- ment so as to instruct a good prescriptive title against trustees who had executed the invalid deed of entail, and claimed that they were entitled to reduce it and execute a valid one. 2 According to Mr. Erskine, 3 ' No part of the ' possession of a singular successor, upon a bare personal right, ' as a charter or disposition, can be computed to make up the ' years of prescription. And this is also the case of an heir's ' possession before he hath completed his titles by sasine ; ' because such possession by the heir is grounded barely on the ' right of apparency, and not upon sasines.' But this interpre- tation of the statute has not been adhered to by the Court, 1 Marquis of Ghjdesdale v. Earl of -Earl of Eglinton v. Eglinton, Dundona/d, 1726, M. 1262. 1861, 23 D. 1369. 3 Institutes, 3. 7. 5. OF PR ESC RIP TI 1 y; POSSESS/t K\ ' 4 5 which has more than once held that, where charter and sasine are produced as the title to which possession is ascribed, it is enough for the heir or singular successor to prove possession for forty years by persons who can connect themselves with that charter and sasine, and that it is of no moment whether that connection be established by deeds clothed with in- feftnient, or by deeds merely personal, or even by simple apparency. 1 The Court will even allow a party to feudalise a personal right pendente, lite, in order that his alleged con- nection witli the original infeftnient may be made plainer.- But a distinction must be drawn between these cases, where the title pleaded upon was the first alternative allowed by the statute, viz., charter and sasine, — where, i.e., there is direct evidence that the author or ancestor had himself a title fit in its own nature for vesting the property in him, — and those other cases where the party pleading prescription produces the second alternative title, viz., bare sasines, one or more, pro- ceeding upon retour or precepts of clare constat, — where, i.e., there is merely a reasonable presumption of an original title. If the first heir infeft upon this second alternative title com- plete forty years' possession in his own person, he has un- doubtedly established an unassailable prescriptive right which his heir in apparency may plead upon, not in virtue of his own but of his ancestors' possession. But if the first heir infeft on a bare sasine have not himself possessed for the full prescrip- tive period, his heir, in order to conjoin his possession to his ancestor's, so as to make up the necessary tale of forty years, must renew the infeftment in his own person. 3 Snch is the con- struction placed upon the words, ' sasines one or more standing ' together.' But when the heir-apparent has made up a feudal title, the years of possession on a bare apparency are reckoned 1 Middleton v. Earl of Dtmmore, J Crawford v. Durham, 20 Dec. 1774, M. 10, 944; Earl of March 1822, F. 0. mont v. Earl of Home, 1724, M. 10, 797; Caitcheon v. Ramsay, 1791, 8 Earl of Argyle v. M'Naughton, M. 10, 810. 1671, M- I", 791. 46 THE LONG PRESCRIPTION survivance. as years of possession on a habile title, and are counted as part of the prescriptive period. Nay, if there be an interval of apparency, no matter how long, between two periods of posses- sion upon such infeftments, the years of that interval are in- cluded in the calculation of the term of possession. 1 The singular successor of one whose title was a bare sasine may, equally with an heir, conjoin his possession to his author's, if the connecting link be clothed with infeftment. 2 Vesting by The Act 37 and 38 Vic. c. 94, sec. 9, provides that 'a per- ' sonal right to every estate in land descendible to heirs shall, ' without service or other procedure, vest or be held to have ' vested in the heir entitled to succeed thereto by his survivance ' of the person to whom he is entitled to succeed . . . and ' such personal right shall, subject to the provisions of this Act, ' lie of the like nature and be attended with like consequences, ' and be transmissible in the same manner as a personal right ' to land under an unfeudalised conveyance, according to the ' existing law and practice.' Possession on apparency thus disappears from our system. But it is conceived that this enactment makes no alteration in the law as above stated with reference to the possession of heirs before their infeftment, or to the distinction between the alternative titles allowed by the Act 1617, c. 12. 1 Nielson v. Ershine, 1823, 2 S. 216. M. 10, 937 ; M'Neill v. Macneal, 2 Purdie v. Torphichen, 1739, M. 1858, 20 D. 735. 10, 796 ; Mil/ers v. Dickson, 1766, CHAPTER VI OF PRESCRIPTION IN CASES OF DOUBLE TITLE Ersk., Pria., 3. 7. Note A by Mr. Moir (17th edition). The effect of the positive prescription is to make a certain Two titles feudal title unchallengeable in competition with another feudal person, title, and hitherto we have observed its operation in cases where the competing titles have existed in the persons of different parties. But there may be two distinct investitures upon either of which the same man may base his claim to a pro- perty, and we are now to inquire into the operation of prescrip- tion in such a state of matters. It may be the most convenient course to examine the leading cases, and to endeavour to gather from that examination the principles to which they seem to point. In the case of Lines v. Innes, 1 the estate of Auchluncart was Tnnes of ... Auchlun destined to heirs- male by an onerous bond of entail in 1641. carl. In 1649, Walter Innes, the institute of entail, having acquired some expired apprisings of the property, took the rights thereof to heirs whatsoever. In 1695, a competition arose between the heir-male and the heir of line. The heir of line (defender) proponed the plea of prescription against the pursuer's claim to the property (1) negative, to the effect that the pursuer's right had been cut off, no document having been taken nor diligence done upon it within forty years, and (2) positivi, the lands having been possessed by him for forty years niter Mr. Walter Innes had taken the right to heirs whatsoever. The i 1695, M. LI, 212. 4 8 THE LONG PRESCRIPTION Court held that, while the negative (or privative) prescription did not cut off the bond of entail, the positive prescription did ; and they repelled the pursuer's plea of non valens agere on the ground that an heir-of-entail has a, jus agencli. Mackerston In the Mackerston case, 1 the facts were these. In 1669 Macdougal of Mackerston settled his estate upon his son Thomas and the heirs-male of his body by a simple destination containing a power to alter. Thomas (I.) was infeft and possessed upon this title till his death, when his son Henry was infeft as heir to his father in the same investiture, and so possessed till his death in 1722. In 1715 he had settled the estate by bond of tailzie in favour of himself and the heirs-male of his body, whom failing, to his daughter Barbara and the heirs-male of her body, whom failing, to his younger brother William (passing over an intermediate brother Thomas (II.), and so forth. Barbara, served heir to Henry, was infeft in terms of the above settlement, and so possessed till 1738. In that year William, her father's youngest brother, discovered a bond of tailzie, of date 1684, bearing to be an exercise of the power to alter contained in the disposition of 1669, and settling the estate upon Thomas (I.) and the heirs-male of his body, with stringent irritant, resolutive, and prohibitory clauses. Upon this bond William, as representing his elder brother, pro- ceeded to found a title to the estate ; and his claim was met by Barbara with the plea of prescription proponed positive' to the effect that the estate had been possessed upon the settle- ment of 1669 down to 1738, and negative to the effect that the bond of entail, having lain dormant from 1684 to 1738, was cut off. The Court sustained both pleas, and the decision is a precise application of the terms of the statute 1617, c. 12. On the one hand there was possession upon a feudal title adverse to another competing title, which — though it too afforded the immediate right of possession to the party holding on the other investiture — afforded a legal right to others to interrupt the 1 Macdougal v. Macdougal, 1739, M. 10, 947. OF PRESCRIPTION IN CASES OF DOUBLE TITLE 49 possession as held. On the other hand, the action competent to the heirs of entail, being of the nature of document taken on an obligatory contract, and not of a direct declarator of property, necessarily fell within the scope of the second portion of the Act. The same view was taken in Douglas v. Douglas. 1 In Ay ton v. Monypenny? it is true, the Court, having upon a similar state of facts repelled the plea of negative prescription, proceeded to complicate the error by also repelling the plea of positive prescription, on the ground that the one plea was the inseparable counterpart of the other. But the House of Lords, by reversing this judgment, upheld the authority of the previous decisions. Anion" more modern cases to the same effect may be men- More _ ., __ t 7-7- T7- modern tioned The Dulse of Hamilton v. Wcstenra? and Hope Vere v. C8 Craigiehall* where an heir of entail in possession destined the lands, by a marriage-contract which referred to the entail, to a different series of heirs from that specified in the entail. Possession for more than forty years followed on the disposition in the marriage-contract, which was accordingly held to be the governing investiture. The reference to the entail imported nothing, and the substitute under the entail had lost the power of challenging the new disposition non utendo. The decision in Patcrson v. 1'urves 5 was the same in an almost identical state of facts. In Macclonald v. Loekhart? a deed of entail specially referred to a previous marriage-contract which it professed to implement. The marriage-contract contained a clause excluding heirs-portioners, which the entail omitted. Possession followed on the infeftment on the entail for more than forty years. The last heir of entail left two daughters, between whom arose a question as to the right to the lands. It was held that the daughters succeeded as heirs-portioners in terms of the subsist- ing investiture which had been fortified by prescription, and ' 1753, M. 10,955. ' !*-'*. " s - 517. - 1756, M. L0, 956. r ' 1823, I S. App. 401. 3 182 7, 6 8. M. ,; 1842, 5 D. 372. 5 o THE LONG PRESCRIPTION that the right of action to reduce the entail and enforce the obligations contained in the marriage-contract had been cut off by the second portion of the Act 1617, c. 12. in all these In all these cases there are two competing and adverse in- sity of ' feftments ; in all there is the right to disturb possession on the title to which possession is being palpably ascribed ; in all there is that something ' expressly contrary to the right against ' which prescription is pleaded' which is necessary to render ' the < lapse of forty years of importance.' For to make out a party to be free from the obligation to possess under a particular deed, ' it must be shown that during the forty years that obligation was ' denied, so that after forty years a right against such obligation ' has been made good by positive or negative prescription.' l In all these cases, moreover, two familiar principles are implicit : (a) A feudalised adverse title is absolutely necessary to found a plea of prescription. Where a man has right to lands under two titles, one unlimited, the other limited, and does not make up a title upon either, but possesses for forty years upon apparency, the limited title is not extinguished by prescription (for possession cannot be ascribed to any adverse title) but remains the preferable and governing title. The only infeftment that can be appealed to by the heir in possession is that of his ancestor, qualified, as that is, by the limited title. 2 (&) A right cannot be prescribed by possession in defiance of the title to which that possession is attributed. A party was heir under two different entails. Entail No. 2 was not affected by the limitations in entail No. 1, but No. 2 contained a clause declaring that it should not prejudge any other right or title to the lands, but that they might be possessed ' without extinction, ' innovation, or confusion of rights . . . accumulando jura juribus.' The lands were possessed for more than forty years under No. 2. It was found that that clause preserved No. 1 to all 1 Cuninghame's Trustees v. Cuning- well, 1808, M. voce Prescr., App. 22; hame, 1852, 14 D. 1065, p. Lord- Lumsdaine v. Balfour, 13 June 1811, Justice Clerk Hope, p. 1076. F. C. 2 Welsh Maxwell v. Welsh Max- OF PRESCRIPTION IN CASES OF DOUBLE TITLE 51 intents and purposes, and prevented prescription running against it, and that an heir of entail whose predecessors and himself had possessed under No. 2 was entitled to attribute his possession to No. I. 1 A deed of entail contained an obligation on the heirs to insert verbatim in all subsequent charters, etc., its whole conditions, limitations, and irritancies. The investi- tures, though they fulfilled this obligation to a certain extent, and referred to the entail as the title of possession, differed from the entail in the resolutive clause, and in a question with creditors the entail as set forth in the investiture was held to be invalid. But, inter haeredes, it was held that the entail was not extinguished by possession for the prescriptive period in terms of the defective investiture, which referred to the entail as the title of possession. 2 A party executed a deed of entail containing a substitution hacredlbus nominandis, and reserved a power to alter the succession. He afterwards made a deed nominating heirs preferably to other heirs, called after the substitution hacredibus nominandis. The estate was possessed for forty years without reference to the deed of nomination. It was held that the deed of nomination was not extinguished by prescription, for that haeredes nominandi were precisely in the position of other contingent heirs, and that the contingency was purified by the execution of the deed of nomination. The heir under that deed was therefore found preferable to an heir called under a posterior substitution. 3 We now turn to the cases in which there is no such collision, Caseswhere or adversity of interest between the two titles. Bityof" In 1G71 James Carbarn disponed Ins estate to Thomas, his mterest " eldest son, and the heirs of his body; whom failing, to James, his second sen, and the heirs of his body; whom failing, to the 1 Duhjdlv. DcUyell, 17 Jan. 1810, ; Stewart v. Porterfield, 1821, l s. F. C. 5; 1829, 8 S. L6 ; L831, 5 W. & S. - Cuningha/me'a Trusteesv. Cuning- 515. hame, 1852, 14 D, 1065. 5 2 THE LONG PRESCRIPTION Smith and heirs of the body of his own second wife. Thomas, ignoring this disposition, made up titles to the estate as heir of his father, and was succeeded by his brother James, who made up titles as heir to Thomas. James conveyed the estate to his own heir- at-law, altering the destination to the heirs of Ann Johnston, his father's second wife. This destination of James's was quarrelled on the ground that he was fatuous and incapable of alienating. In reply it was argued that, admitting James's disposition to be invalid, possession by him and his brother for forty years on the title of heirs had established that investiture to the extinction of old Carbarn's destination and all claims depending thereon. The Lords repelled this plea of prescrip- tion. 1 Here there was no adversity of interest. It was admitted that old Carbarn's destination could be validly altered at any time. Not one of the heirs under it had &jus crcditi, or could call upon the heir in possession to make up a title under the destination and possess thereon. The possessor could plead all titles, whether feudalised or not, against a third party challenging his possession. When old Carbarn executed his disposition, his reserved possession was in no sense running counter to, or prescribing against, the destination it contained, which, until revoked, continued to qualify his right. His heir, being cadem persona cum defwido, possesses exactly his ancestor's right ; and that right is still qualified by the destination, until the heir chooses to exercise his power of altering it. His making up titles as heir was in no sense a repudiation of his title under the disposition. The same course of reason- EisiesWells ing is applicable in the Elsieshiells case, 2 where one who was heir both under the old investiture and under a separate but unfettered destination had made up his title under the old investiture only, and had then altered the destination. The validity of this alteration was questioned on the ground that 1 Gray v. Smith and Bogle, 1752, v. Morrison, 4 March 1S13, F. C. M. 10, 803. See also Durham v. - Edgar v. M axwell, 1736, M. 3089. Durham, 24 Nov. 1802, F. C. ; Zuille OF PRESCRIPTION IN CASES OF DOUBLE TITLE 53 he ought, before altering, to have made up his title under the destination. It was, in fact, admitted by those who quarrelled the deed altering the destination, that if the granter of that deed had made up titles under the personal title, he would have been perfectly able to grant the conveyance, which, they alleged, the personal title prohibited him from doing. The alter- ation was held to be habile; and this judgment involved the admission, afterwards expressly made, 1 that every disposition or settlement containing a destination must continue to qualify a right until it is altered by the heir in possession, and that such an alteration is not implied by a possessor having served himself heir to the person last vested in the fee, instead of having made up titles on the disposition. On the other hand, where the heir expressly takes a new investiture, e.g. by resig- nation and charter, he is held to have repudiated the destina- tion. He no longer stands in his ancestor's shoes ; his ancestor's right is no longer qualified in him, for the qualifications have been swept away by a totally new infeftment. 2 For the reasons just assigned, it is impossible to prescribe on one unlimited title to the extinction of another; and it is equally out of the question to prescribe upon a limited title to the extinction of an unfettered destination. An entail cannot be fortified by prescription so as to extinguish a fee-simple title. 3 No better or more lucid statement of the doctrine of Double Panmure Leases Title in relation to prescription is to be found than Lord Core- case. house's judgment in the great Panmure Leases case. 4 There, no doubt, the doctrine of Double Title was applied to leases with very questionable propriety, as we shall hereafter see (infra -p. 61). But the opinions about to be quoted are alto- gether independent of such an extension of the principle. ' Suppose a person,' says Lord Corehouse, Ho be infeft in a \ landed estate in fee-simple on a charter to himself and his 1 8nodgra&8 v. Buchanan, 16 Dec. '•> Lord Iieay v. Mackay, 1823, - S, 1806, F. C. 457 ; 1825, 1 W. & 8. 306. - Molle v. Iliddtl, 13 Dec. 1811, « Mavk v. Mavle, I March 1829, F. C. P. C ; 7 S. 527 and App. 41. 54 THE LONG PRESCRIPTION ' heirs whatsoever, and that his son enters into possession on ' apparency, i.e. without renovating the title, in that case he ' may plead his father's title joined with his own possession to ' create a prescriptive right against any one claiming a better 1 right than his father on whose title he founds. . . . But vary ' the case. Let the father as before be infeft in fee-simple, and ' then suppose that he makes a personal deed of entail to a ' different series of heirs, fenced with irritant and resolutive ' clauses, his eldest son being the first member of tailzie ; in ' that case, if the eldest son enters into possession without ' making up a title, he could not found on his father's fee- ' simple title and his own possession to cut off the personal • deed of entail. To do this effectually he must have a title in ' his own person, or at least there must be a title adverse to, ' or independent of, his father's title, to which he can ascribe ' his possession. If it be a title in his own person, it is of no ' consequence whether it be completed by service or precept of ' dare constat to his father ; for after the lapse of the prescrip- ' tive period there is no room to look back to the warrant of ' his infeftment. If he has an infeftment in fee-simple inde- ' pendent of his father's, and forty years' possession, he has all : that the statute 1617 requires. On the other hand, if he ' wants that independent title, it will not avail him though he ' should ascribe his possession by the most unequivocal acts to ' his father's fee-simple infeftment, in contradistinction to the ' personal deed of entail. Prescription is prevented not in con- ' sequence of any quality in the possession, but from the want of ' a habile title. The personal deed which qualifies his father's ' infeftment is the lex feudi, until prescription has run on a • different title from that infeftment. In the cases of Macker- ' ston, 1 etc., and in every other case in which a personal deed ' of entail was found to be cut off by the positive prescription, ' possession invariably proceeded on an infeftment different ' from the infeftment of the maker of the personal deed. On 1 1739, M. 10, 947. OF PRESCRIPTION IN CASES OF DOUBLE TITLE 55 ' the other hand, in circumstances precisely similar in every ' respect, except that the heir had no fee-simple title to found ' upon, save the fee-simple title of the maker of the entail, it has ' uniformly been decided that prescription did not run. That ' was the species fact i in Welsh Maxwell v. Welsh Maxwell 1 and ' in Lwmsdaine v. Balfour? In the first of these, the positive ' prescription was not so much as pleaded ; in the second, it ' was pleaded and overruled. And it will be observed that the ' judgment did not proceed on the ground that the heir had ' not dc facto ascribed his possession to the unlimited title in ' the ancestor (in the case of Lumsdaine he had done so in the 1 most unequivocal manner), but on the ground that there was 1 no double title — that is, no title unqualified by the personal ' deed of entail.' Where prescription, then, operates in cases of double title, it Ascription j.i -i i n of posses- IS not that a man prescribes against himself, or his right leg sion. against his left leg, but that one right prescribes against another distinctly adverse and competing right, though existing in the same person. In as much, however, as title plus possession is the statutory requisite for establishing a prescriptive right, it is obviously of very great moment to be able to determine to which of two titles existing in the same person possession is to be ascribed. Mr. Bell lays down, to begin with, 3 that where the titles are equally beneficial, the law presumes possession to proceed upon that which the possessor is under an obligation to adopt; but since the possessor is, ex hypothesi, under an obligation to adopt neither, that principle will not carry us very far. His second rule requires closer attention. 'Where - one title is more beneficial than another, possession in dubio ' is to be ascribed to the more beneficial title.' This doctrine was first explicitly enunciated in Oliphant Murray v. Ramsay 4 by Lord President Blair. Tn Manic v. Maule 6 and in Hunterv. 1 1808, M. voce Prescr. App. 22. ' 17 Jan. 1811, E. < '. •-' 13 June 1811, F. C. :; 1'rin., § 2020. 5 1829, 7 S. 527 and App. 48. 5 6 THE LONG PRESCRIPTION Smith, 1 Lord Mackenzie combated this view with great vigour. In all cases of double title, he contended, it must be made out by proof, in point of fact, that the possession was by virtue of the unlimited title to the total exclusion of the limited one. But the correctness of Lord President Blair's view was taken for granted by Lord Cuninghame in Dairy mple v. Earl of Stair? and has been expressly and emphatically affirmed in the recent case of The Earl of Glasgow v. Boyle. 3 Mr. Bell's third rule is, that in order to prescribe on an un- limited against a limited title, there must be a choice made of the former by an indication so clear as to create an independent and separate title capable of being fortified by possession. This maxim seems to be entirely at variance with the doctrine of presumption of possession. There is no doubt, however, and enough has already been said to show {supra p. 53), that when such a choice has been clearly and unmistakeably indicated pre- scription will be the effect of possession for the requisite period. It is no less certain that the explicit choice of the limited title excludes prescription. 4 It remains to be said that an heir who deliberately chooses to ascribe his possession to one rather than to the other of two titles existing in his per- son, is not therefore debarred, if necessity arise, from ascribing his possession to that other title against which prescription is running. It is equally available to him as a title to the pro- perty, though subject, ex hypothesi, to limitation. Every pro- prietor is understood to possess in virtue of all the collateral rights and titles in him to the same property. ' Where one ' has several rights in his person, prescription cannot be ' pleaded against any of them by a third party, because posses- ' sion is available to preserve to the possessor any right in his ' own person.' 5 1 1829, Napier, 274. 5 Lord Kilkerran's report of Smith - 1841, 3 1). 837. & Boyle v. Gray, 1752, p. 424. See 3 1887, 14 E. 419. also Lord- Advocate v. Balfour, 1860, 4 French v. Pinkstan, 1835, 13 S. 23 D. 147 (p. Lord Deas, 155). 743. OF PRESCRIPTION IN CASES OF DOUBLE TITLE 57 A word must now be said about 'Prescriptive Con- 'Prescrip- ' solidation,' which Mr. Rankine specifies as a third and soiidatiou.' distinct function of the positive prescription, l but which, it is submitted, is merely a plain and straightforward applica- tion of the statute, which has in reality nothing to do with Consolidation, properly speaking, or with the doctrine of double title. A conveyance of superiority in its scientific feudal form, EHbank v. bears to be a conveyance of the lands. Hence, as possession is amj) e the measure of the right conveyed, a superior's infeftment in the dominium directum, clothed with possession of the dominium utile for the prescriptive period, will vest in the superior a full right to the lands as effectually as an instru- ment of resignation ad rcmaacntiam, or a minute of consolida- tion. 2 Suppose that a superior, after granting a feu-charter on which the vassal takes infeftment, not only continues to possess the lauds but takes a reconveyance of them from the vassal during the running of prescription. Suppose, further, that the superior, without taking infeftment on the reconvey- ance, executes an entail of the whole estate, including nomina- tim, the lands in which the vassal stands infeft, and that the heir of entail, who is also heir to the unfeudalised disposition granted by the vassal, makes up his title by executing the pro- curatory of entail and obtaining a Crown charter; that suc- ceeding heirs of entail make up their titles in like manner ; and that their conjoined possession lasts for more than forty years. The heir in possession then takes infeftment upon the personal disposition and endeavours to sell the lands in it, on the ground that they had never been included under the en- tailed title. The heirs under the entail object to that transac- tion. Their objection will be sustained on the ground that the only title to which the heir in possession can attribute his possession of the lands is the entail, which debars him from 1 Land Ownership, 3d e. 1!!>. •'■ Mavli v. Mauk, 1829, 7 S. .v_'7 '■'■ 1746, M. 10, 820. ami App. 62 THE LONG PRESCRIPTION an entailed assignation to the same leases, the right to which had come to be in another person. Lord Balgray at once put his finger upon the radically weak point in the plea of pre- scription. ' In feudal rights,' he said, ' no ambiguity arises ' from possession where two or more titles exist ; the posses- ' sion is fixed and determined by the infeftment, which again ' points out the title of possession : that title and that posses- ' sion are pointed out to the world by regular publication ' where everyone may look, and everyone concerned is bound ' by the law to look. . . . But in personal rights all this stands ' very differently : there is nothing to mark the title of posses- ' sion. If there are various personal titles and possession ' follows, no one can say on what title the party possesses : ' there is no promulgation to the world of the will and inten- ' tion ; there can be no indication of it ; in such cases, if such ' separate titles can possibly exist from the same granter, ' the granter possesses equally upon the whole of them, and ' law supposes that he gives equal effect to the whole.' 1 Lord Corehouse, too, admitted that the doctrine of double title, even as applied to feudal rights, ' is intricate and involves nice ' distinctions : but when it is applied to rights which transmit ' without infeftment from the ancestor to the heir, the analogy ' is so unsatisfactory that it cannot be relied on.' Yet so con- vinced were he and the great majority of the Court, ' that a ' lease is a good title for the positive prescription,' that, in the face of a previous decision in the same case (5 March 1782), they insisted on applying that unsatisfactory analogy. Granting the major premise that the feudal clauses of the Act 1617 c. 12 are applicable to leases, it must be admitted that their decision was a logical and consistent interpretation of the doctrine of double title, for they found, with regard to the lease of Brechin, that a party holding a fee-simple assignation thereof in his own favour, and being also substitute under an entailed assignation of the same lease granted by the same 1 7 S. App. p. 15. OF THE EXTENDED APPLICATION OF ACT 1617 63 party, having held possession of the subjects for forty years, and done certain acts referring his possession to the fee-simple assignation, had acquired a prescriptive fee-simple right, and that the entailed assignation was extinguished ; while with regard to the lease of Fanmure, it was held that the same party having right thereto as heir of his father, and also as institute under an entail made by his father, and having pos- sessed for forty years, must impute his possession to the entailed assignation, which qualified his father's right existing in him, and had not acquired a prescriptive fee-simple right to the lease. Teinds constitute a separate estate from the lands, and may Tenuis, either be carried by sasine, or, where they have never been feudalised, by a personal right. When a right to teinds has been feudalised, the feudal clause of the statute is at once applicable. But how if it has not been feudalised ? It was held in Chatto v. Moir} that prescription was not pleadable where there had been no infeftment. But that decision has been overturned, and cannot now be considered law. 2 Whether a personal right to teinds clothed with possession will exclude a feudal right to the teinds on which no possession has followed, is a question which it would be unsafe to answer in the affirmative on the authority of Learmonth v. Duke of Hamil- ton? In that case it is by no means clear that the right to teinds ever had been feudalised ; the Court declined to enter upon the question whether teinds once feudalised must after- wards be held by feudal title; and all that the decision of the majority seems to come to is this, that the conveyance of a hypothetical right to teinds ('whatever right' the disponei 'had to the teinds') is as good for founding prescription by possession as an absolute conveyance. Certainly in Earl of Fife v. Earl of Seafield. 4 it seems to have been takes for 1 1 7 •».">, M. in, (;.". 1797, Hume, 455. - (,'ort/on v. Kiiiituhj, 17")S, M. 10. .. , onn ,, ,,, . , ., ._„ , .- T • ,. . .-,■■ \m m 1829, S. I (.-liKi Cases, 192. 825; Irrnti v. Bwrnet, 1764, M. lo, 8.'{0; Solicitor of Teinds v. Budge, * 1831, S. Teind Cases, 254. 64 THE LONG PRESCRIPTION granted in the course of the argument, that in no circumstances could a personal prevail against a feudal title. Title and Not a few of the cases which deal with prescription as affect- in Teinds. ing teinds afford excellent illustrations of the rules with regard to title and possession, which have been already discussed. The necessity for a habile title is shown in Learmonth v. City of Fdinburyh, 1 where a charter of erection of certain lands into a burgh was held not to found a prescriptive right to teinds ; in Mackintosh v. Lord Abinger, 2 where a pretended title to teinds was so ambiguous as to compel reference to previous infef tments, which showed that there was no right to teinds in the author ; and even more strikingly in Cheape v. Lord- Advocate} The proprietor of certain lands took a tack of certain teinds from the Crown, and tack-duty was paid for more than forty years. His successor discovered a conveyance of the teinds to one of his authors in 1629, and raised a declarator of his own right to the teinds. The Crown replied by the plea of prescription, founded on its own right plus possession through its tenant. The plea was repelled because the Crown produced no title to the teinds in question. Lord Benholme observed that the jus corona: could not constitute a good title to teinds on which pre- scription could run ; that whatever teinds are possessed by the Crown are held by singular and secondary title, derived mediately or immediately from the Church, and that in cases of positive prescription it is necessary to have a title which not only quadrates with the nature and evidence of possession, but is in its own terms capable of comprehending the subject pos- sessed. Where the party who had right to teinds by a tack from the Crown disponed to another the lands and teinds, as possessed by himself, without mentioning the tack, the question was raised, but not settled, whether such a conveyance would afford a habile title for prescription. 4 But there is no doubt 1 1S59, 21 D. 890. 4 Speir v. Officers of State, 1858, 2 1877, 4 R. 1069. 20 D. 525. 3 1871, 9 M. 377. OF THE EXTENDED APPLICATION OF ACT 1617 65 whatever that one whose possession is due to a tack of teinds cannot prescribe a right to the teinds against his author. 1 But a good title followed by possession is unassailable. A charter of resignation under the great seal followed by infeft- rnent, in favour of a heritor of certain lands in a parish, who had a tack of the teinds, contained a grant of the patronage and teinds of the parish -generally. The heritor had admittedly possessed only the teinds of his own lands uninterruptedly, and had applied to the Crown subsequently to the charter of resignation, but more than forty years before the action was raised, for a renewal of the tack of the teinds, which was not granted. It was held that the charter afforded a good pre- scriptive title in so far as followed by possession. 2 A final decree of locality is a good title, on which a minister may pre- scribe a right to stipend, if stipend has been paid for forty years under that decree, 3 and even to over-payments of stipend in excess of sub-valuations of the teinds. Nor is such title qualified by subsequent decree of approbation of the sub- valuation. 4 A minister's possession of over-payments on such a title will cut off the heritor's right to surrender his teinds upon the value as fixed by such decree of approbation. 5 But if the decree of locality has been reduced, the continuance of over-payments will not suffice to sustain the minister's right, for he has lost the title to which his possession was attri- butable. Again, possession may serve to interpret and illustrate an equivocal title. But where a claim to teinds was based on a title which the Court held was not a title for prescription, it was observed that even had the title been habile, it would not have been fortified by possession, for the alleged proprietor bad 1 S'fralonv. College of St. Andrews, ' Maderty, 9 .July 1S17, F. 0. 1756, M. 10,824. Colquhoun v. Fo. 647. 2 Macdonell v. Duh of Gordon, 1828, 6 S. 600. '• Cham v. Lockhart, 1790, Supie, :i Dundae r. Blair, 1886, 13R. 769. 734. 68 THE LONG PRESCRIPTION tenements come into the same hands, unless they continue to be held on separate titles, and the servitude does not revive, even if the tenements come to be again separated. 1 Where a claim to a right of servitude over one tenement was made by the proprietor of another, it was proved that the two tenements had come into the same hands in 1814, and had been possessed together till 1842. It was held that there were no termini habiles for prescription, for during that time prescription could not run in favour of one tenement against the other, and a proprietor's own use of his own property can never imply a "rant against himself. Ites sua ncmini servit. Even if there had been any ground for saying that prescription was running prior to the union of the two properties, that union would in- terrupt the currency of prescription. 2 Servitudes A grant of a burgh of barony is not in itself a sufficient title by burghs, for the inhabitants of the burgh to prescribe a servitude of pasturage. 3 On the other hand (though in the -Falkland case 4 there was held to be no such thing as a servitude of bleaching) it was found that the charter of a Royal burgh was a good title on which to prescribe a servitude of bleaching clothes, 5 and in the case of Kelso, the claim of a burgh of barony to the same servitude was unsuccessful only because there had been no grant of lands to the incorporation which could serve as a dominant tenement. 6 The magistrates of a burgh may be taken to be the dominant heritors of a rural servitude for the use of the community. 7 The proprietor of a well closed it, and certain ' householders and inhabitants ' of a village raised an action of suspension and interdict against him, on the plea of a prescriptive right to draw water from it. The note was refused in the case of all the complainers except one, who 1 Donaldsons' Trustees v. Forbes, 5 Sinclair \. Magistrates of Dymri, 1S39, 1 D. 449 ; Baird v. Fortune, 1779, M. 14, 519. 1861, 4 MacQ. 127. 2 Gout's Trustees v. Mealls, 1S75, 2 R. 729. 3 Dunse v. Hay, 1732, M. 1S24. " Murray v. Town of Peebles, 8 6 J affray v. Duke of Roxburghe, 1755, M. 2340. 4 1708 M. 10. 916. Dec. 1808, F. C. OF THE EXTENDED APPLICATION OF ACT 1617 69 averred that he was a feuar, and craved a diligence to recover his titles, which was granted. 1 There the feuar was obviously in a position to plead as the heritor of a dominant tenement which the ' householders and inhabitants ' did not pretend to be. So an infeftment in a tenement with parts and pertinents was held a sufficient title on which to found a prescriptive right to a servitude of drawing water, and all inquiry into previous titles was excluded. 2 When certain fishermen founded on prescriptive use and possession of the sea-shore with a view to having a servitude found to exist as at common law, it was held that their possession must be ascribed to the Act 29 George 11. c. 23, which specially allowed them to use the sea-shore for the purpose of their trade, and therefore that they could not prescribe a right to such servitude. 3 In an action to establish a right to drove-road and stances with pasturage for cattle, the House of Lords, reversing the decision of the Court of Session, refused to listen to the suggestion that the right to the pasturage or stances could be accessory to a right of public way which they held had been established. The right to stances could only be instructed as a servitude, which implied a dominant and a servient tenement, and none of the pursuers claimed to be heritor of any such dominant tenement. 4 While there must be an infeftment in the dominant lands Possession must lie un- to supply a foundation for a prescriptive right to a servitude, equivocal. there must be unequivocal possession for forty years 5 to com- plete it. Possession will be the precise measure of the right acquired, and the maxim tantum praescriptum quantum possession will be strictly applied, unless without some slight extension of the former usage the right would be unprofitable to the acquirer. 6 Uninterrupted possession for forty years may 1 Mackenzii v. Lewrmonth, 1849, ' Marquis of Breadalbam v. 12 D. 132. See, too, Henderson v. M'Qregor, 1846, 9 D.210; rev. ILL. Earl o/Minto, 1860, 22 1). 1 126. 7 Bell'e App. 4:5. - Brand v. Charteris, 1841, 4 D. 37 & 38 Vict. 0. 94, §34. 292. « Ersk., Inst., 2. 9. 1 ; Gairlton, 3 Cameron v. Ainslie, 1848, 10 l». 1677, M. 14, ">::•"> ; Brua of Kenntt, •llii. 1741, Elchies, 'Servitude,' 2. 7 o THE LONG PRESCRIPTION even avail sometimes slightly to extend the scope of a servitude beyond the original grant. 1 But no amount of possession will suffice to establish a right to a servitude not recognised as such in the law of Scotland, e.g. a jus spatiandi? or the exclusive use of a common subject. 3 In the Earlsferry case, 4 the rubric runs that the burgh of Earlsferry has a servitude of golfing over the Ferry links ; but Lord Eldin in his first note expresses a doubt whether ' the rights which the magistrates and inhabi- ' tants have been exercising may be called servitudes,' and in his second note he seems inclined to hold that the property of the links was in the burgh ; which would bring the case into the category of Sanderson v. Zees. 5 (supra p. 31). At all events, this one decision is scarcely sufficient ground for hold- ing that a servitude of golf may be acquired over lands by the constant playing of the game on them for forty years ; though a servitude of recreation for the use of inhabitants and ' others,' expressly reserved by the magistrates of a Royal burgh in a charter of certain lands granted by them has been sustained, and may be vindicated by the inhabitants individually. 6 Thiriage. It is to be observed that, as a general rule, a title in writing is required in order to constitute the servitude of thiriage by prescription. 7 But the mills belonging to the Crown, or to church lands, may acquire a right to the servitude by possession alone ; and payment of dry multures (i.e. of duties in grain or money paid whether corn be ground or not) for the pre- scriptive period will of itself imply a title, s as will also pay- ment of insucken multures accompanied by ' services.' 9 Un- equivocal use of the servitude by payment of insucken multures will serve to bolster up • titles which contain no 1 Forbes v. Wilson, 1724, M. 14, 6 Cieghorn v. Dempster, 1S05, M. 505. 16, 141. - Dyre v. Hay, 1849, 11 D. 126li ; ' Harris v. Magistrates of Dundee, 1 MacQ. 305. 1863, 1 M.|833. 3 Leckv. Chalmers, 1859, 21 D. 408. 8 Kinnaird v. Drummond, 1675, 4 Magistrates of Earlsferry v. M. 10, 862. Malcolm, 1829, 7 S. 755. 9 Lord Broughton, 1745, Ersk., ' 5 1859, 22 D. 24. 2. 9. 29. OF THE EXTENDED APPLICATION OF ACT 1617 7 r express grant of thirlage, e.g. the grant of a barony mill with multures, or with pertinents. 1 The occasional carrying of astricted corns to another mill is not necessarily an interrup- tion of prescription. (See Ersk., Inst., 2. 9. 2S-30.) 2 1 Earl of Hopetoun v. Bathgate when feudalised, susceptible of the Brewer*, 1753, M. 16, 029 ; Bruce v. positive prescription— e. g. the right Stein, 1769, M. 16,061. and privilege 'of one tide's fishing of salmon yearly. * Murray, etc., v. - Certain minor rights, which it Peddle, etc, 1880, 7R. 804 ; Rankine is not very easy to classify, are also, on Land Ownership, p. 30. CHAPTER VIII Imme- morial possession without title. Prescrip- tion at common law. OF PRESCRIPTION OF CERTAIN RIGHTS INDEPENDENT OF THE STATUTE, AND IN PARTICULAR OF PUBLIC RIGHT-OF-WAY Hitherto we have considered prescription as proponed in terms of the feudal clause of the Act 1617, c. 12. But there are certain cases where prescription was undoubtedly applied to fortify a right, but which cannot even with an effort be brought within the scope of that statute, for their leading characteristic is that immemorial possession (for which forty years' possession 'is taken as being in general a sufficient ' equivalent ') x is enough to establish a right without any antecedent title whatever. To explain these cases we must fall back upon the hypothesis of some common-law doctrine of prescription existing prior to the legislation of 1617. Thus, though no title was libelled but possession, the Lords sustained a claim to a servitude.' 2 Where the members of a friendly society had for more than a century exercised the right of levying clues for the hire of mortcloths, etc., used for a burying-ground, there having been no grant of such right, it was held in a question with the heritors and kirk-session that the society was entitled to continue to exercise the right. 3 Where parties have for a long time past the forty years en- joyed possession of seats in a parish church, under some title or other not plainly discoverable, it is not competent to dis- 3 Kirk-session of South Leith v. Scott, etc., 1832, 11 S. 75. See Paisley v. Wrights' Incorporation, 1761, M. 1956, and Lord Deas's judg- ment in Traill v. Danger field, 187", 8 M. 579, 588. 1 Davidson v. Earl of Fife, 1863, 1 M. 874 (p. Lord J.-C. Inglis). 2 Neilson v. Sheriff of Galloway, 1623, M. 10, 880. Cf. Knockdolian v. Tenants of Partick, 1583, M. 14, 541 ; Henderson v. Wemyss, 1672, 2 Br. Supp. 706. RIGHTS INDEPENDENT OF THE STATUTE 73 possess them after a mere repair and reseating of the church. 1 In Saunders v. Hunter, 2 it was held that a proprietor on a bound- ing charter with no clause of parts and pertinents could not by mere possession acquire right. to a servitude over lands out- side the limits of his charter. Lord Fullerton expressed a con- trary opinion in Ltstonv.Galloua//? and his view was expressly given effect to in Beaumont v. Lord Glenlyon. 4 Now the decision in Beaumont, it would seem, cannot be based on the Act 1617, c. 12, for there was no feudal title to which possession could be ascribed. Possession was rather in defiance of the terms of the title; and, indeed, it might plausibly be contended that the prescription of servitudes in general is independent of statute. 5 In Hunter & Aikenhead v. Aitlccn, 6 it was expressly said that a right not founded on any grant in the titles of the parties to interrupt the flow of water in a stream by storing it in a dam rested ' entirely ' upon possession for the prescriptive period,' and was acquired by such possession ; and therefore might equally be lost by non-user or non-possession during the subsequent prescriptive period. In Heggie v. Nairn} the question was raised, but not decided, whether a lower heritor on a stream could by use for the prescriptive period acquire right to water which had from time immemorial been artificially discharged into the stream from a mine, so as to entitle him to prevent its diver- sion. But whatever right to interrupt the flow of a stream may be acquired by possession, no such right as that of obstructing a public or servitude road, by from time to time placing obstruc- tions upon it, can be acquired by mere use of that practice con- tinued for forty years. 8 Prescription has also been applied to fortify grants in no wise feudal, and presenting no analogy to 1 Magistrates of Hamilton v. Duh Hi-J.':, -M. l". 880. of Hamilton, 184G, 8 D. 844 ; H. I.. ,; 1880,7 El. 510 (p. Lord Shand, 7 Bell's App. 1. .Hi)). - 183U, S S. 605. ' 1882, 9 R. 7« » *. :: 1835, 14 S. 97. k Stewartv. Broum Brothers, 1878, 1 1843, 5 D. 1337. 6 R. 35. 74 THE LONG PRESCRIPTION those contemplated by the Act 1617, c. 12. The magistrates of a burgh made an onerous contract with a society of brewers that two brewers elected by the society should be admitted members of the Guild Council. This contract plus forty years' possession was held to give the brewers a prescriptive right to elect two of their number members of the Guild Council. 1 Public right But by far the most important class of cases referable to an old common-law rule of prescription and not to the statute is that which is concerned with public right of way. It has, indeed, been attempted to bring that species of right under the Act 1617, c. 12, by the hypothesis of an implied grant to which possession is to be referred, or of a right vested in the Crown to the benefit of which the public is entitled. But, though Lord J.-C. Hope spoke of the presumption that such a right has been granted as being the condition of its estab- lishment by possession, 2 Lord J.-C. Inglis, twelve years later, expressed grave doubts as to the applicability of the statute, 3 and the matter may be said to have been definitely settled by the emphatic judgment delivered in Mann v. Brodie* by Lord Watson, who said : — ' According to the law of Scotland, ' the constitution of a right of public road does not depend ' upon any legal fiction, but upon the fact of user by the public ' as matter of right, continuously and without interruption, for ' the full period of the long prescription. ... I am aware that ' there are dicta to be found in which the prescriptive acquisi- ' tion of a right of way by the public is attributed to implied ' grant, acquiescence by the owner of the soil, and so forth ; ' but these appear to me to be mere speculations as to ' the origin of the rule.' A public right of road is, therefore, something totally distinct from a servitude right of road. The former admits, the latter excludes the public. 5 A public right 1 Gray v. Guildry of Arbroath, z Davidson v. Earl of Fife, 1863, 1823, 2 S. 113. Cf. Shirring v. 1 M. 874. Smellie, 1S03, M. 10, 921. 4 1885, 12 R. H. L. 52. 5 Thomson v. Murdoch, 1862, 24 2 Napier's Trustees v. Morrison, D. 975, p. Lord Deas ; Jenkins v. 'l851, 13 D. 1404. . Murray, 1866, 4M. 1046. RIGHTS IXDEPEXDENT OF THE STATUTE of way, moreover, excludes the idea of a dominant tenement to be benefited by the right. Hence, three persons, residing in different towns, at a considerable distance from the disputed road, who averred no local connection with the district, or special interest in the road, further than that they and their fellow- citizens had been in immemorial use to travel along it, were held to have sufficient title to sue in a declarator of riffht of way. 1 When an action of declarator brought to establish a public right of way is tried upon the issue whether there is a right of way or not, the verdict on that point, when allowed to become final, is a conclusive settlement of that question, and is res judicata against the whole public. 2 The conditions of use and possession requisite to instruct a Conditions right of public way are stringent but very plainly laid down. "',,!!'.'"' ' The essential thing is the open assertion of the right, and if a < path is used in such a way that the right to use it is asserted, ' the proprietor must stop the path if he wishes to preserve his ' rights.' 3 The use of the road must be such as to instruct right, and to exclude the idea of mere tolerance. 4 The unin- terrupted use for forty years of a path made originally by the proprietor for his own convenience will not suffice to instruct a public right of way. 5 At the same time, obstruction of the road to which right is alleged is a weapon which may be turned against the proprietor using it ; for there can be no better proof of an assertion of a right of way than the repeated demolition of obstacles set up to exclude the public Furthermore, to constitute a public right of way through a Entry and ish 1 Torriev. Duheof Aihole, 1849, s Cuihbertson v. Young, 1851, II 12 D. 328; H. L. 1 MacQ. 65 (see D. 300 (p. LordJ.-C. Hope). judgment of Lord St. Leonards), 24 * Jenkins v. Murray, 1866, 1 M. S. J. 478; Breadalbanev. M'Qregor, 1046; Burt \. Barclay, L861, 24 I >. 1846,9 D. 210, 1848, 7 Hell's App. 218; Napier's Trustees v. Morrison, 43. 1851, 13 1). 1404. See, too, Scottish Rights of Way Society v. MacPIu rson, tJenMnsv. Robertson, L864, 2 M. 1887, U R. 875 ; 1888, L5 R. II. I. 1162; rev. 1867, 5 M. H. L. 27: 68. Whiii v. Karl of Morton '* Trustees, Napier's Trustees v. Morrison, 1866, I. M. II. L. 53. 1851, 13 D. 1404. 7 6 THE LONG PRESCRIPTION at public proprietor's grounds, the public must go through the grounds dIicgs from an entry at one place to an ish at another ; ' it will not ' do for people to enter the ground of a proprietor and walk ' about in it as much as they choose, and come out where they ' entered ' (p. Lord Curriehill) ; and the points where ish and entry are must be public places. 1 A public place, in the proper sense of the term, is c a place to which the public resort for ; some definite and intelligible purpose.' 2 But the question whether the terminus of an alleged public way is a public place does not arise when the allegation is that the way goes beyond that terminus, so to speak, over another's land to a public place. It is enough if the public get legally away from the inter- mediate place somehow. 3 But suppose a path runs from A to B through the lands of X, and on from B to C, undoubtedly a public place, through the lands of Y. An action of declarator of public right of way from A to B is brought against X, without Y being called. After proof led, the jury finds that there is a public right of way from A to B, which it is not contended is a public place in any other sense than that the public can get legally therefrom to C ; and this decision, be- coming final, is consequently res judicata as far as the road from A to B is concerned. But A . . . B can only be a public road because B is a public place ; and B is only a public place because B ... C is a road along which the public can legally pro- ceed to C. Now, if Y suddenly disputes the right of the public to travel over his lands from B to C, the decision in the case of the path A . . . B cannot be res judicata against him, so as to afford an immediate answer to all objections he may bring against the pursuer's claim in an action brought against him to vindicate a public right of way from B to C, and if Y suc- cessfully defeats the claim to a public right of way, then over X's lands there exists a public right of way from A to B 1 Jenkins v. Murray, 1866, 4 M. (p. Lord-President Inglis). KI46, 3 Campbell v. Lang, 1S51, 13 D. , - Duncan v. Lees, 1871, 9 M. 855 1179; H. L. 1 MacQ. 451. RIGHTS INDEPENDENT OF THE STATUTE though B has lost its sole title to be considered a public place ; which according to the law of Scotland is absurd. Once more, the right claimed must be a right ' in some definite Definite • and ascertained track' (p. Lord President Inglis). ' The mere fact ' of people going for more than forty years in a certain direction ' does not necessarily infer a right of public road. ... It is a ' possible thing that even through the wildest desert there may ' be a public footpath, but there must be something to mark ' the fact that it is a public footpath and is used as a matter of ' right ' (p. Lord Deas). ' If there has been for the prescriptive ' period a walking along a definite line from one public place • to another, in the assertion of a right to use that line, that ' may make the foundation of a right of way to be declared by ' competent authority in a court of law ' (p. Lord Ardmillan). 1 But where there had been extensive encroachments by a navigable river on its banks, throwing back the line of road, and where there had been deviations and substitutions in other portions of the road during the prescriptive period, it was nevertheless held that there was evidence of sufficient use for forty years to establish a public right of way. The rule which requires use for forty years has no application to a substitute road provided in lieu of a previous public road, and consent to the use of the substituted road by the public amounting to acquiescence will create a right to the new road.' 2 The maxim tantum praescriptum tantwm possession is Possession n , ., . the measure applied. 3 Where the whole of a road was not fitted tor carriage ()t the traffic, but only a part, it was held not to be a carriage road, "' but only a public road for walking or riding. 4 But where a public road had been used for more than forty years for carrying burdens, etc., on horseback, and for carts and carriages since theiT introduction, which was within the forty years, it was 1 Mackintosh v. Moir, 1871, 9 M. : M'Farlane \. Morrison, 1865, -,74 l M. 257. 1 Mackenzie v. Banhes, 1868, 6 M. 2 ffozierv. Hawtliorne, 1884, 11 R. 936; Mitchell v. Brown, 1826, 5 S. 76G. 56. 78 THE LONG PRESCRIPTION held that the road was subject to be used as a cart and carriage road. 1 Must con- Possession must continue for the whole of the prescriptive forty years, period. But it need not be continuous up to the date of the raising of the action ; and it is enough if possession for forty years be proved up to some date within the last forty years.' 2 Accord- ingly the word ' immediately ' in the phrase ' immediately pre- ' ceding' the interruption, which was the occasion of the action being raised, was struck out of the issue in Mercer v. field. 3 So that an interruption within forty years of the action does not necessarily destroy the prescriptive right claimed, any more than an attempt to interrupt which has been successfully resisted. The solum Finally, in no case does the right of public way amount to belongs it* to the more than a right of free passage. The solum of a public foot- path belongs to the proprietor of the land through which it runs ; and his right to erect gates across the path (not to obstruct the public, but for his own convenience) is consequently a right to make a certain use of his own property at his own pleasure, is res merae facultatis, and is not liable to be ex- tinguished by failure to exercise it. 4 1 Forbes v. Forbes, 1829, 7 S. 441. 3 1840, 2 D. 520. 4 Sutherland v. Thomson, 1876, 3 2 Harvie v. Rodger*, 1827, 5 S. R. 4S5. See Galhreath v. At 917 ; 3 W. & S. 251. Trustees, 1S45, 4 Bell's App. 374. [rmour CHAPTER IX OF THE NEGATIVE PRESCRIPTION (Bell, Prin., £§ 605-627.) What is called the negative prescription is, as we have seen, Totally tex- tile plea of prescription proponed under the second portion ofcertaiii the Act 1617, c. 12, along with which must be taken the earlier ng ' statutes, 1469, c. 28, and 1474, c. 54. Mr. Erskine explains the operation of these statutes to be ' the loss or forfeiture of a right ' by the proprietor neglecting to exercise or prosecute it during ' that whole period which the law hath declared to infer the ' loss of it.' 1 Their effect is not merely to change the oniis probandi or to limit the mode of proof, but to extinguish alto- gether the personal rights to which they apply, so that, even if the subsistence of the debt be referred to, and proved by, the debtor's oath after the expiry of forty years, he is nevertheless not liable. No action will lie on an obligation granted forty years before. 2 It is now settled that the negative prescription runs against the Crown, 3 as well as against private persons. Where, in answer to the production of an ex facie valid deed, it is alleged that the deed produced does not apply to the lands or rights in dispute, the lapse of forty years without action having been taken will not exclude proof of that averment, for the negative prescription ' will never ] trove the identity of one, ' set of lands with another.' 4 1 Inst. 3. 7. 8. :! Deans of Chapel Royal \. John 2 Napitrv. Campbell, lTO.'i, M. 10, stone, lsiiT, 5 M. II I ; 7 M. II. L. L9. <;:,<; ; Campbell v. Ealket, 17-17, M. Il,(i:i4. I Pat. App. 427 ; Kermack ' MacLeod \. Smith, L869, 7 M. v. Kermack, 1 874, 2 R. 1 56. 8'2 1 . So THE LONG PRESCRIPTION But not While the general clause of the Act 1617, c. 12, is of a very property, sweeping nature, there is one class of rights which the mere lapse of time without pursuit will never extinguish. No right of property can be lost non utendo. 1 This important principle has too often been lost sight of, though it was early recognised by the Court. Nothing could be plainer than the decision in the Presbytery of Perth v. Magistrates of Perth, 2 to the effect that the negative prescription is no answer to a direct declarator of property. In Paton v. Drysdale, 3 indeed, the rubric bears that the defender, not having been infeft, could not plead the negative prescription against the pursuer. But the action was for reduction of a deed on the ground of ex facie nullity, and to such an action it was rightly held that prescription did not apply. In the first of these cases the defender produced no title ; in the second, there had been no infeftment. In both, therefore, all question of the positive prescription was excluded. It was the decisions in these cases that prompted Mr. Erskine's well-known dictum, that ' the negative prescription of heritable ' rights of property cannot be pleaded even by one who hath a ' title in himself proper to be the foundation of a positive pre- ' scription, if it be not actually established in him by that pre- ' scription ; because the negative prescription confers no right ' on hini who pleads it, but barely extinguishes that which is ' in the adversary ; and consequently that none but he who ' hath in himself a full right of property in the lands can ' have any interest to plead against his party that he has ' lost his by the negative prescription, since by that plea his ' adversary's right cannot be transferred to himself.' 4 These remarks, which are indisputably true of prescription of ' herit- ' able rights of property,' which is what Mr. Erskine is speaking about, have been strangely distorted, and have often been taken to apply to the negative prescription of all obligations. In 1 See Duke of Buccleuch v. Erskine, 3 1725, M. 10, 709. 16 June 1S12, F. C. » 2 1728, M. 10, 723. 4 Inst., 3. 7. 8. OF THE NEGATIVE PRESCRIPTION Si M'CuUoch v. Buchanan? the pursuer explicitly pleaded that because the defender could not plead the positive prescription, so neither was he in tltv.lo to allege the negative. In Stewart v. Houston? in an action of reduction of certain titles by a mid- superior on the ground of multiplication of superiors over him, the Court held that the privilege of challenging rights in them- selves null could not be lost by the negative prescription, unless a correlative right had been acquired by some one else by the positive. A decision doubly wrong: for if the rights were intrinsically null, no one could acquire anything by prescrip- tive possession upon them, and if they were not intrinsically null, the right to challenge them would be lost by the mere failure to exercise it, whether or no a corresponding right had been established in another by prescriptive possession. In Macdonndl v. Duke of Gordon, 3 the Lord Justice-Clerk Boyle expressed the opinion that the defender could not avail him- self of the negative prescription unless his own titles were fortified by the positive. Lord President Hope, indeed, in the same case, and again in Earl of Dundonald v. Dykes? explained Mr. Erskine's doctrine to mean that the negative prescription cannot be pleaded except by a person who has in him such a title as would be good if the positive prescription had run. But this interpretation is expressly excluded by Mr. Erskine's own words ; and it seems better at once to admit that the question whether the plea is validly proponed depends not on the rights which the party pleading it may or may not allege, but upon the question (1) whether the right asserted by 1 1n- party against whom prescription is pleaded falls within the terms of the statute, and (2) whether he has neglected t<» prosecute that right for forty years. This view was taken so long ago as the end of last century/' and may be held to 1 1828, C S. 1059. * 1836, 14 S. 737. 2 | V ,.{ 2S 263 RocTieid v. Kinloch, [800, M. voa Prescr. App. 1. Nos. 4 tun] 7 ; ISO.", iv-'s, OS. (Km. .-, pat. A]. P . 36. 82 THE LONG PRESCRIPTION represent the undoubted state of the law, 1 subject only to the proviso that one who pleads the negative prescription must have a legal interest in his own person to enable him to do so. 2 "Whatever doubt may exist as to whether a party may plead the negative prescription who is not in a position to plead the positive, ' there can be no question that, where he can avail ' himself of the positive, he can plead the negative,' p. Lord Deas, in Officers of Ordnance v. Magistrates of Edinburgh? where the Crown, being in a position to plead the positive pre- scription, was held entitled to plead the negative against a decree of reduction of a charter which had never been acted upon, and which formed an important step in the competing progress of titles to the subjects in question. Rights of Eights of property, then, which are not struck at by the distinct general clause of the Act, must be carefully distinguished from ofpropfrty. rights of action which are, though Lord President Hope pro- fessed his inability to draw the distinction. 4 In Paul v. Reid 5 an action was brought for reduction of declarator of expiry of the legal, and was met with the plea of negative prescription, which was sustained. It was not that the pursuer was de- barred lapsu temporis from producing, and competing on, his own heritable title. But in a competition of titles he was con- fronted with a title of the defender's which he must reduce in order to prevail. And in the attempt to reduce it, not on the ground of forgery or any ex facie invalidity, but upon some extrinsic quality or question he necessarily failed, not having pursued such action within forty years. In Macdoncll v. Duke of Gordon? where the defender pleaded that the pursuer had lost his title to a right of patronage by negative prescription, Lord Corehouse said : ' If there be a principle well settled in i Paterson v. Wilson, 1859, 21 D. 3 1859, 22 D. 219 (p. Lord Deas, 322 ; Chisholm v. Ghisholm Batten, 236) ; 1862, 24 D. H. L. 3. 1S64, 3 M. 202 (p. Lord Deas, 225). 4 Macdonell v. Gordon, 1828, 6 S. 2 Wanchope v. York Bgs. Coy., 600. • 1781, M. 10, 706 ; 2 Pat. App. 595. 5 8 Feby. 1814, F. C. OF THE NEGATIVE PRESCRIPT/OX 83 ' the law of Scotland, it is this — that the right of ownership ' in a feudal subject, being complete, cannot suffer the negative ' prescription. . . . There is not the trace of an authority or ' decision that a title to land, radically defective in its con- ' stitution, and followed by a possession short of forty years, ' is preferable to a title radically good, but upon which no ' possession has followed.' Lord Mackenzie also pointed out that if the negative prescription could extinguish a right of property, there would be no room for the positive, because in every case the negative prescription must be the stronger of the two. In Earl of Dundonald v. Dykes} the pursuer's right to reduce a decree-arbitral more than forty years' old was held to be cut off by the negative prescription. In Culbison v. Hyslop? a party had been infeft in certain lands in 1803 under a charter of sale granted in 1791, following on a decree of sale in 1787. The ranking and sale had been preceded in 1774 by an adjudication, in which there was no ex facie nullity. In 1832 a reduction was raised of the decrees of adjudication and sale and of the title made up under them. It was held that the defender (whose title was not fortified by the positive prescrip- tion) was entitled to plead the negative prescription as cutting off the right of reduction, and that the right of challenge was so extinguished. Lord Corehouse again enunciated the prin- ciple with great force and lucidity, though he held that in this case the pursuer was not barred by the negative prescription from challenging the defender's right, and that the competing titles must be tried on their own merits. 'I may possess,' he said, 'for a hundred years, but if [I am] not infeft, any ' competitor who has neglected his right for that time may ' competently establish it, if his right is better than mine. . . . ' What is the result? Not that the person who brings the ' challenge shall succeed because the negative prescription ean- ' not be objected, but that both parties musl produce their ' respective progresses and compete u])oii them. . . . The nega- 1 1836, US. 7:i7. L837, L6S. W± 8 4 THE LONG PRESCRIPTION ' tive prescription is not of use in being objected directly against ' a heritable right of ownership, but in trying the validity of ' the competing progresses, and in getting rid of various ob- ' jections which might otherwise have been competent. For ' example, A disposes to B, B to C, and so on. One of these ' dispositions is objected to on the ground of forgery, or because ( it was impetrated by force or fraud. Now all these objections ' are cut off by the negative prescription. For although ex- ' ceptions founded on ex facie nullities, for example, that the ' deed is not subscribed, or that it is tested by only one 1 witness, and the like, are not barred, yet all objections not ' appearing ex facie on the deed are effectually cut off by the ' negative prescription.' Lastly, in Patcrson v. Wilson 1 an ac- tion concluded for (1) production of an alleged disposition of, and (2) declarator of right of property in, a park. The dis- position had never been feudalised, and it was alleged to have been returned, in security for a loan, sixty-four years ago to the defender or his father, who, during the interval, had been in undisturbed possession of the park, which was included in their titles from 1767, though infeftment had not been taken till 1832. Here, no doubt, there was a declarator of property, and to that alone, based upon titles in the pursuer, the de- fender's plea of negative prescription would have been no answer. But the pursuer's success in the declarator, nay his continued insistence in that conclusion, depended upon his prevailing in the conclusion for the production of the alleged disposition, which was the sole ground of the right of property he claimed. The question, said Lord Deas, whether the right of action as a declarator of property is cut off would only arise if the pursuer could maintain his case without first getting a decerniture for exhibition and production of the disposition he founds upon. ' But, admittedly, he has no case without such ' decerniture ; and it is for this reason that the whole case ' comes to turn on the primary conclusion. Now ngainst the 1 1S59, 21 D. 322. OF THE NEGATIVE PRESCRIPTION 85 c right of action to recover the deed out of the defender's reposi- ' tories, I have no doubt the negative prescription is pleadable. ' It is the strongest case possible for the application of the ' plea where the pursuer, admitting possession upon an << facie ' good title (though not fortified by the positive prescription) ' for the last sixty or seventy years, simply says — If you ' will admit me to your charter-chest, I shall recover an un- ' feudalised disposition which will upset your title.' The Court, accordingly, unanimously sustained the plea of prescription. It is to be noted that, if Lord Deas's opinion be correct, the right of raising an action of adjudication and implement upon a general disposition — which used to be the method of obtaining a proper feudal title upon such a disposition — is lost if such action be not pursued within forty years. 1 It is conceived that the right to expede and record notarial instrument upon such a convey- ance — which by the Acts 21 and 22 Vic. c. 76, § 12, and 23 and 24 Vic. c. 143, § 8, is substituted for the older form of making up a feudal title — is also extinguished by failure to exercise it for forty years from the date of the conveyance. "Where two titles to an estate, one limited and the other un- limited, with different destinations, exist in the same person, one who has a jus crcditi under the limited destination loses his right to compel the heir in possession to make up his title under the limited destination by mere failure to put that right in force for forty years. But if the right to succeed under the unlimited title and the right to succeed under the limited title come to exist in different persons before the lapse of forty years, the claim of property put forward by the heir under the entail cannot be defeated by the negative prescription alone, and can only be met successfully by the plea of the positive prescription based upon the possession for forty years of the heir under the fee-simple title, or of his ancestors upon that title. These propositions will be found illustrated in any case 1 Chwholm v. Chisholm-BcUten, 1864, 3 M. 202. 86 THE LONG PRESCRIPTION where prescription has been found to ' work off the fetters/ as it is called, of a limited title. (See supra, p. 47.) Res merae The rule that a right of property cannot be lost non utendo facultatis. •, -, -, , , - . . . , . . . may be regarded as a branch of the more general principle that res merae facultatis are exempt from the operation of the negative prescription. A man may do what he pleases with his own property, and his neglect to turn it to any particular purpose in no wise implies a dereliction of it, far less that establishment of a right to it in another, which Mr. Erskine postulates as the indispensable correlative of the effectual extinction of a right of property by disuse. Mines and minerals, for example, constitute in themselves & 'plenum dominium, and failure to work them for forty years on the part of one who has an express title to them will not forfeit his right. 1 Not so, however, if the minerals are claimed in virtue of an infeft- ment in the lands not specially conveying them. 2 The right of a titular to parsonage tithes is a right to a separate estate. The obligation to pay parsonage tithes has been imposed by public law on all lands not expressly exempted from the burden ; consequently the fact that the titular has failed to enforce that obligation will not extinguish his right. The right to vicarage tithes, on the other hand, being established by mere usage, may be lost by disuse of payment. A superior does not lose his right to demand feu-duties or feudal casualties by omitting to exact them for forty years, nor can a vassal claim immunity from them on the score of that omission, for the right is inherent in, and essential to, the dominium directum? So the fact that lands had lain in non-entry for more than forty years did not exclude the process of non-entry. 4 The right of a vassal to enter with an over-superior is res merae facultatis, and failure to exercise it does not imply its abandon- i Grawfurd v. Bethune, 1821, 1 S. 3 Duke of Buccleuch v. Officers of 110. State, 176S, M. 10, 711. 2 Forbes v. Livingstone, 1827, 6 S. 4 Governors of Cauvin's Hospital v. .167 ; 1 W. & S. 657. Falconer, 1863, 1 M. 1164. OF THE NEGATIVE PRESCRIPTION 8; merit, or indicate any choice to hold base. 1 The jus sanguinis never prescribes. The person who is entitled to take up the heritable succession of a person deceased may do so at any time provided he is not anticipated by somebody else acquiring a right in the meantime, and having that right fortified by prescription. (See infra, p. 189.) A right of redemption is res mcrae facultatis, 2 and so is the right to surrender teinds. 3 The right of a seller of part of a heritable estate to be relieved of a proportion of the public burdens corresponding to the part sold cannot be lost by prescription, whether there is a stipulation for relief in the conveyance or not. 4 The right of the proprietor of a ground storey of a tenement (reserved in his own titles and in those to the other storeys) to open and use a door in the common stair, was held to be res mcrae facultatis, and therefore not subject to prescription. 5 The exercise of servitudes, on the other hand, is by no Servitudes means res merae facultatis, for a servitude is not a right of merae property. One whose tenement is subjected to a servitude in favour of another tenement may prescribe immunity from that servitude by the omission of the dominant proprietor for forty years to use the servitude, or by himself doing that from which he is bound by the servitude to refrain, provided that for the prescriptive period the dominant proprietor fails to assert his right to the abstinence in question. It makes no difference though the servitude be engrossed in the titles of both tenements. 6 A public right of way is no more res merae facultatis than a right to a servitude, but may be lost by disuse during the whole of the prescriptive period, 7 even if its exist- 1 Cheyne v. Smith, 1832, 10 S. 622. 11 R. 921, where the distinction 2 Reid'8 Trustees v. Duchess of drawn between a servitude and a Sutherland, L881, 8 R. 509. res m. f. is extremely subtle. 3 Chisholm- BatU n v. Cameron, 1873, 11 M. 292 ; Earl of Minto v. Pennell, 1873, 1 R. L56. ' Mill v. Skene, 1794, M. 10, 715. 7 M'l 'arlam v. Morrison, L865, B QeUatly v. Arrol, 1863, L M. 592. 1 M. 257; Magistrates of Elgin v. See also Smith, etc., \. Stewart, 1884, Robertson, 1862, -I I>. 301. '• Graham v. Dovjlas, 1735, M. 10, 74.-.. THE LONG PRESCRIPTION ence prior to the beginning of that period be fully established. Certain public or quasi-public rights — none of them rights of property — have also been held liable to the negative prescrip- tion, though expressly granted in a charter ; e.g. the right of a burgh of barony to have its customs, tolls, etc. (which were granted to the baron under a royal charter), applied to its common good, though the charter contained an express pro- vision that the money was to be so applied x ; and the rights of a royal burgh when the charter of erection has been altogether neglected, and the burgh has accepted a charter from a neighbouring proprietor. 2 A right to levy dues under a charter of free harbour is also probably liable to the nega- tive prescription. 3 Where the magistrates of a town had a right to levy tolls on a certain river within definite limits, it was held that a particular ford within those limits had pre- scribed an immunity from tolls because for more than forty years it had been employed by the public without any toll being exacted. 4 In like manner, where a town had a grant of harbour, the use of a place within the limits of that grant as a separate harbour for forty years, without any dues being ex- acted, was held to extinguish the right of levying dues at that particular spot. 5 In both these cases, the toleration by the grantee of open and habitual defiance of his right was held to infer a dereliction of that right. They are, therefore, easily distinguishable from the case of the Magistrates of Edinburgh v. Scott, 6 where it was held that a grant conferred by royal charter on the city of Edinburgh to levy harbour dues within certain limits entitled the magistrates to levy dues at all places within these limits as well as at the two recognised ports within them ; and that a proprietor on the shore was not entitled to 1 Kelso v. Duke of Roxburghc, 1755, 4 Magistrates of Linlithgow v. Mit- M 10, 737 ; rev. 1757, H. L. chell, 1822, 1 S. 476. See Miller v. 2 Magistrates of Hamilton v. Duke Storie, 1757, M. 10, 738. of Hamilton, 1726, M. 10, 777. 5 Dundee Harbour Trustees v. 3 Magistrates of Renfrew v. Hoby, Dougall, 1848, 11 D. 6. 1854, 16 D. 348. 6 1836, 14 S. 922. OF THE NEGATIVE PRESCRIPTION S9 load or unload at any spot within the limits, and so infringe the grant, merely because dues had not been levied at that particular place. There was no averment of constant and universal use to land in defiance of the charter, and such constant and universal use must have been proved in order to imply dereliction of the right. Without pretending to exhaust the various obligations and Rights 1 ° ~ affected rights of actions which fall within the scope of the statutes, by the . , . , , statutes, w r e may now proceed to note some of the cases 111 which the application of negative prescription has been discussed and considered by the Court. A claim by a legatee against an executor is cut off by the negative prescription, 1 but not if, within forty years, the executor has acknowledged that the legacy has not been paid. 2 A trust fund had been bequeathed to the provost and bailies of a town for certain purposes, and had been taken possession of and administered for two hundred years by the town-council. An action calling on the council to denude in favour of the provost and bailies was held cut off by the negative prescription. 3 Where beneficiaries raised an action to have it declared that a certain transaction entered into by the trustees more than forty years before was ultra vires of the trustees and could not be binding on the trust estate, the plea of negative prescription proponed by the trustees was sustained ; 4 and in general beneficiaries under a trust-deed lose their right under it against the trustees non utendo. 5 A bond obliging the granter to consign the price of an estate purchased at a judicial sale, if not enforced by the creditors within the prescriptive period prescribes, and so does the obligation to consign. A right to have an obligation made a heritable burden is lost by not being enforced. 7 In Baittie 1 Jamieson v. Clark, 1872, 10 M. 19 D. 626. 399. •'• Pollock v. Porterfield, 1778, M. - Brigga v. Swan's Executors, 10, 702 ; 1779, 2 Pat. App. 495. 1854, Hi l>. 385. " M'lnnesv. Brander, 1844, <; l>. 3 Bairdv. Magistrates 0/ Dundee, 512. 1862, 24 D. 447; 1863, 1 M. H. L. 6. "' Pearson v. Malachi, 1892, 20 R. 1 Barns v. Barns' Trustees, 1857, 167. go THE LONG PRESCRIPTION v. Cochrane?- the question was raised whether a valid obliga- tion to entail is struck at by the negative prescription ; and it seems to have been answered in the affirmative in Earl of Eglinton v. Earl of Eglinton, 2 where substitutes under an entail which trustees were directed, but failed, to make, were held to have lost their right to call upon the trustees to execute the entail, by neglecting to enforce it for forty years. The old case Duke of of the Duke of Buccleuch v. Officers of State 3 is an excellent illus- y U Officersof tration of the negative prescription, and the reports, which are state ' extremely confused, and which led even Mr. Napier astray, are worth unravelling. The facts are these. The Earl of Buccleuch held a barony upon a base infeftment from Sir John Ker (who held ward of the Crown), and got a perpetual discharge of the feu-duty. His heiress, on marrying the Duke of Monmouth, granted procuratory for resigning these lands, and took a charter of them as holding feu of the Crown, 'aliisque jus habentibus,' in 1664, for payment of a specified feu-duty, which, however, was not exacted till 1760, when the barons ordered that the Duke of Buccleuch should be charged with the arrears of the feu-duty for forty years back, and in all time coming. The Duke brought an action to have it declared that his barony was held ward of the Crown in the original author, Sir John Ker, and therefore was now held blench of the Crown. He averred that the Countess had taken a feu-holding of the Crown by mistake. The Crown pleaded positive prescription upon the superiority title, and added the plea that the Duke was barred by the negative pre- scription, since he or his ancestor might have brought an action within the prescriptive period to correct the alleged error in the investiture. After many vicissitudes, the Lords found the feu-duty payable to the Crown, and the case was settled upon this rubric. ' The right of superiority of lands 1 1855, 17 D. 659 ; 1857, 19 D. IT. 3 1768, M. 10, 711 ; 1 Hailes, 237, L. 14. 303, 333 ; Napier, p. 559-563. 2 1861, 23 D. 1369. OF THE NEGATIVE PRESCRIPTION 91 ' held by an erroneous tenure being found to be established ' by prescription in the Crown, the right to the feu-duties ' found to be vested in like manner in the Crown, and the ' vassal accountable for a retrospective period for forty years.' It is difficult to see how the positive prescription comes into the case. Had the right of the Crown to the superiority of the lands been challenged (in the same way that the right of the Crown to teinds may be challenged), 1 by any one offering to compete, the possession of the vassal upon the Crown charter would have been the possession of the Crown and would have sufficed to clothe any title the Crown might pro- duce (supposing such a title to be necessary in the Crown). But a grant by the Crown to a vassal would, whether clothed with possession or not, afford no title to the Crown as against .one challenging the Crown's right of superiority, which was not challenged here. Again, if any one had challenged the Duke's right to the lands, the Crown charter (even if the Crown had been own dominus) clothed with possession, would have given the Duke a prescriptive title good against the world. But there was no question of that sort here. What the Duke was seeking was, in fact, the alteration or reduction of his charter, not by reason of any intrinsic nullity, but, upon the wholly extrinsic ground that his ancestor had been careless and had made a mistake. It is, therefore, submitted that the decision of the Court amounted to this: (1) that the Duke's right to correct the charter and to make good the alleged mistake — a right which at one time had been indisputably his or his ancestors' — had been lost by not being put in force within forty years from the date at which it emerged ; and (2) that a superior's right to exact feu-duties and casualties is not lost non utcndo. The case upon the whole does not justify Mr. Napier's interpretation of it as illustrating the doctrine that, the possession of the vassal is tin- | possession of the superior, any more than it justifies Mr. Bell's inference (which is also 1 Chop' v. Lord-Advocate, L871, 9 U. 377 92 THE LONG PRESCRIPTION the rubric in the dictionary), that an original tenure of lands may be lost by the negative prescription. 1 It merely gives effect to the statutory provision that a right of action must be enforced within forty years or else prescribe. In a feu-con- tract, a vassal was taken bound to relieve the superior of all public burdens under the qualification that the superior was to pay a fourth thereof. In the feu-charter the qualification was omitted, and the vassal discharged the whole public burdens for two centuries. It was held that the vassal had lost his right to be relieved of one-fourth of the public burdens by failing to enforce it. The charter on which he held his lands was free from any such qualification. 2 On the other hand, where the original investiture of lands contained limi- tations upon the casualties exigible by the superior, and where the investiture was renewed by precept of dare constat in which these limitations were not repeated, it was held that the right to enforce these limitations was not lost by forty years possession on the precept, for that a precept of dare constat is not such a new title as will import, when fortified by possession, disuse extinctive of the original privilege, but is simply the acknowledgment of a person as heir under the original investiture which still remains qualified by the limitation, and can never be released from the limitation by the negative prescription. 3 Bonds of annuity, annual pensions, and the like obligations, which cannot be discharged at once, do not prescribe through failure to enforce them for forty years. Their arrears, however, like arrears of feu-duty, are extinguished by the lapse of forty years, and each year's payment runs a separate course of pre- scription. 4 But a bond bearing interest may be extinguished by no demand being made for payment of interest for forty years, for the bond is a single obligation, and the interest an accessory 1 Prin., § 2017. 3 Stewart, 3 June 1813, F. C. 2 Leslie v. Earl of Moray, 1S27, 5 4 Lochhart v. Gordon, 1730, M. 10, S. 2S4. 736 ; Burt v. Burt, 1858, 20 D. 402. OF THE NEGATIVE PRESCRIPTION 93 or quality thereof. A defence or exception competent to a defender is not lost noa wtendo if it be merely an answer to the pursuer's claim, for it cannot be used until the claim be raised which it is to meet, e.g. a receipt, the essence of which is to afford a perpetual protection. Temporalia ad agendum sunt per- j„ t AII , ad excipii ndvm. 1 But where the exception is founded on some claim of the defender against the pursuer, which is itself productive of an action, e.g. compensation, it may be lost by prescription, because it ought to have been insisted in within forty years. 2 Where a heritor obtained decree of sale of teinds, with power Negative ... prescrip- to intromit with his own teinds until he should get a heritable tion as r •<. affecting right, and where he continued in possession tor forty years, it temds. ' was held in an action at the instance of the titular for bygone teind duties, that the decree of sale was not affected by the negative prescription, his right to require the titular to denude at any term being res mcrae facultatis. The fact of his intro- missions with the teinds excluding the supposition of dereliction was also an important element in the decision. 3 Whether a decree of valuation of teinds by the sub-commissioners is liable to prescription is a point that has occasioned some doubt. On the one hand it is argued that such a decree is a right which is lost by not being pursued for forty years, 4 on the other that it implies the creation of no new right, but is merely evidence of matter of fact, and furnishes the heritors with a perpetual ex- ception to meet any claim in excess of their valued teinds. 5 In Maxwell, the Court seems to have held that there was sufficient evidence of dereliction, and in Drymen that there was not, seems also to have been given in the latter case to a plea of non valens agere, based upon the fact that the 1 Sinclair v. Murray, 1712, M. M. 10, 57. 10,735; Campbell v. Halket, 1747, ' Maxwell v. University <;/' Olas- M. II, 634; 1 Pat. App. 4'.'7. gow, 17(11, M. I", 692. - Carmichael v. Carmkhacl, 171!), •"' Heritors of Drymen v. Officers of \1. •_» i I;;;. State, I7~>7, M. I", 675 ; Thomsons. 3 Lady Card rossv. Graham, 171". Ojlim-s <>/ Sf„/,, 171;:!, M. in, (1S7. 94 THE LONG PRESCRIPTION decrees had been carried off to London during the usurpation, and had only been recently discovered, and upon the consequent principle that the heritors could not have abandoned a right of which they knew nothing. There is now no doubt that if there are contrary actings for the prescriptive period, sub- valuations are lost, and cease to have any effect. Not so, however, with the decrees of the High Court, or with decrees of approbation of sub-valuations pronounced by the High Court. These are not lost by dereliction, and qualify all subsequent decrees of locality. 1 Rights of The application of prescription to the rights of heritors inter S°Je. se was settled in the case of the Earl of Fife v. Duff? where it was held that though prescription does not begin to run against a claim for repayment by an overpaying heritor in a locality against an underpaying heritor till a final decree of locality is pronounced, it does operate where the overpayments by the heritor are caused by his own act in failing to produce a decree of valuation. From Lord Adam's judgment we extract the following synopsis of the previous decisions, and the principles deducible therefrom. 1. Heritors are at common law precisely in the same position as debtors, bound jointly and severally. The title of an over- paying heritor to relief from an underpaying heritor depends upon the fact that he has paid to their common creditor the whole, or part, of the debt for which they are both liable in solidum. The liability to relieve, and the consequent ground of action, arises when each overpayment is made, and therefore the long prescription begins to run when each payment is made. 2. Upon this rule, the case of Weather stone v. Marquis of Twecddale 3 has grafted this exception, that where payments of stipend are made under an interim decree of locality, there is 1 Colquhounx. Togo, 1S73, 11 M. 2 1887, 15 R. 23S. 919, Lord-President Inglis, 928; Earl of Minto v. Pennell, 1873, 1 R. 156. 3 1833, 12 S. 1. OF THE NEGATIVE PRESCRIPTION 95 an implied judicial contract among all the parties, that when the legal obligations of the heritors have been determined by final decreet, their several interests shall be adjusted from the commencement of the process or processes, according to the true state of their rights and obligations, and that the claims of relief thus arising cannot be affected by the length of time during which the settlement of the locality may have been delayed. The dependence of the process keeps alive until final decree that right to a future adjustment of such payments as shall be made under interim decree, which is implied in the very nature of their concursvs in that process. No right of action emerges, and therefore prescription cannot begin to run, till final decree has been pronounced. 3. But where an under-paying heritor who has been a party in a process of locality sells his lands and leaves the parish more than forty years before an action of repetition is brought against him by an over-paying heritor, it will be held that the right of relief is cut off by the negative prescription on the ground that the under-paying heritor, by selling his lands and leaving the parish, becomes a stranger to the proceedings, ceases to have power to intervene in them to any purpose, and there- fore cannot be affected by them. 1 Reversions would seem of their own nature to be res ?nerae Reversions. facultatis. They are therefore expressly named in the Act 1617, c. 12, as being, nevertheless, subject to the operation of the negative prescription, and only those incorporate with the infeftment, or registrated in the Clerk of Register's books, are excluded from its influence. For a reversion to satisfy the condition of being 'incorporate with the infeftment,' it need not be inserted verbatim in the sasine. But there must be such a clear and explicit expression of the nature of the right as is capable of putting people on their guard. 2 A general 1 Sinclair v. CampbelYe Trustees, 2 Geddes v. Miller, 28 May L819, 1877, 4 I!. L126 rev. L878, 5 R. F. 0. ; WicoUon v. Keith, 1810, H. L. 111). Eume, 470. 96 THE LONG PRESCRIPTION reference to reversions engrossed in previous titles will not suffice. 1 Nor will the privilege of exemption be extended to any other class of rights than reversions, e.g. a liferent reserved in gremio of a party's titles. 2 It is a nice point how long re- versions limited in point of time continue to qualify the titles in gremio of which they are engrossed. In the case of a con- ventional right of reversion limited to seven years and in gremio of the grant, it was contended for the pursuer that an incorporate reversion could not be lost non utendo, that the defender's title bore ex facie to be only a title in security, and that, though the right of reversion was temporary, that limitation went for nothing until declarator had passed upon it. This amounted to the contention that a temporary right of reversion should have all the effect of a perpetual one, where there was no declarator of expiry ; and the Court held, though by the narrowest majority, that the defender's title was now irredeemable, the reverser not having offered to redeem since the term, more than forty years ago, when the right of redemption was by paction to become void. 3 Eegistered reversions are by the very terms of the statute entitled to exception from prescription equally with reversions incorporated with the title; and so it was held in Elliot v. Maxwell} But in Scott v. Bruce- Stewart 5 the Court emphati- cally overturned that decision, holding that in a competition with the feudal clause of the Act the general clause must yield ; and that no reversion, even when registered, which has not been acted on within forty years of its date, could qualify an ex facie absolute title to lands clothed with forty years' possession. Such a reversion is extinguished by failure to pursue upon it just as much as a registered bond. Terminus The statute provides that prescription is to run from the 1 Munro v. Munro, 19 May 1812, 4 1727, M. 10, 977; Ersk., Inst., F. C. 3. 7. 10. 2 Stuart v. Cuming, 1711, M. 10, 722. 5 1779, M. 13, 519 ; 3 Ross L. C. * Pollock v. Storrie, 1738, M. 7216. 464. OF THE NEGATIVE PRESCRIPTION 97 date of the bond containing the obligation. But this has long a quo. been interpreted to mean, from the date of payment or fulfil- ment of the obligation. 1 The general principle, of course, is that until a right of action emerges, prescription cannot begin to run, for there is no right to prescribe. Thus, in an action of damages against a law agent, who had blundered in an in- hibition, it was held that prescription did not run upon the right of action from the date at which the error was committed, but from that at which it was discovered, and at which the inhibition was set aside. 2 Prescription runs de die in diem, and the prescriptive period is not altered as regards the negative prescription by 37 and 38 Vict. c. 94, § 34. 3 The statute takes special notice of actions arising upon Warran- warrandice to the effect, not of excepting them from prescrip- c Ice ' tion, but of providing that prescription shall run upon them from the date of distress only, and not from the date of the bond or infeftment which contains the warrandice. This clause may seem unnecessary, in as much as a clause of warrandice can, as a general rule, only supply a ground of action when there has been eviction. But warrandice may take effect before eviction, if the cause inferring eviction be evident and clear, especially if the same be the deed of the party warrander ; ' and it is conceived that in such a case the right of action against the granter of the warrandice will begin to suffer the course of prescription not from the time when the valentia agendi comes into existence, but, from the date of actual dis- tress. With regard to warrandice, an interesting question has arisen, Effecl oi whether it is altogether lost non utendo for forty years after eviction. partial eviction, or whether it is only lost as regards the particular lands, or the particular right, evicted. Where in a conveyance of lands to the pursuer's author, in 1715, there 1 Better v. Gray, 1665, M. 11,183; lives, 1850, 13 D. l. r )7. Lutefootv. Pre«fotm,1780,M.ll, 187. 8 Broctii v. Maim, L884, II El. 925. -Cooke v. Falconer's Repreaenta- 'Smithy. Rosa, 1672, M. 16,596, 9 3 THE LONG PRESCRIPTION had been a clause of warrandice against future augmentations of stipend, and where successive augmentations, in 1719, 1793, 1807, and 1823 respectively, had been granted to the minister, without any action on the part of the disponee of the lands against the granter of the warrandice, it was held that the whole obligation to relieve against augmentation did not prescribe because there had been distress to a certain extent ; yet that distress was made perfect even by an interim locality, and that the claim of relief to the extent of the right then evicted began from that moment to prescribe. ' We think that what prescribes ' under the statute of 1617 is the right of action for any distress ' or loss actually incurred by eviction, and that the prescription • cannot extend farther than the eviction.' 1 In this case, on a remit back from the House of Lords, the Court held that a general clause of assignation of writs and evidents was sufficient to connect the purchaser with the warrandice against future augmentations in his author's titles. This judgment the House of Lords reversed, 2 and in so doing apparently laid down the proposition that such a warrandice is altogether distinct from warrandice of a title to lands, and is a collateral and inde- pendent contract. If this distinction be correct, it seems natural to inquire with Lord Moncreiff whether such a war- randice, being merely a collateral obligation, really falls under the statutory exception as to the terminus a quo, and whether prescription must not be taken to run from the date of the obligation. 3 The difficulty was got over by Lord Justice-Clerk Hope, who pointed out that even if such clauses of warrandice are to be treated like ordinary bonds, prescription does not begin to run till they are exigible, i.e. from the date of eviction. The other problem suggested by Lord Moncreiff— whether a valentia agcndi would not be raised by the right to cause such 1 Home v. Marquis of Bread- 1843, 5 D. 1357. albane's Trustees, 1835, 13 S. 296. 2 1 Bell's App. 1, at pp. 36 and 58. See Breadalbane's Trustees v. Sinclair, 3 Sinclair v. Marquis of Bread- 1,838, 16 S. 815 ; Lennox v. Hamilton, albane, 1844, 6 D. 378. OF THE NEGATIVE PRESCRIPTION 99 independent obligation to enter the feudal titles in terminis and whether the obligation may not be 'worked off' like the fetters of an entail — was not then, and has not since been, solved by the Court. CHAPTER X OF EXCEPTIONS AND REPLIES TO THE STATUTE Nmvalens 1. Non vcdens agere. — Aii adversity of right would naturally seem to be an essential condition of there being termini habilcs for prescription. Contra non valentem agere non currit prae- scriptio is a maxim which appears to be involved in the very notion of prescription, and we have noted its application in cases of prescription on double title. The valentia agendi signified is a legal and not a merely physical ability, and an impedimentum juris is required to constitute the corresponding- inability. In spite, however, of the general principle that unless there be a valentia agendi there can be no prescription, the Court has repeatedly expressed the opinion that non valens agere is not a valid reply to a plea of prescription under the feudal clause of the Act 1617, c. 12 (except in cases of double title). Lord-President Dundas, with Lord Karnes and Lord Pitfour, declared, in Campbell v. Wilson} that the plea of non valens agere belonged to the negative, and not to the positive, prescription ; the doctrine was even more explicitly laid down in Millers v. Dickson? and was emphatically affirmed in M'Neill v. Macncal? where the facts were as follows. In the marriage- contract of A, lands were destined to the heirs-male of the marriage, whom failing, to the nearest lawful heirs-male of A. A was succeeded by his son B, and B by his son C, who made up a title as nearest lawful heir-male of his father, but not as heir- male of provision, and was infeft on a precept from Chancery in 1 1765, 5 Br. Supp. 926. 3 1858, 20 D. 735. - 1766, M. 10, 937. OF EXCEPTIONS AND REPLIES TO THE STATUTE 101 1788. He executed an entail of the estates in favour of D, an illegitimate son, who was infeft therein in 1818, and possessed till 1854, when his right was challenged by X, the heir-male under the marriage-contract, who sought to reduce the retour of 1788. D pleaded prescription upon his father's infeftment in 1788 (which would, of course, preclude inquiry into the retour), clothed with possession by his father C and by himself conjoined. X in reply pleaded non valens agcre during the years of C's possession. ' The principle of the law of Scotland,' it was urged, ' was now clearly, that when a party against ' whom prescription is pleaded could have derived no benefit : from an interruption of prescription, there are no termini ' hahiles for prescription.' The Court sustained D's title, clothed with forty years' possession, as a habile ground of prescription, and expressly repelled the plea of non valens agere. ' I cannot ' hold that because the possession must be uninterrupted, it ' follows by necessary inference that it was meant that pre- ' scription should not run, whenever it happened that there was ' no party who could take any substantial benefit by the inter- ' ruption ' (p. Lord Wood). Those who are startled by the view that there can be prescription where there is no valeniia agendi may be content with the less sweeping proposi- tion that, though there must always be an abstract valentia agendi, there need by no means be an actual person in the enjoyment of that valentia, and may believe that M'NeUl might have been more easily disposed of on the analogy of the Elsie- shiells case; 1 for the pursuer's contention was neither more nor less than this, that D's father, C, who was both heir- male of provision and heir-male of line, and who could not be compelled to serve as heir-male of provision, was debarred, because he had made up a title as heir-male of line, from altering the destination (which would otherwise have continued to be the lex fev.di) — an act which he would admittedly have been entitled to perforin if he had made up titles under the 1 Edgar v. Maxwell, 173G, M. 3089. Supra, ]>. ."Si'. THE LONG PRESCRIPTION marriage-contract, which, according to the pursuer's contention, prohibited him from altering, since he had neglected it. That the plea of non valens agere is unreservedly a competent answer to that of the negative prescription has never been questioned. It is to be noted, however, that the plea is not statutory, but purely equitable. If, then, the legal inability to pursue be due to the conduct of the very party pleading it, e.g. his failure to produce a document of whose existence he was well aware, the plea of non valens agere will be repelled. 1 The cases which deal with the answer, non valens agere vi majore, are somewhat conflicting. In Lauderdale v. Tweeddale, 2 the Duke of Lauderdale was held entitled to deduct from the prescriptive period the years during which he was under for- feiture by the usurpers. The same result was arrived at in Whitefoord v. Kilmarnock? though in a previous case Colonel Whitefoord had not been permitted to deduct the years during which he had been absent on service with the King's army. 4 Yet, in Campbell v. Wilson, 5 it was laid down by the Court of Session, and affirmed by the House of Lords, that the plea of forfeiture by an established government is no reply to that of prescription. So we arrive at the singular conclusion that forfeiture by a foreign prince, or a band of usurpers, constitutes an inability to take action, while forfeiture by a lawful govern- ment does not. The whole subject was thoroughly discussed in Graham v. Watt, 6 where the plea of non valens agere was proponed by one who had been pressed into the navy, and owing to continued service for five-and-twenty years, had been ignorant of, and unable to assert, his rights. The Court decided that ' there must be a legal incapacity to sue, not ' merely a difficulty to do so, nor even a real ignorance of ' [one's] rights ' (p. Lord Medwyn). Mental 2. Mentcd Disability. — There is considerable doubt as to disability. i Earl of Fife v. Duff, 1887, 15 R. 4 1678, M. 11, 196. 238 ' ' 1765, 5 Br. Supp. 915, 926. 2 1678, M. 11, 193. '3 1681, M. 11, 19S. B 1S43, 5 J). 136S. OF EXCEPTIONS AND REPLIES TO THE STATUTE 103 whether mental disability is an answer to the plea of prescrip- tion. It does not fall within rum 'valcntia, as Mr. Bell holds, 1 if, as we have just seen, that is to be truly interpreted as being not so much any personal disability as the absence of any legal right upon which a claim may be based ; nor can it safely be reckoned as analogous to infancy. Sir George Mackenzie was of opinion that it must be taken to have been deliberately omitted from the Act 1617, c. 12, and therefore cannot be a valid reply to the statutory plea. The point has never been decided. 3. Minority. — After the feudal and general clauses, the Act Minority. 1617, c. 12, goes on to provide for the exclusion of the years of minority and less-age from the reckoning of the prescriptive period. Minority acts merely as a suspension of the course of prescription, and the term of possession that precedes it is not deprived of its prescriptive quality. The Court soon established the applicability of this exception to the feudal as well as the general clause. But its operation is kept within certain bounds. Thus, the plea of minority is a purely personal privilege in favour of individuals, and is therefore not available to hospitals for the education of children, 2 or to a body of creditors of whom one is a minor. 3 The party who pleads ii must have in his person the specific and immediate right (though not necessarily a formal title) against which prescrip- tion is urged. Thus prescription upon the general clause of a bond, conveyed to trustees for behoof of minors, and not pur- sued for forty years, was held not to be suspended by the minority of the beneficiaries, because prescription was running against the trustees, and not against the minors, so long as no division was made among them, and so long as the trustees continued alive. 4 With regard to entails, the minority of the prescribing heir in possession is not to be deducted to his 1 Prin.,§627. 678; L842, 1 Bell's App. Ki7. '-' //>riot's Hospital v. Hepburn, ' Maclellan v. Menziee, L756, M. L695, M. 11, 149. 11,160. But Bee Bailie v. Menzies, ■Minn v. Brander, L839, 1 D. 1756, 5 Br. Sup. 847. i-.ase. 104 THE LONG PRESCRIPTION disadvantage, and the years of minority of substitutes can be deducted only in favour of those who, while minors, had vested in them an immediate claim to the right in question. 1 But one substitute heir of entail cannot deduct the years of minority of prior substitutes, 2 nor indeed his own, unless the succession has opened to him as a minor. 3 For the right to suspend prescrip- tion on the plea of minority is confined to those who have a present, and not a mere contingent, right to claim possession ; i and only the minority of a party claiming directly as verus dominus can be deducted. 5 There was much confusion on this Bargany head in the Bargany case. There, an heir substitute of eutail brought a declarator of irritancy against the heir in possession, together with a declarator of her own consequent right to the property. The heir in possession met her with a plea in terms of the feudal section of the Act; he produced a valid, unlimited title, clothed with his possession for more than forty years. The substitute maintained that the years of her minority ought to be deducted from that term ; but the Court held that they were not to be deducted. Solicitor-General Blair, however, threw out the suggestion, which was at once taken up, that the substitute was really vera domina, for that if she established the irritancy she would be entitled to enter upon immediate possession of the lands. Misled by this notion, a majority of the Court came round to be of opinion that the pursuer was entitled to deduct the period of her minority. That is to say, it chose to assume (1) that there had been an irritancy; and (2) that the pursuer was consequently next heir under the entail ; for without these assumptions it could not be main- tained for a moment that the pursuer was claiming qud vera 1 Macdougal v. Macdougal, 1739, 5 Buchanan v. Bogle, 1S47, 9 D. M. 10, 947. 686 ; Black v. Mason, 1881, 8 R. 497. 2 Ayton v. Monypenny, 1756, M. 6 Fullarton v. Dairy mple, 1796, 10, 956. 1 W. &S. App. i., p. 3 ; 1798, M. 11, 3 Maule v. Maule, 1829, 7 S. 527. 171 ; 3 Pat. App. 691 ; 4 Pat. App. 4 Gordon v. Gordon, 1784, M. 10, 175 ; 3 Ross L. C. 484 ; Napier, p. 968 ; Creditors of Auchindachy v. 494, seq. Grant, 1792, M. 10, 971. OF EXCEPTIONS AND REPLIES TO THE STATUTE 105 Nomina. In other words, it was quietly taken for granted that the pursuer was right both in fact and law in the first con- clusion of her action, in order that she might have a valid answer to the plea of prescription proponed against her. In vain did Lord-President Campbell and Lord Meadowbank insist on the vital distinction between a direct declarator of property, where the party against whom prescription has been running, and is pleaded, may deduct the years of his own minority, and a declarator of irritancy and contravention of the fetters of an entail, which is founded on a jus obligationis, vested equally in all the substitute heirs of entail, and capable of being asserted by any one of them ; l who, in this respect, form, as it were, a class — though not an actual corporation ; who cannot therefore plead the minority of any of their number;" 2 and of whom no one is preferable to another; so that an heir of entail, who if his declarator of irritancy succeeds, will become heir in possession, no more pursues such a declarator qud verus dominus, than would the last heir named in the substitution. 'The circumstance of afterwards getting ' possession is merely a consequence of vacating the fee, but ' adds nothing to the right of making it vacant ' (p. Lord Grlenlee). The House of Lords corrected, indeed, the view of the Court of Session that a near heir of entail is preferable in such a matter to a more remote one, but attempted to substitute for it the doctrine that all heirs of entail are entitled to plead their minority : which would in many cases render the; Act 1G17, c. 12 useless. No more, however, has been since heard of a principle so completely at variance with the settled law of Scotland; and the ultimate decision in the Barganyco.se was a finding on the merits that the matters in the appellant's summons were not sufficient to sustain the conclusions. The years of minority also fall to be deducted in cases lying outside the statute, e.g. such as involve public right-of-way. i Ersk. 3. 8. 32. (w.s ; 1842, 1 Bell's App. 107 ; supra, * Cf. Allan v. Brander, 1839, I D. i>. 103. 106 THE LONG PRESCRIPTION Acts of possession by the public during the minority of a de- fender in a declarator of right-of-way cannot be founded on to his prejudice. 1 But when usage is founded on as interpreting a grant, what occurred during the minority of the granter's re- presentative is not to be thrown out of account, 2 The phrase- ology of the Act seems to leave no room for doubt that the time during which a child is in utero is to be deducted from the prescriptive period as well as the twenty-one years subse- quent to its birth. 3 37 and 38 The Act 37 and 38 Vic. c. 94, § 34, provides that where Vict. c. 94, . . .. §34. thirty years possession has followed upon an ex facie valid irredeemable title, no deduction or allowance is to be made on account of the years of minority or less-age of those against whom the prescription is objected, or of any period during which any person against whom prescription is objected was under legal disability. Ex fade 4, fix facie nullity. — A deed which is ex facie null, e.g. not nullity. duly tested, can never be fortified by the positive, or saved from challenge by the negative, prescription. An action to reduce a deed on the ground of an erasure was held not to be barred by the lapse of the prescriptive period ; for the error was in sul- stantialibus, and the deed was consequently alleged to be ex facie void. 4 In Kinloch v. Bell 5 the Court held that objections to a decree of locality founded on incompetency or nullity appearing ex facie of the deed were not affected by the nega- tive prescription ; and remitted to the Lord Ordinary to decide (1) whether certain objections were ex facie of the de- cree, and (2) whether, if so, they amounted to nullities. (See supra p. 17). Falsehood. 5. Falsehood. — Falsehood, i.e. forgery, 6 is a valid answer to 1 Craufurd v. Menzies, 1S49, 11 D. 1844, 6 D. 464 ; 6 Bell's App. 153 : 1127. 3 Ross L. C. 336. 2 Baird v. Fortune, 1861, 23 D. 5 1867, 5 M. 360. See Speir v. 1080. Lord Willoughby d'Eresby, 1891, 18 3 Campbell v. Wilson, 1765, 5 Br. R. 407. Sup. 915, at p. 917. 6 Duke of Buccleuchv. Cunynghame, 4 Shepherd v. Grant's Trustees, 1826, 5 S. 53. OF EXCEPTIONS AND REPLIES TO THE STATUTE 107 the plea of prescription (in spite of a remark of Lord Core- house's in Cubbison v. Eyslop) 1 first, because of the general maxim, numquam praescribitur in /also; and secondly, because of the feudal clause of the statute which expressly excepts ' falsehood ' from the grounds on which a right of property may not be impugned by one producing a competing title after the lapse of the prescriptive period. 2 (See supra, p. IS). 6. Interruption. — Interruption of the course of prescription Interrup tion entirely cancels that portion of the prescriptive period which has already elapsed. A new term of forty years begins to run from the date of the interruption, and this new term must be completed before prescription can take place. Interruption is competent at the last moment of the last day of the forty years, but if postponed to so late a date, it must be explicit and direct, and must unequivocally imply a challenge of the right which possession has all but fortified, or an assertion of the right which failure to assert is on the point of extinguishing. The positive prescription may be interrupted judicially or of positive extra-judicially. Judicial interruption is effected by citation, tion ; which, unless renewed, is extinguished as an interruption after seven years; 3 or by an action brought into Court, which endures as an interruption for forty years. A vassal obtained decree of declarator of tinsel of superiority against his superior, who held of the Prince, and obtained an unqualified charter from the Prince as immediate vassal, on which he was infeft, and possessed for more than forty years. It was held that the vassal had not prescribed a right as against his former superior so as to exclude the latter from challenging liis infeft- ment, because his possession had been interrupted by a de- clarator of non-entry brought by that superior within the forty years and still depending. 4 Extra-judicial interruption is effected by demanding and 1 is:;:, ids. 112. ' WaXlaci v. Earl of. Eglintoun, Bankton, n. L66. L830, 8 S. 1018. • Art 1669, <•. 10, 10S THE LONG PRESCRIPTION obtaining, or by effectually assuming possession ; or by notarial protest, upon which an instrument must be extended and recorded in the General Eegister of Sasines, 1 to make it available to or against singular successors. When a public right-of-way has once been established, it requires evidence of interruption and acquiescence therein for forty years to extinguish it. 2 of negative In like manner, interruption of the course of the negative prescrip- . ....... tion. prescription may be either judicial or extra-judicial. Judicial interruption may be (1) by citation, (2) by action, or (3) by diligence. Judicial. (l) When interruption is by citation, the citation, as we have seen, must be renewed every seven years on pain of pre- scribing. 3 A citation, however, followed by such judicial acts as suffice to constitute a process, or depending action, e.g. appearance of parties, affords a plea of interruption for forty years, and requires no statutory renewal. 4 (2) To effect interruption by action, the summons must be called in Court; though if execution be prior to the expiry of the forty years, the calling need not be ; the pursuit must have a direct reference to the debt in question and to the party debtor ; and must be founded upon an absolute right to the debt. Interruption by process, however, no matter by whom it has been used, ' may be pleaded by any creditor where the ' bringing of such suit has been iutended by law to promote ' the common interest of all the creditors.' 5 Hence claims entered formally, and fulfilling all statutory requirements, in processes of ranking and sale, multiplepoinding, and sequestra- tion, are a good interruption. But an action of debt in general is no interruption of the prescription of a particular debt ; nor can an action resulting in a decree assoilzieing the de- 1 31 and 32 Vict. c. C>4, §15. :! Act 1(369, c. 10 2 Magistrates of Elgin v. Robertson, 1862, 24 D. 301, at p. 304 ; Rodgers v. Harvie, 1827, 5 S. 917 ; 1828, 3 \y. and S. 251. 5 Ersk.,iW. 3. 7. 41 4 Wilson v. Lines, 1705, M. 10, 974. OF EXCEPTIONS AND REPLIES TO THE STATUTE 109 fender be pleaded against him as an interruption of prescrip- tion. 1 (3) Diligence done upon a debt, effectually to interrupt prescription, must be such as affords the debtor a distinct notification that the creditor means to prosecute his claim. A general charge, or letters of horning without a charge, or, generally, any informal diligence, will not afford an interrup- tion. 2 Even where a threatened charge was suspended by the debtor, and therefore prevented from following upon a horning, there was held to have been no valid interruption. 3 An assignation or transference of his debt by a creditor is not an interruption, even though it be duly intimated to the debtor. The terms of the Act have not been held to exclude the Extra- possibility of effectual interruption by some act of the debtor's' implying an acknowledgment of his obligation. An admission by a trustee that a legacy is owing will prevent the legatee's claim to it from suffering prescription. 4 A submission of the particular debt will interrupt, 5 but not a general submission of all debts. 6 A decree in terms of the libel, followed by a bond of corroboration and a letter asking for indulgence on a demand for payment is a good interruption ; " but mere com- munings on the subject of a claim, and craving time to investigate it, are not. 8 Payments of interest will preserve a bond from prescription, but they cannot be proved by parole. 9 In both species of interruption the important points are that Say \ . (1) the action shall be raised against, or the acknowledgment Advocate. granted by, the proper debtor: (2) with regard to the par- 1 Montgomery v. Fowles, 1795, F. C. Bell's Fo. Ca. 203. « Garden v. Rigg, 17 43, M. 11, - Johnston v. Lord Bdhaven, 107-, 074 M. 11, 237; Earl of Ilopeloun v. ■ Aithnx. Malcolm, 170(i, BaUes, York Bga. Coy., 1784, M. 11, 285. 148 Wright v. Wright, 1717, M. 11, ' .. ,, .„__ M ,, OCQ 8 Pitmeddenv. Monro, l/0;>, M. 11, 4 Brigga v. Sloan's Executor*, 1854, ~ 16 D. 385. B Kermack v. Kermack, 1 S74, 2 R. Van v. Murray, 11 June 1S1G, L56. THE LONG PRESCRIPTION ticular obligation, and (3) shall proceed upon, or refer to, a proper right or claim to that obligation. The case of Hay v. King's Advocate x affords a good illustration of these indispen- sable conditions. The Crown, in right of the forfeited estate of Lovat, stood in the place of the proper debtor. The pursuer was a creditor against the estate by virtue of a bond and subse- quent adjudication to which she had acquired a right. Against her claim the Crown pleaded prescription, the answer to which was interruption, effected by the pursuer's author having for- merly produced his grounds of debt in an action of reduction brought against him, not by the proper debtor but by another adjudger. The pursuer also relied upon an obligation to enter into a submission of all the debts in question, undertaken by a son of one of these co-creditors with another co-creditor, as a valid interruption. Against this it was argued that the per- sons concerned in the submission were not the persons properly liable in payment of the debt, and that as an action brought against either of them would not have sufficed to interrupt prescription, far less could any private unfinished transaction with them have that effect. This contention was upheld by the House of Lords, which, reversing the judgment of the Court of Session, dismissed the claim against which prescrip- tion was pleaded. In another case between the same parties, an important variation in the species facti led to a different result. 2 In 1690 Lord Lovat had come under a bond for 1600 merks, which debt, and various others, were accumulated under one adjudication at the instance of a trustee for the whole creditors. In 1703 the trustee obtained decree of constitution cognitionis causd, to make all these debts effectual against Lord Lovat's estate: upon which there followed in 1704 decree of adjudication against the whole Lovat estate for all these several debts, with interest, accumulated into one large sum. To the bond for 1600 merks the pursuer had acquired right 1 1756, M 11, 276; rev. 1758, 2 2 Pat., App. 272; Napier, p. 'H. L. 272 ; Napier, p. 665 seq. 668 seq. OF EXCFPTIONS AND REPLIES TO THE STATUTE 1 1 1 from her father, and the debt was assigned to her in 1737. Under this assignation, the pursuer entered her claim for the debt in 1749 to the Court of Session, after the forfeiture of the Lovat estates. More than forty years had elapsed between the decree of adjudication in 1704 and the presentation of the claim in 1749 : and the Crown pleaded prescription. In reply interruption was proponed. (1) It was alleged that Lord Lovat had in 1738 entered into a submission with a creditor of several of the debts comprehended in the adjudication. A decree-arbitral had followed, under which he was paid off. This transaction had no direct relation to the particular debt on which pursuer founded, but it was contended that it amounted to an express written recognition of the whole debts under the adjudication, and therefore interrupted the course of prescription upon pursuer's debt. (2) After 1715, the life interest in the Lovat estate fell into the hands of the Govern- ment Commissioners, and in 1718 the pursuer's trustee entered a claim before that Court upon the bond and adjudication. This claim was discovered entered in the Register of Claims ; and it was contended that the claim itself was sufficient interruption, as it amounted to the raising of an action before the only court competent in the circumstances. (3) The minority of several of the pursuer's children was also pleaded. The House of Lords, following the Court of Session, held that the pursuer's claim was not cut off by the negative prescrip- tion. The precise grounds of the decision cannot certainly be determined. The plea of minority was manifestly unsound. The first ground for the plea of interruption was no doubt a transaction in which the proper debtor was concerned ; though it is submitted that it cannot be regarded as an acknowledgment of the separate and particular debt in question. But the ond ground — the creditor's pursuit before the commissioners in 1718 — supplies per se ample reason for sustaining the plea of interruption. While in any act sufficient to interrupt prescription, it is THE LONG PRESCRIPTION Diligence absolutely necessary that the proper debtor should be involved, acknow- it has been held, and is apparently the law, that where a putative to putative creditor has done what, if done by the real creditor, would have creditor. sufficed to interrupt, the real creditor if he pursues his claim afterwards is entitled to the benefit of that interruption. 1 Nay more, the acknowledgment of a debt by a debtor, by means of a formal transaction with a mere putative creditor, whose title is thereafter rejected, will probably suffice to found a plea of inter- ruption for the true creditor, in a question of prescription with that debtor. 2 But an action raised by a creditor on a wrong title, even though he has a good title in his person, will not form a sufficient ground for him to plead interruption of the course of prescription. 3 The case of Robertson v. Robertson? indeed, seems at first sight to conflict with Campbell 1 and Morrison! 2 - There a party pursued payment to himself of the whole sum provided in a marriage-contract to heirs, male or female. He was held entitled to only one-third of the amount, as there were two other children of the marriage. Ten years after, the pursuer, by assignation granted by his sister, acquired right to another third of the provision : and he enrolled the cause to obtain decree for that amount also. But more than forty years had elapsed between the date when the sister might have claimed her provision and the date of her assignation. Prescription was accordingly pleaded against the pursuer : and if that plea was valid, it is obvious that the sister had, at the date of the assignation, no claim to assign. The pursuer argued that pre- scription was interrupted as to his sister's claim by Ms having raised an action prior to the expiry of the forty years. The Court sustained the plea of prescription. Yet, asks Mr. Napier, if it be law that a creditor can plead as an interruption the pursuit of one who is an entire stranger to the right, why might 1 Campbell v. Earl of Breadalbane, 3 Blair v. Sutherland, 1735, M. 1746, M. 6554. 11, 270. 2 Morrison v. Yordoun, 1849, Napier, p. 676 seq. 4 1776, M., voce Prescr. App. 2. OF EXCEPTIONS AND REPLIES TO THE STATUTE 113 not the brother's action save the sister's claim from prescription ? The answer probably is that an action where the defenders are assoilzied is no interruption ; and the pursuer's action having failed, except as regards his share of the property, it could not be held to be an interruption as regards any other claim. It remains to consider whether partial interruption affects Pariiahin 1 /. . ■,-,■,•■, terruption the course of prescription on the whole right or no. A debt may undoubtedly be so divided by assignation, that interruption as to one part will not apply to the rest. 1 On the other hand, in the case of a right held pro indiviso by several creditors, interruption effected by one will benefit all. 2 Diligence used against one of two or more co-principal debtors preserves the debt itself, and so interrupts prescription against all the co- obligants, 3 and diligence used against a cautioner interrupts prescription as to the principal debtor. 4 An annual-rent was granted out of two tenements in Leith in annual over the whole subjects, and the burden was constituted by separate sasines. The two tenements were afterwards trans- mitted to different proprietors, A and B, by singular titles. The annual-renter only pursued his right against A, which it was held perfectly competent for him to do, but reserving A's right to relief from B. When A sought to obtain relief from B, B pleaded the statute 1617, he having bruiked his tenement for more than forty years before the pursuit, free from such annual-rent. The Court held that an annual- rent was an indivisible obligation, the whole of which was preserved from prescription by the assertion of any part of the right ; while such assertion also operated as an interruption to the possession necessary to found a plea upon the feudal clause. But it is otherwise with adjudications. An adjudica- :U111 adjudi- cations. tion being a right of property under reversion, partial possession 1 Cuming v. York Buildings Com- Ph'dorth, 1GU7, M. 11,233. P a^l790,Mll 170. , „. - JSapier, p. G9s. :; Earl of March/mont v. Home, '' Lord, licdmerino v. Hamilton, 1711, M. U, If,!; Nicohonv. Lord 1671, M. 11,234. II ii 4 THE LONG PRESCRIPTION cannot apply to protect the whole right. 1 The distinction between the two classes of obligation seems to be this. The drawing a portion only of the annual-rent, or drawing the whole from a portion of the lands, is the assertion of a right to draw the annual-rent. The right to draw being asserted, it becomes res merae facultatis how or in what quantity it is to be drawn. But adjudication is a transference which gives the right to possess. Possession of one tenement can never be construed to be the assertion of a right to possess another : and to take pos- session of a portion only of the lands transferred is practically to derelinquish the right as regards the rest of the land. It is quite possible, however, for the whole debt to be saved from prescription by partial payment, though the security be des- troyed pro tanto by merely partial possession. 1 Robertson v. Robertson, 1770, M. 10, 694. PART II THE SHORT PRESCRIPTIONS CHAPTER XI OF THE TRIENNIAL PRESCRIPTION ' § 1. IN CAUSES OF SPUILZIES AND EJECTIONS. (Stair, 1. 9. 16 ; 2. 12. 30.) (Erskine, Inst. 3. 7. 16.) The Act 1579, c. 81, runs as follows : — Act 1579, c. 81. ' Item, it is statute and ordained by Our Soveraine Lord, with ' advise of his three Estaites in Parliament, that all actiones of c spuilzies, ejectiones, and utheris of that nature, be persewed befoir ' the ordinar judge within three zeires after the committing theirof, ! utherwise the perseweris alledged hurt never to be heard there- ' after. Providing that this act extend not to minours, hot to ' persew within three zeiris after their perfite age.' Spuilzie is the taking away of moveables without consent of the owner, or order of law. Ejection is the casting out violently from lands the then possessor, and unwarrantably entering into the same. Intrusion, which is understood to fall within the statute by force of the clause, ' others of that nature,' is the entering into possession of lands, being for the time void, without consent of the parties interested, or order of law. The statute has from the first been interpreted to mean, not that actions for reparation of these delicts are incompetent unless < 115 n6 THE SHORT PRESCRIPTIONS pursued within three years, nor that there has been any dere- liction of his claim on the part of the person injured, but that the privilege enjoyed by the pursuer of such actions — viz. that of proving the extent of his injury by his own oath in litem — is cut off, if the action be not brought within the specified limit of time. 1 It is expressly provided that, where the party alleging wrong is in minority, the course of prescription is not to begin till he is of full age. § 2. IN CAUSES OF KEMOVING. (Stair, 2. 9. 43 ; 2. 12. 30). (Erskine, Inst 3. 7. IS & 36). Act 1579, The Act 1579, c. 82, runs as follows : — c. 82. ' Item, it is statute and ordained be our Soveraine Lord, with ' advise of his three Estaites in Parliament, that all actiones of ' remooving be persewed within three zeires after the warning, with ' certification and they failzie, the warneris sail never be heard ' thereafter to persew the samin upon that warning.' The three years run from the term to which the warning is made. 2 If the action be not pursued within three years from that term, the pursuer is presumed to pass from his warning, and cannot pursue his action of removing, except upon a new warning. § 3. IN CERTAIN CAUSES OF DEBT. (Stair, 2. 12. 30.) (Ersk. Inst 3. 7. 17, 18.) (Bell, Prin. §§ 628-633.) (Bell, Gomm. 7th ed. i. pp. 348-351.) (Dickson on Evidence, §§ 484-528 [476-520].) Act 1579, By far the most important and far-reaching of the short prescriptions is that established by the Act 1579, c. 83. 1 Con-stable of Dundee v. Laird of 2 Borthwick v. Scott, 1629, M. 11, Strathmartin, 1587, M. 11, 067; 076. Baillie v. Young, 1835, 13 S. 472. OF THE TRIENNIAL PRESCRIPT! OX 117 ' Item, it is statute and ordained be Our Soveraine Lord, with ' advise of his three Estaites in Parliament, that all actiones of ' debt, for house-mailles, mennis ordiriars, servands fees, merchants comptes, and uther the like debts, that are not founded upon written obligationes, be persewed within three zeires, utherwise the creditour sail have na action, except he outlier preife, be writ, or be aith of his partie.' The terms of the statute are brief, and apparently simple enough. But their interpretation has given rise to much con- troversy, and many of the cases seem to conflict, though the law may now be considered as tolerably well fixed. § 4. OPERATION AND EFFECT OF THE STATUTE 1579, C. 83. The statute does not entirely cut off the claims with which Operation fiutl (.'fleet it deals. ' It is confined barely to the mean of proof, and does of the statute ' not import a total loss of the claim.' Hence a debt, though ' not pursued within the three years, affords good ground for an arrestment jurisdictionis fundandae causd 1 ; though a prescribed account will not entitle a creditor to vote in the election of a trustee on the debtor's sequestrated estate. 2 The object of all enactments of this sort (cf. the quinquennial prescription of moveables, infra, p. 158, and the sexennial prescription of bills, Infra, p. 161) is to protect against the demand for payment of old debts, and ' to throw the onus of establishing the same on ' the pursuer by a certain specified and very safe mode of proof.' 3 If the action be brought within the three years, the pursuer may establish his claim by proof pro ut dcjurc; if he pursue after the expiry of the three years, he is tied down to a parti- cular mode of proof. Hence there can, properly speaking, be no ' interruption ' of prescription ; for the effect of a so-called interruption is not to start the short prescription upon ;i fresh course, but to make the claim last for forty years. 1 ' The true 1 Shan) v. Dow and Dobk, L869, :i Campbell v. OHerson, Is is, 10 7 M. 449. I). 361, p. Lord Justice Clerk Hope. - l\'inl: v. Mortimer, 1840, 111). 4 Ferrier v. Ewrl of Errol, 9 July 995. 1811, P. C p. Lord Meadowbank. n8 THE SHORT PRESCRIPTIONS ' sense of the statute is, that unless the action in which you ' seek to prevail [rather, the action against which the statute ' is pleaded] is brought within three years, you have no action ' at all [save by the limited mode of proof], and any other action ' just goes for nothing ; ' l i.e. in respect of barring the plea of prescription. ' I can find no authority in the statute for hold- ' ing that there can be any such defence as interruption.' Where the plea is urged that prescription is barred by a previous action having been raised, it can make no difference whether such an action, brought within the three years and dismissed, was really competent or not, because it is not the action against which the statute is pleaded, or in Lord Pitmilly's phrase, the action ' in which the party is to recover.' ' So long ' as the action has to be brought to recover, the action for debt ' has not been pursued, and therefore the statute is pleadable ' and applies.' 2 But this rigid interpretation of the Act has not been generally acted upon, and it may be taken that pursuit within the three years other than that against which the statute is pleaded will bar the plea, pursuit*? ^ ne question, what constitues pursuit in the sense of the statute was very fully discussed in the case of Eddie v. Monk- land Raihvays Company. 3 A sued a Eailway Company in 1851 on an account alleged to have been incurred in 1842. The Company pleaded the triennial prescription. A replied that in 1843 the Eailway Company had sued him for various sums, to account of which they said they had received the sum of the account now sued for ; that he had lodged defences con- taining a reservation of his claim on this account ; and that judgment had been given against the Company. It was held that the proceedings in the former action did not amount to ' pursuit ' on A's part, so as to obviate the Company's plea of prescription. ' While it has not been held essential,' said Lord 1 M'Laren v. Built, 1829, 7 S. 76, Lord Justice-Clerk Hope. 483 (p. Lord Glenlee). 2 Cochran v. Prentice, 1841, 4 1). 3 1S55, 17 D. 104L OF THE TRIENNIAL PRESCRIPTION 119 "Wood, 1 ' to exclude prescription having effect that there shall ' be a direct action instituted at the instance of the creditor ' in the debt, and while, on the contrary, it has been held that ' without such direct action there may, on a reasonable and ' sound construction of the Act, be a pursuit within the' three ' years — as, for instance, by the claim being made and insisted 1 in in a process of multiplepoinding or of ranking and sale, or ' in a submission which the parties have entered into for the ' settlement of their claims, embracing the one in question, ' which forms a contract between them, and to which the law ' gives its sanction and authority — still there is no case in ' which it has been found that there has been a compliance ■ with the requisites of the statute, except where the claim has •' been made in a competent judicial or quasi-judicial proceed- •' ing in which it could be given effect to, and in which the party ' asked that effect should be given to it. In that sense and to ' that extent it is true that a suit in the name of the creditor ' is not necessary. "Without it he is truly in pctitorio. But it ' must come up to that. Mere notice of a demand in a judicial : proceeding is not sufficient, for the statute does not rest upon ' any principle of abandonment of the claim, as the longer pre- ' scriptions do, but upon a presumption of payment which is ' not removed by demand only. ... If in an action of debt ' against a party, he within the three years makes a counter- ' claim upon a debt due to him, and insists that it shall ' receive effect in compensation or credit against the debt sued ' for, I think there would be that which in conformity to the ' recognised principle of construction of the word " pursued," as ' used in the Act, would be a pursuit. The judgment in the ' case of Dunn v. Lamb' 2 certainly determines nothing which is • in the slightest degree opposed to what I have stated to be ' necessary as an answer to the plea of prescription. ... I ' am of opinion that the debt in question was not made the ' subject of pursuit within three years. . . . The pursuer did 1 Pp. 104G, 1047. - 1854, n; i>. !MI. s,c ;„/,■„. p. 121. THE SHORT PRESCRIPTIONS ' not insist in his debt as a counter-claim, and instead of asking ' that effect should be given to it, he asked that it should be ' reserved to him to sue for it in any other action, so that, ' according to his own view, it never could in that action re- ' ceive effect.' Lord Cowan also defined the principle to be ' that there must be an insisting in judicial measures for the ' constitution of the debt by decree in some action suited by ' its nature and character for discussion of the claim and for ' obtaining such decree, and brought into a Court which can ' competently entertain the one and pronounce the other. ' Judicial measures thus resorted to may, or may not, result in ' effective decerniture, so as to lead to recovery of the debt. ' That is not essential. The fact of such measures having been ' resorted to by the creditor in pursuit of his debt within the ' three years will satisfy the statute.' 1 Broad in- These judgments plainly countenance a much broader inter- tionof the pretation of the statute than Cochran v. Prentice 2 would seem to sanction. At the same time they supply a satisfactory test for determining whether or no there has been such pursuit as will exclude the plea of prescription, and a test which reconciles all the cases on the point. Thus the plea was held to have been barred by the judicial production of the account in question in defence as a counter-claim. 3 Again, where a debtor died in- solvent leaving minor children to whom a factor loco tutoris was appointed, the factor attended a meeting of creditors, at which were present certain creditors whose debts were pre- scribed. It was agreed that all the creditors should assign their debts to a Trustee, in order to get a general decree of constitution against the debtor's representatives. In a process of ranking and sale, it was found that the debts prescribed before the meeting remained prescribed, notwithstanding the decree of constitution, but that those on which the three years expired between the meeting and the granting of the decree • ' P 1043. , - IS41, 4 D. 76. s Sloan v. Birtwhistle, 1827, 5 S. 692. OF THE TRIENNIAL PRESCRIPTION were preserved from prescription. ' The act of the representa- ' fives, through their factor, acknowledging the debt is equiva- ' lent to a decree of constitution,' p. Lord Balgray. 1 One who had entered into a reference of a disputed claim within the three years was held to be barred pcrsonali exc&ptione from pleading the triennial prescription in an action raised after the three years, and rendered necessary by the death of the referee before giving a decision. 2 Nay, where the pursuer's failure to sue timeously is due to the conduct of the defender, the defender may not plead the statute. 3 On the other hand, a mere citation will not exclude the plea of prescription, 4 nor will an action raised within the three years and afterwards abandoned. 5 The production of a claim for furnishings, accompanied with an oath of verity in a process of cognition and sale at the instance of tutors, was held not to constitute pursuit. The proceedings were not of the nature of an action of ranking and sale, or of multiplepoinding, where a discussion of the claims takes place, and where decree may follow in favour of the creditor. ' There was no procedure by ' which the creditors could have enforced their claim or ' obtained a decree.' G The statute, then, provides what, in the event of there being Procedure no pursuit within three years, must be the course of procedure, three years The only resource left to the pursuer is to prove (1) the consti- tution, and (2) the resting-owing of the debt he sues for, 7 in the way prescribed by the statute, i.e. by the writ or oath of ' his ' party.' 8 Grave exception must be taken to the opinion ex- pressed by Baron Hume in his note to Shejjherd v. Meldrvm, 9 i SI "art v. Douglas, 1S23, 2 S. 200. SOI. Dunn v. Lamb, 1854, 10 D. 944. ,; /'< rrier v. Earl of Erroll, 9 July 'Caledonian Railway Company 1811, F. C. (p. Lord Robertson). v. Chisholm, 1886, 13 R. 77:<. Cf. 7 Robertson v. Royal Association of Earl of Fife v. /;«//; 1887, 15 R. ContrihuL.r* to '//'■ National Monu- 238, supra?. L02. ment of Scotland, is in, 2D. 1343. 1 Campbell v. Macneill, 1799, M. M Campbellv. Stein, 2:; Nov. 1813, II, I L'(i. F. C., (i Dow, L16. Oobbi v. Lazzaroni, 1859, 21 1). '' L812, Eume, p. 394. THE SHORT PRESCRIPTIONS Leslie v. Mollison. and we may venture to deny that in any case where the statute is pleaded it can lie with the defender to establish by evi- dence on his part, in due course of law, his defence against the pursuer's claim. Nor is it easy to reconcile with the statute the decision in Brown v. Paterson} to the effect that because the defender's oath was ' not decisive either way,' the Sheriff should proceed and determine the case by any other competent mode of proof. Alcock v. Easson 2 has determined once for all that there is no need for the defender who pleads prescrip- tion to aver payment. The denial of the debt is contained in the statutory defence, and is the presumption on which the statute is founded. (See infra, p. 152.) Considerable confusion has not unfrequently arisen in cases complicated by the fact that the pursuer's ' party ' is not the original debtor but his heir or representative. In 1802 Thomas Leslie sued Thomas Mollison for payment of an account due to the late William Leslie, pursuer's father, who had been employed by the late John Mollison, defender's father, in a process in which John Mollison was defender. Before the end of that process John Mollison had ceased to employ William Leslie, and in 1789 he died. The defender had been sisted in the process, but denied having employed William Leslie as his agent. The pursuer did not raise an action for payment of his father's account till twelve years from its close. The defender pleaded prescription, and, that plea being sustained and reference made to his oath, he averred ignorance of the constitution of the debt, and his belief that his father had settled it, while he ad- mitted that he himself had not made payment of the sum claimed. The defender contended that his oath did not im- port resting-owing, inasmuch as it did not show that his father, the original contractor of the debt, had not paid it. The pursuer, on the other hand, laid stress on the fact that the account was still current at the date of the defender's father's 1 1809, Hume, p. 469. 1842, 5 D. 356. OF THE TRIENNIAL PRESCRIPTION death, and argued that prescription had not then begun to operate ; that the course of employment had been continued by the defender; that prescription did not begin to run till the close of the account, which was in the defender's life- time ; and that the defender had admitted non-payment. In giving judgment for the pursuer the Court seems to have gone entirely upon the ground of the continuity of the account (though it does not sufficiently appear how that con- tinuity was established in the face of the defender's conten- tion that he had employed a different agent) ; and Lord President Blair distinctly laid down that the presumption established by the Act 1579, c. 83 is, that accounts have been paid, not during their currency, but, after their close. 1 Lord Justice-Clerk Hope, indeed, in reviewing this case in Cullen v. Smeal, 2 asserts that the account was closed in the de- fender's father's lifetime, and that the Court, in giving judgment upon the assumption that the fact was so, must needs have based its interpretation of the oath on reference upon the be- lief that the Act establishes a presumption of payment after the lapse, and not during the course, of the three years. But while it may be readily admitted that the consideration of the presumptions established by the statue has too often dis- tracted attention from the plain meaning of its provisions, the session papers, in conjunction with the report, leave no room for doubt that Leslie v. Mollison goes no farther than to affirm the proposition that prescription operates solely on a closed account, and that the oath of party to the effect that it has not been paid since the date of the last article estab- lishes resting-owing. This view was followed in subsequent cases; 3 and no more was implied in Elder v. Hamilton* where the account libelled on was held not to have been closed i Leslie v. Mollison, 15 Nov. 1808, LI .March IS17, F. < '. ; Ross v. Y, c. Guthrie, L839, '-i 1>- 6 ; Darnley v. - 18.33, 15 D. 868. Kirkwood (sexennial), L845, 7 1>. 695. ■ ; Stirling?. Henderson (sexennial), ' 1833, H > s - 591. i2 4 THE SHORT PRESCRIPTIONS in the lifetime of the defender's ancestor, and her oath was — perhaps questionably — held to establish resting-owing. But Lord Gillies, in his judgment, gave some countenance to a contention that made its appearance in Leslie v. Mollison — though it would seem not to have been insisted on — viz., that if an account be closed during the lifetime of the de- fender's ancestor, but within three years of his death, the plea of prescription is not applicable, and the defender's oath negative of payment by himself necessarily instructs resting- owing. ' The first question,' said Lord Gillies, ' is, supposing ' action to have been raised against the late Mr. Hamilton ' before the close of his life, was the account then current, : or, could prescription have been pleaded then ? If not so, ' it cannot be pleaded now, for the possibility of payment sub- ' sequent to his death is directly excluded by the oath.' Lord Gillies here appears to divide accounts into accounts still current, and accounts upon w r hich the term of prescrip- tion has run. He omits to notice a third and important class : accounts upon which prescription has begun to operate, but on which it has not yet run for the statutory period. The tendency thus indicated to extend the doctrine of Leslie v. Mollison to the degree of holding that the statute cannot be successfully pleaded unless the wliole prescriptive period of three years from the close of the account has run during the an- cestor's lifetime, came to a head in Aidd v. Aikman} A debtor died within three years of the last article of an account. His creditor sued his representative no less than four and a half years after the debtor's death, and five years after the close of the account. In the face of these facts, of the statute, and of Alcock v. Easson? decided a few months before by the Second Division, the First Division, from a mistaken reading of Leslie v. Mollison and Elder v. Hamilton, felt compelled to hold that the plea of prescription was inapplicable. To 1 1S42, 4 D. 1487. - 1842, 5 D. 356. OF THE TRIENNIAL PRESCRIPTION 125 hold this meant to hold not merely that for the Act to be- come available the debt must outlive the allotted period of general proof, but that the debtor must do so too, and that unless the three years had run out in the lifetime of the original debtor, the debt could only be affected by the long negative prescription of forty years. This confusion was happily dispelled by the decision of (Mien v. the whole Court in Cullen v. Smccd, 1 which expressly reversed Aulcl v. Aikman, and which settled the point that there is no warrant for allowing any presumption of payment or non- payment to bear on the construction of the statute or to regulate its operation. ' The statute,' said the Lord Justice- Clerk Hope in a weighty opinion, ' is general and unlimited in ' its terms. It states no exception. It contemplates none.' ' Under the statute neither more nor less is to be proved • after the three years than during the three years — although ' what the pursuer has during the three years to make out, ' may be much more easily done, and by evidence or presump- ' tions, which after the lapse of three years are excluded by the ' statute.' It may be convenient here to note two distinct senses in -Eliding' • t i prescrip- which the phrase ' eliding prescription is used. In the one, tton. the pursuer is said to have elided prescription when, the statute having been found to be applicable, he has proved the constitu- tion and subsistence of the debt in the statutory manner. The phrase is so employed (by Lord Glenlee and Lord Justice-Clerk Boyle) in Smith v. Falconer- and in Campbell v. Arrott 3 The other signification of the phrase is that the statute is altogether inapplicable, so that proof may proceed pro ut dc jure} It is a general rule that minority is never deducted unless Minority. 1 1853, 15 1). 868. 4 Mackay v. Ure, 1X47, 10 D. 89 - 18.31, 9 S. 474. (p. Lord Justice-Clerk Hope.) :; 1835, 13 S. 557. 126 THE SHORT PRESCRIPTIONS when particularly excepted. 1 Minority is, therefore, not de- ducted in the case of the triennial prescription. 2 JSTor will absence from the country bar the operation of the statute. 3 The annus deliberandi is not to be discounted. 4 House- maills. § 5. DEBTS AFFECTED BY THE STATUTE. I. ' House- Maills! — House-rents on a verbal lease prescribe from year to year. 5 But arrears of rent of a farm, 6 or of a minister's glebe, 7 do not fall within the statute. ' Menu is Ordinars. II. ' Mennis Ordinars' — by which is understood debts due for the entertainment of persons at board, e.g. for board supplied by an innkeeper at a boarding-house, or a tutor at an academy. 8 The most important class of obligations coming under this head is alimentary debts which arise ex contractu, and not ex debito naturae? Aliment arising from a natural relationship does not suffer this prescription. 10 But a claim against a father for board and lodging supplied to his child, the claim being founded on contract, falls within the scope of the statute, 11 and that though the contract be not express but only implied. 12 Each term's or year's aliment has generally been supposed to be a separate debt running its own course of pre- scription. 13 But where a claim was made for a debt due for the aliment of an illegitimate child, it was held that the whole 1 Campbell v. Wilson, 5 Br. Supp. 915 ; p. Lord Pitfour ; Baird v. Fortune, 1861, 23 D. 1080. 2 Brown v. Brodie, 1709, M. 11, 150. 3 M'Ghie v. Tinkle?', 1776, M. 11, 112. 4 Duke of Argyll v. Campbell, 1736, Elch. Prescr. 10. 5 Cumming's Trustees v. Simpson, 1825, 3 S. 377. 6 Boss v. Fleming, 1627, M. 12, 735. 7 Minister oj Kilbucho, 1628, M. 11, 083. 8 Thomson v. Lord Duncan, 1808, Hume 466. 9 Hamilton v. Lady Ormiston, 1716, M. 11, 100. 10 Davidson v. Watson, 1739, M. 11, 077 ; Thomson v. Westwood, 1842, 4 D. 833. See too Longmuir v. Long- muir, 1893, Scots Law Times, vol. i. p. 143. 11 Taylor v. Allardyce, 1858, 20 D. 401. 12 Ligcrticood v. Brown, 1872, 10 M. 832. 13 Frazer v. IPKeich, 1838, 16 S. 1045. OF THE TRIENNIAL PRESCRIPTION 127 account was to be regarded as continuous, in respect that no agreement to make termly payments was averred. 1 III. ' Scrvands Fees.' — Each term's wages prescribes separ- Servants' ately.' 2 A claim made by a woman for remuneration for services rendered to her brother-in-law was held to be equivalent to a claim for wages as a housekeeper, though there had been no agreement as to the remuneration, and to be therefore liable to the triennial prescription. 3 IV. ' Merchantes Comptes.' — This is not held to include all ■ Mer- mercantile accounts, or proper accounts current between accounts. merchants, 4 but is taken to signify solely shopkeepers' accounts, ' merchant ' being equivalent in the Scotch idiom to shopkeeper. 5 The Court will decide under what category, as a matter of fact, a particular account falls. Where a cattle-dealer sued a farmer for the balance of his account, and the account had cross entries wherein the pursuer had entered items of cash paid, the value of dung delivered, and cows sold to him by the farmer, the account was held not to be an account-current between merchants, but to be susceptible of the triennial prescription. 6 V. ' Other the Like Belts' — In virtue of this clause the Act other the has received a very wide interpretation, which has sometimes e e 1 been complained of, but which, as Lord Mackenzie pointed out, 7 was inevitable. ' Likeness ' cannot be interpreted strictly. 1 Bracken v. Blasquez, 1891, 18 R. 14 D. 162 ; Laing v. Ana\ rson, IS?], 819- 10 M. 74 : M'Kinlay v. Wilson, 1885, - Ross v. Master of Saltoun, 1680, 13 R. 210; Brown v. Brovm, 1891, M. 11, 089; Douglas v. Duke of 18 R. 889. Argyll, 1736, M. 11, 102; Alcock v. s See Sandys v. Lowden, 1874, 2 Ea on, 1842, 5 D. 356. R. Just. 7. ; Smellier. Cochrane, 1835, 13 S. ,; Batchelor'a Trustees v. Honey- 544. man, 1892, 19 U. 903. 4 Hamiltonv. Martin, 1795, M. II, 7 Blackadder v. Milne, 1851, 13 1). 120; M'Kiulay v. M'Kinlay, 1851, 820. 128 THE SHORT PRESCRIPTIONS Thus, the fee or remuneration due to an engraver for pre- paring parliamentary plans ; 2 to a factor ; 2 to a printer ; 3 to a surveyor ; 4 to a clerk to a submission ; 5 to an advocate's clerk ; 6 to a surgeon ; 7 to a stockbroker for services in pro- moting a railway ; s and to law-agents ; 9 falls within the Act. The salary of a writer's clerk engaged at so much a week prescribes from year to year, though it be alleged to come in lieu of fees for writings. 10 ' Tradesmen's ' accounts, which the Lords would not distinguish from merchants' accounts, 11 are affected by the statute, 12 and so are contracts of locatio operarum ; 13 though the Act seems to have been found not applicable to a claim for remuneration for superintending the execution of a contract for building 'houses. 14 There has been doubt whether the furnishing of a single article without a con- tinuous series of furnishing or employment constitutes an obligation to which the statute applies. It was held that it did not, in the case of a claim for the price of 130 sheep all sold at one time, 15 and of a claim for the price of a bullock purchased by one gentleman from another (not by a customer from a tradesman). 16 Lord Chancellor Brougham thought it very doubtful whether a claim for the price of cattle sold under one contract, but delivered at different times, was affected by the triennial prescription. 17 Yet in Gobbi i Johnston v. Scott, 1860, 22 D. 393. Mollison, loth Nov. 1808, P.O.; 2 Gruhb v. Porteous, 1835, 13 S. Wallace v. M'Kissock, 1829, 7 S. 542. 603. 10 Smith v. Hamilton, 1845, 7 D. 3 Neill v. Hopkirk, 1850, 12 D. 61S. 499. 4 Stevenson v. Kyle, 1850, 12 D. u Tweedie v. Williamson, 1694, M. 673. 11,092. 5 Farquharson v. Lord-Advocate, x ' 2 Bay?iv. , 1692, M. 11, 092. 1755, M. 11, 108. 13 Mackay v. Carmichael, 1851, 14 6 Fortune's Executors v. Smith, D. 207. 1864, 2 M. 1005. 14 Donaldson v. Ewing, 10th Dec. 7 Macdowall v. Loudon, 1849, 12 1819, Hume, p. 481. D. 170. 15 Macgregor v. Stewart, 1811, 8 White v. Caledonian Railway Hume, p. 472. Company, 1868, 6 M. 415. w Smith v. Miller, 1827, 5 S. 314. 9 Somerville v. Executors of Muir- n M'Dougall v. Campbell, 7 W. & head, 1675, M. 11, 087; Leslie v. S. 19. OF THE TRIENNIAL PRESCRIPTION 129 v. Lazzaroni, it was held by Lord Kinloch in the Outer House, and acquiesced in, that the statute applies to a single purchase of goods, 1 and this decision may be taken to represent the existing state of the law. But while the statute covers these various species of employ- Debts not 1 t -i p • . affected by ment, it does not extend to the contract ot ncgotiorum gcsho ; - the statute. nor to that of mandate ; 3 nor to a mandatory's claim against a mandant for outlay ; 4 nor to a soldier's claim for pay against his officer ; 5 nor to a parochial schoolmaster's salary ; 6 nor to a claim founded upon cash advances made by a tradesman or an agent ; 7 nor to accounts between the master and owners of a ship ; s nor to the claim of that one of several debtors who has paid a merchant's account, against his correi ; 9 nor to poor's rates. 10 One who has obtained payment of money on behalf of another is not entitled to the benefit of the prescrip- tion, though otherwise liable for the debt ; u nor is the pre- scription applicable when the case really resolves itself into one of accounting ; 12 nor to the claim of a farmer's daughters (who had succeeded to his moveables) against their brother (who had succeeded to the lease of the farm) for the value of seed and labour of downlay of crop. 13 What has been said as to the remuneration of law-agents, Employ- and certain other persons falling within the statute, is subject beinordin to the important qualification that the employment for which they claim the fees alleged to have suffered prescription must ;ir\ course 1 1859, '21 D. 801. Trustees, 1829, 7 S. 771; Maclaren v. - Drummond v. Stewart, 1740, M. Bradly, 1S74, 2 R. 185. 11, 103. 8 Butchart v. Mudie, 17S1, M, II. 3 Berry's Representation v. Wii/ht, 113. 1822, 1 S. 402. a Bland v. Short, 1825, 3 S. 294. 1 Saddler v. M'Lean, 1795, M. 11, 10 Munro v. Graham, 1857, 20 D. 120; Grant v. Fleming,l881,9B,. 257. 72. • Orahamv. Earl of Leven, 1709, " Freerv. Paterson, 1826,4 S. .S99. M. 11,093. See Waddel v. Morton, 1826, 1 S. 8 Nicolson v. Monro, 1717. -M. 11, 172. 080. I2 Brunton v. Angus, 1822, 2 S. 5-4. 7 Kir v. Magistrates of Kirkwall, l:i Mackintosh v. Taylor, 1849, II 1827, 5 S. 712; Smith v. AfifrheH's I). 1244. i3o THE SHORT PRESCRIPTIONS have taken place in the ordinary course of their business. Otherwise, prescription will not apply. Lord-President Boyle laid great stress on this distinction in Blaclmdder v. Milne, 1 where the claim of an engineer for fees as a parliamentary witness was held to be outside the scope of the Act, on the ground that the particular employment was not in the ordinary course of his profession, though a still stronger consideration with the Court was the fact that the contract depended upon a written obligation. On the strength of Blackadder it was subsequently decided that the employment of a contractor to give evidence in London before a Parliamentary Committee did not fall within the statute. 2 An Edinburgh agent claimed remuneration for attending to the interests of certain distillers during the progress of certain bills through Parliament. The defenders pleaded prescription. The question was, in what character the pursuer had acted, and as the majority of the Court held that he had acted ex mandato •(which in the law of Scotland does not exclude the idea of remuneration), the statute was held not to apply. 3 On the other hand, an account incurred to a London solicitor for opposing a bill in Parliament was held to be liable to the pre- scription, the employment being in the ordinary course of his business. 4 Sometimes the Court will break up an account, and find that one part falls within the statute and another does not. That portion of a law agent's account which related to business done as a law agent was held to suffer prescription, but not the articles in the account for money advanced to his client, for travelling expenses incurred on behalf of his client, or for town-clerk's fees. 5 But, as a rule, the Court will take the Account to account into consideration as a whole, and not allow articles to be taken as a whole, be picked out here and there as susceptible of prescription, or 1 1851, 13 D. 820. Walker, 1812; Simpson v. Walker, - Barr v. Edinburgh and Glasgow 1813, both noted in 13 D. 825. Railway Company, 1864, 2 M. 1250. 4 Deans v. Steele, 1853, 16 D. 317. 3 Walker v. M'Nair, 1832, 10 S. Moncreiffx. Durham, 1836, US. 1 672 ; Paterson and Aikmans v. 830. OF THE TRIENNIAL PRESCRIPTION 131 the reverse ; and in a general accounting the triennial prescrip- tion is not pleadable as to particular parts of the accounts on one side. In Boyes' Trustees v. Hamilton, 1 it was decided that business charges occurring incidentally in an account not falling under the statute are not to be held to have incurred prescription separately ; and so where a creditor held an absolute disposition of his debtor's property in security for advances made and to be made, and besides making advances to his debtor had supplied him with furnishings, it was held that the triennial prescription did not apply to his account. 2 In like manner, a contractor who had done certain pieces of work for road trustees, some on estimate and some not, was not allowed to pick out from his whole account the pieces of work executed on estimate in order to obviate the application of the statute to them. 3 In Hid card son v. Merry ' 4 the facts were these : — A Glasgow agent was employed to oppose a bill in Parliament, which he did in conjunction with a London firm of solicitors. It was held that the accounts of both fell within the statute, and that travelling expenses, fees to witnesses, counsel, etc., were not to be excluded from its operation. The distinction was clearly drawn between two sorts of cash disbursements made by agents in the course of their services, and two points, said Lord Curriehill, are settled : ' In the ' first place, that to ordinary disbursements which fall within ' the usual province of a law agent to make, the statute applies ; : in the second place, that to advances made by the agent in ' any different character, for example, as cashier and factor, ' though these charges be included in his accounts, the statute ' is inapplicable.' So while cash advances do not fall within the statute, commission charges for payments made, forming part of a law agent's account, do. 5 1 .'{(ii h June 1829, F. ; 7 S. 815. 182. Murray v. Wright, 1870, 8 M. 4 L863, I M. 940. <22. Scott v. Gregory's Trustees, 1832, :i HotHon v. Tkreshie, 18.33, lis. 10 s. 375. 132 THE SHORT PRESCRIPTIONS Must not A n essential feature of all the actions of debt that fall be founded on written within the statute is that they are not founded upon ' written obligation. L obligations.' In Blackadder v. Milne} as we have seen, the decision proceeded at least as much upon the fact that the claim was founded upon an obligation in writing as upon a consideration of the nature of the pursuer's employment. But not every writing will withdraw a claim from the operation of the statute. Prescription is excluded only when the writing sued upon contains a distinct obligation by the defender.' 2 Thus, where a written offer by a tradesman to execute furnish- ings was verbally accepted, and acted upon, it was held that his claim was not founded on a written obligation, and that therefore the Act applied, 3 and where the pass-book of the pursuer, the keeper of an eating-house, was produced, bearing to be signed by the debtor, in which, however, the entries had been made after he had signed the pages, the pass-book was held not to constitute a written obligation. 4 But where a sack contractor issued a printed form, containing the conditions of his contract, to his customers, which they signed, this was found to constitute such a written obligation as rendered the statute inapplicable to his claim. 5 § 6. THE TERMINUS A QUO. Close of The last act of the current employment is the terminus a account, quo of the prescription. Thereafter the statute operates on the closed account. 6 Thus the date of the completion of the work contracted for, and not the date of a measurer's report as to the extent of the work, is the date at which prescription i 1S51, 13 D. 820, supra, p. 130. 755. 2 N.B. Railway Co. v. Smith Sligo, 5 Chisholm v. Robertson, 18S3, 10 1873, 1 R. 309. R. 760. 3 Chalmers v. Walker, 1878, 6 R. 6 Somerville v. Exrs. of Muirhead, 199. 1675, M. 11, 087 ; Leslie v. Mollison, • 4 Campbell v. Grant, 1843, 5 D. 15 Nov. 1808, F. C. OF THE TRIENNIAL PRESCRIPTION 133 begins to run. 1 But the account may be re-opened by the addition of a new item within the three years,' 2 and even where each year's account was summed up and interest charged upon it, the whole account was held to be continuous. 3 Whether an account be current or not, is a question of fact which the Court will determine according to the circumstances of each case. Thus, where an agent sued his debtor's representative, and in answer to the plea of prescription, averred that he had completed certain transactions only after the debtor's death, and had moreover been employed by the defender as her father's representative, the Court held that the pursuer's account had closed with the defender's father's death, chiefly on the ground of the "irregularity with which the pursuer's books had been made up. 4 In Stewart v. Scott 5 it was held that the account sued upon and alleged to be still current had been made up by contrivance, and brought down to within three years of the raising of the action, by fictitious entries, and that, therefore, the statute was applicable. On the other hand, in Aytoun v. Stoddart? the last items of an account were found to be a bond fide charge, and not a mere trick to exclude prescription, inasmuch as they had appeared in an account rendered within three months of its close. Where in an action on a tradesman's account the defender stated that the last two articles were fictitious, and inserted to avoid the Operation of prescription, the Court allowed proof before answer as to these items. 7 The items within the three years by which it is sought to exclude prescription must not be on a separate account or on other employment. 8 Where an agent had six different accounts against his employer for different M'Kay v. Carmirhad, 1851, 14 B 1844, 6 D. 889. D. '-''IT. a ] SS 2, 9 R. 631. See Moffat v. - Ton-awe v. /iryson, 1840, 3 I). Marshall, 1825, :: S. 329. It hyte v. Curne, 1829, 8 b. Iu4. Wilson v. Rutherfurd, 1S26, 4S ID K. 221. 427. " Campbell v. Jolly, 1 824. 3 S. 25. 134 THE SHORT PRESCRIPTIONS pieces of business, the whole was regarded as one account, representing one course of employment on the part of the client, 1 and so a claim by an Edinburgh agent against a country agent is a continuous account, though the account be divided into branches applicable to different clients.' 2 In the same case it was decided that the currency of an agent's account may be preserved by the later items, which may be referred to (even if they are not libelled on) to exclude a plea of prescription, although payment for them may have been recovered from a com us of the defender : and in W other - spoon v. Henderson's Trustees? where a law-agent sued for payment of two accounts separated by an interval of three years, the pursuer was held entitled, in answer to a plea of prescrip- tion, to show that the account was continuous by proving continuity of employment during the intervening period, his summons containing a general reservation of other claims not mentioned in it. But where furnishings had been supplied in 1823, and other furnishings were supplied in 1825 and paid for in 1826, and an action was raised in 1828 for payment of the outstanding account, it was held that prescription ran from the last item in the account before the items of 1825, which latter had been specially paid and no longer remained in the account. 4 Effect of The effect of the debtor's death upon the currency of an death. account has been the subject of some doubt. Mr. Erskine says that ' an account is deemed to be current though part of it was ' furnished to the deceased and the remainder to his heirs, ' because the heir is eadcru persona cum defuncto ; and the ' same doctrine may perhaps hold in executors. But the ' currency of an account between a merchant and a person ' deceased is not preserved by furnishings made by the same ' merchant after the debtor's death for his funeral, if these 1 Elder v. Hamilton, 1S33, 11 S. 3 1868, 6 M. 1052. 591. 4 Beck v. Learmonth, 1831, 10 S. - Fisher v. Ure, 1836, 14 S. 660. 81. OF THE TRIENNIAL PRESCRIPTION 135 ' furnishings were made, not to the executor himself, but to a ■ negotiorum gestor for him.' 1 Thus, in Graham v. Stanebyres? the death of a debtor did not interrupt the continuity of an account when the same merchant had furnished the debtor's funeral to his heir; while in Ormiston v. Hamilton 3 it was held that an account was not continued by articles advanced to the deceased's widow for his funeral, mournings, etc., because she did not represent the deceased. But Mr. Bell says, 4 ' it is now quite settled that the debtor's death closes an ' account, and that furnishings to the widow or heir begin a ' new one.' This principle was the ground of the decisions in K> nnedy v. M'Dougal, 5 and Lyon v. Mitchell. 6 Where, however, the last article in an account had been ordered by the debtor, but had not been furnished till after his death, the account was held to have been continued by that article, and the judicial admission of the debtor's representative negative of payment was found to establish resting-owing. 7 Identity of the creditor throughout is an indispensable ele- identity of creditor ment in the continuity of an account against which prescrip- tion is pleaded. 8 Every change in a firm of partners will not affect the continuity of its accounts. In Barker v. Kippen ,J the Court refused to decide whether the continuity of an account is destroyed if part of it be incurred to a firm, and part to a partner continuing the business of the firm, though it was held that the circumstances of the case showed the account to be continuous. But the assumption of a bond Ji nat rson s / 111s • 1741, M. 11, 104. fees, 1868, 6M. L052. '• 1819, Hume, 481. " 1841, 3 D. 965. 1 36 THE SHOR T PRE SCRIP TIONS § 7. WRIT OK OATH OF PARTY. Party.' The pursuer, as we have seen (supra p. 121), must, after the expiry of the three years, prove the constitution and sub- sistence of the debt sued upon by writ or oath of ' his party.' The term ' party ' is to be interpreted strictly, though the letters of a factor acknowledging the existence of a debt were held to be constructively writ of party. 1 In Bertram v. Stewart's Trustees 2 the oath of the manager of the alleged debtor was held to be inadmissible on the ground that, though the manager had been called in the action, lie was not properly a defender and ' party.' It is quite incompe- tent for a tradesman to prove resting-owing of a prescribed account by the oath of the housekeeper (and near relation) of the party for whom the furnishings had been ordered. 3 It is doubtful whether a prescribed debt may be established against the owners of a ship by the oath of the ship's husband, who can indisputably bind his owners for furnish- ings to a vessel. But if the ship's husband be himself one of the owners and defenders, his oath is admissible. 4 The oath of a wife, where she is pracposita, is equivalent to the oath of her husband, because she is eadem persona with him. 5 But Lord Young has expressed the opinion that, while the constitution of a debt incurred by a wife after her marriage may be referred to and proved by her oath, resting-owing must be referred to the oath of her husband. 6 The oath of a partner will bind the company of which he is a partner, provided the Court be satisfied that the constitution of the debt as a com- pany debt has been established. ' One party may bind the ' company for business done in the line of that company 1 Smith v. Falconer, 1831, 9 S. 1831, 9 S. 540, p. Lord Gillies. 4 V,u 7 . or o« 5 Youn 9 * Co - v - Play fair, 1802, 1874, 1 K. ^55. M 12 4g6 3 Gilmour v. Stuart's Representa- tives, 1797, M. 12, 042. ,; Mitchells v. Moulirys, 1882, 10 4 Duncan v. Forbes, 1829, 7 S. 821 ; R. 378. OF THE TRIENNIAL PRESCRIPTION 137 • without the knowledge of the other partners'; and where a partner on reference to oath deponed that the debt had been contracted by the other partner in the company for his own special business, it was held that this, taken together with his admission of non-payment, must establish the constitution and resting-owing of the debt against the company, unless it could be proved that the pursuers were aware that there had been a private arrangement between him and his partner to prevent his being liable. 1 But where a company has been dissolved, the oath of a partner, who had been sequestrated and discharged, is not admissible to prove a debt against the company, 2 nor will the oath of a partner's representatives be sufficient statutory proof of the constitution and subsis- tence of the debt of a dissolved company. 1 ' The oath of one of several joint owners will not bind the rest. 4 The oath of the debtor's representative is, of course, equivalent to the oath of the debtor ; but where the heir of a deceased debtor brought a process of ranking and sale against his father's estate, and claims were lodged by creditors, all of which were prescribed at the time of lodging, and some at the death of the debtor, a reference to the oath of the debtor's heir was held incompetent, because, inter alia, it was really a question between creditors, and the heir was therefore not the ' party.' 5 Where a reference has been made to the oath of two parties jointly, it is incompetent to sustain it as a reference to the oath of one of them. The writ of the defender, whereby the debt may be estab- Writ or lished, need not be a duly authenticated document. A mere jotting, holograph of the debtor, if manifestly admitting the debt, has been sustained as sufficient. 7 Nor is it necessary 1 NeUl .0 Co. v. HopMrlc, ls."><>, 12 * Duncan v. Forbes, 1831,98.540. I). 618. Little \. Graham, L826, 4 s. 429. - Neill i>. Trustees, 1829, 7 8. :i"7. M- 1 1, 110. 138 THE SHORT PRESCRIPTIONS that the constitution or existence of a debt should be expressly admitted. If they can be reasonably inferred from the writ, that will be held to prove the pursuer's case. Where the letter of a factor admitted that there was an old claim of the pursuer against the defender, his employer, which it would be agreeable to the defender to have settled, the Court, holding this letter to be constructively writ of party, found that, judging by the tenour of the whole correspondence, it established the constitu- tion and subsistence of the debt. 1 But a letter from a country agent employing an Edinburgh agent was held not to prove the constitution of a debt due to the latter by the clients of the former, in the absence of authority, either general or special, from the clients to the country agent. 2 Again, where the defender had in a letter denied liability in these terms : ' I do ' not hold myself liable, and decline to recognise any claim by ' you against me,' constitution having been proved by unequi- vocal writ of party, this was held to prove the resting-owing of the debt. 3 In Stevenson v. Kyle, 4 " the defender admitted in a holograph letter the existence of ' an account.' The pursuer averred, the defender denied, that this was the account sued for, and the defender pleaded triennial prescription. It was held competent to call for the production of letters from the pursuer to which the defender's were in answer, in order to show what was the account therein referred to — certainly a very liberal interpretation of the Act. In FisJce v. Walpole, 5 a letter from defender to pursuer, speaking of 'my debt,' was held to be so unequivocal an acknowledgment of his obliga- tion as to dispense with the necessity of proving the tenour of a letter of the pursuer's to which the defender's was in answer. On the other hand, a plaintive letter from the defender, which midrt be construed into an acknowledgment of the debt sued 1 Smith v. Falcoiur, 1831, 9 S. :; Macandrew v. Hunter, 1851, 13 474. D. 1111. - Wallace v. M'Kissoch, 1S29, 7 S. 4 1849, 11 D. 1086. 542. 5 1860, 22 D. 1488. OF THE TRIENNIAL PRESCRIPTION 139 for, but made no express reference to it, was held not to con- stitute writ in the statutory sense. 1 Mr. Erskine says that a book of accounts regularly kept by JjJJJjJ the debtor, in which he has ' charged himself with the par- writ of party. • ticular debt in question, will fix that debt effectually upon ' him.' But though an entry in the debtor's books may suffi- ciently establish the constitution of an obligation against him- self, the regularity with which his books are kept forms so important an element in the proof which they can afford of resting-owing that the proposition must be received with great caution. It has indeed been decided that the books of a cor- poration are to be regarded as wmvm quid, and are construc- tively writ of party ; so much so, that the absence of an entry of the discharge of a debt is sufficient to satisfy the require- ments of the statute as regards proof of resting-owing. 2 But where a law-agent sued the creditors upon a sequestrated estate for payment for work done on the employment of the trustee, and where the constitution of the debt was proved by an entry in the trustee's books, the absence of an entry of pay- ment of the debt was held not to establish resting-owing. 3 It is to be noted, too, that an entry in a debtor's books whereby it is sought to establish a debt must unequivocally apply to the specific debt in question, and must afford distinct evidence that that debt was constituted. 4 Writ of the pursuer, though recovered out of defender's hands, is not to be taken as writ of the defender. 5 With regard to the date of the defender's writ by which it Date of is sought to prove resting-owing, Mr. Bell opines that, ' if the ' writing is dated within the three years, it is not held enough ' that it shows the debt to have been in existence during the 1 Mitchells v. MouUrys, 1882, 10 ; Ellis-v. White, L849, 1 1 D. 1347. R. 378. ' Nisbet's Trustees v. Morrison's /.. in v. Magistrate* of Brechin. Trusii, -, 1829, 7 S. 307. 15 Nov. 1808, V. C. ; Buchanan v. B MacPhersonv. Williamson, 1865, Magistral* of Dunfermline, 1828, 7 •': M. 7-'7. Cf. Campbell v. Grant, 8. 35. 1843, 5 I>. 755. Mo THE SHORT PRESCRIPTIONS ' three years, since the presumption of payment still remains ; ' it would seem to be requisite that the writing should be ' intended to constitute the debt as on a new footing, to serve ' as a voucher to the creditor for his debt.' 1 In Smith v. Falconer 2 and in Macandrew v. Hunter? there was little diffi- culty, for there the date of the documents which were held to establish resting-owing was so close to the date of the raising of the action as to leave no room for the question whether payment might not have been made in the interval. In Stevenson v. Kyle? however, a year intervened between the constructive acknowledgment and the raising of the action ; and in order to get rid of the difficulty as to the possible presumption of payment having been made during these twelve months, Lord Ivory laid great stress on the fact that both dates occurred after the expiration of the statutory period, that thus the defender's letter constituted a voucher for the debt, and that there was no evidence of its discharge. But there is nothing of this distinction in the statute, and perhaps the better opinion is that the character of a writ and not its date is the proper test of its sufficiency to prove con- stitution and resting-owing. At all events, in Thomas v. Stiven? the plea of prescription was repelled expressly on the ground that there was a written admission by the debtor of the subsistence of the debt, though that admission was granted within three years ; just as in Davidson v. Hay? letters of the debtor, dated within the three years and not special as to the particular account or amount thereof, had been held to elide the plea of prescription by proving constitution and resting- owing. The character of the writ, then, and not its date, being of capital importance, and considerable latitude being allowed in its construction, the debtor who desires to plead the trien- nial prescription with success will do well to follow Lord 1 Comm. i. 349. 4 1849, 11 D. 1086. - 1831, 9 S. 474. ■ 1868, 6 M. 777. :i 1851, 13 D. 1111. « 1806, Hume. 460. OF THE TRIENNIAL PRESCRIPTION 141 Fullerton's advice, 1 and not write at all but maintain an absolute silence. "When no writ of the defender is produced, the proof of Oath or party constitution and resting-owing depends entirely on his oath ; or if the constitution only of the debt be established by writ, the resting-owing must be referred to his oath ; and where a pursuer has acquiesced in an interlocutor of the sheriff sus- taining the defender's plea of prescription, and holding the defender's oath thereafter negative of the debt sued for, he cannot be heard to maintain in the Court of Session that pre- scription is inapplicable.' 3 We have seen that the defender is not bound to allege payment to clear himself. It is for the pursuer to establish the fact of non-payment by his party's oath ; not for the defender to prove that the debt has been discharged. Hence, where there was not enough in a defender's deposition to show whether a qualification of his admission of the debt was intrinsic or extrinsic (see infra p. 144), and where it was impossible, owing to his death to re-examine the de- fender, the pursuer was found to have failed to instruct his case. 3 But there need not be any explicit admission of non- payment on the part of the defender to establish resting- owing ; nor will his bare statement denying constitution or subsistence necessarily end the matter. The pursuer is en- to be con- J . struecl by titled to interrogate him with a view to testing his assertions ; court. and it is for the Court to decide quid juratum est. Tf his answers to the pursuer's interrogations are such as to infer non-payment, though it be not expressly admitted, the Court will hold his oath affirmative of the reference. The natural consequence of this discretion has been the exhibition of two distinct and conflicting tendencies ; one, to accept a bare statement of nihil memini or nihil novi on the part of the defender as at once conclusive against the claim of the 1 Macandrew v. Hunter, 1851, 306. [3D. Nil. :; Cooperv. Marshall, IS77; ") R. ' Macdonaldv. Burden, 1829, 7 S. 258. 1 4 2 THE SHOP T PRE SCRIP TIONS pursuer; 1 the other, to demand something much more explicit than an expression of belief that the debt has been paid, and to require the production of the grounds on which that belief is based. 2 The inclination towards this less stringent view has indeed been carried so far that the provision of the statute seems to be lost sight of. In Cooper v. Hamilton? the defender deponed that he believed the debt had been paid, and based his belief on his factor's books, to which reference was allowed, and which showed that the debt Documents had never been paid. It was held that the defender's oath po h r e tedTnto had established resting-owing ; in other words, that any oath ' document appealed to for corroboration by the defender in his oath must be taken to be imported into his disposition. Had the defender not referred to his factor's books as the ground of his belief, or persisted in refusing to adduce any such ground at all, resting-owing could not have been proved. So it was held that the books of a firm referred to by the son of one party in an oath on reference amounting to nihil novi, may be examined by the Court in order to understand the precise nature of the oath. 4 A party having deponed in an oath on reference that a statement in an article of his condescendence was true, that statement was held to have been thereby imported into his oath, though it was observed that in order to make documents part of an oath on reference, the defender must be examined specifically on the matters therein contained. 6 Nay, if a party refer to documents as con- firming his oath, not only may they be produced and held to be imported into his oath, but the inference he draws from them may be overruled. 6 But the mere production by a de- ponent in a reference to oath, on the call of the other party, of 1 Fyfev. Miller, 1837, 15 S. 1188, 4 Berry's Representatives \. Wight, p. Lord Mackenzie. 1822, 1 S. 402. 2 Campbell v. Jolly, 1824, 3 S. 25, 5 Jackson v. Cochrane, 1873, 11 p. Lord Craigie. M. 475. 3 1824, 2 S. 609 ; aff. 1826, 2. W. 6 Hunter v. Geddes, 1835, 13 S. ajad S. 59. 369 - OF THE TRIENNIAL PRESCRIPTION 143 documents, and his deposition that they all had relation to the matter referred, and were genuine, was held not to import these documents into the oath so as to form part of it. l ' Xo oath with respect to which a previous decision has been Interpret* r r tionotoath. ' pronounced can be treated as a precedent to rule a future case, ■ though no doubt if there be any principles deducible from the ' decision these may be of authority.' 2 In as much as the inter- pretation of every oath on reference necessarily depends upon its own terms and upon the special circumstance of the case, it is no easy matter to lay down any general rules of con- struction. In the class of cases where the defender depones, not that he paid the debt himself, but that he gave money to some one else to pay it for him, the import of the oath seems to depend upon the question whether it belongs to the character of the person to whom the money is alleged to have been given to make such payment. Thus in Mctte v. Dalyell? which was settled by a compromise, Lord Balgray expressed a doubt whether, when the debtor had selected a common carrier as his mandatory, and deponed to being afterwards told by that manda- tory that he had transmitted the money to the creditor, such a deposition must not be taken as establishing resting-owiug ; and in Goodall v. Hay Newton, 4 ' which was also compromised, an opinion was indicated that, in respect the defender did not allege that he had personally paid the debt, he must be held liable for it : a very sweeping proposition. More satisfactory perhaps, and certainly less extreme, is the decision in Crichton v. Campbell? where the defender having deponed that he had paid the money to a relative to discharge the claim sued for, but that he had never seen a discharge or been told thai the debt was paid, this deposition was held to be affirmative of resting-owing. But if the discharge of such obligation be 1 Gordon v. Pratt, I860, 22 D. 1830, 8 S. 387. 4Jo3 - , „ L825, noted 8 S. - Fyfev. Carfrae, 1841, 4 D. 152, p. Lord-President Boyle. 1857, 19 D. G61. 144 THE SHORT PRESCRIPTIONS ' Intrinsic and ' ex- trinsic ' quality. C'owbrough v. Robert- properly the function of the mandatory (e.g. if the mandatory be the debtor's wife, praeposita ncgotiis, or be the debtor's factor) 1 the oath of the debtor that he has given his mandatory money to pay will clear him. Where the debtor deponed that he had paid the debt to the pursuer's traveller, resting-owing was held proved because the only payment alleged was to one whose discharge was not binding on the creditor. 2 But the commonest case is where, on reference to his oath, the defender admits the constitution of the debt but qualifies his admission by the adjection of certain statements, e.g. that the debt has since been paid or otherwise discharged. The Court has then to determine whether this adjected qualification is intrinsic or extrinsic ; whether it is ' inherent in the act and ' matter in question,' 3 and probative, or whether the fact it alleges requires further proof pro ut dc jure, The simplest instance of an intrinsic qualification is the assertion of payment. W. N. sued A. M'K. for repayment of a loan of £300. In the cash-book of the defender's father (whose managing clerk de- fender was) appeared an entry in the defender's writing, ' to A. M'K. p. W. N. £300.' On reference to oath, the defender deponed to receipt of that sum from the pursuer, but added that it had been repaid. It was held that the constitution of the debt had been proved not by writ, but by oath of the de- fender, and that the quality of payment adjected was intrinsic. 4 The simplest case of an extrinsic qualification is where the debt is admitted, but the defender depones that the sum sued for is not that agreed upon. This qualification is not accepted upon the mere statement of the defender, but has to be proved in the ordinary way. 5 The practical application of the distinction between intrinsic and extrinsic qualification is often a matter of great delicacy. I'Mackay v. Ure, 1849, 11 D. 982. 5 Fife - Smith v. Ivory, 1807, Hume, 462. Napier v 3 Dirleton's Doubts, p. 132. Turnbull 4 Newlands v. M'Kinlay, 1885, 735. IS R. 353. Innes, 1860, 23 D. 30; Smith, 1838, 1 D. 245; r. Borthivick, 1830, 8 S. OF THE TRIENNIAL PRESCRIPTION 145 The judgment of Lord Deas, however, iu Gowb rough v. Robertson} has done for this branch of the subject what the judgment of Lord Justice-Clerk Hope in Alcock v. Easson 2 did for the great principle of the statute. In Cowbrough the defender, on refer- ence to his oath, admitted the constitution of the debt in question, but swore that it had been subsequently discharged by the pursuer accepting certain unpaid accounts of his in lieu of payment. The pursuer maintained that what a debtor depones to as having been stipulated, or as having taken place after the admitted constitution of the debt, is always extrinsic, unless the qualification amounts to a payment of the debt in money. The Court, on the contrary, held that the quality of the defender's oath was intrinsic and negative of resting-owing ; and Lord Deas laid clown the following propositions: — 1. If the oath bear that some other mode of satisfaction or stipulation extinction tban payment 111 money was stipulated or bargained contra. 1 as for at the contraction of the debt, that other mode, if the debtor tion. swears it was acted upon, will be a competent and intrinsic quality of the oath. 2. If the debtor depones to an express subsequent agree- Subsequent . . . , agreement ment to hold the debt satisfied or extinguished by some other as to ex- specific mode than payment in money, that other mode will be a competent and intrinsic quality of the oath. Thus, in Wilson v. Wilson? an action for repayment of an advance of money, the defender deponed on reference that he had received the money, but that he had repaid it with flour. There being no deposition that it was part of the original transaction that the debt should be so extinguished, or that the creditor afterwards agreed to such extinction, the quality of the oath was found to be extrinsic, and the oath held to be affirmative of the reference. In Thomson v. Duncan ' the defender on oath admitted the constitution of the debt sued for, but deponed (a) that when the sum was lent he made an agree- 1 1879, 6 K. L301. :t 1871, 9 M. 920. 2 1842, 5D. 356. ' L856, 17 D. 1081. K i 4 6 THE SHORT PRESCRIPTIONS merit with the pursuer that it should be repaid in the board and lodging of the pursuer's son, and that part of the debt had been so discharged ; (/3) he deponed also that, some years later, he and the lender agreed that the remainder of the debt should be discharged by the lender boarding with him, and that it had been so discharged. It was held as to the first portion of the deposition that the qualification was intrinsic, being part of the original bargain (Lord Justice-Clerk Hope dissenting on the ground that only ' loose conversations ' had been deponed to), but that the second portion was extrinsic, some judges, it is true, putting it on the ground that it was posterior to the original bargain, but Lord Wood explicitly disclaiming that ground. But an allegation of payment by the debtor to a third party on behalf of the pursuer is extrinsic ; and where the defender admitted the constitution of an obligation, but deponed that, inter alia, he had paid a sum for the creditor on a decree of forthcoming, which was not produced, his oath was held to be affirmative of the reference, unless the decree should be pro- duced. 1 In Law v. Johnston 2 it was laid down that an explicit i post facto agreement to hold a debt of the kind now in question discharged or extinguished for any reason whatsoever is intrinsic of the oath ; so that Lord Neaves's observation in Grow's Executors v. Sim? that nothing in general can be intrinsic which is not contemporaneous with the constitution of the debt must probably be taken under considerable reservations. But, in any case, it must appear from the oath that there has been a positive agreement of the sort between the parties ; and where it was admitted that certain balances remained unpaid, but added that they had been extinguished by an agreement to allow counter-claims, and where it appeared that there had been merely an understanding on the defender's part that it had been so agreed, the defender was found liable for i Blair v. Balfour, 1748, M. 13, J 1843, 6 D. 201. ,217. 3 1866, 4. M. 578. OF THE TRIENNIAL PRESCRIPTION 147 the balance claimed, though his counter-claims were re- served. 1 3 An express subsequent agreement to forgive the debt in Subsequent r 10 ^ ment whole or in part, deponed to by the debtor, will in like manner tof< be intrinsic, and receive effect accordingly, because so far as thus deponed to the debt cannot be said to be as resting-owing. 4. But an oath that the debt has been compensated is usually Comp held extrinsic, because compensation, if not sworn to have been agreed to and sanctioned by the creditor, usually involves matter of law, and though the deponent may establish any relevant matter of fact by his own oath, he cannot thereby establish matter of law. In Hepburn v Hepburn? it was regarded as a settled point that claims of compensation in an oath of reference are ex- trinsic, unless the mutual claims of parties have been applied to each other by some regular settlement or action of the parties. ' Compensation can never be intrinsic,' said Lord Nenves 3 ; and that proposition, subject to the above cpualifica- tion, had been expressly re-asserted from the bench in Mitchell v. Ferricr. i On the same principle, where a writer sued for payment of a prescribed account, and the deposition of the defender established the employment of the pursuer, the oath of the defender that he did not think that he was indebted to the pursuer for his account, was found to be, not a statement of fact, but an expression of opinion on a point of law ; and therefore to be affirmative of the reference."' In an action on a prescribed account, the defender's sole plea was compensation on a prescribed account due to him by the pursuer. It was lnld that the onus lay on the defender of proving his counter- account by the writ or oath of the pursuer. 6 To cases where the fact of constitution is only admitted Qj^ . ,. 1 ... - i, inn StitUJ tOn. 1 Hunter v. Lord Kinnaird'a * 1842, 5 D. 169. Trustet 1, L830, 9 S. L54. ' Grant v. Wiskart, L845, 7 l>. 274. 1806, limn.-. 117. " Millerv. Baird, 1810, Hume, p. ■ <;<,"■' Executors v. Sim, 1866, I 180. .M. 578. i 4 8 THE SHORT PRESCRIPTIONS under qualification, the Court lias applied very much the same tests as those just indicated. If the defender depones on oath or avers on record that the goods were indeed furnished, but on the credit of a third party, and not of himself, the con- stitution of the debt is held not to be proved. 1 Where the defender in a reference to his oath admitted that he had received the money from the pursuer, but added that nothing was said about repayment, this deposition was held affirmative of con- stitution and resting-owing. 2 But where in an action for re- payment of money advanced on loan, the defender deponed on oath that she had got the money as a free gift, such an oath was held to be as sufficient an answer to such a libel as a denial of the contract of sale to a claim for the price of goods sold. 3 Where the trustees of a solicitor raised an action for payment of an account said to be due to the solicitor, and the defender deponed on oath that he had only employed the solicitor on condition of the latter claiming no fee, unless the action for the purpose of which he was employed should be suc- cessful, the Court held that the defender's oath had proved a different contract from that libelled on, and was therefore sub- versive of the claim. 4 Where a first-mate demanded payment of his wages, and the master of the vessel upon oath adjected to his admission of employment, the qualification that he had engaged the pursuer as second-mate, the quality of the oath was found intrinsic. 5 But where, in answer to a seaman's claim for wages, the master qualified his oath by an allegation of un- dutiful service, the quality was held to be extrinsic; the master's remedy for undutiful service lying in a separate action. 6 Where the defender deponed on oath that there was such a bargain as that libelled, but that it was agreed that it should 1 Meyer and Mortimer v. Lennard, 4 Knox v. M'Caul, 1861, '24 D. 1(3. 1851 14 D. 99 _ 5 padm v g 1751) M< 13j 2 Gaylor v. Grighton, 1854, 27 S. J. 2 ^_ 35. 3 Stewart v. Walpole, 1804, Hume, 6 Workman v. Young, 1699, M. 13, 416. 234. OF THE TRIENNIAL PRESCRIPTION 149 be reduced to writing, and that before the writings were per- fected he had resiled, the quality of his oath was found in- trinsic; 1 and the decision was the same where a defender admitted receiving money from the pursuer, but added that the money was in payment of a debt due by the pursuer to him, and that he had made no promise of repayment." In answer to a claim for payment for goods furnished, the defender de- poned that he had received the goods in consequence of an agreement to teach the pursuer the violin and to paint certain portraits ; and this qualification was found to be intrinsic. 3 So where a pursuer claimed payment of the price of certain wines supplied to the defender, and the defender qualified his ac- knowledgment of the bargain by adding that he had refused to accept the wines because they were bad, the quality of the oath was held to be intrinsic. 4 A judicial admission by a defender of the constitution and Judicial J ° . admission resting-owing of the debt sued for will supersede the necessity in lieu of of proof by oath. Wherever a defender admits on record what, if admitted on oath, would have sufficed to elide prescription, it would be mere ' supererogation, and indeed worse than super- ' erogation, to have recourse to a reference to oath. A party ' cannot be heard to say that he has a right to be allowed an ' opportunity of emitting a deposition contradictory of his ' deliberate judicial admissions ; and if he is merely to depone ' consistently with them, his deposition would leave matters ' just where they are.' 5 It is taken for granted that the oath will coincide with the admission, and what is extrinsic or in- trinsic of an oath on reference will also be held extrinsic or in- trinsic of a statement made on record. Thus against a claim for furnishings on the defender's employment ' as per account,' the defender alleged a specific contract for furnishings with the 1 CarnpbtU v. Doiujlas, 1676, M. 13, 206. 13,203. '' Trotter v. Clark, Hi*:, M- 13, - Aitkin, v. Firday, ITni', M. 13, 204. •2h.-,. •• Ritchit v. Little, ls.'fd, 14 S. 216 ■ : Lauder v. M'Qibbon, IT'-'T, M. (\>. Lord Gillies). 1 50 THE SHOR T PRE SCRIP TJONS pursuer's author at a fixed price, which the pursuer had failed to fulfil. This was held not to be au admission of the consti- tution of the debt, so that both constitution and resting-owing remained to be proved by the defender's oath. 1 On the other hand, the necessity for reference to a defender's oath was obvi- ated by a statement in the defences that the account sued for was not resting-owing, ' being entirely extinguished by counter- ' claims ; ' 2 and ' compensation,' as we have seen, ' never can be ' intrinsic' 3 Where the triennial prescription was pleaded against a claim for payment of a surgeon's account, but the constitution and non-payment of the debt were admitted on record, the Court repelled the plea. 4 The case of Maule v. Sommcrs 5 stands on a somewhat different footing, for there, in the original action for payment of a tavern bill, the defender put forward no plea of prescription, though he averred his belief that he had settled all claims, and agreed that if the pursuer could show that anything remained unpaid he would cheerfully pay it, and it was not until he sought to suspend a charge fol- lowing upon a decree passed in absence that he pleaded the statute. The Court then held that he was barred from pleading the triennial prescription at that stage, ' in respect of the terms ' of the defences lodged by him.' Rule that But the principle that judicial admissions are to be accepted admission in lieu of oath must be applied with great caution ; otherwise oath'may 13 a defender will practically be debarred from pleading any alternative defence. In Anderson v. Holly 6 the pursuer claimed six years' wages. The defender (1) denied that there had been any contract of service, and (2) pleaded triennial prescription as to a portion of the sum claimed. The Lord Ordinary sustained the plea of 1 Morison v. Robertson's Executors, M. 578, p. Lord Neaves. 1863, 1 M. 822. 4 Bryson v. Aytoun, 1825, 4 S. 2 Mitchell v. Ferrier, 1842, 5 D. 182. See Broughton v. Weston, 1826, 169. See Gordon v. Lines, 1826, 4 S. 4 S. 501. 585. 5 1822, 1 S. 475. :! Govts Executors v. Sim, I860, 4 B 1847, 9 D. 1222. be carried too far OF THE TRIENNIAL PRESCRIPTION 151 prescription, and referred to the defender's oath (which negatived the constitution of the debt), though the pursuer had maintained that the defender's denial of the contract barred him from pleading the statute, because it amounted to an admission of non-payment. No doubt in that case the Court found it unnecessary to determine that point, because the pursuer had not reclaimed against the Lord Ordinary's interlocutor sustaining the plea of prescription. But the previous case of Clync v. Snody 1 had supplied a striking- example of the lengths to which the Court was prepared to go, and is worth noting as the best conceivable illustration of how not to deal with the plea of prescription. The Court, it is submitted, went wrong on every point where error was possible. Clyne, S.S.C., sued Snody, S.S.C., for payment of certain accounts for law-agency. Snody pleaded: — (1.) Pre- scription. (2.) An alleged understanding that he, Snody, was not to be liable, unless he recovered the amount from his clients. The Lord Ordinary began the series of mistakes by finding no evidence produced of the alleged understanding, and by decerning against Snody without pronouncing any special judgment upon the plea of prescription, which, if sus- tained, might have rendered any enquiry into the allegation superfluous. The Inner House, upon a reclaiming note, found no evidence of the understanding, but remitted to hear parties on the defence of prescription, which, of course, should have been dealt with at the very beginning of the case. The Lord Ordinary next repelled the plea of prescription, and the Inner House adhered upon these extraordinary grounds: (1.) That the accounts of the pursuer, coupled with certain letters of the defender, afforded proof scripto of the pursuer's em- ployment : a direct violation of the terms of the statute ; and, (2.) That there was no allegation of payment on the part of the defender. It is not, perhaps, surprising that the Court should have ' 1830, 8 8. 566, L004. 1 5 2 THE SHOP T PRESCRIP TIONS and the taken alarm at the tendency to carry the principle that a judi- throwu cial admission is equivalent to the defender's deposition, to an grave doubt on it. extent which threatened to render the statute practically inoperative. In Alcock v. Easson} Lord Justice-Clerk Hope pointed out that the denial of the debt, the absence of which had been founded on as tantamount to a statutory admission of non-payment, is necessarily contained in the statutory defence. The course of pleading in Scotland requires not only that all defences should be put upon record at the outset of the case as pleas, but that the whole statements in support of each of them should be made at once ; and the risk of this is that defences which are peremptory and general may not be disposed of first as they ought to be, before details of the facts applicable to a different view of the case, and intended to meet a different ground of judgment, are considered. ' To ' begin with applying to the statements hinc inch in the ' pleadings all the ordinary rules and presumptions and infer- ' ences as to the legal obligations of parties, and as to the con- ' stitution and subsistence of debts, and then by the aid of these ' (whether collected from pleadings or proof seems equally in- ' competent) to hold that the statute does not apply, is revers- ' ing the whole order of procedure.' In the same strain in Darnlcy v. Kirkwood 2 (a case of a prescribed bill : see infra p. 162), where an admission on record of partial payment was founded on as constructively a statutory admission of the sub- sistence of the debt, Lord Fullertou very pertinently asked, How does such an admission prove resting-owing of the balance ? and while granting the proposition that a party can- not be allowed to maintain that he means to contradict on oath that which he avers on record, laid down that a judicial admis- sion, to be equivalent to defender's oath, must be ' express and ' unequivocal.' No mere inferences or presumptions from the defender's failing or declining to aver or deny something which the pursuer maintains he was bound to aver or deny, will be 1 1842, 5 D. 356, 366. 2 1845, 7 D. 595. OF THE TRIENNIAL PRESCRIPTION i; 3 sufficient. It must be an admission which, if made upon oath, would have proved the defender's case. In this action, indeed, Lord Jeffrey threw grave doubt upon the view that the necessity of writ or oath may be superseded at all by the tenor of admissions. He granted that in the Outer House he had held them to be scripta of the party, but added that he thought that was not a sound view. In Cullcn v. Smcal l Lord Justice-Clerk Hope recurred to these doubts, and expressly refused to decide, as being outside the scope of that case, whether judicial admissions are to be taken as writ or oath of party, or whether, if the defender requires it, the matter must not be put to his oath. 1 1853, 15 I>. 86S. CHAPTER XII OF THE QUINQUENNIAL PRESCRIPTION § 1. ARRESTMENTS (Ersk., Inst., 3. 7. 20) Act 1669, The Statute 1669, c. 9, establishes a quinquennial prescription ments. of arrestments, whether these proceed on decrees, registered obligations, or depending actions. "Where the arrestment follows upon a decree, or registered bond, the prescription runs from the date of the arrestment. Where it is grounded on a depending action, the five years do not begin to run till the date of the decree constituting the debt. 1 The course of pre- scription may be interrupted by action taken upon the arrest- ment. Thus a process of multiplepoinding brought in consequence of an arrestment will preserve that arrestment from prescribing, 2 even though the arrester's interest be not produced in the process ; 3 and an execution of a citation (given on the last day of the five years) not lodged till two years after the beginning of an action of forthcoming was held in the circumstances sufficient evidence that the citation had been regularly given so as to interrupt prescription. 4 But a suspension is not a sufficient interruption. 5 L and2 ,,, By 1 and 2 Vict. c. 114 the period of prescription suffered Vict. c. 114. J r r r 1 Crawford v. Simpson, 1732, M. 3 Macmath v. Campbell, 1802, M. 11, 049; Paterson v. Cowan, 1826, 4 11, 051. S. 482. 4 Cameron v. M'Ewen, 1830, 8 S. 440. 2 Graham v. M'Farlane, 30 May 5 Paterson v. Cowan, 1826, 4 S. 1811, F. C. 482. OF THE QUINQUENNIAL PRESCRIPTION 155 by arrestments is reduced to three years, and it is pro- vided that, where arrestments proceed upon future or con- tingent debts, the three years are to be counted as running from the time when the debt becomes due, or the condition is purified. Otherwise the law remains unchanged. A creditor arrested on decree a fund vested in his debtor, and within the three years the debtor obtained ccssio. The creditor appeared in that process, but did not found on his arrestment, and, in fact, did nothing which he might not have done if he had not arrested. It was held that the arrestments were pre- scribed, not having been pursued or insisted in within three years. 1 § 2. STIPENDS AND RENTS. (Ersk. Inst. 3. 7. 20.) (Bell. Prin. § G34.) The same Act provides, ' that ministers' stipends and Act 1669, ' multures not pursued for within five years after the same are ' due, and likeways mails and duties of tenants not being pur- ' sued within five years after the tenant shall remove from ' the lands for which the mails and duties are craved, shall ' prescribe in all time coming, except the saids ministers' ' stipends, mails and duties shall be offered to be proven to be ' due and resting-owing by the defenders their oaths, or by a ' special writ under their hands, acknowledging what is resting- " owing.' As regards stipends, the Act applies even when the charge Stipends. was vacant during the time for which the stipend was payable. 2 It did not, however, apply to the right of a patron to recover from the other heritors their proportion of what he had expended upon aim and other pious objects. 3 1 Jameson v. 8harp, issT, 14 K. 063. 643. • Graham v. Pate, 17!>'.>, M. II. 'Qlougv. macintosh, I7.">:<. M. II, 063. 156 THE SHORT PRESCRIPTIONS Rents. As regards mails and duties, Mr. Erskine says 1 that the prescription was introduced by reason of the rusticity of bond fide tenants, and that its application must be confined exclu- sively to their case. Thus, where a flar had possessed upon a tack from the liferenter, and upon the death of the latter con- tinued in possession of the lands, it was held that the Act did not apply to arrears of rent due by him to the liferenter, and sued for more than five years after they became due. 2 This principle was also carried out in a case where a tack of mails and duties was held to fall outside the Act, on the ground that the tacksman was not a tenant in natural possession by labouring the ground. 3 A tack of a whole estate, however, was found subject to the prescription, 4 and the Court has even held the Statute applicable to an obligation to relieve of rent and to make an annual prestation. 5 The Act is equally applicable whether the tenant's lease be written or verbal, and whether the subjects be urban or rural. 6 It only applies where the tenant has removed (even, indeed, where he has run away), 7 and so was held inapplicable where a tenant remaining in possession was sued by the former proprietor for arrears due five years before the estate had been sold. 8 The prescription may be pleaded by a cautioner for the tenant as well as by the tenant himself. 9 There is no room for its operation where a landlord has raised a process of sequestration against his tenant, and an account between them has been docqueted, and thus become equivalent to an acknow- ledgment of the arrears being due. 10 But where sequestration and arrestment had been only in security, before the term of 1 Inst. 3, 7. 20. li Boyes v. Henderson, 1823, 2 S. "Murray v. Trotter, 1709, M. 11, 169. ° 54 - 7 M'Intosh v. Baillie, 1753, Elch. 3 Nisbet v. Baikie, 1729, M. 11, p reS cr 35 059. *Fairholm v. Livingstone, 1725, Strdhorn v. Cunningham, 1739, M. 11,058. M. 11, 059. 5 Daes v. Scougal, 1710, M. 11, 9 Duff v. Line*, 1771, M. 11, 059. 056. 10 Hogg v. Loir, 1826, 4 S. 708. OF THE Q UINO UENNIA L PRE SCRIP 1 ION 1 5 7 payment of rent had arrived, the plea of interruption of pre- scription was repelled. 1 A landlord indebted to his tenant may not plead prescribed arrears of rent against his tenant's claim for payment of the debt. 2 On the other hand, where a tenant retained rents in his hands by way of security for a claim for ameliorations made by him, and where, having been found entitled to a sum for ameliorations subject to compensa- tion for arrears of rent due by him, he pleaded that the rents were prescribed and could not set off against him in compensa- tion, his plea of prescription was repelled. 3 The judicial statement of a claim for arrears of rent by way of compensa- tion against a claim by the tenant will exclude the prescription. 4 Payment of interest made after the prescription has run, and instructed by the defender's writ, will prove resting-owing. But payments not admitted on record or proved by the defender's writ, will prove nothing; 5 and partial payments made within the five years found no interruption of prescrip- tion, as tending rather to fortify the presumption that all bygones are cleared. 6 Upon reference to oath, as has been already explained, Reference there is no obligation on the defender to instruct payment. Where a tenant deponed that he had not paid a sum claimed by his landlord as balance of a year's rent, but that the land- lord had sequestrated and paid himself, it was held that the deposition did not prove resting-owing; and that as the land- lord had not laid the process of sequestration before the deponent and examined him upon it, and thus made it part of his oath, the deponent's statement could not be contradicted by showing from the process of sequestration that the sum in question was unpaid. 7 1 Cochrane v. Ftr 1S43 < 5 D - 723 : * Broddelius v. Grischotti, 1887, Wood v ' Howd ™, 1843 > 5 D - 507 - 14 R. 536. 10 Simpson v. Stewart, 1875, 2 P.. 5 Noble v. Scott, 1843, 5 D. 723. 673 ; Kerr's Trustees v. Ker, 1883, 6 Denovanv Cairns, 1845,7 T>. 378. 11 R. 108. OF THE SEXENNIAL PRESCRIPTION 163 on by the concurring petitioner in the sequestration. 1 So the indorsation of a hill or note on which prescription has run is worth nothing, and can convey nothing, though an indorsation during the currency of the prescriptive period carries the debt as well as the document. 2 A charge upon a decree obtained in absence upon a prescribed bill will be suspended without caution or consignation. 3 It has been thought that the writ or oath of the debtor rears up a bill for a second course of six years, and so it was decided in Fergusson v. Bethune. 4 A remark of Lord Justice- Clerk Moncreiff in the case of Storeys v. Paxton, 5 also seems to lend countenance to this view. But in 1823, the Court (p. Lord Pitmilly) declared emphatically against it, G and the decision in Drummond v. Lees 7 appears to leave no doubt that the defender's writ or oath does not raise up the bill, but esta- blishes a debt only affected by the long negative prescription. AYhile a prescribed bill can never be sufficient to found But debt diligence, 8 nor afford in itself a sufficient ground of actiou, 9 the in bill may debt contained in the bill may be sued for, and hence the setting forth of the bill in the summons is permitted. ' 1 •' do not found on the bill as a document of debt, but 1 ' merely point to it as demonstrative or illustrative of the ' question put to the defender, that question being, Do yon ■ owe the debt expressed in that bill ? ' 10 Nay, the bill may be used as an adminicle of proof. While there must be evidence sufficient to prove resting-owing of the sum in- and the bill dependency of the bill itself, the bill may Ik; produced and duced! '"" read along with the other writs in order to show that such a 1 Loelehturt v. Mitchell, 1 849, 11 1). ,; M'Jndoev. Frame, ls_>4,3S.295. 1341. See Nisbet v. Niroll, 185G, 7 1880, 7 R. 452. is I). 1042. s Armstrong v. Johnstone, lGtli - Kerr's Trustees v. Ker, L883, I I May 1804, F. C. ; M. II, 140. R. ins. " Scott v. Brovm, L828, 7 S. 192; 8 Bell, Coram, i. p. 41) (.'314). Stirling v. Lang, L830, 8 S. 638. 4 7th March 1811, F. C. '" Laidlaw l>. see infra, pp. Kid 7. 1285. :: See 13 and 14 Vict,, c. 86, - 1893, 30 S. L. R. 552 ; 20 R. 523 ; Schedule A, No. I. 1 66 THE SHOR T PRE SCRIP TIONS in finding that the action was laid upon the debt, that the debt was admitted, and therefore that the defenders were bound to pay. ' I do not think I am precluded,' added his Lordship, ' from giving decree on account of the amendment of the ' summons. The original grounds of action remain, and are ' not in my opinion affected by the amendment.' The sexennial prescription does not operate upon the claim of one who has signed an accommodation bill for another against that other; l nor upon any claim of relief, e.g. that of the acceptor against the drawer; 2 the exclusion of such claims from the scope of the statute resting on the principle that such actions are founded on the debt and not on the bill. is prescrip- Tne terms of the statute are that ' no bill of exchange shall b° U action ed ' be of force or effectual to produce any diligence in Scotland raised with- < un i ess suc h diligence shall be raised and executed, or action in the six ° years ? ' commenced thereon within the space of six years ' from the term at which the sums in the said bills become exigible. It will be observed that here is no word of ' interruption,' no syllable as to ' preserving the bill from prescription.' The plain meaning of the enactment undoubtedly seems to be that ' the promissory-note loses its virtue and force by too long ' keeping after the lapse of six years, and is thereafter not to ' have any force or effect unless diligence upon it has been ' raised and executed or action commenced upon it within the 'six years;' but 'that if action is commenced or diligence ' used within the six years, the expiry of these six years shall ' not interfere with the action so commenced or diligence so ' used. The action or diligence is alive and you may pro- ' ceed with it ' (p. Lord Young). 3 There is, however, a long train of decisions to the effect that where an action has been commenced or diligence done upon a bill within six years of its maturity, such action or diligence altogether excludes the 1 Jolly v. M'Neill, 1829, 7 S. 666. 3 Milne's Trustees v. Ormiston's 2 Ralston v. Lamond, 1792, M. Trustees, 1893, 30 S. L. R. 552 ; 20 R. 1533. 523. OF THE SEXENNIAL PRESCRIPTION 167 prescription, and keeps the bill alive as a document of debt and as a ground of other actions raised after the expiry of the sexennium. In Milne s Trustees 1 Lord Rutherfurd Clark also expressed grave doubts whether that view of the law was right, and thought the question might be taken up by the Court upon a fitting occasion. But Lord Justice-Clerk Kings- burgh and Lord Trayner held that the question was no longer an open one, having been decided ' in a considerable number ' of cases, varying almost as considerably in the peculiarity of ' their circumstances,' and accordingly found that the statutory defence must be repelled, since an action had been admittedly commenced and decree taken upon the bill in question within the six years. If at some future date the Court reopens the matter, and The deci- 1 . sions say pronounces in favour of a strict interpretation of the plain yes. words of the statute, its decision will differ from the judgment of Lord Justice-Clerk Hope in Cullcn v. Smeal* referred to by Lord Young, in respect that it will be directly contrary to many unequivocal decisions and expressions of opinion, while Lord Justice-Clerk Hope was at great pains to show that the view he so clearly expounded was in no sense opposed to the authority of previous cases. Thus in M'Lachlan v. Henderson? it was held that diligence saved a bill from prescription ' so ' as to make it capable of being the foundation of an action ' raised after the six years;' in Denovan v. Cairns, 4 Lord Fullerton said, 'Here action has been raised within the six < years, which the Act says is sufficient to interrupt prescrip- ' tion;' and in Boy v. Campbell, 5 Lord- President Doyle held the plea of prescription to be inapplicable, because ' we have a ' judgment on the bill within the six years, and this action 1 might have been brought at any time within the forty years.' In Pcixton v. Forster judicial procedure directed within the six 1 is!):;, 30 s. L R. r>.v_' ; 20 R. 523. 4 L845, 7 l>. :<7s. - is:,::, I", I). si;s, supra, p. ' I860, L2 D. 1028. ■ 1831,9 8. 753. "1842, 4 D If, 15. 1 68 THE SHORT PRESCRIPTIONS years against two persons who were both next of kin and heirs- portioners of a deceased granter of a bill was held to prevent prescription in favour of other persons who, though heirs-por- tioners, were not next of kin of the deceased ; though there it is to be noted that ' the proceedings at the meeting after the ' funeral ' (whereby the heritable and moveable estates of the deceased were massed together) were also taken into account. The principle, however, that decree taken against one co- obligant within the sexennium precludes the other co-obli- gants from pleading the prescription after the sexennium, could not be more clearly asserted than it is in Gordon v. Bogle. 1 The production of a promissory-note in a multiplepoinding as a ground of claim has been held tantamount to action, 2 and such a production in a multiplepoinding raised for distributing the effects of one member of a copartnery will bar one who turns out after the six years to be another member of the copartnery from pleading prescription. 3 The production of a bill with re- gistered protests in a process of ranking and sale within the six years is equally efficacious to preclude prescription, 4 and so is the statutory production of a bill in a sequestration, though the sequestration be afterwards recalled. 5 Where, in the course of a trust for creditors a debt due on a bill had been acknowledged, by being narrated in the trust-deed, and generally recognised in the correspondence of the truster, the minutes bf the creditors, and the deed of conveyance to the truster's heir, the plea of prescription was held to be barred as against a demand for payment of the debt. 6 The entering of a debtor into a special submission as to the bill in question also bars prescription. 7 From the analogy of the vicennial prescription, 8 Mr. Bell 1 1784, M. 11, 127. See also Milne's son, 1784, M. 11, 127. Trustees, 1893, 20 R. 523. 5 Crawford's Trustees v. Haig, 1827. 2 Lindsay v. Earl, of Bnchan, 1854, 5 S. 705. 16 D. 600. 6 Ettles v. Robertson, 1833, 11 S. 397. 3 National Bank v. Hope, 1837, 16 ' Vans v. Murray, 14th June 1816, S. 177. F. C. 4 Douglas, Heron & Co. v. Richard- s Wright v. Wright, 1717, M. 11, 26S. OF THE SEXENNIAL PRESCRIPTION 169 infers that a suspension of a threatened charge would not sufliee to interrupt prescription. But the production of a bill in a process of suspension, and its being founded on in compensation, have been held equivalent to such judicial action as will interrupt. 1 A charge given upon a bill, but not followed up by further diligence within the six years, was found suffi- cient to interrupt prescription, and keep the bill alive so as to be a foundation of new diligence after the six years. 2 But nothing short of diligence done or action raised upon a There must , . , , . ,. , „ „ , . tie diligence bill — nothing short, that is to say, of the preferring ot a claim or act j n to in a process in which legal effect can be given to it 3 — will presmp- suftice to exclude the operation of the prescription. The on - summons must be completely and formally executed before action can be held as commenced, 4 and it must libel the bill specially. 5 No mere admission of the debt within the six years will keep the bill alive. The mere protesting a bill and registering the protest will not constitute an interruption,' any more than the consenting of creditors to a private trust- deed granted by the debtor for their behoof, 8 or the entering of the debtor into a general submission of his debts, 9 or the emit- ting by the creditor of an affidavit affirming the verity of the debt in a private composition contract. 10 Even where, in a private trust, the creditor transmitted a statement of his claim on a bill to the agents of a debtor, prescription was held not to have been interrupted. 11 Where a party obtained a decree in absence against a minor as heir of his father on a bill over- due more than six years, and deponed to the verity of the debt in a process of sale of the minor's estate, which he purchased, 1 Ross v. Robertson, 1855, 17 I ». v. Douglas, L795, M. 11, 133. 1144. 6 Eaatonv. Hinshaw, 1*7:!. I K, •_'.'». - Fnwtr v. Urquhart, L831, 9 S. ' Scolt v . Brown, 1828, 7 S. L92. 7 .j ;{ a Blair v. Horn, L858, 21 l>. 45. National Bank v. Hope, 1S37, 16 '' Garden v. Bigg, 1743, Kilk. Pre S. 177, p. Lord Glenlee. 1 1. 1 BaiUiev. Doi>j, L790, M. 11, 286. "' Watsonv. Auchincloas, 1822, I S. DnugloH, Heron it- Co. v. Hiclmnl .'{71. eon, 1784, M. 11, 127. See Arbuthnot " Ewing v. Cumine, L835, 14 S. I. 170 THE SHORT PRESCRIPTIONS retaining the amount of the bill out of the price, it was held that, when called on by the trustee on the sequestrated estate of the minor (now major), he was bound to repeat, and that prescription was not obviated though the minor's curators had taken credit for the sum so retained. 1 Where, within the six years, the creditor's agent notified claims, including one on a bill, to the agent for the trust on the debtor's estate in Scot- land, and where, in addition, a process had been raised in the King's Bench which it was alleged saved those claims from the statute of limitations, the bill was neverthless held to have suffered prescription. 2 Where the drawer of a bill which was duly accepted discounted it at the bank, and on its becoming due retired it and took a special receipt to that effect on the back of the bill, the receipt was held not to prevent the bill suffering prescription. 3 The taking out of a,fugae warrant against the debtor on a bill will probably not interrupt the sexennial prescription, nor will the fact that during the six years, and long after it, the debtor has been an outlaw. 4 Debtor's Where the operation of the prescription is not excluded, the constitution and the resting-owing of the debt contained in the bill must be proved by the writ or the oath of the debtor. A writ acknowledging the subsistence of the debt granted within the six years is valueless as a proof of resting- owing, 5 unless it founds a distinct and separate obligation. 6 That is the main principle with regard to the date of the writ- ing by which prescription is sought to be elided (though in the case of Lindsay v. Moffat 7 the Court gave effect to a writ of the debtor dated on the last clay of the prescriptive term). Thus, in a proof of the debt in an action on a prescribed bill, the pursuers relied, inter alia, upon a trust-deed and a letter of 1 M'Nicol v. M'Niell, 1821, 1 S. 166. 5 Buchan v. Barclay, 1787, M. 11, 2 Hunter v. Duff, 1831, 9 S. 703 ; 128. 1832, 6 W. & S. 206. 6 Rmsdl y ^.^ vm M u 3 Buchanan v. Macdonald, 1840, 13Q . 3rTavish y . ' Lady ' SaUoun [ 1825, 3 S. 472. 2 D. 1444 - 4 Brodiev. Sheddan, 20th Feb. 1821, F. C. 7 1797, M. 11, 137 OF THE S EXE XXI A I. PRESCRIPTION 171 the alleged debtor, both dated within the sexennium. It was held that the pursuer had failed in his statutory proof, inas- much as these writings did not amount to a reconstitution of the debt, and did not substitute a new obligation for an old one, but left the debt standing upon the old document. 1 All proof, moreover, antecedent to or contemporary with the bill must be independent of it, and not innovated or extin- guished by the bill. 2 On the other hand, letters of the debtor after the six years, admitting the constitution of the debt, are sufficient proof of the constitution, 3 and where the granter of a promissory-note marked payments of interest upon the back of it seven years after its date, and made entries of similar pay- ments in the cash-book he kept as factor for the creditor's trustees, these writings were held to have established the debt, 4 Such markings, however, within the six years prove nothing, for during that period the bill neither stands in need of, nor can be strengthened by, any such acknowledgments;" and mere entries in a debtor's pass-books of money received, such pass-books being of quite a different nature from ordinary account-books, and never having been out of the debtor's possession, have been held insufficient to establish constitution and resting-owiiiL:.'' The writing need not be probative, nor need it disclose the specific value given for the bill, 7 but it must be distinctly and specifically applicable to the debt in question, 8 though the writ will be relevant, even though not expressly referring to the debt, if in the cireumstances it is capable of being con- strued as referring to it. 9 In Horsbwrgh v. Bethune 1(l the writ 1 Bank of Scotland v. Taylor'.* ''' Store;/* v. Pax/en, IsTS, 1; 1!. Trustees, 1859, 21 D. 1004. 293. - Blah v. Turner, I860, 23 D. l">. ' M'Oregorv. M'Oregor, I st;n, •_>•_> ■ Macdonald v. Crawford, ls;;i, I >. 1264. 12 S. 533. M Bank <>/ Scotland v. Taylor's * Drummond v. Le^, 1880, 7 R. Trustees, 1859,21 D. 1004. 452. •' Wood v. Howden, L843, :» D. 5 Allan v. Ormiaton, L817, Hume, ">"7. 177. »" 1. -{tli Feb. ism F. r. 1 72 THE SHORT PRESCRIPTIONS of the debtor's factor in the factory books was held not equiva- lent to writ of the debtor, and it was observed from the bench that ' all markings made beyond the six years, not by the ' debtor himself, but by another person, even the factor of the ' debtor, and far less the creditor himself, are of no avail in ' stopping prescription.' But more recent decisions gravely impugn the authority of this case. Entries of payments in the debtor's books made by his clerk have been construed as the debtor's own writ; 1 a receipt by a creditor found in his debtor's repositories has been held, under the circumstances, to be writ of the debtor ; 2 and in a proof of the resting-owing of a debt in a prescribed bill, where the creditor produced a letter written to him by one of the two acceptors, bearing to be an answer to a letter from the creditor to the other acceptor, it was held competent to read the creditor's letter in explanation of the debtor's. 3 Letters written by the factor or agent of a trust-estate, and markings by him of payments of interest on the back of a bill after the years of prescription, were held to establish the debt in the bill against the trustees. 4 During the currency of the prescriptive period the debtor in a bill died, and his sister was appointed executrix. Before the expiry of the period, her agent made payments to account of interest and capital. After the lapse of the sexennium, her agent wrote to the creditor in the bill acknowledging the balance of debt due. In the circumstances, the writ of the asrent was held to be binding on his constituent. 5 It makes no difference, in proving a debt by the debtor's writ or oath, whether value was received for the bill by the defender himself or bv his friend. 6 It is enough if value have 1 Blade v. Shawl's Creditor*, 1823, 4 Campbell v. Ballantync, 1839, 1 2 S. 118. D. 1061. - Wood v. Hoicden, 1843, 5 D. 5 M'Gregor v. M'Gregor, 1860, 22 507. D. 1264. 3 Remrie v. Urquhart, 1S80, 7 R. H M'Neil v. Blair, 1825, 3 S. 310, 1030. p. Lord Pitmilly. OF THE SEXENNIAL PRESCRIPTION 173 been received by one of the obligants on the bill. 1 But where Vitersix J ° _ years a bill there are several co-obligants, a written acknowledgment of no longer the debt by some of their number (whether within the sexen- nium or not) will not be binding against the rest of the acceptors; 2 and the oath of one co-obligant admitting con- stitution and resting-owing, will prove the debt only against himself and not against the others." When the six years are out the bill ceases to be unum quid, and no longer possesses the characteristics of a bill. The oath of trustees under a trust-deed of settlement of a deceased granter of a bill will be sufficient, if affirmative, to prove resting-owing of the debt contained in the bill ; but if their oath be negative of resting- owing, Lord Alloway thought that reference to the oath of the heir when he came of age would not be precluded by the previous reference. 4 In dealing with the debtor's oath, we observe once more Debtor's . i-iii • oath. the two conflicting tendencies : one to abide by the strict letter of the statute, and to assoilzie a defender though he can- not specify the precise time or mode of payment, 5 the other to hold that a defender is not entitled to get off with a mere nihil novi, 6 and to forget that the cpuestion is, not whether the defender has paid the debt, but, whether the pursuer has proved constitution and subsistence in the statutory manner. As examples of the latter tendency, we may note Black v. Black, 7 where a joint-acceptor of a prescribed bill deponed on oath that he had not paid it, but had been told by the co- acceptor that he had paid it. This deposition was held affirma- tive of resting-owing, because the debtor had assigned only one reason for thinking the debt paid, and that reason not a suffi- lloyd v. Fraser, 1853, 15 D. 342. l Murray v. Laurie's Trustees, See Laidlaw v. Hamilton, L826, I S. 1827, 5 S. 184. 044 ; Wilson v. Strang, 1830, 8 s. Fy/ev. Carfrae, 1841, I l>. 152. 025. ... n . , ,01-r u ' Stewart v. Stewart. ls , _ , ;{, 2 S. Allan v. Ormtston, LSI/, Hume, 183. 1 1 - . Houston v. Yuill, L822, I 8. 449. ■ L838, 16 S. 1220. 1 74 THE SHOR T PRE SCRIP TIONS cient one. Again, in Paul v. Allison} Lord Medwyn laid down that after the debtor has proved the constitution of the debt, it is not enough for him to say, I know that it was paid. Lord Meadowbank, however, threw grave doubts on this view ; and without venturing wholly to reject Lord Moncreiff s dic- tum that ' when in a reference to oath the party admits the ' constitution of the debt, the pursuer is not bound to take ' from him that the debt has been paid, but is entitled to have ' the facts sifted,' we may hold that the decision in Stirling v. Henderson, 2 where the debtor's heir and representative de- poning that he did not know whether his ancestor had paid the debt or not, his oath was held not to prove resting-owing, — or a decision such as that in Robertson v. Thomson;' where the debtor's deposition that he had paid the balance of a prescribed bill sued for to the eldest son of a family, of which the mother and younger children stood in right of the bill, or to someone sent by him, without taking a receipt, seeing the authority of the payee, or accounting for it to the true creditor, was held to be negative of resting-owing — is much more in harmony with the provisions of the statute. Judicial With regard to the place of judicial admissions in a proof as a missions. e q U j va j en ^ to wr j£ or oa ^\ x f party, we need only refer again to the judgments of Lord Fullerton and Lord Jeffrey in Darnlcy v. Kirkivood, 4 and to the remarks of Lord Justice- Clerk Hope in Noble v. Scott/' where it is laid down that the admission founded on, whether called the writ of party or not, must be clear and distinct, and that a statement made to show payment must not be taken as an admission that the debt is due. Extrinsic The quality of the debtor's oath has been held to be ex- quahty. tr j ns } Cj an( j the oath, therefore, affirmative of resting-owing, where the defender deponed that the debt had been ex- 1 1841, 3 D. S74. 4 1845, 7 D. 595 ; supra, p. 152. 2 11th March 1817, F. C. :i 1830, 8 S. 810. 5 1843, 5 D. 723. OF THE SEXENNIAL PRESCRIPTION 175 tinoruished by certain transactions in land ; x where he deponed that the debt had been extinguished by a bond which he hail subsequently granted, and which made no mention of prior claims or of the note in question ; '-' and where the defender denied resting-owing on the ground that he had assigned his goods to creditors according to the law of England ; — where, in fact, his oath only amounted to the expression of his opinion that the clearing of all his debts had resulted from a separate transaction. 3 Where the debtor on reference ad- mitted the constitution of the debt, but alleged that after pay- ing interest for some years and then offering repayment of the principal, the pursuer told him he did not want it, and that he was to keep it for his own use, the oath was held affirmative of resting-owing, apparently on the somewhat dubious ground that an ex post facto arrangement for discharging the debtor otherwise than by payment is necessarily extrinsic to the debtor's oath. 4 Compensation is almost always extrinsic 5 (despite the decision of a majority of the Court in Fraser v. Fraser, 6 ) and the quality was also found extrinsic where the defender averred that the pursuer had acceded to a composi- tion contract. 7 Similarly, in Robertson v. Clarkson, 8 where a party, sued on a prescribed bill, granted in payment of a quantity of wine, offered to depone that the wine had turned out unfit for use, and that the seller had admitted this, and had promised not to exact the price, it was held that this de- position was extrinsic, being equivalent to an allegation of compensation. In a case in which the onerosity of a bill was referred by the defender to the pursuer's oath, the pursuer de- poned that the consideration for which the bill had been granted 1 Stewartv. Robert son, I s.v.U ."> I >. 12. 5 Macdonald v. Crawford, 1834, Williamson y. /'eacocl:, 11th Dec. 12 S. 533. 1810, F. C. " 27th June L809, F. ('. » Stevenson v. Stevenson, 1838, Hi Brown v. M'Intyre, l*'-'s, (i S. S. Kiss. 1022. ' Balfour v. Simpson, is;::. II M. s 1784, M. 13,244. Of. Trotter v. dm. Clark, mpra, p. 149. 1 76 THE SHOP T PRE SCRIP TIONS was in part payment of a debt, and in part payment of a sum which the acceptor had promised him if he would take back to live with him his wife from whom he had been divorced, and in payment of the expenses in connection with the action of divorce. The oath was held to be negative of onerosity (except as regards the direct debt), on the ground that the alleged consideration being extrinsic, and the acceptor being in no wise liable for the expenses of the divorce, there was no consideration. 1 intrinsic On the other hand, where, in a like reference, the pursuer quality. deponed that the bill was handed to him by the drawer in order to get it negotiated, but that, he having failed in this, the drawer desired him to keep it, as he was due him money, and where the pursuer farther deponed that he had previously lent the drawer £50, which was still unpaid, the Court held that this adjection to his deposition was not extrinsic, and that his oath was affirmative of onerosity.' 2 Where the acceptor of a bill, who was sued for payment after the six years, qualified his admission of the acceptance on record by the statement that he had accepted the bill only upon the understanding that his obligation should be extinguished upon such and such con- ditions, which conditions had been purified, the qualification was found intrinsic, and the oath negative of the reference. 3 In like manner, the quality was held intrinsic, and the pur- suer's case not proved, where the debtor deponed that he had accepted certain bills sued on, but had given them by mistake for receipts for money advanced to him on account of a son of the drawer, to whom he had remitted goods; i where the sus- pender of a charge admitted that he had granted a promissory- note which had prescribed, and that he had not paid it, but added that the creditor had expressly stated to him, and that 1 Graham v. Kennedy, 1860, 22 D. 3 Gallovay v. Moffat, 1845, 7 D. 560. 108S. - Gordon v. Pratt, 1860, 22 1). 4 Agnew v. Macrae, 1782, M. 13, 903. 219. OF THE SEXENNIAL PRESCRIPTION 177 lie (the suspender) understood, that it was not to constitute a debt against him ; 1 and where the granter of a promissory- note deponed that he had signed it, had given it to a third party with a view to his discounting it, and -with the money retiring another bill of the granter's, and did not know that il had been discounted. 2 § 40 of the Act of 1772, c. 72, enacts that 'the years of the Minority. • minority of the creditors in such notes or bills shall not be • computed in the said six years.' Where owing to the minority of the creditor's representative prescription did not run, it was held that nothing else, such as regular payment of rent subsequent to the date of the bill, or absence of corre- spondence, raised a presumption of payment. 3 The exception of minority is available to all the indorsees, but it is only the minority of an actual creditor on the bill that can be pleaded. Thus the minority of the beneficiaries under a trust cannot be pleaded by the trustees who are the true creditors on a bill. 4 1 Baird v. Little's Trustees, 1827, 10 D. 340. 5 S. S20. 3 Patrick v. Watt, 1859, 21 D. 637. - Drummond v. Crichton, 1848, ' M 'Neil v. Blair, 1823, 2 S. 174. CHAPTER XIV OF THE SEPTENNIAL LIMITATION § 1. THE LIMITATION OF CAUTIONAKY OBLIGATIONS (Ersk., 3. 7. 22. 24.) (Bell, Prin., §§ 600-604.) (Bell, Comm. i. 374.) (More apud Stair, Note P., i. pp. cxv. -cxviii. ) Act 1695, The Act 1695, c. 5, entituled 'Act anent Principals and ' Cautioners,' provides that ' considering the great hurt and ' prejudice that hath befallen many persons and families, and ' oft-times to their utter ruin and undoing, by men's facility to ' engage as cautioners for others, who afterwards failing have ' left a growing burden on their cautioners without relief; there- • fore, and for remedy thereof, his Majesty, with advice foresaid, ' statutes and ordains that no man binding and engaging for ' hereafter, for and with another, conjunctly and severally, in ' any bonds or contracts for sums of money, shall be bound for ' the said sums for longer than seven years after the date of : the bond, but that from and after the said seven years, the ' said cautioner shall be eo ipso free of his caution : and that ' whoever is bound for another, either as express cautioner or ' as principal, or as co-principal, shall be understood to be a ' cautioner to have the benefit of this Act : providing that he ' have either clause of relief in the bond, or a bond of relief • apart, intimate personally to the creditor at his receiving of ' the bond, without prejudice always to the true principals ' being found in the whole contents of the bond or contract : ' as also of the said cautioners being still bound, conform to ' the terms of the bond, within the said seven years, as before . ' the making of this Act : as, also, providing that what legal 178 OF THE SEPTENNIAL LIMITATION 170 ' diligence, by Inhibition, Horning, Arrestment, Adjudication. ' or any other way, shall be done within the seven years, by ' creditors against their cautioners for what fell due in that ' time, shall stand good, and have its course and effect after the • expiry of the seven years, as if this Act had not been made.' The effect of this enactment is to operate a total extinction Obligation ertin- of the cautioner's obligation after the expiry of the seven years, goished and a new obligation is absolutely necessary after that period years< to impose any liability upon the cautioner. In 1874 a heri- table securities company borrowed a sum from the pursuer, and certain of its shareholders became cautioners for the principal and interest. In 18S4 the agent of the company wrote to the lenders asking for a reduction of the rate of interest in the loan, stating : ' the loan is farther secured by ' the personal obligation for its repayment given at the date ' of the advance by the shareholders mentioned in the bond.' It appeared that this letter was not written on any special instructions, but was brought before the board (on which were some of the above mentioned shareholders) in ordinary course, and that no one concerned had had the 1695 Act in view. The company went into liquidation in 1888, and the lenders sought to obtain repayment from the persons mentioned in the bond. It was held that their obligation ceased absolutely in 1881, and that the letter of 1884 did not constitute a new obligation. 1 After the lapse of the seven years a cautioner paid the principal sum to the creditor, and next day demanded repetition on the ground that he had paid through mistaking the time, and had not really been liable. The defender pleaded that the debt was due jure naturali. But the Court ordered repetition, on the ground that payment had been made sine causd, and that after the seven years there was no obligation natural or civil upon the cautioner;- as strong a case as could be imagined. The Act, then, unlike most of the statutes 1 Stocks v. M'Lagan, 1890, 17 K. L122. *Carrkk v. Oar e, L778, M. 2931. 180 THE SHORT PRESCRIPTIONS establishing the shorter prescriptions, does not merely deal with the mode of proving, or the legal means of enforcing an obligation. It directly affects the quality of the contract, and entitles the party to say, after seven years, I am free. 1 The only thing that can deprive a cautioner of the benefit of the statute is diligence done, 2 or action raised 3 (Mr. Bell says decree obtained) 4 against the cautioner within seven years ; and the diligence will not cover more than the principal and seven years' interest. Mere citation will apparently not suffice to bar the plea of the limitation ; nor will payment of interest by a cautioner after the seven years have run have any effect to continue his obligation. 5 What is a With regard to what constitutes a cautionary obligation cautionary obligation ? affected by the statute, it has long been held that the clause beginning ' whoever is bound for another ' is not to be inter- preted as a restriction of the liberty expressly conferred upon ' the said cautioner ' ' binding for and with another,' after seven years, in the preceding clause, imposing upon him the necessity of showing a clause of relief, or a separate bond of relief, as a condition of his reaping the benefit of the enact- ment ; but that the proviso as to the clause or bond of relief applies only to one bound as principal or co-principal. This interpretation was distinctly asserted by the Court of Session in Douglas, Heron & Co. v. Biddick, and emphatically supported by the House of Lords in Yuille v. Scott. 7 Where certain shareholders of a company bound themselves as individuals, ' and by way of corroborative guarantee,' for the repayment of a sum of money borrowed by the company, they were held to be cautioners, and therefore entitled to the benefit of the Act; 8 1 Alexander v. Badenach, 1843, 6 D. may be barred per.so7iali except ion c 322. from pleading the limitation. See - Reidv. Maxwell, 1780, M. 11,043. M'Kerchar v. Anderson, 17th June :! Clark v. Stuart, 1779, M. 11,043. 1893, Scots Law Times, vol. i. p. 93. 4 Prin. § 603 ; Stuart v. Hill, 1712, 6 1792, M. 11, 032. M. 11, 039. 7 5 W. &S. 436. 5 Yidlle v. Scott, 1827, 6 S. 137; s Stocks v. Maclagan, 1890, 17 E. 1831, 5W. &S. 436. But a cautioner 1122. OF THE SEPTENNIAL LIMITATION 1S1 and where a party was bound as ' cautioner, surety, and full • debtor with and for' the principal in a bond for payment of a sum of money the Act was held to apply. 1 But the Act was found not applicable to a bond in which two persons were bound as co-obligants with no clause of relief or back bond, though one was known to be only a cautioner, 2 nor to a letter written by a party on the same day as a bond for £2000 was granted, in which the writer, proceeding on a narrative of the granting of the bond, ' guaranteed ' payment of the sum con- tained in the bond to the lenders. 3 In the latter case Lord Chancellor Cottenham drew a distinction between ' caution ' which means an undertaking that others shall perform what they have contracted to do, and 'guarantee' as used in the defender's letter, in a sense amounting to a distinct contrad to pay the sum due. "Where there is a separate bond of relief the requirement of intimation . i of bond of the Act as to intimation is strictly eniorced. lor that personal re iie£. intimation mere private knowledge on the part of the creditor will not be admitted as a substitute. 4 The intimation need not perhaps be notarial or judicial, but it must be distinctly proved by writing, and parole proof is inadmissible. Three obligants were jointly and severally bound in a bond. The creditor's agent (not acting herein, however, in that capacity) framed letters of relief by the true principal debtor to each of his co- obligants. In the absence of proof scripto that these letters <>l relief had been intimated to the creditor, the Act was held not to apply. 5 But where a creditor with his own hand wrote ami signed as a witness a bond of relief granted by one co-obligant on a bond to the other of even date with the original bond, this was held equivalent to the statutory intimation. 6 iMonteith v. Pattern, 1841,4 D. * Bdlv. Herdman, 1727.M. 11, 039. I,;1 - Drysdali v. Johnstone, 1839, I l>. * Smith v. Ogdvies, 1821, I S. 152; |()(J " L825, I W. & S. :i\~>. * Wilson v. Tait, 1836, 15 8. 221 ; ■ M'Bankin v. 8ehaw, 1714, M. 1840, 1 Rob. App. I. '57. 11, 034. THE SHORT PRESCRIPTIONS Certain There are, however, certain kinds of cautionary obligations cautionary obligations which are not affected by the statute. Of these the most not affected . , , , . , ,, P , » , • , by the Act. important are those m which the term ot payment tor which caution is given is postponed beyond seven years from the date of the bond, or in which its arrival depends upon a con- dition not purified within seven years. That the statute really applies to all cautionary obligations without restriction, is, indeed, a highly plausible interpretation of its terms ; but within fifteen years of the passing of the statute it was re- jected in favour of the stricter construction which holds that only those obligations are extinguished by the limitation which are prestable within the septennium. In Balvaird v. Watson} it was decided that a cautionary obligation for an annual payment does not fall within the statute, for so long as the payment is punctually made, no diligence can be done against the cautioner, and every year a new obligation arises. The same result was arrived at in Borthivick v. Crawfurd, 2 the case of a bond payable after the death of the creditor's wife who survived the seven years, and in Millers v. Short? where the principal was not to be paid till a fixed term, viz. eight years after the date of the bond. These cases were care- Moiieson v. fully reviewed in Molleson v. Hutchison? where a bond un- borrowed money, dated in November 1881, bound the borrower to repay the principal at Whitsunday 1882, and contained an obligation by the borrower, and by certain other persons as cautioners, to pay at said term the interest then due, and interest half-yearly thereafter till repayment of the principal. Interest was duly paid till Martinmas 1890; and the action was brought for interest due subsequent to that date against one of the cautioners, who pleaded the statute. There was no difference of opinion among the judges that if the defender's cautionary obligation had been for principal as well as for interest, the Act would have applied ; but the obligation being 1 1709, M. 11, 005. :; 1762, M. 11, 027. -1715, M. 11,008. 4 1892, 19 R. 581. Hutchison. OF THE SEPTENNIAL LIMITATION 183 merely for payment of interest, the pursuer contended that the case was ruled by Balvaird} and was therefore to be taken as outside the scope of the statute. A majority of seven judges held that as the interest sued for was not due till after seven years from the date of the bond, the cautionary obligation was not affected by the limitation ; while the minority came to an opposite conclusion on the ground that the pursuer might have enforced payment of the principal with interest at any time within the septennium, Lord Trayner distinguishing the case from Balvaird, but at the same time indicating a disposition to dis- regard the cases, if need be, and to return to the plain language of the statute. On this latter point Lord M'Laren expressed him- self emphatically in the opposite sense, holding that the series of cases beginning with Balvaird 'have passed into the common law, ' and are as much a part of the law of guarantee, or cautionary • obligation, as the statute itself.' On the whole case, the same judge, with reference to the view of the minority of the Court, held it to be no answer against the pursuer's contention to say 1 that in a state of facts which has not occurred the obligation ■ might have been made the subject of a demand within the ' statutory period;' while Lord-President Robertson said, inter alia ; ' The principle expressly laid down by the Court in Bal- 1 vaird, that every year nata erat nova obligatio supplies a rule ' which applies equally to this case as to that. The subsequent ' cases of Borthvnck 2 & Millers* directly follow and confirm ' the rule thus established . . . The case of Balvaird seems to • me completely to cover the present question, the only differ- • ence being that the liability there was to pay an annual sum • in name of annuity, and here it is to pay an annual sum in ' name of interest. There as here there was a liability to pay • such annual sum within the septennial// as well as beyond it. ' . . . What has been regarded as the criterion in the ([notion • whether the statute applies, is, I think, the liability of the ' cautioner and not the liability of the principal debtor.' 1 1709, M. 11, < /.">< 0/ Scotland respecting Crimea, vol. ii. d. 136. i 9 o THE SHORT PRESCRIPTIONS ' they be pursued therefor within the space of three years next ' after the date of the said retour and service : It is always ' declared, that these presents shall no wayes be prejudicial to ' whatsoever persons who have acquired rights of lands and heritages ' before the date hereof, bond fide, from persons already retoured ' thereto, in any time bygone ; but the saids persons, who have ' bond fide acquired, to brook their rights according to the law then ' standing.' The prescription thus instituted applies to retours of heirs of provision as well as of heirs jure sanguinis, 1 and affects extract decrees of service, the modern equivalent of retours. It does not interfere with the common law right of an heir at any time to quarrel his own retour on the ground of minority or lesion, 2 but operates only on erroneous services where a remoter agnate has been retoured heir, to the prejudice of a nearer in line. Relation It has occasioned some difficulty to determine the question statute to how this statute is to be reconciled with that immediately 1617, c 12. p rece( jj n g it, viz. 1617, c. 12, the principle of which is, as we have seen, that there is no answer to a claim of property (apart from a competition of titles with the claimant), except the production of a statutory title clothed with possession for the prescriptive period. 3 If a retour alone can be reared up into a valid title to the party served, what becomes of the maxim nulla sasina, nulla terra ? (For the view that the retour must be fortified by possession, though not altogether without support, 4 is almost certainly erroneous.) 5 And what, too, it may be asked, of the other maxim, jus sanguinis num- quam praescribitur ? The puzzle seems to be solved by Lord Chancellor Cottenham's lucid exposition of the law in Neilson v. Cochrane s Representatives? The Lord Chancellor there pointed out that the vicennial prescription is that of a retour of a person 1 Campbell v. Campbell, 1848, 10 4 Incorporation of Wrights v. Hnt- ]). 46i. chi( son, 1794, Bell's Folio Cases, p. 7. 2 Gray v. Fotkeringham, 1700, M. n Bell, Prin., § 2024; Bankton, ](>, 987. 3. 5. 97. ••' Wallace v. Earl of Eglinton, 1835, (i 1837, 15 S. 365; 1840. 1 Rob. , 13 S. 564. App. 82. OF THE VICENNIAL PRESCRIPTION 191 as the proper heir, and that the Act only provides that a person served as heir shall not be disturbed in his right as heir after twenty years, by any action brought by another person claim- ing only to be the true heir. ' But the heir may be disturbed ' by any person who comes in with a stronger title than that ' of mere heirship. . . . The statute provides that, quoad the ' heirship, the service and retour of one party qud heir, shall ' not be disputed by another party who merely conies in qud 1 heir.' As Lord Meadowbank pointed out in the Bargany case, 1 ' the positive prescription does not operate against the ' title to pursue of the claimant, but only in establishing the ' title of property of the person in possession; nor does the ' validity of the one imply the invalidity of the other : jus ' sanguinis cannot be abandoned or lost non utendo; the vicen- ' nial prescription only renders the verdict of propinquity in a ' retour a res judicata.' The object of the statute is, in short, ' to secure the service from all challenge on the ground of ' error, from whatever source that error, qua error, arose.' 2 The prescription would probably not exclude a relevant and specific charge of fraud, ' though it might and must exclude all ' other reasons of reduction.' 3 But it will not free one re- toured as heir from the obligation to denude in favour of a nearer heir who subsequently comes into existence. 4 A retour ex facie invalid is, of course, worthless, and cannot be made valid by the mere lapse of time. 6 It was also laid down in the Bargany case, that the privilege of pleading the statute is purely personal to the heir retourcd, and does not descend to his nearest heir; so that after the death of the retoured heir, the true heir may vindicate his righl at any time. But in Neilsov v. Cochrane's Rt presi ntat ires, 7 and in 1 luillarton v. Dcdrympk, IT'.is, I M. 5279. W. & S. Appendix II. p. 7. '' Fn/farton v. Hamilton, 1825, I s Shedden v. Patrick, L852, III). W. & S. 410. 721, p. Lord Fullerton. B Ibid. ■ Ibid. 7 1837, 15 S. 865; 1840, 1 Rob. * Ma, App. 82. 1 92 THE SHORT PRESCRIPTIONS Campbell v. Campbell} it was held and assumed throughout, that the prescription could be pleaded by singular successors ; and this view was affirmed in Rocca v. Cattds Trustees? Years of Contrary to the general rule, it has been held that the minority . excepted, statute implies an exception of the years of minority, though it does not expressly make any such exception. 3 This decision may perhaps be justified by the language of the statute of 1494 (repeated in the preamble to 1617, c. 13), to the effect that the party alleging hurt to himself by the retour, and pursuing a summons of error, must bring his action within three years, ' being of lawful age and within the realm.' 37 and 38 The Act 37 and 38 Vict. c. 94, § 9, provides for the vesting s 13 - c " ' ' in heirs of a personal right to estates in land without service or other procedure, and in § 13 the same statute goes on to declare that, ' the right of any person to an estate in land by ' succession as heir, acquired after the commencement of this ' Act, may, at any time within twenty years of his infeftment ' as heir and his entering into possession of such estate, but ' not thereafter, be challenged by any one who would have ' been entitled to challenge the decree of service of such person ' had he expede a service according to the practice existing ' prior to this Act ; and, in the absence of evidence to the con- ' trary, the date of his infeftment shall, for the purpose of this ' limitation, be assumed to be the date of entering into posses- ' sion ; and such challenge may be made by an action to ' negative or set aside the alleged right of succession, or to ' reduce any title expede in virtue of such alleged right.' But by § 14, nothing in the Act is to prejudice or affect previously existing remedies of a person having lawful title and interest to prevent another from taking possession as heir, or to remove him, the interim possession being regulated as a question apart from title. 1 1848, 10 D. 461. 3 Gray v. Fotheringham, 1700, M. - 1876, 4 R. 70. 10, 987 OF THE VICENNIAL PRESCRIPTION 193 §. 3. HOLOGRAPH WRITINGS. (Ersk, Inst., 3. 7. 26.) (Bell, Prim,., §§ 590-592.) (Bell, Comm. I. 346.) (Dickson on Evidence §§ 421-432 [412-423].) (More, apud Stair i. cclxx.) The Act 1669, c. 9, 'Statutes and ordains, that holograph Act 1669, ' missive letters, and holograph bonds, and subscriptions in C " ' compt-books without witnesses, not being pursued for with- 1 in twenty years, shall prescrive in all time thereafter, except ' the pursuer offer to prove, by the defender's oath, the verity ' of the saids holograph bonds and letters and subscriptions in ' the compt-books.' A holograph writing founded on after the lapse of twenty 11..: years can prove no fact tending to establish an obligation, and ^Jodfor is to be considered in every respect as good for nothing unless ^^ e supported as the law directs. Such was the decision in the ^.'n''' Bank of Scotland v. ,* which settled the law as to the effect of the provision of the statute; and the small number of cases corroborating it is due to the fact that this view of the enactment has been rarely, if ever, called in question. The principle was reaffirmed in Mowed v. Banks, 2 where holograph letters acknowledging a debt were held in common with ' all ' holograph obligations whether more or less formal ' to fall under the prescription. In order, then, to be struck at by the statute as evidence of an obligation, the holograph writh need not be a formal document. When the twenty years have elapsed, the onus is thrown on the pursuer of proving the verity of the bond or deed by writ or oath of the defender, and by verity is understood the genuineness of the w hole documenl and not merely of the subscription. When the verity of the deed has been established in the statutory manner, the pursuer is not bound to prove re ting-owing by the defender's writ or 1 1747, 5Br. Sup. 748. L856, is l>. I"!):;. N i 94 THE SHORT PRESCRIPTIONS oatli ; on the contrary, the holograph writing, once raised up, will be kept in force till it is extinguished by the long negative prescription or discharged, and the onus is transferred to the shoulders of the defender, who will have to prove the extinction of the obligation established by his oath. 1 Any statement made by the defender on oath as to resting-owing is extrinsic to the reference. 2 The prescription runs from the date of the document, even though the obligation it contains be future or contingent, 3 and does not affect documents used to instruct a defence. The pre- The raising of an action upon the writing within twenty eSded years will preserve its probative character and exclude the OTdm! 0n operation of the statute, even though the document be not gence. produced in Court during the process. 4 So probably will a plea of compensation founded on the debt within the twenty years. 5 Diligence done upon the document will have the same effect; merely registering the document, however, will not suffice, nor will a suspension by the debtor of a threatened charge. 6 It has never been decided whether payment of interest or the like rei interventus following upon the bond or deed will preserve it beyond the twenty years. There is no express authority in the statute for holding that it will. But Mr. More expresses an opinion in the affirmative 7 and supports it by many powerful arguments. If the original obligant have died, the oath of his heir will be sufficient to establish the document. 8 But it must be an oath of knowledge, not of mere belief ; though where an heir could not swear positively to the fact, but deponed that he could not have a doubt on the point, the Court held that the 1 Earl of Leven v. Arnot, 1715, 8vo Ca. 380. M. 10, 991 ; Muir v. Cunningham, 5 Dickson, § 425 (416). 1695, 4 Br. Sup. 269. 6 Wright v. Wright, 1717, M. 11, 2 Grant v. Anderson, 1705, M. 13, 268. 035. 7 Apud Stair i. cclxxi. 3 Home v. Donaldson, 1773, M. 8 Broion v. Crawford, 1741, M 10 992. 9417 ; WcUhingshaio v. Knapptrny, , * Simpson v. Brown, 1791, Bell's 1337, Elch. Prescr. 15. OF THE VICENNIAL PRESCRIPTION 195 proof demanded by the statute had been supplied. 1 The prescription is a privilege of party, and must be pleaded ; so that where the authenticity of certain holograph writings had gone to issue, and a proof pro id de jure had been led, it was held that the defender could not afterwards plead the statute. 2 The Act expressly declares that the prescription ' shall not Minority. ' run against minors during the years of their minority.' Xeither the clause in the Act 1669, c. 9 (which comes before the clause introducing the vicennial prescription), re- garding the prescription of actions, nor the Act 1685, c. 14, applies to an action raised on a holograph writing. 3 1 Dahiel v. Lord Lindores, 1784, - Wyse v. Wyae, 1S-47, 9 D. 1405. M. 10, 994. * Stein v Sands, 1825, 4 S. 105. CHAPTER XVIII OF PRESCRIPTION IN RELATION TO INTERNATIONAL LAW (Dickson on Evidence, §§ 529-542 [523-537].) (Story, Conflict of Laws, §§ 576-583.) (Guthrie apucl Savignt, Note B, p. 267.) Prescrip- It is well upon so controverted a topic to start with the Stage, indisputable proposition that prescription of heritable property- must be regulated by the lex rei sitae — the law of the country where the heritable property is situated. Upon attempting to advance farther, however, we are at once plunged into a sea of conflicting views. It is impossible, here, to do full justice to the arguments of the opposing schools. We can merely indicate what seem to us the conclusive considerations adduced by Dickson and Story. Prescrip- L Tne first-class of prescriptions is that which affects merely tions affect- t ] ie cre ditor's remedy, by limiting his action to a certain period remedy. f ti mQ) ov by imposing on him, after that period has expired, a specified and restricted mode of proof. To this class belong e.g. the triennial and sexennial prescriptions. These, according to Story, belong ad litis ordinationem and not ad litis decisionem. The case of Don v. Lippmann x settled once for all with regard to such prescriptions that their application is governed by the law neither of the locus contractus, nor of the locus solutionis, nor yet by the law of the debtor's domicile, but by the law of the forum in which redress is sought. So where the acceptor of a bill drawn and accepted in Trance was sued upon it in the Scotch courts, it was held that the sexennial prescription 1 1837, 2 S. and M'L. 682, 723, 728 ; reversing C of S., 1836, 14 S. 241. PRESCRIPTION AND INTERNA T10NAL LA W 197 applied, and that what in France would have sufficed to inter- rupt the French prescription of bills had no effect to bar the prescription, not being a valid interruption according to the law of Scotland. Lord Brougham, in his exposition of the law, referred to the cases of the British Linen Company v. Dru al- mond 1 and Williams v. Jones" as having been decided in accordance with that principle, and pointed out that the con- tention that statutory limitations of the mode of proof are of the essence of the contract implies that a breach of the under- taking is in contemplation of the parties, than which nothing could be more contradictory to good faith. There is much to be said for Mr. Guthrie's contention 3 that previously to that decision the Scotch courts went upon the principle that the law of the debtor's natural and permanent forum — i.e. the law of his domicile during the whole currency of the term of the limitation, and not the law of the forum in which the action happens to be brought, must regulate the application of prescription. But the authority of Don seems to be an insuperable obstacle in the way of any attempt to revert to the old rule, and it has been followed in subsequent cases. 4 2 The second-class of prescriptions is that in which not Prescrip- * ■» ill HOTS rxtlll- onlv is the right of action extinguished or restricted, but the guishh.g J ° 11 -i. the claim. claim or title itself ipso facto perishes and becomes a nullity after the lapse of the prescribed period 5 — e.g. the long negative prescription. With regard to this class there has been no such clear exposition of the law. But Mr. Story 6 and Mr, Burge 7 agree in thinking the correct rule to be that if 8 party has resided in the locus contractus for such a time as by the law of that place would suffice to extinguish the obliga- 1 18.30, 10 Barn, and Cress. 903; pany, 1839, 1 D. 936; Robert on v. 1 Ross L. C. (Com.) 841. Burdekin, L843, 6 D. IT ; Strathern * 1811, 13 East. 439. v. Manterman, I860, L2 1>. 1087. > Apud Savigny, p. 269. See the ; ' Story, g 582. cases there quoted. '' Ibid. 1 Farrar v. Leith Banking Com- ' 3 Comm. 883. THE SHORT PRESCRIPTIONS tion, his removal to another country where no such prescription exists will not revive the obligation. This view was taken by the Supreme Court of the United States in Shelby v. Guy ; l it was not contradicted by Lord Brougham in Don, 2 and it was hinted at by Lord Chief-Justice Tindal in Hnber v. Stciner? On the other hand, if a party, after making a con- tract in country A, removes to country B, and there resides for a period long enough to extinguish the obligation according to the law of country B, if it had been the locus contractus, but not long enough to extinguish the obligation according to the law of country A, the party will still be liable if pursued in country A, the locus contractus, so long as according to its laws the debt is still subsisting. 4 ' It is impossible,' remarked Lord Gifford in the House of Lords, ' that by a person's removal to ' Russia or any other country where a different law prevails from ' that of Scotland, he can discharge himself from [his] debts ; ' but he must, if he returns to that country, be liable to be ' sued, leaving it open to him to avail himself of any defence ' which the law of Scotland enables him to set up against ' these demands.' Prescrip- 3. In the third-class of prescriptions — viz., where the limita- in^hito the tion enters into the contract, and is to be read as part of it — contract. g ^ ^ Q septennial limitation of cautionary obligations, the rule is very simple. The limitation will be given effect to when a Scotch cautionary obligation is sued upon in another country. When a cautionary obligation entered into in another country is sued upon in Scotland, no such limitation is implied in the contract, and none will be enforced. 5 1 11 Wheat. 361, 371, 372. 4 Richardson v. Lady Haddington, "FEE* I ; ~; tZ, 3 1835, 2 Bing. New Ca. 202. Cf. 1 East. 6. Watson v. Benton, 1792, M. 4582 ; s Alexander v. Badenach, 1843, Bell's 8vo Ca. 92 (p. Lord-President 6 D. 322 ; Scott v. Yuille, 1831, 5 Campbell). W. and S. 436. INDEX Absence abroad, will not found plea of non miens agerc, 102. will not bar triennial prescription, 126. Acceptors, Joint, of a Bill, application of prescription to case of, 172, 173. Accession of Possession, in case of singular successors, 44. in case of heirs, 45. Accommodation Bill, debtor in, liable, whoever has received value, 172. but his claim of relief not affected by sexennial prescription, 166. Accounts, prescription of (see Triennial Prescription), 127. Acknowledgement of Debt by Debtor, interrupts negative prescription, 109 seq. bars triennial prescription, 120. bars sexennial prescription, 168. effect of when made to wrong creditor, 112. Action, interrupts positive prescription, 107. or its equivalent, interrupts negative prescription, 108. bars septennial limitation, 180. bars sexennial prescription, 166 seq. bars triennial prescription, 118 seq. bars vicennial prescription, 194. Action, right of, distinguisbed from right of property, 82. and lost by negative prescription, 2, 79, 82 seq. distinguished from claim which founds it, L97. 200 HANDBOOK OF PRESCRIPTION Actions, for debts not founded on written obligations, 116. of removing, ib. spuilzie, etc., 115. quinquennial prescription of certain, 159. Adjudication, a mere right in security, 21. until followed by declarator of expiry of the legal, 20. clothed with forty years' possession from expiry of the legal, a good prescriptive title, 21. not a good prescriptive title if forty years run only from infeftment and the expiry has not been declared, 22, not an ex facie irredeemable title in terms of Conveyancing Act, 1874, 23. cannot be quarrelled on extrinsic grounds after forty years, 17. effect of partial interruption of possession upon, 113. Adjudication and Implement, right to raise action of, lost by negative prescription, 85. Adjudger, possession of, profits proprietor, 40. Admission, Judicial, how far equivalent to writ or oath of party, 149 seq., 174. Adversity of Interest, necessarily involved in negative prescription, 102. but not in positive prescription, 100. nor in prescriptive consolidation, 59. but essential to prescription in cases of double title, 50 seq. Age. (See Minority.) Agent, accounts of (see Triennial Prescription), 128, 130, 131. country and Edinburgh, 134, 138. disbursements by, 131. writ of, how far equivalent to writ of party, 138, 172. Agere. (See Non valens agere.) Alimentary Debt, when susceptible of triennial prescription, 126. each term's, whether an independent obligation, ib. INDEX 201 Annexation Act, 10, 15. Annual-Rents, Annuities, etc., do not prescribe through failure to enforce them for forty years, 92. though their arrears do, ib. drawn from one of several tenements under the security interrupt long prescription, 113. quinquennial prescription once found applicable to arrears of, 156. Annus deliberandi, not to be discounted in triennial prescription, 126. Apparency, heir in, may connect his possession with that of ancestor, 45. unless ancestor's title be a bare sasine, ib. years of possession on, counted when heir has made up title, 46. possession on, abolished by Conveyancing Act, 1874, ib. Arrears, of aliment, 126. of annual-rents, etc., 92. of feu-duties and casualties, ib. of house-maills, 126. of rents, 156. of servants' wages, 127. of stipends, 155. Arrestments jurisdiction is fundandae causa, prescribed debt will found, 117. Arrestments, prescription of (see Quinquennial Prescription), 15-1. Article, Last, of an account, triennial prescription runs from, I .">•_'. Ascription of Possession, 55. Assignation of Deb , even when intimated, (]<«•<, not interrupt prcxTiji! in 11. Id'.'. Augmentation of Stipend, nature of warrandice against, 98. HANDBOOK OF PRESCRIPTION Bar, personal, 102, 121, 150, 180. (See Action, Diligence.) Bargains concerning Moveables (see Quinquennial Prescrip- tion), prescription of, 158. Barony, burgh of. (See Burgh.) Barony Titles, effect of possession upon, 25, 28, 41. Base Rights, extinguished by positive prescription (see Consolidation), 59. to regalia, 29. Bastard, claim for aliment of, arising ex debito naturali not liable to triennial prescription, 126. Beneficiaries, minority of, not to be deducted, 103. rights of, lost by negative prescription, 89. Bills, prescription of (see Sexennial Prescription), 161-177. Bleaching, right of, 31, 68. Blood. (See Jus sanguinis.) Board, debts due for, prescription of. 126. Bona Fides, no element in positive prescription, 12. Bonds, heritable, not affected by earlier statutes of prescription, 2. but struck at by second part of Act 1617, c. 12 (see Negative Prescription), 6. may be extinguished by failure to demand interest, 92. Book-debts, prescription of, 127. Books of Debtor, how far writ of party, 139, 171. INDEX 203 Bounding Charter or Titles, no land can be acquired by possession beyond limits of, 34. but salmon fishings, 35. and servitudes may, 73. Burden, real, lost by Negative Prescription (q.r. See also REVER- SIONS), G. obligation to create lost by negative prescription, 89. Burgage Tenure, prescriptive title in, 15, 17. abolished by Conveyancing Act, 1874, 19. Burgh of Barony, possession as determining rights of inhabitants of, 30 seq. certain rights of, lost by negative prescription, 88. claim to servitude by, 68. Burgh Royal, prescriptive title in magistrates of, 15. possession as determining rights of, 30 seq. certain rights of, lost by negative prescription, 88. may acquire servitudes by prescriptive possession, 68. Calling of Summons, necessary to interruption by action, 108. need not be prior to close of forty years, if execution be, ib. Carrier, common, allegation of payment through, 143. Cash Advances, triennial prescription in relation to, 129, 131. Casualties, feudal, right to exact not lost by disuse for forty years, SG, 90, 91. Cautionary Obligations, limitation of (see SEPTENNIAL LIMITATION), 178-184. Cautioner, may plead quinquennial prescription as well as the tenanl hi principal, 156. 204 HANDBOOK OF PRESCRIPTION Charge, sufficient to preserve a bill from prescription, 169. general, insufficient to interrupt negative prescription, 109. horning not followed by, insufficient to interrupt negative prescription, ib. threatened, whether suspension of, sufficient to interrupt or bar prescription, 109, 169, 194. Charter, followed by sasine, prescriptive title for singular successors, 14 broad interpretation of the word, ib. whether heir bound to produce if extant, 16. Charter to burghs, 30 seq. may be lost by neglect, 88. Church. (See Patronage.) Churchman. (See Decennalis et Triexxalis Possessio.) Citation, interrupts positive prescription, 107. and negative prescription, 108. but is no bar to triennial, 121. nor to sexennial prescription, 169. nor to the septennial limitation, 180. Citations, septennial prescription of, 184. Claim, distinguished from action which it founds, 197. production of, in multiplepoinding, ranking and sale, seques- tration, etc., interrupts or bars prescription, 108, 119 seq., 168. in cognition and sale does not bar triennial prescription, 121, Glare Constat, Precept of, sasine proceeding on, prescriptive title for heirs, 16. does not import a new investiture, 92. Clerk, advocate's, fees of, 128. to a submission, fees of, ib. writer's, fees of, ib. , writ of, how far writ of party, 172. INDEX 205 Coal. (See Mixes and Minerals.) Cognition and Sale, process of, 121. Commission Charges, prescription as affecting, 131. Common Subject, exclusive use of, 70. Commonty, title to acting as bounding charter, 34. Communings, not sufficient to interrupt prescription, 109. Company, bound by oath of partner, 136, 137. but not when dissolved, 137. not bound after dissolution by oath of partner's representa- tives, ib. Compensation, Plea of, almost always extrinsic to oath, 147, 175. right to plead lost by negative prescription, 93. Conjunction of Possession, by singular successors, 44. by heirs, 45. Consign, obligation to, lost by negative prescription, 89. Consolidation, does not operate ipso jure, 58. prescriptive, a misnomer, 57. for it only amounts to straightforward application of positive prescription, whereby a certain title i.s rendered exclusive by lapse of time, plus possession, 57-G0. implies no adversity of title, 59. Constitution of Debt. (See TRIENNIAL and SEXENNIAL I'm SCEEPTION.) Continuity of Account, what constitutes, I 32- 1 35. identity of creditor an indispensable clement in, L35, effect of debtor's death on, 134. 206 HANDBOOK OF PRESCRIPTION ontinuity of Possession (see also Interruption), 36, 38, 67. in decennalis et triennalis possessio, 186. Contractor, Fees of, as parliamentary witness, 130. Contracts, Negative Prescription (q.v.) applicable to all sorts of, 2, 79 seq. Contracts, Foreign, effect of prescription on, 196-198. Co-obligants in a Bill, application of prescription to case of, 172, 173. Corporation, Books of, equivalent to writ of party, 139. Cor re us, claim of one against another not affected by triennial pre- scription, 129. Crimes, vicennial prescription of, 188. Crown, positive prescription runs against, 5, 9. negative prescription runs against, 79. title of, to teinds singular and secondary, 64. Crown Charters, as interpreted by possession, 28. Curators, Accounts of, decennial prescription of, 185. Currency of Account (see Continuity), 123 seq, 132, 135. Currency of Prescriptive Period (see Interruption), 38, 107. Customs, right to levy, acquired by possession on charter, 30. modified by usage, ib. lost by negative prescription, 88. Day of Grace, sexennial prescription runs from last, 161. Death of Debtor, its effect upon currency of an account, 134, 135. does not interrupt course of triennial prescription, 124, 125. INDEX 207 Debt, prescription in certain causes of (see Triennial Prescrip- tion), 116. Debt contained in a Bill, may be sued for after years of Prescription, 163. Decenna/is et trie/wall's possessio, adopted from canon law, 186. establishes a presumption which may be redargued, ib. but founds a right of property, ib. which, however, is dependent on continuance of possession, ib. applies only in the case of ecclesiastics, 187. Decennial Prescription of Tutors' and Curators' Accounts, 185. extinguishes pupils' and minors' right of action against tutors and curators and vice versa, ib. runs from date of minor attaining majority, ib. does not run against minors, ib. Decree of Approbation, does not qualify prior final decree of locality, 65. but qualifies any subsequent decree, 94. Decree of Locality, final, good title in minister to stipend, 65. and even to overpayments of stipend, ib. qualified by prior decree of approbation, ib. terminus a quo of prescription in a question between heritors, 95. Decree of Locality, interim, makes distress complete in a question of warrandice against augmentation of stipend, 98. Decree of Valuation by High Court, not lost by dereliction, 94. Decree of Valuation by Sub-commissioners, whether liable to prescription, 93, 94. Decree of Sale of Teinds, whether liable to prescription, 93. Defences, Peremptory, risk^that they may not be disposed of first of all, 152. Dereliction, negative prescription founded on presumption of, 7!', 1 l'». Designation to Glebe, a good title for prescription, •)*',. 2o8 HANDBOOK OF PRESCRIPTION Destination in Fee Simple, not altered or repudiated by heir making up title as heir of of line, 52 seq. Destination, Tailzied. (See Double Title, Entail.) Diligence, interrupts negative prescription, 109. unless informal, ib. its effect in excluding sexennial prescription, 166 seq. excludes septennial limitation, 180. excludes vicennial prescription, 194. Disbursements by Law Agents, 131. Discharge of Obligation, operated by Negative Prescription (q.v.), 79. Disponee. (See Singular Successor.) Disposition, ecpiivalent to 'charter ' as a prescriptive title, 14. Dominant Tenement, essential in Servitudes (q. v.), 67. Dominium directum. (See Consolidation, Superior, Supe- riority.) Dominium Utile. (See Consolidation, Superior, Superiority.) Dominus uerus, one who claims as, entitled to deduct years of minority, 104, 105. character of, distinguished from a, jus obligcdionis, ib. Double Title, prescription in cases of, 47-60. means existence of two distinct investitures in one person, 47. where an adversity of interest between the two titles, positive and negative prescription co-operate, 47-51. no prescription where no adversity, 51-53. doctrine of, expounded by Lord Corehouse, 53-55. of ascribing possession in cases of, 55-56. prescriptive consolidation in cases of, 57-60. doctrine of, applied to leases, 61-63. Dues, right to levy, lost by negative prescription, 88. INDEX 209 Ejection. actions of, triennial prescription of, 1 1 5. Eliding Prescription, two senses of the phrase, 125. Employment, series of, distinguished from solitary transactions, 128, L58. ordinary course of, element in triennial prescription, 129-131. Engineer, Fees of, as Parliamentary witness, 130. Engraver, Fees of, 12S. Entail, right of property under, may be lost by adverse possession of another on fee-simple title, 48-51, 85. jus crecliti under, may be lost by negative prescription, ib. jus crediti under, constitute.- valentia agendi, £8. cpialifies, and is not adverse to, investiture of maker. 52, 54. cannot be fortified by prescription so as to extinguish fee- simple title, 53. rights of heirs-substitute of, with regard to deducting years of minority, 104. obligation to execute, extinguished by negative prescription, 90. of a lease, 62, 63. Enter, right of vassal to, not lost by negative prescription, 86, v 7 Erasure, in substantialibus <>f a deed, 106. Error, in substantialibus of a deed, 17, 1 06. Eviction. (See WARRANDICE.) Evidence. (See Oath, Writ.) Ex facie nullity, 17, 20, 84, L06. Exception to Plea of Prescription. (See /.' Ni LLITY, FALSEHOOD, [NTERRUPTCON, MENTAL DISABILITY", MINORITY, No . AGERE.) 2io HANDBOOK OF PRESCRIPTION Exchange, Bill of. (See Sexennial Prescription.) Execution of Summons, 108. Expiry of Legal. (See Adjudication, Legal.) Extra-judicial Interruption, of Positive Prescription, 107. of negative prescription, 108. Extrinsic and Intrinsic Objections to Prescriptive Title, 9, 11, 12, 17, 106. Extrinsic and Intrinsic Quality of Oath (q. v.), 144-149, 174-177, 194. Factor, books of, imported into defender's oath, 142. fees of, 128. payment through, 144. writ of, how far equivalent to writ of party, 136, 138, 172. Falsehood, exception of, in Act 1617, c. 12, 6, means forgery, and is a valid exception to the plea of prescription, 18, 106, 107. Fatuous Person. (See Mental Disability.) Fee-simple Titles, possessor on one of two, cannot prescribe to the exclusion of the other (see Double Title, Entail), 53. Fees. (See Clerk, Engineer, Engraver, etc., Triennial Pre- scription, Wages.) Ferry, right of, acquired by possession as part and pertinent, 29, 30. Fetters. (See Entail.) Feu-duties, right to exact, not lost by negative prescription, 41, 86, 90, 91. but arrears of, lost by negative prescription, 92. Feudal, Feudalised, etc. (See Casualties, Leases, Patronage, Superior, Teinds, Title.) Fiar profited by liferenter's possession, 42-44. Fishing. (See Salmon-Fishings.) INDEX 2 1 1 Force, whether it founds a plea of non vcdens agere, 102. Ford, right to levy tolls at, lost by negative prescription, 88. Foreign Contracts, application of prescription to, 19G-198. Foreshore, good prescriptive title to, 10, 29. possession of, 37, 38. Forgery. (See Falsehood.) Fraud, not an intrinsic objection to a prescriptive title, 12, 18. Fugae Warrant, does not exclude sexennial prescription, 1 70. Gestation, period of, to be deducted from prescriptive period, 106. Glebe, designation to, a good prescriptive title, 66. Grace, last day of, terminus a quo in sexennial prescription, 161. Haeredibus nominandis, effect of destination to, 51. Harbour Dues, right to exact, acquired upon charter of Royal Burgh, 30. lost by negative prescription, 88. Hasp and Staple, sasine by, 17. Heirs, prescriptive title available to, 15-17. need not produce warrant for infeftment, 16. infeftment of, must be renewed where poi session is conjoined, 45. apparent, possession of, 45, l<>. subs! it Hi i- of entail have a /its agendi, 48 which may be lost by negative pre cription, . s "-. HANDBOOK OF PRESCRIPTION Heirs — continued. substitute of entail, their minority not to be deducted, 105. for none is preferable to another, ib. of entail in possession, their minority not to be deducted, 103. re tours of. (See Vicennial Prescription.) Heritable Eights, not affected by earlier statutes of prescription (see Positive Prescription), 2, 3. Heritors, rights of, in a question with the minister, 65, 93. in a question with one another, 94. Holding. (See Tenure.) Holograph Writings, prescription of (see Vicennial Prescription), 193. House-keeper, oath of, not oath of party, 136. House Maills, prescription of (see Triennial Prescription), 126. Identity of Creditor, essential element in continuity of account, 135. Immemorial Possession, forty years' possession equivalent to, 72. operating independently of statute law, 72 seq. Indorsation of Prescribed Bill, carries nothing, 163. Infeft, obligation to, whether a good prescriptive title, 14. Infeftment, an essential of a good prescriptive title, 6, 15. now replaced by registration, 19. does not itself convert adjudication into a right of property, 21-23. in cases of ' prescriptive consolidation/ 57. unnecessary or inadmissible in certain rights to Avhich the statute has been applied, 61 seq. folloAving on grant of teinds, 63. or of patronage, 66. in dominant lands necessary for prescribing a servitude, 67. INDEX 213 Inhibitions, quinquennial prescription of, 160. Innovation, allegation of, in debtor's oatb, extrinsic, 175. Instrument of Sasine, of prescriptive title. 15. replaced by registration, 19. Instrument, Notarial, right to expede, lost by negative prescription, 85. registration of, as interruption of positive prescription, 108. Interest. (See Adversity.) Interest, an accessory of a bond, 92. failure to exact, for forty years extinguishes a bond, ib. payment of, interrupts negative prescription, 109. payment of, proves resting owing of prescribed arreai rent, in 7. whether payment of, bars vicennial prescription, 191. markings of payments of, on back of bill establish debt, it dated after the six years, 171. International Law, prescription in relation to, 196-198 Interruption, a valid reply to plea of prescription, 38, 107-11 1. entirely cancels what of prescriptive period has already run, 38, 107. of positive prescription, 107. either judicial or extrajudicial, ib. of public right of way, must last for forty years, 108. of negative prescription, ib. either judicial by citation, action, or diligence, when action by one creditor available to all, 108, 109. or extrajudicial by debtor's acknowledgment, L09-1 I •"•• partial, effect of, 1 1 •">. no such thing, strictly speaking, in shorter prescriptions Action, Bar, Diligence, Pi rsi it), 1 17. Intrinsic and Extrinsic, objections to a title, 9, 11, L2, 17, L06. quality of Oath (q.v.), L44-149, 171 177, 194. 214 HANDBOOK OF PRESCRIPTION Intrusion, actions of, triennial prescription of, 115. Inventory, curator neglecting to make up, protected by decennial pre- scription, 185. Investiture, heir's renewal of old, does not impty repudiation of title under a disposition qualifying it, 52. new, held to be such repudiation, 53. new, precept of dare constat does not imply, 92. Irritancy, declarator of, not a claim of property qud verus dominus, 104, 105. Joint acceptors, or obligants, in a bill, how affected by sexennial prescription, 172, 173. owners, not bound by oath of one of their number, 137. reference to oath of two parties, 137. Judicial Interruption. (See Interruption.) Jus crediti of heir of Entail (q.v.) lost by negative prescription, 85. Jus sanguinis numquam praesoribitur, 87, 190, 191. Jus spatiandi, not known to law of Scotland, 70. Landlord, profited by tenant's possession, 40. Law Agent, accounts of (see Triennial Prescription), 128, 129-131. Leases, statute extended to, though incapable of feudalisation, 61. application of doctrine of double title to, 62, 63. Legacy, right to, extinguished by negative prescription, 89. unless saved by admission of trustee, 109. IXDEX 2i j Legal, expiry of, does not vest right of property in creditor wit hunt declarator, 20. but prescription running from date of, is equivalent to declarator, 21. Letters, of defender, when proof of debt, 138, 159, 171. of factor or agent, when equivalent to writ of party, 13G, 138, 172. of pursuer allowed to be produced and read, 138, 172. but not to be taken as writ of party, 139. Liferenter, possession of, profits fiar, 42- 1 1. unless he be liferenter by reservation, 41. Locality. (See Decree.) Locatio operarum, triennial prescription applicable to, 128. Long Prescription. (See Prescription. Negative and Positive.) Maills and duties, quinquennial prescription of, 155. house, triennial prescription of, 12G. Majority. (See Minority.) Manager, oath of, not oath of part}', 136. Mandate, not affected by triennial prescription, 129, 130. Markings, of payment of interest after the six years, establish debt in a bill, 171. Marriage contract, falls under old prescription of obligations, 2. Mennis ordinars, triennial prescription of, L26. 216 HANDBOOK OF PRESCRIPTION Mental Disability, whether a valid exception to plea of prescription, 102. Merchants' Accounts, distinguished from mercantile accounts, 127. triennial prescription of, ib. Mines and Minerals, actual aud continuous possession of, necessary to found a right to them where no express grant, 35, 86. but where there is an express grant, possession of surface sufficient, 36, 86. right to, cannot be acquired on a title that excludes the right, 33. Ministers, rights of as against heritors, 65, 93. stipends of, quinquennial prescription of, 155. Minority, not generally deducted from prescriptive period unless ex- pressly excepted, 125, 126. expressly excepted in long prescription, 6, 103. deduction of, acts merely as suspension of course of prescrip- tion, ib. a purely personal plea, ib. only to be used by the person against whom prescription is objected, ib, or who professes an immediate right to the subject in dis- pute, 104. cannot be pleaded by heirs substitute of entail, 105. to be deducted in cases involving public right of way, ib. how dealt with by Conveyancing Act, 1874, 106. excepted in triennial prescription of spuilzies, etc., 116. in quinquennial prescription, 160. in sexennial prescription, 177. in septennial prescription of citations, 184. in decennial prescription, 185. (by implication) in vicennial prescription of retours, 192. in vicennial prescription of holograph writings, 195. INDEX 2 1 7 Minority — contimu d. not excepted in triennial prescription of merchants' accounts, etc., 12G. in septennial limitation, 184. Moveables, mere possession of, will found a right of property, •">. negative prescription applicable only to, 2, 3. quinquennial prescription of bargains concerning, 15S. Multiplepoinding, production of claim in, as interruption or bar to prescrip- tion, 108, 119, 121, 1GS. Multures, how far payment of will imply title to thirlage, 70. Mussel-fishings, right to, acquired by possession on baron}- title with fishings, 29, 37. Negative Prescription. (See Prescription.) Negotiorum gestio, triennial prescription not applicable to, 129. Nemo potest mutare causam possession's suae, 21, 34, 1 1. Net and Coble, possession by, 36. Non dominus, conveyance by, made good by prescription, 10, 11. Non-entry, right to bring declarator of, not lost by negative prescription, 86. Non habens potestatem, grant by, fortified by prescription, L0, 15. Non-payment, must be proved by pursuer in tatutorj manner, I 1 1. Non-user. (See NEGATIVE PRESCRIPTION.) 2i8 HANDBOOK OF PRESCRIPTION Hon valens agere, a competent answer to plea of negative prescription, 102. though purely equitable, ib. but no answer to plea of positive prescription, 100, 101. except in cases of Double Title (q.v.), 47 seq. Nulla sasina, nulla terra, 3, 190. Nullities in the prescriptive production. (See Extrinsic and Intrinsic.) Numquam praescribitur in falso, 107. Oath, in litem, privilege of, cut off by triennial prescription, 116. of party, reference to, imposed as method of proof in triennial prescription, 117, 121, 141. to be construed by the Court, 141. two tendencies in construction of, 141, 142. when documents imported into, 142. principles of interpretation of, 143. extrinsic and intrinsic quality of, 144-149. judicial admission, how far equivalent to, 149-153. in quinquennial prescription, 157, 158. in sexennial prescription, 162, 173. quality of, 174-177. judicial admission in lieu of, 1 74. in vicennial prescription, 194. Obligations, prescription of, introduced by early statutes, 1, 2. extinguished by failure to enforce them for forty years (see Negative Prescription), 79 seq. Obstruct Public Road, right to, cannot be acquired by use, 73. Onerosity of Bill, proved by reference to pursuer's oath, 175, 176. INDEX 219 Onus of Proof thrown upon pursuer in various short prescriptions, 117, 111. 157, 158, 162, 193. Over-paying Heritor, rights of, 94, 95. Over-payment of Stipend, final decree of locality gives minister good title to, 65. Parole, payments of interest on a bond cannot be proved by, 109. Parsonage Tithes, a separate estate, 86. therefore not lost by negative prescription, ib. Partner, oath of, binding on company, 1 36. but not after its dissolution, 137. Parts and Pertinents, clause of, effect of possession upon, 25. possession on, will prevail against express grant, 25, 26. but the subject must be strictly and unmistakably possessed as part and pertinent of the lands conveyed, 25. conflict between two clauses of, settled by possession, 27. bounding charter excludes possession of, 3 I. possession on clause of, must be unequivocal and specific, 35. Patronage, right of," positive prescription extended to, 6G. whether it must be feudalised, ib. what amount of possession necessary to give prescriptive right to, G7. Payment of Debt, need not be averred by defender on oath. 122, 141, 152, 157. by third party, allegation of, I 13. Personal bar, 102, 121, 150, L80 Pignus praetohum. (See Adjudication). Poor's Rates, triennial pre criptioD not applicable to, 129. Possessio. (See Decennalis.) HANDBOOK OF PRESCRIPTION Possession, affords presumption of property in moveables, 3. but in heritage must be referable to title, 24. with which it must consist, 33. of a subject as Part and Pertinent (q. v.), 25. as determining a right, 27. as interpreting Crown grants, 28. barony titles, ib. base rights to regalia, 29. and charters to burghs, 30. on a bounding charter, 34. must be full, unequivocal, and specific, 35. continuous, peaceable, and exclusive, 36. in violation of law will not instruct right, ib. term of, formerly forty, now twenty years, 38, 39. for forty years presumed to go back to older title, 38. either natural or civil, 40. of wadsetter for reverser, ib. of tenant for landlord, ib. of vassal for superior, 41. of liferenter for fiar, 42. conjunction of, 44. on apparency, 44, 45. on apparency, abolished, 46. ascription of, in cases of double title, 55. of teinds, 64. of servitudes, must be unequivocal, and is the measure of the right, 69. immemorial without title, 72 seq. conditions of in public right of way (q. v.), 75. Precept of sasine, production of, beyond forty years dispensed with, 4. Prescription, as establishing a right (see Positive Prescription), 1. as extinguishing a right (see Negative Prescription), 1, 197. as affecting a remedy (see the several Short Prescriptions), 196. as qualifying a contract (see Septennial Limitation), 198. almost entirely statutory, 1. though there are traces of prescription at common law, 72 seq. Prescription, Long. (See Negative and Positive.) INDEX 22! Prescription, Negative, means prescription pleaded in terms of the second part of Act 1617, c. 12, 8. relation of, to positive prescription, S, 81. the older statutes also to be taken into account, 79. means the total loss of a right through neglect to enforce it, 79. but does not apply to heritable rights of property, 80 seq. nor to res merat facultatis, 86. servitudes not res merat facultatis, 87. rights affected by the statute, 89 seq. as applied to bonds of annuity and bonds bearing interest, 92. as applied to teinds, 93. to the rights of heritors inter se, 9 I. to reversions, 95. to warrandice, 97. runs from date when obligation may be enforced, ib. Prescription, Positive, means prescription pleaded in terms of feudal clause of Act 1617, c. 12, 8. secures progress of titles, 9. or determines extent of estate, ib. requires titles clothed with possession, ib. but not bona fides, 10. title for, in case of singular successors, 1 1 . in case of heirs, 15. title for, must be ex facie valid, 17. the sasine must be registered, 18. ' falsehood,' ib. results of modern legislation, 19. as applied to cases of Double Title (q. v.), I 7. as extended to leases, 61. to teinds, 63. to patronage, 66. to servitudes, 67. to thirlage, 70. to minor feudal rights, 7 I n. Prescriptions. Short. (See DECENNIAL, QUINQUENNIAL, SEPTEN nial, Sexennial, Triennial, Vicennial Prescriptio Presumption, involved in triennial prescription, 119. 123, 125. 222 HANDBOOK OF PRESCRIPTION Printer, Fees of, 128. Probatis extremis praesumuntur media, 37. Production, Statutory. (See Title.) Promissory Notes, prescription of (see Sexennial Prescription), 161-177. Proof, limitation of. (See the several Short Prescriptions.) Property, right of, not lost by negative prescription, 80 seq. distinguished from right of action, 49, 82, Protest, notarial, interruption of positive prescription, 108, of a bill no bar to sexennial prescription, 169. Public, interruption by, 37, 38. Public Place. (See Right of Way.) Public Right of Way. (See Right of Way.) Pursuit, what constitutes, so as to bar triennial prescription, 118. the party must truly be in petitorio, 119. Quinquennial Prescription, of arrestments, 154. now a triennial prescription, ib. of stipends, 155. of maills and duties, 156. only applicable in the case of bona fide tenants, whether urban or rural, ib. and where the tenant has removed, ib. may be pleaded by cautioner for tenant, ib. barred by sequestration, ib, unless secpiestration be in security, ib. reference to oath of tenant, 157. of bargains concerning moveables, 158. not applicable to written contracts, ib. reference to party's oath or writ, ib. of certain actions, 159. does not run against minors, 160. , of inhibitions, 160. INDEX 223 Ranking and Sale, production of claim in, as interruption or bar to prescription, 108, 119, 120, 1^7, 168. Redemption, right of, res merae facultatis, 87. Reference to Oath. (See Oath. ) Regalia, prescriptive title to, 2 ( .». Registration, of sasine, necessary in good prescriptive title, 18. substituted for infeftment, 19. of reversion (see REVERSIONS), 96. of protest of bill does not exclude sexennial prescription, 169. Relief, cautioner's right of, 184. over-paying heritor's right of, 'J 4. right of, on a bill, 166. from public burdens, right of, 87. Remedy, distinguished from right which founds it, 1!»7. Removing, triennial prescription in actions of, 116. Representative, oath of debtors, 137. Res merae facultatis, not subject to negative prescription, 78, 86 what are res merae facvMatis, 87. servitudes are not, ib. nor are certain quasi-public rights, 88. Res sua nemini seruit, 68. Resignation, procuratory of, production of, dispensed with after forty years, 4. and sasine contained in one instrument in burgage tenure, L5. Resting owing, proof of. (Sec QUINQUENNIAL, SEXENNIAL, Triennial Prescription.) Reverser profited by possession of wadsetter, 40. 224 HANDBOOK OF PRESCRIPTION Reversions, expressly made subject to negative prescription, 6, 95. unless incorporated in the infeftment, or registered, ib. need not be engrossed verbatim in sasine, 95. limited in point of time, how long they qualify titles in which they are engrossed, 96. even when registered, extinguished in practice by negative prescription, ib. Right, heritable. (See Positive Prescription.) immediate, must exist in person pleading minority, 103, moveable. (See Negative Prescription.) of action distinguished from claim which founds it, 197. of property distinguished from right of action, 82 seq. Right of Way, public, distinct from servitude of passage, 74. independent of statute, ib. constitution of, depends not on implied grant, but upon open assertion, 75. entry and ish, ib. at public places, 76. definite track, 77. must be possessed for whole prescriptive period, 78. may be lost by disuse for forty years, 108. is not res merae facultatis, 87. property of solum remains in proprietor, 78. minority in questions of, 105. Salmon Fishings, right to, acquired by possession on Crown charter, cum pis- cationibus, 28, 36. or on barony title, 25, 28, 41. or on base right to salmon fishing or fishings, 29. possession of, must generally be by net and coble, 36. may be acquired beyond limits of bounding-charter, 35. Sasine, indispensable as title for prescription, 15. warrant for, must be produced, ib. except in case of heirs, 1 6. must be registered, 18. superseded by registration of conveyance or notarial instru- ment, 19. INDEX 225 Schoolmaster, salary of, 129. Septennial Limitation, of cautionary obligations, 178-184. extinguishes cautionary obligation after seven years, 179. unless diligence done or action raised against cautioner during the seven years, 180. relation of two clauses of statute, ib. bond of relief must be intimated, 181. cautionary obligations where term of payment postponed beyond seven years not entitled to benefit of Act, L82. years of minority not to be deducted, 184. Septennial Prescription, of Citations, 184. does not run against minors, ib. Sequestration, production of claim in, interrupts negative prescription, 108. bars quinquennial, 156. and sexennial prescription, 168. election of trustee in, prescribed debt or bill will not entitle creditor to vote in, 117, 162. Servants' Fees, triennial prescription of, 127. Servitude, positive prescription of, 67-70. perhaps truly independent of statute, 73. positive, may be acquired by prescriptive possession, . 232 . HANDBOOK OF PRESCRIPTION Wife, oath of, whether oath of party, 136. Writ, of party, statutory proof by, in triennial prescription, 117, 137-141. need not be probative, 137. need not, to prove debt, expressly admit constitution, 138. whether factor's writ equivalent to, ib. whether account-books equivalent to, 139. must contain clear reference to particular debt, 138. need not be dated within three years, 139. of pursuer, may be read along with writ of party, 138. but is not equivalent to it, 139. of party in quinquennial prescription, 157, 159. of party in sexennial prescription, 170-172. dated within six years proves nothing, unless it founds an independent obligation, 170, 171. need not be probative, 171. but must be specifically applicable to debt in question, lb. whether writ of factor equivalent to, 172. explained by writ of creditor, ib. Writings, holograph, vicennial prescription of, 193-195. 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