IN the Essay upon the Beneficium ceden­dendarum actionum, we have endea­voured to lay down, after what Man­ner Creditors catholick and secondary are to draw their Payment from the several Persons, and out of the several Subjects bur­dened with their Debts. The Design of this Essay is to lay down some Rules for extricating the Pre­ferences of Creditors and Disponees competing upon the same Subject. In the first Essay the Que­stion is, Having given the Order of Preference, to determine the Method of drawing Payment out of the different Funds, and from the different Per­sons liable in the Debts. In this the Question is, Having given the Fund to determine the absolute and partial Preferences, and what each Competitor shall draw?

For Method's Sake, we shall first take under Consideration the Competition of Creditors among themselves. These stand limited and restricted ac­cording to the Extent of their Claims. After dis­cussing which, the Competition among Disponees, &c. fall in, whose Claims, upon the Subject contravert­ed, are from their Nature unlimited, and totally exclusive of others.

[Page 62] In the Preferences that arise simply from Priority of Time, there can arise no Dubiety among com­peting Creditors. Potior tempore, potior jure, is a Rule upon which Preferences may be as easily determin'd, as it is to determine, that this Year, this Hour, this Day is posterior to the last. The Difficulties that arise proceed from partial Grounds of Preference, that one Creditor obtains against another, whereby it happens, that he who is poste­rior in Time, shall sometimes exclude and be pre­ferred to one, or another that is prior. To give an Example. Suppose three Annualrenters, A, B, C, all in Order of Time, suppose at the same Time A consenting to C's Preference: In this Case A is pre­ferable to B, B to C, and C again to A: A to B, and B to C, by Priority of Time, and C to A, by the Consent. In Cases of this Nature, if the Debts exceed the Fund, it will be found no easy Matter to adjust what every Creditor should draw.

Before we come to the Point, it will be necessary to consider the Force and Effect of the Consent that the last Creditor has obtained from the first. This Consent must be considered in one of two Views. 1 mo, As giving the Right consented to, all the Benefit of the Consenter's Diligence; that is, inter­preting the Consent as a virtual Assignation. Or, 2 do, As giving it only a Preference, so as to in­title the Creditor consented to, to draw as if the Consenter were not in the Field. This last is the true Meaning of the Consent, and all the Force that the Law allows it; and which indeed is the only View in which the Matter can be attended with any Difficulty. For if the Consent be under­stood as a virtual Assignation, there can be no Col­lision betwixt the first and last Creditor, the Rule [Page 63] prior tempore potior jure will be sufficient to extri­cate the whole.

Taking then the Consent as a Preference, not a virtual Assignation, the Method that naturally casts up to adjust these Preferences, appears to be this. Let the Creditors be ranked upon the Subject ac­cording to their real Preferences, A in the first Place, B in the second, C in the last. These are the Places that naturally belong to them in virtue of their Diligences. This Step being taken, it falls next to be considered, what partial Grounds of Pre­ference any Creditor has against another. In this Case, the only partial Ground is the Consent, whereby C is intitled to draw, as if A were not in the Field. To adjust this Preference, let us suppose the Fund 6, and each of the Debts 4; in adjusting the real Ranking, A draws 4, B 2, C nothing. B keeps his 2; this he is intitled to by the real Ranking, not being concerned with the partial Preference, that occurs only when the Question is betwixt the other two Creditors. Let us next consider the Effect of this partial Preference, which intitles C to draw, as if A were not in the Field. When this Calculation is made, C will be found intitled to draw only 2; so that upon the whole B draws 2, C 2, and A 2.

This appears to be the natural Method for ad­justing Preferences among Creditors, who have personal Challenges or partial Grounds of Pre­ference against one another. To clear the Mat­ter still further, it will be proper to obviate what Objections may arise. According to this Method, it is obvious, that A the Consenter is in a better Situation, than if B were not in the Field; This may appear strange. It may be thought when C [Page 64] is claiming the Benefit of A's Consent, that he ought to draw the whole 4, seeing it is jus tertii for A to plead upon the Right of B; which he does, when C is restricted to draw only 2. As this indeed seems to have the Air of an Objection, a solid An­swer may tend strongly to inforce this Scheme. To obtain perfect Satisfaction, we need but look into the Circumstances of the Parties, and Nature of the Transaction. C about to lend his Money, sees two real Creditors upon the Subject. He is unwilling to lend upon that Security, unless he ob­tain A's Consent to his Preference. He sees at the same Time B preferable, but that he takes his Hazard of, he is willing to lend under that Disadvantage. All therefore he can pretend to draw, even after A's Consent, is what remains of the Fund unpre­occupied by B. This is all the real Security he has to depend upon, and all he ought to draw in the Division of the Fund or Price thereof. When therefore in the Question betwixt C and A, upon the Consent, B's Right is brought under Consideration, it must not be taken in this Light, as if A were founding any Preference upon it; it is pled upon only to de­termine, how far the Consent should operate. The Law says, That such a Consent is not a virtual Assignation, it means no more, but to allow the Creditor consented to, to draw as if the Consenter were not in the Field. To make this Calculation, it is plain, that B's Interest must be taken into Consideration: And therefore, according to the Example above laid down, when C draws 2, all the Fund that remains unpreoccupied by B, he draws the whole that was intended him by the Consent. This Argument is drawn from the Meaning of the Consent, and it is solid. However, it will be ne­cessary [Page 65] to give another Answer sufficient to reach all the Cases of partial Preferences, as well as that by Consent. And this will arise from considering the Nature of the Objection jus tertii. In the Essay upon that Subject, it is laid down, Position VI. That one is ever allowed to found upon the Right of a third Party, when the Conclusion tends to re­strict or annul the Right of his Antagonist. Thus, substituting an Inhibition in Place of the Consent, when the third Creditor Inhibiter comes to claim his Preference, he draws just 2 as the Right con­sented to did; because, all that the Inhibition or Consent can operate is to strike out A.; And when that is done, all that remains to them unpreoccupied by B is 2. And tho' B himself draws but 2 in Competition with A, yet A can found upon B's Right to restrict C to 2; since it is not claiming a Preference upon B's Right, but using it as an Ar­gument to restrict C's Right. And truly the Ar­gument is conclusive. Were C allowed to cut out A of his whole Claim, without suffering any Re­striction upon Account of B's Claim, it would fol­low, that an Inhibition, which is only understood a Ground of Preference, must really and substantially be a virtual Assignation, so as to put the Inhibiter in the inhibited Person's Place, and to intitle him to draw, not only in his own Right, but in Right of the Person inhibited, which is directly contrary to the Nature of an Inhibition.

It may possibly be urged further upon this Point, Why should it not be reckoned jus tertii for A to found upon B's Right, in order to restrict C, as well as it is for C to found upon A's Right, in order to restrict B? Now it C could found upon A's Right in order to restrict B, the Scheme would come out [Page 66] thus. By Means of the Restriction B drawing but two, there would remain four unpre-occupied to be drawn by C. In Answer to this, let it be con­sidered, that the jus tertii cannot lie both Ways. If it be jus tertii for C to build upon A's Right, in order to restrict B, it cannot be jus tertii for A to found upon B's Right, in order to restrict C; these being directly contradictory Positions; the one ter­minating in a virtual Conveyance, the other only in a Preference, which is the true Conception of the Matter. But more directly the Difference comes precisely here. A, as above laid down, may found upon B's Interest, to cut down C; why? Because the necessary Consequence is to prefer himself, or, which is the same, to relieve himself of a Burden. But to what Purpose is it that C would found up­on A's Interest? 'Tis true, A is preferable to B; but no Conclusion can be drawn from that to C's Advantage, it neither tends to profit C, or to relieve him of any Burden. Thus in Competition with A, B can only draw two; but it will not follow that four remains for C, because 'is perfectly consistent, that B draw four in Competition with C, though he draw only two in Competition with A.

I have chosen the partial Preference that arises from Consent, as the plainest and simplest Case, to illustrate and clear this Subject. But what is laid down here will apply to all the other Grounds of partial Preference, Inhibitions, pari passu Adjudica­tions, &c. All of which operate a Preference, not a virtual Assignation.

The Rule then comes out thus, first to rank all the Creditors according to the Priority of their Dili­gences, without respecting the partial Grounds of Preference any one may have against another. By [Page 67] this first Operation will be ascertained the Claims of these Creditors who stand free of Challenge. In the next Place, to adjust what will fall to any Cre­ditor, in Virtue of partial Grounds of Preference, the Operation must go thus. Strike out the Credi­tor against whom the partial Ground of Preference is directed; what remains of the Fund unpre-occu­pied by the other Creditors not struck at, belongs to the Creditor Obtainer of the partial Preference.

It need hardly be qualified here, that for what is drawn from the first Creditor A, by Virtue of the Consent or Inhibition, he cannot recur against B; that would carry this Absurdity, to make the Inhi­bition or Consent virtually operate against B, tho' in­tended only against A, B's Annualrent, second in the Order of Time, entitles him to take up the second Place; this is his Situation, let A and C adjust their Preferences in the best Shape they can. If C thurst out A, that entitles not A to thurst out B: He must be satisfied to take up C's Place. But it is proper to be observed, That it will make no Difference as to this Scheme, whether the partial Ground of Chal­lenge be considered as operating a direct Preference, or only a personal Claim, or Ground of Reducti­on. For, taking the Matter in either Shape, the Creditor who has the Ground of Challenge, must still be entitled to draw, as if the Debt against which the Challenge lies, were not in the Field. This Ob­servation supersedes intirely the Necessity as to this Point of disputing, whether an Inhibition give a direct Preference, or be only a Ground of Reducti­on? Which possibly may be a Question not easi­ly determined from the Nature of that Diligence.

Let us illustrate this Doctrine by another Ex­ample. The first we shall give is out of the Ro­man [Page 68] Law. The species facti is this; a Person bor­rows Money and for Security gives a Hypotheck, which the Creditor neglects to registrate. Thereaf­ter the Debitor becomes a Tutor, whereby, by the Roman Law, his whole Goods become hypothecated to the Pupil. Last of all he borrows another Sum, and gives another conventional Hypotheck, which the Creditor registrates. What gives Occasion to the Difficulty here, is a Constitution whereby con­ventional Hypothecks registred, are preferred to these not registred. Whence the unregistred Hypotheck is preferred to the Legal, and the Legal to the Registred by Priorty of Time. (For a legal Hypo­theck need not be registred;) the registred Hypo­theck again is preferred to the unregistred. Let us as before suppose each of the Debts = 4 the Fund = 6. To extricate this, let us first adjust the real Ranking. By this Ranking the legal Hypotheck draws 2, not being concerned with the Ground of Challenge that the one conventional Hypotheck has against the other. All that the registred Hypotheck can draw, supposing the unregistred out of the Field is barely 2. The other remaining 2 is left to the unregistred Hypotheck. This Scheme of Ranking falls in precisely with the one above-mentioned: And so it ought, because the registring of C's Hy­potheck has the same Effect with his Inhibition against A, or A's Consent to his Preference.

Thus the Matter comes out, where the partial Grounds of Challenge operate a total Preference. The Cases fall next to be considered where these partial Grounds operate only a pari passu Prefe­rence, or such like, which is the Case of Adjudica­tions within Year and Day. As for Example, we shall suppose A to be an Adjudger infeft, B an An­nualrenter, [Page 69] C a second Adjudger pari passu with the first. In this Case, it is plain, all the second Adjud­ger has to depend upon is what remains of the Fund after satisfying the Annualrenter, and that Remain­der too, he must lay his Account to share with all prior Adjudgers, and posterior within Year and Day. He can be in no better Situation than if A the first Adjudger were posterior to the Annual­renter, or even were the last Adjudger, but within Year and Day. Whence it follows, That C the se­cond Adjudger in this Case can draw but half of the free Fund that remains unpre-occupied by B the Annualrenter. This Case is also reducible to the former, by taking it in this Light, A the first Adjudger is preferable to B the Annualrenter, and B the Annualrenter to C the second Adjudger by Priority of Diligence, C the second Adjudger is preferable to A the first Adjudger by the Act 1661, not totally indeed, but for the one Half. And ac­cordingly he draws that Half as if A the first Ajud­ger were not in the Field. To illustrate this by an Example, let us, as formerly, suppose the Fund = 6, each of the Debts = 4; then A draws 4 in Com­petition with B. To B there remains 2, which he retains in all Events. To C again there remains but 2 unpro-occupied by B, which at the same Time he must communicate with A, upon Account of the pari passu Preference. So, upon the whole A draws 3, B 2, C 1.

In this View of the Matter it is taken for grant­ed, That the Act of Parliament bringing in Ajud­gers pari passu does not give the second Adjudger all Advantages as if his Diligence were truly of the same Date with the first Adjudgers; such Fa­vour was surely not designed. All intended by the [Page 70] Act to cut off that Preference, which first Adjudgers naturally have by Priority of Diligence; so that it levels the first Adjudger's Preference in Competiti­on with a second, but gives no Privilege to a second Adjudger in Competition with third Parties.

Having laid down the Rule and Method for de­termining the Preferences among compeating Credi­tors, it will be proper in the next Place to add some other Examples to these above set forth.

• A an Annualrenter consenting to C's Preference.
• B an Adjudger inhibiting before the Contraction of C's Debt.
• C an Adjudger pari passu subject to B's Inhibiti­on, and preferable to A by the Consent.

Let us continue to suppose the Fund = 6, each of the Debts = 4.

In adjusting the real Preferences, which fall first under Consideration, A draws 4, and the two Ad­judgers pari passu each of them draws 1. Next as to the partial Grounds of Preference, B the Adjud­ger Inhibiter cutting out C by Virtue of his In­hibition, must draw as he were not in the Field; and so takes 2, which is his ultimate Draught. C again must draw as A were not in the Field, which entitles him to no more but 2, being cut out of the other 4 by the inhibiting Adjudger. These 2 C draws from A, and consequently upon the ultimate Division A draws 2, B 2, and C 2.

Let us again suppose each of the Debts = 5, the Fund continuing = 6. In this Case A will draw 4, B 1, and C 1.

Let now each of the Debts be = 6, the Fund continuing = 6. In this Case A will draw the whole.

[Page 71] Another Example may be drawn from l. 16. Qui potior. in Pign. A Debitor hypothecates his Fund first to A, next to B, in the last Place to C. In a Competition betwixt A and C, C is unjustly pre­ferred; but against this unjust Sentence there is no Appeal entred. C is also preferred to B; but up­on an Appeal B obtains Redress. In this Case it is demanded, how the Preferences are to be adjust­ed? A is preferable to B, and B to C by Priority of Time, C again to A by the Sentence not appealed against. This Case comes to be the same with that of three Annualrenters above-mentioned, whereof the last has an Inhibition against the first.

Another Example may be given, which deserves well to be considered, 1 mo, An Assignation intimate. 2 do, An Arrestment interveening betwixt the Assig­nation and Intimation. 3 tio, An Adjudication whereof the Citation was prior to the Arrestment, but posterior to the Date of the Assignation. The Subject is the Rent of Lands, and the Parties all called together in a Multiple-poinding. Here the Arrestment is preferable to the Assignation. Stair, T. Assignation, § 44. The Assignation is preferable to the Adjudication by Priority of Diligence. Du­rie, 2 d March 1637, Smith contra Hepburn. And the Adjudication again to the Arrestment upon the same Account. Forbes, 26. June 1705, Steuart contra Steuart. How is this Matter to be extricat­ed? Here is a plain direct Circle of absolute real Preferences, founded all upon the same Medium, which appears to be a plain direct Inconsistence: For it comes to the same as if A should be made preferable to B upon any one Medium, and B again preferable to A upon the same Medium. In all the Circles that have hitherto cast up, different Media of [Page 72] Preference are brought in to make the Circle. Thus it may readily be, that A is preferable to B, B to C upon one Medium, and C again to A upon ano­ther Medium; or more shortly, that A is preferable to B upon one Medium, and B to A upon another: As for Example, In two Infeftments of Annualrent, whereof the last has an Inhibition that strikes against the first, A is preferable to B by Priority of Time, and B again to A by his Inhibition: But 'tis in­consistent that two Diligences can be mutually pre­ferable upon the same Medium, which would in­ [...]er this Absurdity, That from the same Medium two opposite or inconsistent Conclusions might be drawn. In this Case the same Medium of Preference regu­lates the whole Competition, sciz. the Priority of At­tachment, or Nexus realis upon the Subject. Were this Medium carried steadily through, in comparing these Diligences with one another, it is impossible there could be any Difficulty. The Matter becomes inextricable by this alone, that in the Competition betwixt the Assigney and Arrester, the Arrestment is supposed to make a Nexus realis upon the Subject; whereas in Competition with the Adjudger, the Ar­restment is supposed only to be a personal Prohibi­tion to the Debitor, and consequently no Nexus re­alis. No Wonder then, that two inconsistent Sup­positions in the same Competition should bring on an inextricable Circle. To evade this, if it be al­ledged, That an Arrestment is preferable interveen­ing betwixt the Assignation and Intimation, upon a Presumption of Collusion betwixt the Debitor and Assigney, antedating the Assignation in Order to disappoint the Arrester. The Answer is ready, 1 mo, There is no Ground in Law to infer such a Collusion with Respect to a formal Right, solemnly [Page 73] executed before Witnesses, granted for an onerous Cause. 2 do. Any such Presumption of Collusion must necessarily operate in Favours of the Adjudger, as well as of the Arrester, which yet was never pre­tended. The Matter therefore must necessarily come out in this Shape, either that Arrestment makes a nexus realis, upon which Supposition, it must be preferable, in the present Case, both to Assigney and Adjudger; or, that it makes only a personal Prohibi­tion, upon which Supposition, both Assigney and Ad­judger must be preferable to it. That the last Sup­position is the Truth of the Matter, will appear, 1 mo. From the Nature and Stile of the Diligence. 2 do. From this indisputable Position, That Arrest­ment stops not a posterior Poinding. 3 tio. From what is above laid down, that a posterior Adjudica­tion is preferable to an Arrestment.

SECT. II. Of the Competition among Disponees, &c.

The Rules above laid down will apply equally to the Case of Disponees, as to that of Creditors: There is no other Variety in the Cases, but that of limited and unlimited. And even Creditors come frequently to have unlimited Claims; which hap­pen so oft, as the Debt is equal to, or exceeds the Value of the Subject: In which Circumstances they come to be precisely upon the same Footing with Disponees. In Competition among Disponees, &c. real Preferences, and personal Grounds of Chal­lenge cast up the same Way, as among Creditors: And the Rule must equally obtain in both, that the personal Ground of Challenge is frequently cut [Page 74] down, for Want of an Interest to plead it; so that jus tertii does equally regulate both Cases.

To shew this Connection by an Example, let us suppose three Annualrenters, of which the last has an Inhibition against the first. Let the Fund be = 6, and each of Debts = 4. Upon this Supposition the Creditors will draw 2 a Piece. But again, let each of the Debts be = 6, and upon this Supposi­tion, the first Annualrenter will draw the Whole, notwithstanding that the last Annualrenter is prefe­rable to him, by vertue of his Inhibition: Which in this Case, it is jus tertii for the last Annualrenter to insist upon, the Fund as to him being intirely pre­ocupied by the second Annualrenter; so that, tho' the third Annualrenter should prevail in his personal Challenge against the first, it would avail him nothing.

Instead of Annualrenters, let us now substitute Disponees, and it is obvious, the Resolution must be the same. The last Disposition, tho' supported by an Inhibition, that strikes against the first, cannot prevail. The jus tertii lies against him, in respect he can have no Benefit by the Challenge, the Fund being already preoccupied by the second Disposi­tion.

It is then the jus tertii that equally regulates both Cases; which allows the personal Challenge to go no further, than the Challenger can shew a Bene­fit thereby. It will readily occur, That among Disponees, this Bar of jus tertii generally excludes the personal Challenge totally, the Fund being sup­posed already preoccupied by some third Right, a­gainst which the Challenge lies not: Among Cre­ditors it is generally otherwise: For the third Right, against which the Challenge lies not, being limited, [Page 75] and for the most Part not absorbing the whole Fund, this of consequence allows the personal Challenge a partial Effect; as may be seen in all the Ex­amples above given among Creditors; unless where the Debt of the interjected Creditor has been equal to the Value of the Fund. And this is the only Variety that does occur, in Application of the a­bove Rules to the Case of compeating Disponees.

Let us now proceed to give other Examples upon this Head.

AS Man is not formed complete in him­self, but an indigent Being, standing in Need of daily Supplies from without; The Deity has bestowed the Earth up­on Man, and Men upon one another. Towards this End he has wisely implanted in our Natures the remarkable Affections to PROPERTY and SOCIETY. In this equally provident as in his other Dispensations to Mankind, not only to furnish us sufficient Means, but, which is admirable, to compel us in the most agreeable Manner to make Choice of, and embrace these Means. Possibly at first, when the World was thinly peopled, and great Plenty of common Necessaries of Life, the Affecti­on for Property was small, and the natural Notions of Appropriation little cultivated. But as Mankind grew numerous, and the Necessaries of Life not so easily come at, Labour and Industry became of Va­lue, and PROPERTY to be considered: For without Property, Labour and Industry was in vain. The Foundation of Property a posteriori is apparent; that it is also founded a priori in the Nature of [Page 101] Man, and consequently in the original Laws, is also certain. Evident from this, that Nature, which makes nothing in vain, has provided every Person with an AFFECTION to Property, wherein is found­ed that Connection betwixt Men and Things, which we call commonly by the Name of PROPERTY, and whereby Nature prompts a Man to be diffe­rently affected to one Thing from another; and which Affection leads us to bestow Care in preserving, Labour and Industry in improving what we thus consider as our own; and frequently enhances the Value of it in our Imagination above Reality, and above the Value we attribute to any other Thing that does not stand with us in that Relation. This AFFECTION is as much founded in Nature as that we bear to our Children, or any Affection whatever. And the Design is admirable: for 'tis this Affection that is the primum mobile of all that Industry and Diligence Men bestow upon their Af­fairs. Providence foresaw Appropriation necessary, and it fitted us with Affections and Faculties lead­ing to that End. And thus PROPERTY is founded a priori in the Nature of Man, or, which is the same, in the abstract Laws of Nature: The ab­stract Laws, relating to whatever Species of Beings, being nothing else but the Regulations their Na­tures and Constitution prompt and direct them to govern themselves by.

PROPERTY being thus founded in the Law of Na­ture, there are MEANS of acquiring and losing it, founded also in the same Law. OCCUPA­TION is the primary MEAN of acquiring Pro­perty, and DERELI [...]TION of losing it. When we relinquish our Property by any express positive Act of the Will, no Body questions the Effect. [Page 102] But it has not been so clearly understood, that the same Effect may be wrought negatively by Ne­glect, Desertion or Disuse. Most Writers agree that Prescription is a Creature only of positive Statute, not at all founded in the Law of Na­ture; thus Grotius, Jur. Bell. L. 2. C. 4. thus Puffendorf, L. 4. C. 12. But let us examine hu­mane Nature: Let us see what it says as to this Dispute; for to it must ly the ultimate Appeal. Let us suppose, that by some Accident one loses a Jewel, he's concerned, and contrives all Means for Recovery. The Affection of Property exerts itself; and during that Time the Thing is as much his as ever. His Attempts prove unsuccessful, Hope loses Ground, he despairs. By Degrees his Loss wears out of his Mind. His Affection cools, and at last evani­shes. He loses intirely the Consciousness of Property. Thus the Matter lies over for many Years. My Positi­on is, That the Connection betwixt the Man and his Jewel is by those Means as throughly dissolved, as if he had derelinquished it by the most positive Act, or as if it had never been his. The Affection and Consciousness ceases, upon which his Property is founded, and Property ceases of Consquence. 'Tis upon this Foundation that Things lost by Ship­wreck, after such long Time as the Proprietor has given over all Hope of Recovery, go to the first Finder, L. 58. Ad. R. D. 'Tis upon the same, that a Hunter, so soon as he gives over Hope of his Quarry, loses that Title of Prevention which he had by the Pursuit; after which the Law gives Access to the next Finder. If this hold with Re­spect to the Person himself who once had the Af­fection of Property, much more with Respect to his Heirs, who never were in Possession, and possibly [Page 103] in Time may have intirely lost the Knowledge of their Predecessors Right. Thus then Dereliction may be distinguished into two Kinds, positive, or active, and negative, or passive. The positive Act is properly ABDICATION; and hereafter, when we intend to express the negative, we shall indif­ferently use the Terms of DERELICTION or DESERTION.

Let us now put the Case, that the Jewel is found by a Person, who, after using all the proper Means of discovering an Owner, takes it up upon the Footing of Dereliction. To make the Case stronger, instead of a Jewel, let us suppose a Piece of Ground, or something else, that the Finder may possibly ima­gine never had been appropriated. He continues to possess as Proprietor. He lays out Money, builds a House, and makes great Embellishments. The Estate descends from Father to Son. The natural Affection increases by Time to this paternal Inheri­tance, which has been now in the same Family, if you will, for several Centuries. At last the for­mer Proprietor comes, and claims the Ground, he shows after what Manner his Predecessors were led to forsake their Country and Possessions. During all that Interval they had been abroad in another Land, where they fixed their Heart and Residence, without the least View or Prospect of ever revisit­ing their native Soil, till by some Accident, like the former, Fortune led them back to the Country from whence they originally sprung. Let any Man con­sider seriously this Case, and consult his own Heart about it, he will find this Claim to be against Na­ture and Reason. The Demand has no other Foun­dation but a quondam Property, long ago deserted, and given over for lost. 'Tis directed against a [Page 104] Person whose Predecessors have been bona fide in Possession Time out of Mind, and justly esteemed themselves truly Proprietors. A Demand of this Kind is obviously against Nature. The first Propri­etor deserted his Possession, lost his Affection to it, whereby as to all real Effects the Case comes to be the same as it had never been his. Another Person is suffered peaceably and honestly to take up the deserted Possession: He has no Reason to be suspici­ous of this, more than of any other vacant Spot of Ground. His Affection grows to the Subject as his own Property; it becomes as strong as he had bought it, nay, we may suppose he actually bought it, or obtained it by some other the most indisputed Title. If the Law thereafter take it from him, it takes it from a Man, who cannot help thinking it unjustly tore from him, and who is thereby made a real Sufferer, to be given to another whose Pre­tensions are quite wore out by Course of Time; and who is thus made locupletior aliena jactura. It can never be in the Law of Nature to indulge such Hardships. It will be granted to be perfectly agree­able to humane Nature, that a Man indulge his Af­fection in such Acquisition. At first indeed, 'tis reasonable to have some Doubts; these must wear off necessarily by the Course of Time, till at the long Run, the Possessor acquires the most solid Affection to, and Security in the Thing as his own. After so good a Foundation built in humane Nature, it ne­ver can be agreeable to the Laws of that Nature, to overturn such a Foundation, by wresting the Property from him; which were in other Words to say, That Na­ture dictates to be secure, and insecure at the same Time.

The Matter comes here in one Word, the longer a Man possesses bona fide, the greater is [Page 105] his Security in the Thing, and Affection to it, till at length both become extreme. The Laws of Na­ture ought to protect every Possessor in reasonable Se­curity and Affection, which are of Nature's Growth, and not prefer him who has neither Security nor Affection. And thus by the Law of Nature, ‘"A long continued bona fide Possession is a good Title for acquiring Property."’

It will conduce to the better illustrating of this Doctrine, if we take a View of the Effects of bona fide Possession in its full Extent. The bona fide Pos­sessor from the very Beginning is allowed to con­sume the Fruits. The true Proprietor, let him put in his Claim when he will, has no Demand upon that Score. The Reason is, That as Property is introduced for the Conveniency and Support of Mankind, 'tis better any Man consume the Fruits than that they be lost to every Body: And there­fore are given to the Possessor, who has a Title such as to convince the Judges, that he was in bona fi­de to consider himself as Proprietor. And as from the Nature of the Thing, Titles to Property are ex­tremely uncertain, 'tis the Interest of Mankind, that they be keeped secure against After-reckonings of this Nature. 'Tis but enlarging this Thought to give Security to the Possessor, after great Length of Time, in the Thing itself, when the former Pos­sessor has lost his Affection, and all Thought of Re­covery. For is not all this answering the true De­sign of Property, by making it subservient to the Uses and Necessities of Mankind? Are not these very Laws anent Property, sciz. That it cannot be taken away without Consent of the Owner, and such like, introduced for the same I nd, those very Laws that seen most opposite to this Doctrine? [Page 106] But what is the Result of all? None other but this, That the End is the true Touchstone to judge of the Preference of the Means. Thus in common Cases the Rule ought to be sacred, That no Man's Property be tore from him without his Consent; because otherwise the great End proposed by Ap­propriation could not be brought about. But then, if in any Circumstance the rigid Observance of this Rule shall be so far from conducing to the End proposed, that it will be flying directly in the Face of it; in that Circumstance it must yield to some other Rule more adapted to bring about that End. And he who in that Circumstance does notwith­standing adhere to the Rule, is guilty of the plain Absurdity of preferring the Mean to the End.

Prescription necessarily presupposes two Persons, one who loses, and another who gains thereby. This is evident; for all the Ways known in Law to de­prive a Man of any of his Rights and Privileges are in Favours of, and with a View to the Interest of others. Prescription is of two Kinds, the PO­SITIVE, whereby is gained a Power over the Pro­perty or Person of another; the NEGATIVE, whereby one loses his own Rights or Privileges. To determine what Rights fall under the negative Prescription by the Law of Nature, it is obvious, in the first Place, That it is a legal Extinction of Rights of Property, which go thereafter to the first Occupier. 2 do, All Burdens upon the Person, or Effects of another fall under it, which operating an Extinction only, not a Transference, stand in Need of no positive Act of the Acquirer of his Liberty, to produce the full Effect; because if the Creditor's Right fall, the Debitor cannot remain bound. But as to all Acts of native Liberty, personal Privileges, [Page 107] and such like, which in benefiting ourselves inter­feir not with others, and make no Restraint upon them, such cannot be lost by Disuse, because they involve but the Idea of one Person, and concern not others, whereby supposing them capable to be cut off by Prescription, still it would come to nothing, because no Mortal could be founded in an Interest to alledge upon it, the personal Objection of jus tertii would ever lie against him. Thus, if a Per­son shall keep Silence a hundred Year, confine him­self to a Place, or to a certain Method of Action, there is nothing in Nature to oblige him to con­tinue a Moment in the same, longer than he wills, unless another by Use, Consent, or otherwise, has acquired a Power over him to restrain his native Liberty. 'Tis for the same Reason, that a Man cannot tie himself down, even by the most express Consent, unless declared in Favours of some third Party. Thus then Rights prescribe only negatively, which involve the Consideration of two Persons. But there is here a remarkable Limitation, which makes a considerable further Restriction upon Rights prescribable; which is, That personal Powers or Fa­culties, such as Faculties to burden, to alter or in­novate, to revoke, &c. though inferring a Burden upon others, are not lost non utendo. The true and adequate Reason whereof is this, that it being in­volved in the very Idea of a Faculty, to be exerced quandocunque at the arbitrary Pleasure of the Pos­sessor, as well now as afterwards, as well afterwards as now, Neglect or Desertion, the Causes operative of Prescription, can never be inferred simply from Forbearance. In Rights the very Design of which is to be made effectual quam primum, such as Obli­gations for Money, or other Prestation, Forbear­ance [Page 108] to act upon these, implies Neglect and Dere­liction. But where it is the very Intention of the Thing, that the Matter should lie over, where it is intirely arbitrary, whether the Power be exerced this Day or hereafter, the forbearing to act at present cannot infer in the Nature of Things Neglect or Dereliction. These Limitations upon the negative Prescription, sciz. Acts of personal Liberty, that imply but one Person, and Faculties of the Nature to be exerced quandocunque, are both of them gene­rally comprehended under the Expression of res merae facultatis, though very different in their Natures and carefully to be distinguished. As for the posi­tive Prescription, all Rights may be acquired there­by that are capable of Possession.

'Tis obvious, that positive Prescription can in no Case exist without the Negative; for it is through Neglect and Dereliction, that the positive Prescrip­tion gives any Man Power over the Effects or Per­son of another. But the negative Prescription may well subsist alone, and work its whole Effect with­out Intervention of the positive Prescription. Thus Property is lost negatively non utendo; and if the Possessor has the positive Prescription, it is a strong Confirmation of his Title, but not absolutely ne­cessary. The proper Subjects therefore of the posi­tive Prescription are Servitudes personal or real, whereby Restraint is imposed upon Persons or their Effects, which can by no Means be done by the negative Prescription alone.

It was necessary to lay down the Principles of the Law of Nature relating to this Matter; which will serve to guide us in the Ambiguities of our own Law, as well as where it is totally deficient.

[Page 109] Having explained the Doctrine of Prescription, as founded in the Law of Nature: Before we come closs to our own Practice, it may be proper to pre­mise, that, besides the above Considerations, there are many others sufficient to have influenced our Law-givers to introduce a Statute of this Nature. Nothing more conduces to the Well-being of a So­ciety, than that private Property be fix'd and ascer­tained. It tends to quiet the Minds of Possessors and encourages Industry, which of all Things ought to be most cherished. Besides it cuts off in a great Measure a Sort of Pleas pernicious above every Thing to Society, sciz. such as are the Result of Forgery, Fraud, and under-hand Dealing. Such Claims be­ing generally laid over upon the Prospect, that by Length of Time, the proper Means of Discovery shall be evanish'd, or the real Exceptions compe­tent against them be forgot. Taking then Prescrip­tion in all these different Views, it is so far from be­ing odious, that perhaps there never was a Constitu­tion better founded, whether it be considered in the View of Equity or Expediency. The Expedi­ency is apparent. The Equity is clearly shown above, since the indulging of old forgotten Claims comes truly to this, Making the Claimant locuple­tior aliena jactura. And 'tis extremely curious to observe in this Case, as well as in many others, how common Sense and the Dictates of Nature get insensibly the better of false Principles imbib'd by Reading or Education. In all our Authors it is held and allowed, that Prescription is odious; yet our Court of Session has been in the constant Use of extending, rather than limiting the Statutes thereanent. And at this Day, as we shall see after­wards, 'tis established in Practice, that many [Page 110] Things fall under Prescription, which have no Sort of Warrant from the Acts of Parliament.

Tho' Prescription be founded in the Law of Na­ture, it must be observed, that no precise Time is fixed to it by that Law. This is in some Measure arbitrary, left to the Regulation of every different Society for it self. Our Law, with great Judgment, has fix'd upon forty Years. A shorter Time might possibly have been reckon'd too great a Limitation upon Proprietors. A longer Time was unnecessary; for exceeding the ordinary Memory of Man, in that Respect it is equivalent to the longest Duration. And the Man, who during such an Extent of Time neglects or overlooks his Affairs, would probably reap little Benefit from a longer Indulgence.

It does not appear, that our Statutes or Practicks have much receded from the Law of Nature, ex­cept in one particular Prescription of Rights of Property. By the Law of Nature, the negative Prescription is as effectual to cut a Proprietor out of his Right as a Creditor: Yet without a positive Pre­scription, since the Effect would be to make the Subject caduciary, to go to the Fisk or first Occu­pier, our Law, favouring the quondam Proprietor, allows him to take it up quandocunque, as long as not appropriated by the positive Prescription. And thus, with us, ‘"There is no such Thing as a nega­tive Prescription of Rights of Property abstracted from the positive Prescription."’

'Tis commonly held, that in our Law bona fides is not a Requisite of the positive Prescription. The Lord Stair says, ‘"That in Act 1617, there is no Provision concerning the Manner of the Entry, whether it be bona fide, peaceable or lawful?"’ § 19. h. t. If this be absolutely fixed in our [Page 11] Practice, there's an End of the Question. If not, the following Considerations may not be quite im­pertinent. 1 mo, If bona fides is essential to the Na­ture of Prescription, as has been fully laid down above; it must ever be understood included, unless where expresly excluded. 2 do, In this very Act 'tis virtually, if not expresly included. For to what other End is a Title by Charter and Sasine made essential, if not to establish a bona fides? Let a Man examine seriously all the Reasons for Prescription political and legal, and he shall not be able to point out any other View the Legislator could have in making a Title necessary to Prescription. This will be more plain, when we take a View of the Roman Law. There a justus titulus, abstracting from bona fides, was reckoned a Requisite of the positive Prescription, as much as it is with us. Yet when we come to examine that Matter to the Bot­tom, it will appear, that justus titulus was truly no distinct Requisite of Prescription; That it was only so far considered, as to make Evidence of a bona fides; and that where there was otherwise Pre­sumption or Evidence of bona fides, Prescription was sustain'd, without any Title at all. All this is clear from the Authority of Africanus, one of the best Roman Writers, l. 11. pro emptore. His Words are, Quod vulgo traditum est, Eum, qui existimat se quid emisse, nec emerit non posse pro emptore usucapere: Hactenus verum esse ait, si nullam justam causam ejus erroris emptor ha­beat. Nam si forte servus vel procurator, cui emen­dam rem mandasset, persuaserit ei se emisse, atque ita tradiderit; magis esse, ut usucapio sequatur. To the same Purpose are, l. 14. pro empt. l. ult. § 1. pro suo. And upon the same Footing it is, that [Page 112] one erroneously conceiving himself Heir, prescribes a Right to the Heritage by Addition. In this Case usucapio proceeds upon bona fides, without any Colour of a Title. See Voet, T. pro heredere, § 2. If then it come out that in the Roman Law, the justus titulus is truly no distinct Requisite of Pre­scription more than it is in the Law of Nature; Why should we go about to establish it as the only Principle, when our Law says no such Thing, to degrade the bona fides, in Subserviency to which the justus titulus ought alone to be considered. 3 tio, The Cases just now mentioned from the Roman Law, without Controversy, would equally obtain in our Practice, The Usucapio pro herede, particu­larly is established by express Statute, P. 1617. C. 13. and the Prescription limited to 20 Years. Here then by Authority of Parliament, we have the bona fides made the Foundation of Prescription, without the least Pretence of a Title. What can be answered to these Examples, by those who hold that a Title is necessary, and not bona fides? 4 to, Bona fides is absolutely necessary ad lucrandos fructus perceptos ex re aliena: Would it not be absurd to adjudge the Property to a mala fide Possessor, who at the same Time is in so unfavourable a Situation in the Eye of Law, as even to be made accountable for the Fruits long ago consumed? 'Tis a common Case to indemnify a Possessor as to the Rents, who at the same Time is made to restore the Property: So much less favourable is the one Claim than the other. But it would be strange indeed to sustain a Title as sufficient to retain the Property, which is not even sufficient to retain the Fruits already consum'd. This last Argument I acknowledge ap­pears to me in a very strong Light. However, if it [Page 113] appear not so to others, I shall be the less surprised in that they have a Support from the Roman Law. See l. 48. § 1. A. R. D. This Text, and others to the same Purpose, would stagger me extremely, were it not, in my Opinion, an Argument of as great Weakness on the one Hand to give implicite Faith to any human Authority, as on the other, wantonly to neglect or contemn all human Autho­rity. Sure I am, the cool and diligent Enquirer, who, in Search after Truth, uses his own Reason, and the Lights that Nature has afforded him, is more to be commended, and offers a more agreeable Incense to the Memory of the great Men who write upon the Roman Law, tho' in his Judgment he may sometimes argue them of little Slips and Errors, than the abject Mind does, which blindly follows where-ever they chuse to lead. So much was ne­cessary by Way of Apology, for venturing to set up private Judgment, against publick and indeed, generally speaking, so well founded Authority. But to return to my Subject.

Here we have a notable. Difference in our Law betwixt the negative and positive Prescription. Bo­na fides is necessary in the one, not at all in the other. Obligations are lost, merely by Disuse and Dereliction, without Necessity of alledging a bona fides in the Debitor, or any Thing similar to a positive Prescription of Liberty. For tho' the former Proprietor is restored against the Fisk, the Creditor is not restored against his Debitor; because Liberation is as much more favourable than Obliga­tion, as private Property is more favourable than Confiscation. This explains the Decision, Fountain­hall, 7th December 1703, Napier contra Campbell, where it was found, That after the 40 Years Pre­scription [Page 114] the Defender was not obliged to give his Oath, whether the Debt was yet resting owing; and tho' he should confess it, that he was not in foro humano liable. Possibly it were to be wish'd, we had deviated from the Law of Nature in the negative Prescription of Obligations, as far as we have done in the negative Prescription of Property. Bona fides is absolutely requisite in the Acquisition of Property by Prescription, without which the former Proprietor is not cut out by whatever Dis­use. Might it not be thought as reasonable, that the Debitor should not be restored to his Liberty, unless by a quasi Possession of Exemption upon a bona fide colourable Title. And were this made the Rule, the negative Prescription would be as strong­ly founded in Equity, as it is in strict Law. 'Tis a great Hardship to oblige a Man to pay a Debt he never was conscious of, having absolute Affection and Security upon the Side of Freedom: 'Tis no Hardship to refuse Action to a Creditor, who had perhaps never considered himself as such, and never built Hope in the Claim. And thus the Rule of Equity might apply here, as well as in the positive Prescription, sciz. Quod nemo debet locupletari aliena jactura. Hitherto, I say, we have thought proper to adhere strictly to the Law of Nature; The Alteration here offered may possibly obtain Footing in our Practice.

The positive Prescription may be defined, A le­gal Acquisition of Property or Servitude, by Means of a forty Years bona fide Possession, qua Proprietor, or qua having a Right to the Servitude: Join'd with a total Disuse or Neglect of the righteous Owner during that Time. The negative Prescrip­tion is, A legal Extinction of the Creditor's Interest, by [Page 115] Means of a total Disuse or Dereliction for forty Years.

Every temporary Extinction of a Right is not Prescription: That is only understood to be Prescrip­tion, which extinguishes Rights design'd by the Law or Consent to endure a longer Time. Thus the annus deliberandi, the three Years Preference given the Creditors of the Defunct, the Legal of Adjudications, and such like, fall not within the Compass of this Essay.

The negative Prescription is not a real Extinction like Payment, but only a personal Exclusion of the Pursuer, being an extrinsick not intrinsick Exception. This is plain from its Nature, being directed against the Pursuer's Negligence; and therefore can only amount to a personal Exception against him. Thus in an Adjudication, or other Right disponed to two different Persons, one after another, the negative Prescription may run against one of them, tho' the Adjudication it self be saved from Prescription, by the other Disponee. 26. November 1728. Fraser contra Mackenzie.

Upon this Principle depends the Resolution of the following Questions. An unintimate Assignation lies over 40 Years; Prescription has run against the Ce­dent, but interrupted quoad the Assigny by Mino­rity. Has the Assigny thereafter intimating a good Title? R. D. The Debt was funditus extinguish­ed in the Person of the Cedent. Ans. Prescription is only an extrinsick Exception, denying Action to the Cedent, but leaving the Debt intire, to be made effectual by the Assigny.

The like as to a Disposition upon Death-bed of an heritable Debt, which is lost as to the Disponee, by the Lapse of 40 Years. The Heir, with respect [Page 116] to whom the Prescription was interrupted, by Mi­nority or otherwise, has a good Action against the Debitor, notwithstanding the Debt is prescribed quoad the Disponee.

The same Principle determines the Question, as to the Prescription of accessory or cautionary Oblige­ments. Here we must distinguish betwixt an addi­tional Security strictly accessory, or subsidiary, and an expromissory Security, i. e. the acceding of a new principal Obligant. In the first Case, because such strictly accessory Obligements can have no Self­subsistence, by whatever Means the principal Obli­gation is cut off, its Shadow the Accessory falls of Course: But when several Co-obligants bind at different Times, for the same Debt, every several Co-obligant will be free, by a several Course of Pre­scription; for Prescription is not like Payment, an Extinction of the Debt it self, operating only an extrinsick Exception personal against the Pursuer.

From this Principle it also follows, That Pre­scription is not of the Nature of a Presumption, in­ferring, that the Debt is extinguished, by Payment or otherwise, which some hold: For in the above Ex­ample, Fraser contra Mackenzie, if the Adjudication were presum'd extinguished, by Payment or Intromis­sion, in the first Disponer's Person; this would ne­cessarily affect the second Disponee, because an Ad­judication extinguished, by Payment in one Assigny's Person cannot subsist in the Person of any other. There is a second Argument to evince this: Pre­scription has such an Effect against the Pursuer's Claim, that it cannot thereafter be reared up, by the Debitor's Oath of Knowledge, that it is still resting owing. Does not this evince, That Prescrip­tion is not a Presumption at all, whether juris & de [Page 117] jure, or juris only? For 'tis obvious, That every legal Presumption, however strong, must yield to a demonstrative Proof, by the Debitor's Oath. There is some better Colour for putting the positive Pre­scription upon the Footing of a Presumption. The Narrative of the Act seems to favour this: But as Prescription is supported, by the Law of Nature, it has a more solid Fundation, than a Presumption, a Creature of the Law, in this Case, no better than a Fiction.

It goes next in order, to consider what Things fall under the negative Prescription. 1 mo. It is plain, from the two Statutes, P. 1469. C. 28. and 1617. C. 12. joined with the Nature of Pre­scription, above laid down, that all Burdens, esta­blished against Persons or Things, prescribe non u­tendo, such as Obligations, mutual Contracts, In­feftments of Annualrents, Wadsets, Servitudes, Dis­positions, Adjudications, &c. All of which in­clude the Idea of two Persons, one who loses his Right, and another who is thereby freed from a Claim or Burden. In a Question upon this Head, it was found sufficient to exempt the Defender's Lands, from the Jurisdiction of a Regality, that he had been free for the Space of 40 Years, never being inrolled, or cited by the Bailie, but still by the She­riff. Stair 23. November 1671. Rolland contra Laird of Craigievar. It was also found, That the Power of Repledging, from one Court to another, was lost non utendo, by the negative Prescription. Fountainhall 29. January 1712. Justices of the Peace of the Shire of Air contra Town of Irvine. 2 do. Rights of Property suffer not the negative Pre­scription. 24. December 1728. Presbytery of Perth [Page 118] contra the Magistrates of Perth. 3 tio. Acts and Exertions of native Liberty, which make no Bur­den or Restraint upon others, including only one Person who has the Power, but none other against whom it is directed; none of these suffer the nega­tive Prescription. And if they did, it would be jus tertii to found upon it. Thus the Right of Blood never prescribes. 'Tis true, that if another than the righteous Heir serve, the Law makes his Re­tour irreducible after 20 Years: But abstracting from the positive Prescription, the righteous Heir may serve quandocunque; no Mortal can be found­ed in an Interest to make Opposition. 4 to. Powers and Faculties of the Nature, to be exerced quandocunque: Such as Faculties to dis­pone, burden, alter, revoke, &c. Thus Reversions suffer not the negative Prescription. 'Tis involved in the very Nature of such to ly over. The Man cannot be accused of Negligence, who wadset his Lands Yesterday, for not redeeming them to Day, or to Morrow. To oblige him to redeem them present­ly, under the Hazard of Prescription, would be going directly contrary to the Nature and Design of the Contract. Yet this seems to be laid down, Parliament 1617. Cap. 12. Unless it be referred to the positive Prescription; which Interpretation is founded, both in the Nature of the Thing, and in the Act it self. For if Reversions be registred, or incorporated within the Body of the Infeftment, the Act in this Case says, they never can prescribe. Now it appears ob­vious, That this does only relate to the positive Prescription. There is good Reason, that Rever­sions incorporated or registred should be good against the positive Prescription; and the same Reason will infer, that latent Reversions ought not: But no [Page 119] good Reason can be given, if latent Reversions pre­scribe negatively, why they should not also, tho' made ever so publick. Neglect and Dereliction are the Foundations of the negative Prescription, and they must hold equally in both Cases, to infer the nega­tive Preicription, or they must hold in neither, which is the more rational Scheme.

For the same Reason, a Donation betwixt Man and Wife may be revoked at any Time; and the Power of Revocation suffers not the negative Pre­scription. Fountainhall 15. January 1697. Turn­bul contra Husband. Upon the same Footing it is, That the Power to take Infeftment upon a Precept is not lost by Delay; which while the Party is in Possession of the Lands, or Superiority thereof, may ad libitum be done quandocunque. 4. July 1716. Johnston of Corhead contra Johnston of Newtoun.

In mutual Contracts, Prescription can have no such Effect, as to liberate the one Party, while the other remains bound: If the one demand Performance, he must fulfil also his Part; Because Prescription does not change the Nature of Contracts, by trans­forming them into other Species; it cuts them off simply, or allows them to stand simply. Now as the Nature of a mutual Contract is one and indivi­sible; to oblige the one Party to perform, while the other is free, would be intirely to change its Na­ture, by transforming it into a simple Obligation, which Prescription cannot do, being made to de­stroy, not to establish Obligations. Thus in a Con­tract of Sale, for Example, which has lien over 40 Years without Implement, but keeped alive by the one Party, thro' Minority or Interruption, if the Party, against whom Prescription has not run, insist for Implement, he must at the same Time perform the [Page 120] mutual Cause; because if he pursue upon the Con­tract, he must take it as it stands. But then the Prescription has this Effect, that the other Party can­not pursue upon it, because, as to him, it is lost non utendo. And thus Prescription may run against one Party in a mutual Contract, and not against the other; but never so as to divide the Prestations; the Contract must be fulfilled in totum, or not at all.

'Tis commonly held, That a Right of Peerage does not suffer the negative Prescription: But of this there may be a Doubt. It cannot be put upon the Footing of a personal Quality, such a one as no Person has an Interest to object Prescription against; because the first Peer being removed, the second in order attains the first Place. 'Tis true, Peerage is not a Burden upon any Person or Thing; but nei­ther is Property; and yet by the Law of Nature, it suffers the negative Prescription: Our Law indeed, in favorem, restores the former Proprietor to his Right; but that Favour cannot be pled in this Case, more than in that of a Creditor: There is no Reason for restoring one Peer against another, more than for restoring a Creditor against his Debitor. It can­not be put upon the Footing of a Faculty, to be ex­erced quandocunque. A Right of Peerage is of the Nature to be capable of Neglect and Dereliction, as well as a Right of Property, or of Credit. Last­ly, Tho' jus sanguinis prescribes not, which might be reckoned of the same Nature with this in Que­stion, that holds only, where it is jus tertii for any Mortal to make the Objection; no Person ha­ving an Interest to hinder an Heir to represent whomever of his Prdecessors. If the Right taken up by the Heir be of the Nature of an Obligation, the quondam Debitor suffers nothing, because he is [Page 121] already free, by the negative Prescription; if a Right of Property, the present Possessor is safe, by the po­sitive Prescription; and if that be not run, the Heir has Access upon a separate medium, to wit, That Property prescribes not negatively; if it be a perso­nal Faculty, that interfeirs not with others, or if it be of that Nature to be exerced quandocunque there is nothing to hinder the Heir to take it up. Now this applies not to a Right of Peerage, the Prescrip­tion of which third Parties have Interest in equally, as where the Prescription is of Obligations.

Reduction upon the Head of Death-bed was found to suffer the negative Prescription. Forbes 18. March 1707. Murray contra Irving. But in that Decision, Mention is not made of what Nature was the Subject disponed upon Death bed. If it was an heritable Bond, there can be no Question about the Decision; for this Reason, that the Heir could have no Interest to pursue such a Reduction against the Disponee, whose Right against the Debitor himself was cut off non utendo: And if the Disponee took a Document upon the Right, and saved it from Prescription, that cannot benefit the Heir; but if the Heir himself used Interruption, there is a Diffi­culty, which resolves into this, Whether a Death-bed Deed be ipso jure null, or good until it be challenged by Reduction? If the last, the Reduc­tion prescribes non utendo: If the other, the Sub­ject remained in haereditate jacente; and there could be no Necessity of a Reduction. If now the Dis­position upon Death-bed was of Lands, the same Distinction must be taken along; for upon Supposi­tion the Death-bed Deed was good until Reduction, it follows, That the Reduction is cut off, by the negative Prescription; if null, as a Right of Pro­perty [Page 122] prescribes not non utendo, the Heir may take it up when he will.

The negative Prescription of annual Prestations is a Subject abstruse in itself, and not at all clear'd by Writers or Decisions. To avoid the Labyrinth these naturally lead us into, it will be the best Way to abstract from them for the present, and endea­vour to draw our Conclusions from well founded Principles. To begin, we ought nicely to distin­guish amongst four Things. 1 mo, The Contract, or other legal Deed which is the Cause, and where­by the Right is established. 2 do, The Writing, which is the Evidence. 3 tio, The Right it self e­stablished. 4 to, The Consequences of the Right. For Example, in a Loan of Money, the Fact of De­livery of the Sum lent to the Debitor with his Con­sent to repay is the Cause. The BOnd is the Evi­dence. There is a Right of Credit established; the Consequences are, 1 mo, A Power to oblige the De­bitor to repay the Sum quandocunque. 2 do, A Power to oblige him to pay Annualrent in the mean Time. Of these four 'tis the Right itself that is the proper Subject of Prescription. 'Tis obvious, that Consent or Evidence are not capable of Pre­scription. And as for the Consequences of the Right, if the Right itself remain firm and unsha­ken, its Consequences are a Shadow that must ever attend the Substance. If the Right itself fall, 'tis bootless to talk whether the Consequences be pre­scribed, since a Shadow cannot exist without the Substance. Having gained this Point, that the Right itself is the proper Subject of Prescription, let us now put the Case of a Sum of Money lent, repayable at two different Terms; the Creditor in­ [...]sts for Payment forty Years after the first Term's [Page 123] Payment fell due, but within forty Years of the se­cond Term. Quaeritur, Whether the remaining Half that fell due the second Term, can yet be ex­acted? The Answer is, That it cannot, because the Right itself, the jus crediti is cut off by Pre­scription; after which there can be no Pursuit upon the Bond. The Creditor has been negligent for the Space of forty Years, since the Time that Acti­on was first competent thereupon, the Law from this infers, that he has derelinquished his Right, which brings him to the same Situation as it ne­ver had been granted; the Right itself falls with all its Consequences. Upon the same Medium it is, that a Bond bearing Annualrent having lien over forty Years, not only the principal Sum, but all the intermediate Annualrents fall to the Ground, tho' none of them have been due forty Years, and pos­sibly some of them not a single Month. Thus the Matter was determined in the Roman Law, and up­on the same Principles. See L. 26. C. de Usur. The Words are, Eos, qui principali actione per exceptio­nem triginta, vel quadraginta annorum, sive perso­nali, sive hypothecaria ceciderunt [jubemus] non posse super usuris, vel fructibus praeteriti temporis ali­quam movere quaestionem, dicendo ex iisdem tempo­ribus eas velle sibi persolvi, quae non ad triginta, vel quadraginta praeteritos annos referuntur, asseren­do singulis annis earum actiones nasci: principali enim actione non subsistente, satis supervacuum est super usuris, vel fructibus adbuc judicem cognoscere. From the same Principle it flows, that if a Credi­tor take Document upon his Right, the Right it­self is safe from Prescription with all its Consequen­ces; which is insinuated in the first Act anent Pre­scription, and cleared by Practice. Thus negative [Page 124] Prescription is saved as to the whole, the Creditor doing Diligence against any one of the Principals or Cautioners. Stair, Dirleton, 18 th December 1667, Nicolson contra Laird of Philorth. Forbes 23 d Fe­bruary 1714, Earl of Marchmount contra Home. Thus in an Infeftment of Annualrent reaching two Tenements, Diligence done against the one, or Pay­ment made by the Debitor, saves Prescription as to both, which was found, though the Annualrent was constitute upon the two Tenements by two diffe­rent Sasines. Stair, Gosford, 22 d June 1671, Lord Balmerino contra Hamilton. The like in a Thir­lage of omnia grana crescentia established by Writ, where it was found, That the Defender having grind­ed a Part of his Corns at the Mill to which he was thi [...]ed, this was sufficient to support the Astriction for the whole; tho' there was a Desuetude as to some Particulars comprehended in the Writ, above the Space of forty Years. Durie, 26. June 1635, Laird of Waughton contra Home. All which tend to shew, that there is no such Thing as a distinct Prescription of the Consequences different from that of the Right itself. All tends to this Point, ‘"The Right itself falling, it falls with all its Conse­quences; the Right itself being supported, it is supported with all its Consequences."’ It follows also as a plain Consequence of the same Principle, That if a Creditor take Document upon his Bond, by receiving Payment of any Year's Annualrent, or any Part of the principal Sum, this must be a good Inter­ruption not only as to the principal Sum itself, but as to all preceeding Annualrents; because the Right is thereby supported, which supports all its Consequen­ces. And so it was determined, Stair 22. July 1671, Blair contra Blair. This Decision indeed was thereafter altered, 7 th February 1672 inter eosdem, [Page 125] and the quite contrary found. Upon this reason­ing, that though Payment either of the Principal or Annualrent, does interrupt Prescription of a Bond as to the principal Sum; yet the Annualrent be­ing annua praestatio, every Year does infer a distinct Obligation, and every distinct Year's Annualrent does prescribe by forty Years Silence: So that the Payment of the subsequent Annualrent, or a Part of the Principal, does not interrupt the Prescription of any single bygone Year's Annualrent, if there was no Pursuit upon that Year's Annualrent during the Course of Prescription. I cannot persuade myself that this is just Reasoning. The Error seems to lie here, that every Year's Annualrent is consider­ed as a distinct principal Obligation, not depending upon, or consequential to the Right whereby the principal Sum is established; whereas it is as di­rect a Consequence of the Right of Credit, as the Penalty is, or any other accessory Stipulation. To try this reasoning, let us examine where it will car­ry us. The Obligation for Annualrent is a di­stinct principal Obligation; therefore it is not in­terrupted by Document taken upon the Right for the principal Sum. Therefore, 2 do, Of necessary Consequence it prescribes not with the principal Sum, but has its own separate Prescription. And so though a Bond be cut off by a forty Years Ne­gligence, all the Annualrents within the forty Years may yet be demanded, expresly contrary to the above Text of the Civil Law, founded in the most solid Principles. To sum up this Dispute, the whole comes here, if Annualrent be a distinct principal in­dependent Obligation, it must have a separate Pre­scription from that of the principal Sum, whereby the principal Sum may be prescribed while the by­gone [Page 126] Annualrents remain due; and Prescription of the principal Sum may be interrupted without interrupt­ing the other. If Annualrent be an Accessory, a Consequence depending upon, and flowing from the jus crediti, established by the Bond and Contract in the Pursuer's Person, which it unquestionably is, both the above Positions must be wrong; Prescrip­tion of the one must cut off the other, and Inter­ruption of the one support the other, equally as in the Case of Infeftment of Annualrent established over two Tenements, or against two Debitors; and yet Payment by one Debitor, or out of one Tene­ment, is just as distinct a Prestation from the Pay­ment made by the other Debitor, or out of the other Tenement, as the Prestation of Annualrent is distinct from that of the principal Sum or Penalty.

Having premised these Principles, it is Time now to take a View of the Decisions relative to this Point. And, 1 mo, A Liferentrix having lived ma­ny Years after her Husband's Decease, without de­manding her Annuity; in an Action at her Re­presentative's Instance for the Annuities falling due within the Years of Prescription; The Lords found, That there being no Action intented for Payment of the Liferent for forty Years after the Hus­band's Decease, the RIGHT of Liferent, and the Pursuer's Claim thereupon, was prescribed. Forbes 6 th July 1711, Steuart contra the Children of Cum­ing of Pitoullie. But in a simular Case of a Bond of Pension granted to an Advocate, the Bond had lien over forty Years without any Thing done upon it, yet the bygone Pensions falling due within the Years of Prescription, were decerned to be paid to the Creditors Representative; upon this Footing, that every Year's Pension was a separate Obligati­on, [Page 127] and run a different Course of Prescription.— Ju­ly 1730, Lockhart contra Duke of Gordon. These two Decisions hang not well together. The first seems to be well founded. There is also a Text in the Roman Law, which runs counter to our Doctrine; it is L. 7. § 6. C. de Praescript. 30. vel 40. ann. In his etiam promissionibus, vel legatis, vel aliis obligationibus, quae dationem per singulos annos, vel menses, aut aliquod singulare tempus continent, tempora memoratorum praescriptionum, non ab exor­dio talis obligationis, sed ab initio cujusque anni, vel mensis, vel alterius singularis temporis computa­ri manifestum est. The Mistake, with Submission, seems still to lie here, that every Term's Prestation is considered as a distinct principal independent Right, equally as if granted by different Persons, at diffe­rent Times, in different Deeds, which is plainly a wrong Conception of the Matter. All these diffe­rent Prestations are the Effects of one CAUSE, sciz. the Right established in the Creditors Person by the Legacy, Promise, or other legal Deed. The Right here is as much unicum & individuum, as any that contains but one single Prestation. The Unity of the Right depends upon the Unity of the Contract. Where the Deed is one, which it always must be when done unico contextu, by a single Act of the binding Faculty, the Right established thereby must be simple and one, though complex in its Perfor­mance. For Example, An Obligation to pay ten Pound is one simple Obligation, though it may be implemented by distinct Performances of partial Pay­ments. 'Tis the same, though the Performance be stipulated originally, to be at different Times, such as a Stipulation for Annualrent, or other annual Prestation; which Difference of Time in the Per­formance [Page 128] does no more infer different or distinct Obligations, than the Obligation to build a House, which must necessarily take up Time in the Perfor­mance, or any Right of Servitude, such as com­mon Pasturage, all of which are performed succes­sively in Time, and yet are funditus cut off by the Disuse of bare forty Years. Let us further illustrate this Matter by the Consideration of a Tack, which though containing mutual and different Prestations, both as to Kind and Time, is yet one Contract, one Right in the Contracters. The Matter then comes here; if the Right itself be cut off by Pre­scription, sciz. the Legacy or Contract, the annual Prestations flowing therefrom, and depending upon it, must cease of Consequence.

To sift this Matter to the Bottom, being of Importance, let us examine what further may be said in Favours of this Distinction betwixt the Prescription of Annualrents, and other yearly Prestations, inferred from comparing these two Laws of the Codex together. If it be contended to ly here, that the principal Sum falling, the accessory Annualrent cannot stand; whereas, in other annual Prestations, there is no principal Obligation to which they may be referred as Accessories, but each Prestation is a separate Principal. The An­swer is, It is true, that after the principal Sum is extinguished, no Annualrents can begin to exist. But as to the Annualrents due before the Prescrip­tion run out, there is no such Connection as to infer, that they must fall, because the Principal falls. The solid Reason is, that there is a Right in the Creditor antecedent in the Order of our Ideas to the respective Claims of both Principal and Annual­rent, from which Right these Claims flow, are [Page 129] Consequences of, and depend upon. To claim is to act, and all legal Action presupposes a Right in the Actor, which makes it legal. 'Tis this Right which suffers the negative Prescription; and it being done away, there is nothing left to support a Claim either for Principal or Annualrent. The very same Way in other annual Prestations, a Bond of Pension, for Example, there is an ante­cedent Right, that supports every respective Year's Claim, which being extinguished, these Claims must all fall at once. If it be alledged, That every Year's Claim arises from a separate independent Right, which arises annually; let it be considered, that Time alone cannot make a Right to exist. If it did not exist before, it cannot begin now by the Force of Time alone. The Pension is one, arising from one Consent, one Act of the binding Faculty. Even as much as a Right to a Sum bear­ing Annualrent is one, or a Right of Pasturage, or to oblige a Person ad factum prestandum, which re­quires a Course of Time to Performance: Or even as a Right of Property, which involves many Powers and Prestations, differing in Kind as well as Time. To show that a Bond of Pension is one Right, tho' containing the Performance of many Years, Let us consider the Difference betwixt that Case, and a different Bond for every Year's Pension re­newed annually. In the last Case a Right arises and falls every Year, and all the different Bonds are quite independent and unconnected; whereas in the other Case a Right arose upon Subscription of the Bond, which subsisted equally and uniformly through all the Years it was designed to last, and fell not until running out of the last Year. 2 do, If such a Pension be not allowed to be one Right, it [Page 130] will be difficult to show that one Year's Pension is one Right, which is equally divisible as 100 Years are, into Months and Days, and so on to infi­nitum.

To fortify this, let us apply to the natural No­tions of Mankind, whether they are not apt to consider a Right obtained by one Consent in one Deed, as one? Whether of judging of one's own Ne­glect, he does not take it from forbearing to pursue upon the Deed the Contract, without dreaming to distinguish the particular Prestations therein?

Thus as to the negative Prescription of annual Prestations, these two Conclusions appear to be well founded. 1 mo, That the Right itself falling by Pre­scription, it must fall with all its Accessories and Consequences. 2 do, That any Document taken upon the Right, according to Act 1469, C. 28. as it does preserve the Right itself, so of Necessity it must preserve all the Accessories and Consequences.

Hitherto of annual Prestations, where the Right itself is prescribable. There remains still behind another Branch to be discussed, sciz. where the Right itself is not prescribable, which is the noted Case of Teind, Feu-duty, &c. In this Case, tho' the Right itself fall not by Disuse or Dereliction, yet it is our constant Practice to cut down the Bygones preceeding 40 Years. Thus, I say, stands our Law; but if one shall go accurately to inquire into the Reason, it will not be found so obvious. The Footing, I apprehend, it is generally taken upon, is, That every Year's Prestation is a different Right, which of Consequence must have a different Course of Prescription. But this, I acknowledge, I never could conceive; and that it is a wrong Conception [Page 131] of the Matter, is pretty fully explained above. 'Tis obvious in all such Cases, tho' the Prestations arise annually, yet there must be a Right antecedent in the Order of our Ideas, which supports each of these Prestations, and upon which each Year's Claim is founded; which Right is as much unicum & in­dividuum, as any Right can be that supports but one single Performance. To take a closer View of this in the Matter of Teinds, in which indeed every Year's Prestation bids as fair for being a distinct Right as any one that can be exemplified. 'Tis obvious in the first Place, That Vicarage-Teind has never been taken upon that Footing, otherwise it could never suffer a total negative Prescription, which it unquestionably does: And 'tis plain, that Parsonage-Teind is as much jus unicum & indivi­duum, as Vicarage. 2 do, Parsonage-Teind is ap­parently considered as jus unicum & individuum, without which it could never be carried by the positive Prescription. Were it otherwise, Possession of Parsonage-Teinds for 40 Years might well ex­clude a Demand for Bygones, upon the Footing, that the Fructus are bona fide percepti & consumpti; but could give no Right for Time to come, because no Right can be carried by Prescription, but that individually, upon which the Possession was founded. The Conclusion of all is, That if a Right to Par­sonage-Teinds be a jus unicum & individuum, Pre­scription must run against it totally, or not at all. If the Right fall, it must fall with its Consequences; if it stand, it must stand with its Consequences.

After the same Manner, the Right to Feu-duties is jus unicum & individuum. The Right itself can never prescribe, being inherent in the Superiority, which again being a Right to Lands, can never suf­fer [Page 132] the negative Prescription. The like of Tack-duties, which are constituted in one Contract, established by one Consent, one Bargain.

'Tis extremly true, that in these Examples there has been Neglect, Disuse and Dereliction; all that is necessary in the common Cases to found the nega­tive Prescription. But quid inde? To say that the negative Prescription in any particular Case runs not, is, in other Words, to say, That the Law restores him against his Neglect, Disuse and Dereliction; therefore the personal Objection of Prescription lies not against him; Therefore he can insist upon his Right quandocunque; And if he can insist upon his Right, he can insist upon it as it stands, and as it stood from the Beginning: For Prescription alters not the Nature of Rights, transforms them not into other Shapes; it cuts them down simply, or allows them to stand simply. Thus in the Case of Feu-duty, since the Right of Superiority pre­scribes not, neither can the Claim for the Feu-duties, whether against the Vassal, or against the Ground, which Claim is inherent in the Superiority, essential to it; and therefore not to be divided from it.

If now the Matter be put upon this Footing, ‘"That by the Law of Nature, all Sorts of Rights fall by the negative Prescription, and among the rest Right to Lands and Teinds; and that our Law, when it restores Proprietors against this Prescription, does it not totally, but only as to Bygones within 40 Years, and in Time to come."’ The Difficulty is, 1 mo, That this is but an arbitrary Scheme. For taking the Thing in this View, it appears more reasonable, that the Prescription should be allowed to run with Respect to the whole Bygones [Page 133] from the present Time. For truly the Neglect and Dereliction would infer so much equally, as in the Case of a Bond bearing Annualrent, in which the Annualrents within 40 Years fall by Prescription, as well as the Bond itself. And when we take a View of the Reason, why Right to Lands falls not by Prescription, the Objection will appear in a stronger Light. A Man by our Law is restor'd to his Property, where it is not acquir'd to another by positive Prescription, because the former Pro­prietor is in a more favourable Case than the Fisk or first Occupier: But there is no Reason he should be restor'd to Bygones, seeing Liberation is more favourable than Obligation, especially taking along that Neglect on the one Side, with­out bona fides on the other, is sufficient in the negative Prescription. If then this Scheme come out to any Thing, it must come out thus, That Property in Lands is lost by the negative Prescription, as well as other Rights, whereby all its Consequences and Accessories fall of Course. But that our Law ob favorem gives back the Property, as by a new Right, unless it has been acquir'd to another by Prescription. 2 do, There is another strong Ob­jection against the Scheme, which cuts off the By­gones only preceeding 40 Years. Which is, That as the Law is supposed to restore the Proprietor to the Bygones within 40 Years, because of his Ne­glect with Respect to these of an older Date, It must follow, that if he has purged his Neglect by uplifting any Year's Duty within the 40 Years, such a Document taken upon his Right must be an Interruption, even as to Bygones, for 40 Years pre­ceeding the Date thereof. Now this will scarce be allowed, the contrary is the received Scheme, sciz. [Page 134] That every Year's Prestation runs a distinct Course of Prescription; and therefore, that the uplifting of one Year's Duty will not save another.

Considering this Matter in all its different Lights, the most rational Footing it can be put upon, seems to be, that the refusing Action upon annual Presta­tions preceeding 40 Years, does not at all arise from Prescription, but from a quite different Founda­tion. The Law introduces a Presumption, that every Man will demand what is due to him, at least within 40 Years, and that if he delays longer, it is because Payment has already been made. I am the more satisfied with this, from what I see in Durie, 15th December 1638, Laird of Gairntully contra Commissary of St. Andrews. ‘"Where a Feu­duty being demanded after 40 Years, it was found, That this being a Debt owing by the Defender's own Cha [...]er, he could not propone Prescription against the [...]ame; But the Lords thought it ex­pedient, that the Pursuer should restrict his Libel to the Feu-duties arising within the last 40 Years."’ If this Scheme hold, it will follow, that the Pur­suer has Access in this Case to refer to the Defender's Oath, that the Duties even preceeding the 40 Years are still resting owing. Which, as above set forth, he has no Access to do in the proper Prescription. And thus Prescription, in Cases of this Kind, is precisely of the same Nature with the quinquennial Prescription of Tack-duties, &c. and triennial Pre­scription of Merchant Accompts, &c. none of which truly are of the Nature of the proper Pre­scription. They found not a personal Objection against the Pursuer upon the Medium of Neglect or Dereliction. They are nothing else but a Presump­tion introduc'd by Law, that the Debt is satisfied, [Page 135] which has this Effect to throw the onus probandi upon the Pursuer, that the Debt is still resting owing.

Thus far upon the Question with Relation to Rights that fall not by Prescription, whether at least they should not fall as to Bygones preceed­ing forty Years? We proceed now to another Question with Relation to Teinds in particular, Why they should not fall totally by the negative Prescription? It is laid down by Lord Stair in his Institutions, § 22. hujus tituli, That a Right to Teinds may be prescribed as well as other Rights by forty Years Possession; but that a Right to by­gone Teinds, being founded in publick Law pre­scribes not except as to Bygones before forty Years. Thus in our Law, Teinds are subject to the posi­tive, but not negative Prescription: Yet it must be acknowledged, that the Reason given here for the Difference, is not quite satis ying. All Rights are founded in publick Law. as well as Teinds; besides that publick Law has no more Re­lation to the negative than positive Prescription. To take this Matter from the Beginning, 'tis obvious, that before the Reformation, while Teinds were the Patrimony of the Church, and not alienable, they were in no View prescriptable, as being ex­tra commercium, just as much as the res sacrae, sanctae & religiosae among the Romans. But the Case differed after the Abolition of Popery, Teinds continuing no longer the Patrimony of the Church, they were erected into temporal Lordships, gifted away to particular Persons, and now plainly in com­mercio. 'Tis true, they continue still burdened with a competent Provision to Ministers: So far as that [Page 136] Burden goes, they are still extra commercium, and consequently not prescriptable. But as for the In­terest the Laity have in Teinds, 'tis perhaps not easy to account why that Interest should not suffer the negative as well as positive Prescription. Let us suppose the Case, that a Person who is Titular of his own Teinds, disposes upon the same by Way of Sale, the Purchaser forbears during forty Years to insist upon his Contract; it does not appear why the Contract should not fall by Prescription, and of Consequence the Right to the Teind-duties: Nor is it any Way repugnant, that the same Teinds should yet continue to be a subsisting Subject, liable to the Burden of the Ministers Stipend; because, as above laid down, Prescription gives only an exstrin­sick Exception against the Pursuer claiming, but operates not an Extinction of the Right claimed. I have formerly thought that Teind is a Land-right; and therefore suffers not the negative Prescription: But this is not just. Teinds are a Burden upon Land, just as an Infeftment of Annualrent is. And if the negative Prescription should take Place, the Consequence would be a Liberation only, not a Transference of Property. Were a Right to Teinds to be considered not as a jus unicum & indivi­duum, but a separate principal independent Right as to every distinct Years Teind-duty, the Matter would be expedite. But this is not so, as is en­deavoured to be made out above. And truly after all, since a Right to Teinds is acquirable by Pre­scription, which supposes it a jus unicum & indi­viduum, it appears a fair Consequence, that it should be lost the same Way.

As to the negative Prescription of Viccarage­teinds, there is a remarkable Decision observed by [Page 137] Fountainhall, 24. July 1678, Laird of Grant con­tra M'Intosh, where it is held, ‘"That Viccarage of Lint, Hemp, Milk, &c. does totally prescribe non utendo for forty Years; which holds true in general with Respect to all Species, except Calves, Lambs and Wool: And the Reason given for the Exception is, because these commonly pay Viccarage in all Places; and therefore as to these Cessation of Payment liberates only from all Years above forty."’ The Author adds, ‘"That the same had been found before, Earl of Panmuir and the Heritors of Inverness, as also the Parson of Pres­tonhaugh and his Parishioners. And as to Roots, it was then lately decided between Gib in Sut­ties-Myre in Aberdeen and Burnet, where Roots and Herbs were found not liable in Viccarage, unless they had been in Use of paying the Teind within these forty Years. And on the 30. June 1668, Minister of Elgin contra his Parishioners; The Lords found, That Yards in Elgin, belong­ing to the Canons of old, should not pay Vic­carige, because free forty Years back, and past all Memory, unless he would prove Payment either out of thir, or any other the Canons Por­tions within that Time to the Church."’ This Decision seems to introduce a Distinction amongst the different Species, that pay Viccarage Teind, sciz. ordinary, such as Calves, Lambs and Wool, which prescribe not; extraordinary, containing all the other Species, which do prescribe. If this hold, it must be taken in a limited Sense, what is laid down by Lord Stair, Tit. Teinds, § 7. sciz. That Viccarage-teinds are local, according to the Custom of the Benefice or Parish. And thus Subjects that ordinarily pay Viccarage are upon the same Foot­ing [Page 138] with Parsonage-teinds, neither of them subject to the negative Prescription.

Discharges and Liberations are not capable of the negative Prescription, they relate not to the Con­stitution of a Right, but to the ultimate Conclusi­on and Performance thereof; they cannot therefore be lost non utendo, because not design'd to have any further Operation: Thus Decreets of Valuation and Sale of Teinds prescribe not. Fountainhall, Forbes, 7th June 1710. Lady Cardross contra Graham, because such Decreets are not an Establishment of a Right of Teinds, but a Liberation therefrom. And in mutual Declarators of Thirlage and Immunity, the one founding on an old Charter, the other on a posterior Contract, giving Power to the Party whose Lands had been thirled by the Charter, to build a Mill on his own Ground, it was found, That tho' he had not built any for upwards of a 100 Years, yet this Liberty was not lost by Prescription. Foun­tainhall, Forbes, 14th March 1707, Laird New­mains contra Laird of Bimerside.

As to Exceptions which are reckon'd perpetual ac­cording to the Brocard, Temporaneae ad agendum sunt perpetua ad excipiendum, the following Distinction will clear the Matter. If the Exception be founded upon some Right in the Defender's Person, it can last no longer than the Right subsists, but if founded upon Discharges, Liberations or such like, it must be per­petual; thus the Exception of Payment can never prescribe, because it is a Liberation. But Com­pensation does prescribe with the Defender's Claim upon which it is founded; for there can be no Compensation after the Debt is extinguished by Payment or Prescription. In this View, I cannot [Page 139] tell if the Decision, Forbes, 24th June 1712, Sinclair contra Murray, be well founded. The Case was, in an Action of Count and Reckoning, the Defender proponed Compensation upon two Receipts, in which the Pursuer acknowledged the Receipt of Money from the Defender, and obliged himself to allow the same at Counting. Replied for the Pursuer, The Receipts are prescribed. It was answered, That Discharges or Receipts afford­ing Ground of Defence only, and which the Re­ceiver cannot found upon, till he be pursued, are perpetua ad excipiendum, and cannot prescribe, which was found relevant.

Prescription, tho' not an intrinsick or real Ex­ception, is of that Sort of personal Exceptions, which are drawn from the Circumstances of the Pursuer, denying him the jus agendi: For this Reason, it may not only be pled upon by the Debitor himself, who is liberate thereby, but by all others having Interest in the Question. And thus in a Competi­tion betwixt two Assignies to an Adjudication, the second Assigny was allowed to propone Pre­scription against the first Assigny, whereby his came to be the preferable Right. 26. November 1728. Mr. Alexander Fraser contra Hector Mackenzie.

Of the positive Prescription.

A habile Title ever presumes bona fides, without examining into the Right of the Disponer; provid­ing only there be any Room for the Supposition, that the Subject possibly might have been his. Thus forty Years Possession with a Title from a Subject was found sufficient to establish a Fair, tho' [Page 140] the King alone can constitute Fairs; it being a pos­sible Supposition, that the Right was originally derived from the King to the Disponer. Stair, 2d December 1679, Farquharson contra Earl of Aboyn. And a Bishop's Charter disposing of a Salmon-fish­ing with forty Years Possession was sustain'd as a good Right, notwithstanding that Salmon-fishing is inter regalia; because the Bishop might have got a Grant from the King. Stair, 13 th January 1680. Brown contra Town of Kirkcudbright.

By the Roman Law, the Author's Possession ac­ceded to that of the singular Successor, to compleat usucapion, providing the Author was in bona fide. See Voet. H. T. § 16. But in my Opinion, tho' to the positive Prescription, a continued bona fides is necessary, yet there ought to be an Exception in the Case of a bona fide Purchaser, who should be allowed to reckon upon his Author's Possession, tho' it be found afterward, that he has been in mala fide, and could not acquire to himself by Prescrip­tion. The Reason is, that Dereliction is sufficient to cut off the former Proprietor; and the present Possessor, who has bought bona fide, is in as favou­rable Situation as if his Author had been also a bona fide Possessor, and consequently ought reaso­nably to be prefer'd to the former Proprietor, and much more to the King or first Occupier.

As to the Title necessary in the positive Prescrip­tion, found, That Sasines upon Hasp and Staple, having no other Warrant but the Clerk of the Burgh his Assertion, are not a sufficient Title for Prescription, as not contained in the Act of Parlia­ment 1617, which mentions Sasines upon Retours, Charters and Precepts of Clare-constat, but no [Page 141] Word of Hasp and Staple; so that Acts of Parlia­ment being strictissimi juris are not to be extended, and these being omitted, it must be presumed to be casus de industria omissus, and not per incuriam. Fountainhall, 10th June 1697. Administrators of Heriot's Hospital contra Hepburn. Were this Law, there could be no such Thing as Prescription in Burgage Holdings. To be sure this could never be the Intention of the Act. 'Tis true, correctory Laws are strictissimi juris, and not to be extended. But the Subject of this Act is of another Nature. It has its Foundation in the original Laws as well as in the Laws of other Countries, and therefore reasonably may be extended to all similar Cases, upon which Considerations the contrary was found, Forbes, 28 th November, and 25 th December 1705, Ker contra Abernethy. In other Cases, a Sasine without a Warrant, not bearing to proceed upon a Retour or Precept of Clare constat, is no Title of Prescription. Stair, 21st January 1679, Fraser contra Hog. But a Procuratory of Resignation with a Sasine relative thereto was found a sufficient Title for Prescription, tho' the Precept was wanting. Fountainhall 10 th June 1697. Administrators of Heriot's Hospital contra Hepburn. In the positive Prescription founded upon the Possession of Heirs, it is sufficient to produce the naked Sasine without ei­ther the Precepts of Clare-constat or Retours upon which they are founded. Stair, Gosford, 15 th February 1671, Earl of Argyle contra Laird M'Naughton. But at the same Time it was found, That the Sasine of an Heir who did not himself pos­sess the whole Space of forty Years, never being re­newed in his Successors, who all of them continued to possess as apparent Heirs, was no sufficient Title [Page 142] for Prescription. Stair, ibid. Fountainhall 25 th June 1680. Earl of Queensberry contra Earl of Anandale: But it appears to be without Contro­versy, where the original Right itself is produced, that the bare Possession of the Heir without Sasine is sufficient, because here the Right has been possessed upon, 40 Years, which is sufficient for Prescription.

Whether Usucapion can proceed upon the Title pro haerede, is a celebrated Question in the Roman Law, which the Roman Lawiers themselves seem to have differed about, and is not at all cleared up by their Commentators. This Question, because of its very great Import in our Practice, must be considered at large. To begin, Pomponius l. 3. pro haerede, seems to lay down in general, That Usu­capion in this Case may proceed: His Words are, Plerique putaverunt si haeres sim & putem rem ali­quam ex haereditate esse, quae non sit: Posse me usu­capere. Upon his Side are ranged, l. 4. eod. And Julian. l. 33. § 1. de usurp. & usucap.

On the other Hand, the famous Papinian de­clares himself expresly, That there can be no such Thing as an Usucapion pro haerede, l. 11. divers. temporal. prescript. Cum haeres in jus omne de­functi succedit, ignoratione sua defuncti vitia non excludit: Veluti cum sciens alienum illum, illo, vel precario possedit. Quamvis enim precarium haere­dem ignorantem non teneat, nec interdicto recte con­veniatur; tamen usucapere non poterit, quod defunctus non potuit. Idem juris est cum de longa possessione quaeritur: Neque enim recte defendetur, cum ex­ordium ei bonae fidei ratio non tueatur. And there are who follow him, the Emperor Antoninus, l. 1. C. Usucap. pro haered. Cum pro haerede usucapio [Page 143] locum non habeat, intelligis, neque matrem tuam, cui haeres extitisti, neque te usu mancipia ex ea causa capere posse. Dioclesian and Maximian, l. ult. C. eod. Usucapio non precedente vero titulo, procedere non potest: Nec prodesse neque tenenti, neque haeredi ejus potest: Nec obtentu velut ex haereditate esset, quod alie­num fuit, domini intentio ullo temporis longi spatio absumitur. And Justinian, § 12. Institut. Usucap. Diutina possessio, quae prodesse coeperat defuncto, & haerede; & bonorum possessori continuatur: Licet ipse sciat praedium alienum esse. Quod si ille initium justum non habuit: Haeredi bonorum possessori licet ignoranti, possessio non prodest. Quod nostra con­stitutio similiter & in usucapionibus observari consti­tuit, ut tempora continuentur.

The Commentators, to reconcile these Texts, in Appearance so opposite, take a Method, but too frequent amongst them. They recur to Distinctions; and if they can be so happy to make these Distincti­ons square with the Words of the Text, they are very little solicitous about the Spirit and Meaning; and thus they cut the Gordian Knot, instead of loosing it. They rarely proceed to the Examination, whether their Distinctions are founded in Principles or in Reason; and yet this is the only Point worthy the canvassing. I am for from saying this is always the Case; it must be acknowledged we owe a great Deal to the Commentators, for the Lights they have afforded in clearing up the Roman Law; yet it cannot have escaped any intelligent Reader, that this Observation does not altogether want a Foundation; and the Example to be here given is a notable Instance of it.

To reconcile these Texts, the Doctors make this Distinction, sciz. Whether the Defunct's Possession [Page 144] was vitious, or bona fide by any lawful Title, such as commodatum, depositum, precario, or such like. They hold, that if the Defunct's Possession was vitious, there can be no usucapio pro haerede. But if bona fide, that is, if the Defunct possessed as Colonus, Commodotarius, &c. the Subject so possessed by the Defunct may be acquired absolutely by the Heir, upon this Title usucapio pro haerede. See Vinnius ad dict. § 12. Institut. de Usucap: Voet ad pandect. T. pro haered. § 1. That this Distinction does by no Means agree with the Spirit and Meaning of the above-cited Texts, will appear almost upon the first Reflection; And that it is not founded in Principles, we shall endeavour to show hereafter. Besides, the Misfortune is in this Case, that it does not even agree with the Words. Papinian says expresly in dict. l. 11. Tamen usucapere non poterit, quod defunctus non potuit. Compare also dict. l. ult. C. Usucap. pro Haerede.

In the midst of so much Obscurity, what Light shall we find. Among all the Authorities above­cited, Papinian is the single Writer, who gives a Reason for his Opinion. Says he, There can be no Usucapio pro Haerede, quia haeres in jus omne de­functi succedit, & ignoratione sua defuncti vitia non excludit. Which is, in other Words, That the Heir is the same Person with the Defunct; and therefore cannot be in a better Situation than him. This, I confess, I could never throughly compre­hend; An Heir indeed is thus far the same Per­son with the Defunct, that he is liable for all his Debts, and succeeds in all his Rights. But it was never imagined, that an Heir is the same Person with the Defunct, with respect to any purely per­sonal Quality or Property, good or bad. If the Defunct has committed a Crime, the Heir is not the [Page 145] same Person in any Sense to be liable as the Crimi­nal. If the Defunct was a Tutor, the Heir repre­sents him qua Debitor, not qua Tutor. The same Way, if the Defunct was in mala fide, that is a personal Property, wherein the Heir represents him not; the Heir may well be supposed in bona fide, tho' the mala fides of his Predecessor be ever so cer­tain; And this Papinian himself does allow in the Text, giving an Instance of it in the Case of Precarium.

Let us examine what Light we can have from Principles. It must be obvious from the Nature of Prescription, that the Title, real or putative, to which the Possessor ascribes his Possession, must be in its Nature absolute and exclusive. Thus the Title pro emptore is an absolute exclusive Title; for this good Reason, that the same Subject cannot totally belong to two at once. There cannot be Prescrip­tion against a Right, which is compatible and con­sistent with the Right upon which the Prescriber founds. Therefore a Right of a Wadset, or of a Feu acquired by Prescription, does no more ex­clude the Reverser or Superior, than the Purchase of them does from the true Proprietor. To apply this, let us consider if at all, or in what Cases the Title pro haerede is an absolute exclusive Title. At first View, it is plainly an absolute and exclusive Title, as to all competing Heirs. If one Person be sole Heir to the Defunct, which is always implied in a Service where but one is mentioned, no other Person can be Heir. Thus far then there may be an usu­capio pro herede. His bona fides, with the putative Title of being sole Heir, will support him in the Right, after having possessed during that Course of Time the Law requires. Let us next consider how [Page 146] this Title stands, with Respect to the Debts and Deeds of the Defunct. As to these it must be al­lowed, that it is far from being an absolute ex­clusive Title. An Heir qua such is liable to, and burdened with all the Debts and Deeds of the Per­son whom he represents: And therefore the Title pro herede is so far from being exclusive in this Case, that in Reality it implies this Burden, just as much as a Wadset implies a Reversion, or a Feu the Right of Superiority. This brings it to the same, as if the Debts and Deeds of the Predecessor were every one of them specified in the Heir's Right. In this Case therefore the Heir can have no bona fides, no Security. The Debts and Deeds of his Predecessor he must ever lay his Account to answer.

If this hold, and upon a Review, I cannot find but it is solid, the Distinction above laid down by the Commentators must fall to the Ground as with­out any Foundation. If the Defunct's Possession was as Colonus or Commoditarius, the Action loca­ti conducti, or Commodati competent against him, must be good against his Heir for ever, until they fall by the negative Prescription. 'Tis true the Heir may believe, that the Subject belonged to the Defunct in Property; but then it is not every vague Opinion any how taken up, that will found the bona fides necessary for Prescription. It must be a solid Belief founded upon good Reason. An Heir can never have a solid bona fides, as to any Subject descending to him from the Defunct. For ought he knows, it may belong to another, no Body has told him otherwise; it may be given or pro­mised away; it may be burdened with Debt. The very Title of Heir obliges him to submit to all these Chances; which, as above laid down, effectually [Page 147] excludes that Security, that bona fides, which is absolutely necessary in every Acquisition by Pre­scription. It must be obvious then, that this Di­stinction betwixt a bona fide and vitious Possession, can signify nothing at all as to the Question in Hand.

It being thus laid down, that usucapio pro hae­rede is well founded where the Competition is among Heirs, but that it cannot obtain against the Debts and Deeds of the Predecessor, let us in the next Place, examine what the Texts above-cited say as to this Distinction. The L. 11. divers. & temporal. Prescript. L. 1. & ult. C. Usucap. pro hae­red. & § 12. Institut. Usucap. relate all of them sole­ly to the second Branch of the Distinction. And the Authors have nothing in View but the Debts and Deeds of the Predecessor, in these Texts where they declare against the usucapio pro haerede. The L. 33. § 1. cited upon the other Side of the Que­stion plainly relates to the first Branch of the Di­stinction. The Words are, Hoc amplius, si justam causam habuerit existimandi, se haeredem vel bo­norum possessorem Domino extitisse fundum pro hae­rede possidebit. The L. ult. pro haered. may well be understood of the same Case: So there remains none that requires an Answer save L. 3. pro haered. Ple­rique putaverunt, si haeres sim & putem rem aliquam ex haereditate esse, quae non sit: posse me usucapere. This Text 'tis obvious can have little Weight ei­ther Way. It carries little more than an Insinu­ation, that the Lawiers differed upon this Head. But if it be Matter of Conscience with any one to have implicite Faith in every one of the Roman Lawiers, for a further Answer, let him consult Hei­neccius ad Pandectas T. pro haered. who under­stands [Page 148] this Text of Cases like the following, where, for Example, a foreign Sheep has fallen in with a Flock that is in hereditate jacente, which therefore may be acquired by the Heir possessing pro haerede bona fide. However, though it should be allowed, that in this Case Usucapio proceeds, the Explanati­on does not much satisry me. Pomponius is there speaking in general, and 'tis hard therefore to sup­pose that he meant only of a particular Case.

According to the Doctrine here laid down, there must be a great Difference with respect to the two Sorts of positive Prescription established in our Law, sciz. that of Heirs, and that of original Purchasers; the last gives Security against all Mortals; the other gives no Security against the Debts and Deeds of the Predecessor.

It remains only to be mentioned, that the Usu­capio pro haerede, so far as it relates to the Compe­tition among Heirs, is established in our Law by Act 1617, Cap 13. and a Time fixed much shor­ter than the ordinary Course of Prescription: For it statutes, That no Retour shall be reduceable af­ter twenty Years. Sir George Mackenzie in his Observations upon this Act, gives his Opinion, That this Prescription of twenty Years militates only in Cases of Competition betwixt the several Kinds of Heirs among themselves; as, Whether the Heir of Line should be preferred to the Heir of Taillie? But it does not exclude the clear Interest of Blood; for jura sanguinis nullo jure civili dirimi possunt, L. 8. de Reg. Jur. And therefore an elder Bro­thor was found to have good Interest to reduce a se­cond Brother's Retour, 11 th January 1673, Lamb contra Anderson. This Observation does not ap­pear to have any Foundation in the Act, which [Page 149] talks in general of the righteous Heir, and nearest of Kin; And thus it was found 11th July 1701, Lady Edinglassie contra Laird of Powrie, observed by Fountainhall, That ‘"this Act does relate main­ly to erroneous Services, where a remoter Heir is retoured in Prejudice of a nearer; but that it does not found Heirs served to quarrel their own Re­tours upon Minority and Lesion, or such like; seeing Minority and Lesion was a Ground of Re­duction before that Act, and needed no new Law."’ As for the Decision Lamb contra An­derson, when it is looked into, it holds forth no such Distinction. The Case there was, That a younger Brother had served Heir while the elder was out of the Country: And the Dispute turned solely up­on this, the elder Brother having returned with in the twenty Years, and dying soon after the Lapse thereof, without intenting an actual Reduc­tion of his Brother's Retour, whether the eldest Bro­ther's Creditor, who had charged him to enter Heir within the twenty Years and adjudged, could have Access to the Lands. Here it was not called in­to Controversy, but that if the Heir had died abroad, without making any Motion against his Brother's Retour, the Retour would have stood good. It was only contended, That the Heir's Return with the Charge against him to enter, was equivalent to a Reduction of the Brother's Retour; which the Lords found. Sir George has a second Observation upon this Act: His Words are, By this Act, though such Retours may be reduced in Prejudice of Persons so served; yet if the Persons so served have disponed their Right to singular Suc­cessors, having bona fide acquired Rights, as said is, they cannot be prejudged. And in our Law [Page 150] this is still introduced for the Good of Commerce in Favours of singular Successors; for how should they know, that the Retour was reducible? Were this Observation founded in the Act, it would give a Security to Purchasers, and in my Opinion a reaso­nable one, that our Law as yet is not acquainted with. It is no where held forth in general, That onerous Purchasers are safe against all latent Claims; all of these they stand exposed to, that from their Nature are good against singular Successors, and this among others. Our Legislature has indeed recti­fied this in some Measure by several salutary Laws; among these the Act of Prescription makes the great­est Figure. It has further introduced Registers, and appointed several Kinds of Rights to be registred under this Certification, that otherwise they shall not be good against singular Successors. But there are many Rights still behind, not appointed to be registred, and many more that from their Nature cannot admit of it; of which this in Hand is an Example; all of these are good against Purchasers. Let us examine what the Act says as to this. The Words are, It is always declared, That these Pre­sents shall nowise be prejudicial to whatsoever Per­sons who have acquired Rights of Lands and Heri­tages before the Date hereof bona fide, from Per­sons already retoured thereto in any Time bygone: But the said Persons who have bona fide acquired, shall bruik their Rights ACCORDING TO THE LAW THEN STANDING. The Meaning of this is extreme­ly obvious. The Law referred to is Parl. 1494. C. 57. by which it was introduced, That Retours should be unquarrellable after three Years, both with Respect to the Inquest, and the Person served. This was altered by the present Act, so far as re­lates [Page 151] to the Person served, who must now run a Course of twenty, Years Prescription. This Altera­tion being made, it remained to be considered what should become of those who had purchased bona fide after three Years, from Persons standing infeft upon Retours, enjoying the Privileges of the former Law. The Resolution upon this was obvious, that they must be secure, seeing the Persons from whom they purchased were secure by the said triennial Pre­scription. Sir George in the above Citation under­stands this Clause as a Privilege introduced in ge­neral in Favours of singular Successors, both who had acquired, and who should acquire thereafter. There needs little other Argument against this, but the Clause itself upon which he founds his Ob­servation, which in express Terms restricts this De­claration to singular Successors, who had purchased before the Date of this present Act. That Purcha­sers from the Nature of the Thing are not secure against this Reduction, will be clear, 1 mo, Because this Reduction is not personal against the Defen­der, but real in the Subject. The righteous Heir coming up, claims the Subject as his own, and the Person retoured cannot stand in his Way, ha­ving no Right established in the Subject till after the Course of the twenty Years Prescription. In short, it is not properly a Right reducible, but null, till it be established by Prescription, which is the common Nature of Rights to which the positive Prescription is necessary: And therefore a Purchaser from a Person erroneously retoured can be no more safe within the Years of Prescription, than any one who purchases a non Domino. 2 do, This is plainly the Opinion of the Legislature in the above-cited Clause, protecting the Purchasers only from those [Page 152] whose Retours become irreduceable by Prescription. 3 tio, Were Purchasers from Heirs absolutely secure a principio against this Reduction, no good Rea­son could be given why this Reduction should be limited to twenty Years, rather than the common Period of forty: Whereas upon the Supposition, that Purchasers are not secure till after the Lapse of twenty Years, there is an exceeding good Rea­son for it. One buys from an Heir, seeing a suf­ficient good Progress for forty or fifty Years by­gone. This gives him tolerable good Security, un­less with Respect to this Reduction at the Instance of a nearer Heir. It would be hard in this Case to leave him open and insecure for the Course of a second forty Years. In a Word, a shorter Prescrip­tion than twenty Years would be hard upon the righteous Heir; a longer would be hard upon Pur­chasers.

Whether the King's annexed Property be extra commercium, so as not to be carried by Prescripti­on, is a Dispute our Lawiers seem not perfectly agreed in. Sir James Steuart in Answer to Dirle­ton's Doubts, voce Prescription, thinks it cannot. Sir George Mackenzie in his Institutions is of the same Mind: Yet this Author in his Observations upon the Act anent Prescription, Observation 6. seems to be of a different Opinion: As also Dirle­ton, voce Prescription against the King, who gives this remarkable Reason for it, That the positive Prescription is introduced not so much odio & ne­gligentia non petentis, as favore possidentis, which, says he, is the same with Relation to the King as to another. Lord Stair seems also to favour this Side of the Question, holding, That this Act [Page 153] runs against the King as well as the Subject, without making any Distinction, § 25. hujus titu­li. When we consider the Act itself, there seems to be little Room for doubting, that the King's annexed Property may be carried by the positive Prescription, statuting. That whoso shall possess upon heritable Titles peaceably during the Space of forty Years, shall not be troubled pursued or in­quieted by his Majesty, or others, upon any Ground, Reason, or Argument, competent of Law, excepting Falsehood. And as a strong Fortification of this, it must be noticed that in Act 12. Parl 1633, the Prescriptability of annexed Property is directly taken for granted; yet after all, there is a Decisi­on observed by Fountainhall, 19. February 1686, King's Advocate contra Laird of Livingstoun, that looks as if our Lords were of Opinion, that the annexed Property is not prescribable: It is to this Purpose, that a Right of Servitude, even upon the King's Property, may be acquired by Prescription, it not being annexed Property. There is another Decision observed by Lord Stair that looks the same Way, 1. February 1671, Fergusson contra Pa­rishioners of Kingarth.

In our Practice, the positive Prescription is ex­tended to other Rights besides Lands, which have Charter and Sasine for their Title. And so a Tack null, as being set without Consent of the Patron, was found validated, and unquarrellable by forty Years Possession. Stair, Gosford, 7. July 1677. Parson of Prestounhaugh contra his Parishoners. The like Stair 4 February 1681. Robertson contra Arbuthnot. Stair [...]4. July 1675 College of Aber­deen contra Earl of Northesk. Fountainhal 27 June [Page 154] 1696. Earl Leven contra Parishoners of Kennoway and Markinsh. But as to this Matter, there is no small Difficulty: Every Man is presumed to know the Law; and therefore to know, that a Tack of Teinds, set without Consent of the Patron, is not good: So that here there can be no Title, no bona fides for Prescription. But possibly these Decisions may be defended upon the Footing of the negative Prescription, the Action of Reduction of the Tack being lost non utendo: If it be not said, That the Tacks were simply null, and needed no Reduction.

A Possessor cannot prescribe contrary to the Terms of his own Right. For this would not only be a Prescription without a Title or bona fides, but even directly contrary to both. Thus nothing can be acquired by Prescription, without the Limits of a bounding Charter. Hence the Decision must be wrong recorded by Hope, Tit. Fishing. 18. Decem­ber 1623. Forbes contra Lady Monimusk. Where a forty Years Possession of Salmond Fishing, upon both Sides of the Water, was sustained, tho' the Possessor was only infeft in a Salmond Fishing, upon one Side of the Water.

Where the Title is general, whereby it is dubi­ous whether the Subject be disponed or not, the for­ty Years Possession has two Effects. 1 mo. It ascer­tains the dubious Clause, and infers the Presump­tion, that the Subject in Question was intended to be disponed, and to be comprehended under the ge­neral Clause. 2 do. It bestows the Property in Conse­quence of that Title, where the Subject flowed a non Domino. Thus a Charter with a general Clause, cum piscationibus, with forty Years Possession, was [Page 155] sustained as to a Salmond Fishing. Stair 26. Ja­nuary 1665. Heritors of Don contra Town of A­berdeen. Stair 6. December 1678. Brown contra Town of Kirkcudbright. Here a general Clause, cum piscationibus, is not commonly understood to carry Salmond Fishing, as being inter regalia; and therefore, unless the Posssssion had explained the Clause, so as to comprehend Salmond Fishing, there could have been no Title for Prescription. But a Charter of a Barony cum piscationibus, needs no Possession to explain the Clause; because a Charter of a Barony is interpreted in the most extensive Sense; and therefore carries Salmond Fishing. So that, if the Disponer be Dominus, the Disponee's Right is good a principio. And in such a Case, Prescrip­tion can only be necessary, where the Right flowed a non habente. See Stair, Gosford 7. February 1672, Fullarton contra Earl of Eglingtoun. Compared with Stair 13. January 1680, Brown contra Town of Kirkcudbright. Upon the same Footing it was, that in a Reduction, at the King's Instance against the Heritors, adjacent to a Muir of his Majesty's Patrimony, the Lords found, That not only the He­ritors, whose Charters bore the said Muir expresly; but also even those, who only carried the common Clause cum communi pastura, had a Right of Ser­vitude on it, if they could prove Prescription, by forty Years Possession. Fountainhall 18. February 1686. King's Advocate contra Heritors about Drumshorling Muir.

'Tis upon this same Footing, that a forty Years Possession, upon the dubious Title of Part and Per­tinent infers Prescription. Thus a Parcel of Ground was found to be acquired by Prescription, in the Person of a singular Successor, who had no other [Page 156] Title thereto, save that of Part and Pertinent; and that tho' the Subject had formerly been a separate Tenement Stair 17. November 1671. Young contra Carmichael. 20. February 1675. Countess of Mur­ray contra Weems. And this was even found in Competition with one specially infeft in the Subject. Forbes 22. February 1711. Earl of Leven contra Finlay. And forty Years Possession of a Pasturage, upon the Title of Part and Pertinent, was found sufficient, tho' a prior Tack of the Pasturage was produced, set by the Pursuer's predecessors to the De­fender's Predecessors, in vertue of which, it was al­ledged, the Possession of the Pasturage began, which was not found sufficient to take off the positive Pre­scription. Stair 27. November 1677. Grant con­tra Grant. This Decision gives Rise to the follow­ing Considerations. If the Possession be of a Servi­tude, or such as can come under the Clause of Part and Pertinent, the Presumption is, that the Possessi­on has followed in vertue of that Title; but it must be noticed, that it goes no further, than a Presumption, there being no Proof, that the Servi­tude possessed is truly Part and Pertinent of the Lands. If there were, the Defence of Prescription would not be necessary. To overturn such a Pre­sumption then, the Pursuer must have Access to prove, that the Servitude was not possessed, as Part and Pertinent, but by Right derived from him, a Tack for Example. Of this there can be no Doubt, if the Tack was set within the forty Years. But now, let us suppose, That the Tack was set, and run out before the Beginning of the Prescription, will not the Presumption lie, that the Tacksman continued to possess per tacitam relocationem? Cer­tainly; since he began to possess the Servitude, as a [Page 157] distinct Subject, and not as Part and Pertinent. It is impossible thereafter, that by a bare Act of his Mind, he can forbear to possess as Tacksman, and resolve for the future, to possess upon the Footing of Part and Pertinent: Nothing less would be neces­sary, than a new Grant from some third Party. Be­sides it was never heard, That a Resolution did ever found a Right, in order to Prescription. Before he began to possess the Servitude, as Part and Perti­nent, it is obvious, he could not have the least Sha­dow of a Title to found him in a Prescription; and of consequence, that private Act of the Mind could not give him one. 'Tis a different Case, where the Tacksman sells his Property Lands, and also the Subject set to him in Tack, as Part and Pertinent of the Lands; for in that Case the Purchaser has a good Title to found him in a Prescription. Stair 20. February 1675. Countess of Murray contra Weems.

A Person grants a Wadset, who has no Title him­self. The Wadsetter possesses forty Years. The Wad­setter's Right is secure by Prescription. Is the Re­verser's Right also secure? I answer, No: Because tho' the Wadsetter's Possession be the Reverser's Pos­session, yet the Reverser has no bona fides, no titulus praescribendi. A habile Title may be founded on by the Receiver, in order to Prescription, never by the Granter. Otherwise setting a Tack, qua Pro­prietor, might be founded upon by the Setter, as titulus praescribendi. Yet in this Case, Prescription was found to run in Favours of the Reverser, as well as Wadsetter. Forbes 19. June 1713. Murray contra Maclellan.

[Page 158] Servitudes are acquired by Prescription, without any express Title in Writing. Some of them by presuming, from long Possession, an antecedent Title, which not being necessary to be in Writing, at least in any formal Way, the Writ, if any has been, may be readily supposed to have fallen by in that Time; and if there has been only verbal Con­sent, it is plain, that after the Distance of forty Years, the Possession must be the only Evidence thereof. Other Servitudes, such as paying dry Mul­tures, are upon a different Footing. There every Act of Exercise of the Servitude infers a present Consent, if there has not been one antecedent; for it is rational enough to suppose, that a Man will pay dry Multures, in Subserviency to another Man's Right already constituted, or in order to give a new Right: But the Supposition is quite absurd, that a Man looking to his own Interest, and having no other View, but to act in his Right of Liberty, would go about to pay dry Multure.

To compleat Prescription, it is sufficient, that the Party possess naturally himself, or civilly by those deriving Right from him. Thus the Liferenter's Possession was found to be the Fiar's Possession. Newbyth 28. November 1665. Thomson contra Young and Porteous. For the Liferenter's Possession was her Defunct Husband's Possession, from whom it was derived; and the Defunct's Possession was the Heir's Possession. The same will obtain where a Right is disponed to one in Liferent, and another in Fie; which is plain from this Consideration, that the Possession of the Author and singular Suc­cessor are conjoined to make up Prescription, when both possess upon the same Right.

[Page 159] Moveables differ from Lands, in the positive Pre­scription, in this, That forty Years Possession pre­sumes a Title: But still it must be competent to the former Proprietor, to prove there was no Title; which he does, when he proves, that the Defender, or his Predecessors, stole the Thing, or that it was lent to them. In which View, the Decision, 7. December 1633. Minister and Session of Aber­scherder contra Parishoners of Gemrie, observed by Durie, is not easie to be accounted for; where in a Pursuit for a Church Bell, lent by one Parish to ano­ther, the Defence, upon the positive Prescription, was sustained, by forty Years Possession, without al­lowing the Pursuer to prove the Loan.

The several Cases of non valens agere.

Prescription, as has been laid down, being the Result of Neglect and Desertion, it operates not where the Party can assign any just Cause of For­bearance. And therefore,

1 mo. Prescription runs only from the Term of Payment, not from the Date of the Bond: And therefore a Bond being payable to a Husband and Wife, and longest Liver, &c. Prescription was not found to run against the Wife's Liferent-right of this Sum, till after her Husband's Death; because before that Time she had no Action nor Interest. Stair, Dirleton, Gosford, 22. June 1675. Gaw con­tra Earl of Weems. The like with respect to a Bond, payable after the Granter's Decease. Stair 23. June 1675. Bruce contra Bruce. And in ge­neral Prescription runs against no Right, till Action be once competent upon it; because from that Pe­riod [Page 160] only can Neglect or Dereliction be dated. And yet by an express Clause in the Act anent the septennial Prescription of cautionry Obligements, Prescription runs from the Date, not from the Term of Payment; maxime invita jurisprudentia. Foun­tainhall 7. December 1707. Gordon contra Cum­ing.

2 do. The most proper Case of non valens agere is where the Person is barred, by an injust Forfeiture, from following out his Right. For there can be no Neglect, where there is no Liberty. Stair 25. Ja­nuary 1678. Duke of Lauderdale contra Earl of Tweedale. This was sustained to a Party, who was Abroad in his Majesty's Service, during the Usur­pation, and durst not appear under Hazard of his Life; Tho' it was pled, That in this Case there being no Forfeiture, the Party might have appeared by a Procurator. Sir Patrick Home January 1682. Whiteford contra Earl of Kilmarnock.

3 tio, In some Cases it is laudable to forbear Acti­on, as for Example, where a Woman in Decency forbears to pursue her Husband; and therefore du­ring the Time she is clad with a Husband, Prescrip­tion runs not against her, forbearing to pursue for Implement of her Contract of Marriage Stair, Gilmour, 5 th July 1665. Macky contra Stuart.

4 to, Where the Circumstances are such, that he can have no Benefit by acting. As for Example, Where a Man having in his Person two Adjudica­tions upon an Estate, continues to possess upon one of them for upwards of 40 Years, which is after­wards found redeemable. The other Adjudication in the mean Time will not suffer the negative Pre­scription; because he was not negligent in not per­suing upon it, having possessed the whole Estate by [Page 161] Vertue of the other Adjudication. And thus a Man is never put under a Necessity to act, when he can have no other View but to stop Prescription. For Prescription being a Consequence of Neglect; if he was not negligent, which he is not, when he could have no Benefit by acting, the Prescription cannot run. It was objected against a Defender pleading upon the positive Prescription, that for some time during the forty Years, there was a Liferent of the Subject in Question in the Person of one of the Defen­der's Authors, to which Liferent the Pursuer was Consenter; and therefore during that Time he was non valens agere, in Respect by no Action could he obtain Possession. And the Lords never put Par­ties to the Necessity of intenting Processes where they can serve to no Purpose but to stop Prescripti­on which was sustained, Stair. 28 th February 1666. Earl of Lauderdale contra Viscount of Oxenfoord. 25 th January 1678. Duke Lauderdale contra Earl of Tweedale. 17 th January 1672. Young contra Thomson. 5 th February 1680, Brown contra Hep­burn. An apparent Heir in Possession of an Estate by singular Titles, having thereafter purchased in an Apprising, it was found, That the apparent Heirs Possession did preserve the said Apprising from the negative Prescription. It being pled in the ge­neral, That where a Possessor has many Rights in his Person, all distinct Titles of Possession; Pre­scription cannot run against one of them so long as he keeps Possession. For what can he demand up­on any of these Titles but to have the Possession; which if he already has, there can be no Occasion for an Action. But afterwards upon a reclaiming Bill the Lords found no Necessity of determining this Point, having taken it up upon a separate Foot­ing [Page 162] 26 th November 1728, Mr. Alexander Frazer contra Hector M Kenzie. The septennial Pre­scription being alledged against a cautionry Oblige­ment, the Charger answered, That for a Part of the Time he had a Ground of Compensation, and so was non valens agere; tho' that Ground was never propounded, and now was removed. This An­swer was repelled. Fountainhall, Forbes, 16 th February 1711, Bourbon contra Montgomery.

5 to, No Man can prescrive against himself. Of this take the following Example. The Estate of Paisley, &c. stood vested in the Person of Lord Cochran, tailied to himself and Heirs Male; after his Decease his Grandfather the Earl of Dundonald; who had no Right in his own Person, granted a Difposition of the same Estate to the Lord Cochran's Son and his Heirs Male. One of whom above 40 Years thereafter altered the Destination, and con­veyed the Subject to his Daughter. The Dispositi­on granted by the Earl of Dundonald being null as a non habente potestatem, the Estate in Consequence was found to be all the while in hereditate jacente of the Lord Cochran, upon which the Heir Male, who had Access to make up his Titles to the Lord Cochran, after the Decease of him who conveyed the Subject, as said is, to his Daughter, quarrelled the Conveyance as being a gratuitous Deed by an appa­rent Heir. And the forty Years positive Prescrip­tion in Consequence of the Earl of Dundonald's Dis­position being pled in support thereof; the Prescrip­tion was not found to run, in Respect that no Man can prescrive against himself. Home, 26 th January 1726, Marquis of Clydsdale contra Earl of Dun­donald. In this Case there were no termini habiles for Prescription. Prescription necessarily implies two [Page 163] Persons, two opposite Interests; the one in a Course of acquiring either Property or Liberation; the o­ther in a Course of Neglect, forbearing to follow out his Interest. Here there was but one Person, sciz. the Heir Male: And no Man can be accused of Negligence for not following out an Action a­gainst himself. Besides, no Ground of Action arose until the Disposition was granted to the Daughter, and the Destination to Heirs Male thereby broke in upon. We have then three Foundations, each of which separately is sufficient to support this Decisi­on. 1 mo, A Man cannot prescribe against himself. 2 do, No Benefit in pursuing. 3 tio, No Action un­til the Time the Disposition was granted to the Daughter.

As to Interruption of Prescription, no Document taken upon the Debt, will be sufficient to interrupt the negative Prescription, unless it be such as is suffi­cient to interpel the Debitor. Thus, Registration of a Bond is no sufficient Interruption. But when this is examined, it will not be found to square exact­ly with the Principles laid down anent the negative Prescription. 'Tis obvious that Registration alone is sufficient to purge the Creditors Neglect: And when further Interpellation of the Debitor is found necessary, it can be with no other View, than to put an End to the bona fide Possession of his Liberty. Now this indeed is reasonable, as was hinted above, but as our Practice requires no bona fides in a Debi­tor, this Interpellation, in order to an Interruption of the negative Prescription, seems not to be well founded in Principles; possibly it may be held, that the Registration of a Bond without going on to in­terpel the Debitor for the Space of forty Years, in­fers [Page 164] a Presumption of some original Vitiosity in the Bond, which barred the Creditor from bringing it sooner to Light. And it may be said, that Inter­pellation of the Debitor within the forty Years is a necessary Step to take off this Presumption. What­ever be in this, 'tis plain it cannot be universal: For to put the Case where the Debitor acknowledges upon Oath that the Debt is just; there simple Re­gistration ought to be deemed sufficient to interrupt the negative Prescription.