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V_^^ BY 

J. H. ^ M I L L A R 










This little volume is based throughout upon the late Mr. 
Napier's copious and exhaustive Commentaries on the Law of 
Prescription, a work which must always be valuable as a 
repository of profound learning and ingenious argument, but 
which would, perhaps, have possessed greater practical utility 
had it been somewhat less difiTuse. Many cases bearing upon 
the subject of Prescription have been decided during the forty 
years that have elapsed since Mr. Napier's book was published; 
and to most of these it is hoped that reference will be found 
in the following pages. 

The accepted sources of doctrine and information have, of 
course, been freely drawn upon, and need not here be particu- 
larised. I am bound, however, to pay a special acknowledgment 
to that portion of his great work on Landownership in which 
Mr. Bankine has treated of the Positive Prescription. I have 
also to record my unfeigned gratitude to my friends Mr. Baillie 
and Mr. Blackburn for their kindness in undertaking, and their 
diligence in performing, the task of verifying the references ; 
as well as for offering many valuable suggestions. It need 
scarcely be said that for all eiTors the author alone is 
responsible. J. H. M. 

\st October 1893. 


List of Cases cited, .... 
List of Statutes quoted and referred to, . 





the statutes introducing prescription 


What Prescription is, ..... 


Act 1469, c. 28, . 


Act 1474, c. 54, . 


These not applical)le to Heritage, .... 


Act 1594, c. 218, ...... 



the acts 1617, C. 12; AND 37 AND 38 VICT. c. 94 

Act 1617, c. 12, . 

37 and 38 Vict. c. 94, § 34, . 

Positive and Negative Prescription, ..... 




of the positive prescription 

Its Functions, . . . . 

Its Conditions : Title and Possession, 
Good Faith not required. 
But the conditions must coincide, 






Alternative Titles allowed by the Act, .14 

(1) Charter and Sasine, . . i6. 

(2) Sasine proceeding on Retours, etc., . .15 
The Production must be ex facie Valid, .17 
The Sasine must be Registered, ... 18 
* Falsehood ' an Intrinsic Nullity, . %b. 
Changes in the Law, ....... 19 

Burgage Tenure abolished by 37 and 38 Vict. c. 94, § 26, . ib. 

Registration of the Deed or of Notarial Instrument equivalent to 

Infeftment by 31 and 32 Vict. c. 101, . , ib. 

Provision of 37 and 38 Vict. c. 94, § 34, . ib. 

Adjudication as a Title for Prescription, .20 

Prescription runs from Expiry of the Legal, . .21 

Not from Date of Infeftment on the Adjudication, . .22 
Adjudication not an ' ex fade Valid Irredeemable Title ' in sense 

of 37 and 38 Vict. c. 94, § 34, . 23 



Title must be clothed with Possession, 
And Possession must be referable to Title, . 
* Part and Pertinent,' .... 
Possession as determining a Bight, 
And as interpreting — 

Crown Grants, .... 

Barony Titles, and 

Base Rights to Regalia, . 
Charters to Burghs, .... 
Explained by Use, .... 
The Right claimed must be consistent with the Title 
Bounding Charters, .... 
Possession must be Full, Unequivocal, and Specific, 
Continuous, Peaceable, and Exclusive, 
Forty Years formerly necessary. 
Twenty Years now sufficient, 





Possession either Natural or Civil, . 



Wadsetter and Beverser, 


Landlord and Tenant, .... 


Superior and Vassal, .... 
Liferenter and Fiar, .... 
Conjunction of Possession, . . 
Vesting by Survivance, 




Two Titles in One Person, ..... 

Jwwes of Auchlunca/rtf ..... 

The Mackerston Case, ..... 

More modem Cases, ...... 

In all these Cases there is Adversity of Interest, 

Cases where there is no Adversity of Interest, 

Smith and Bogle, ...... 

MsieshieUs Case, . . . . 

Panmure Leases Case, as illustrating doctrine of Double Title, 
Ascription of Possession, ..... 

' Prescriptive Consolidation,' ..... 

Elibank v. Campbdl, ...... 

Earl of Glasgow v. Boyle, ..... 

Walker v. Grieve, ...... 




Leases, ..... 


Teinds, ..... 


Title and Possession in Teinds, 


Patronage, ...... 


Servitudes, ..... 


Servitudes as enjoyed by Burghs, 


Possession of a Servitude must be Unequivocal, 


Thirlage, ...... 







Immemorial Possession without Title, 

Prescription at Common Law, 

Public Right-of-Way, 

Theory of Implied Grant unnecessary, 

Conditions of Possession, 

Entry and Ish at Public Places, 

Definite Track, 

Possession the Measure of the Right, . 

Must continue for Forty Years, 

The Solum belongs to the Proprietor, 



It totally extinguishes certain Rights, 

But not Eights of Property, . 

Rights of Action distinct from Rights of Property, 

B^ Merae Facultatis, 

Servitudes not lies Merae Facultatis^ . 

Rights affected by the Statutes, 

Dtthe of Bucdeuch v. Officers of Staie, 

Application of the Negative Prescription to Teinds, 

Rights of Heritors inter se, . 


Terminus a quo. 

Warrandice, . 

Effect of Partial Eviction, 



1. Non Valens Agere, 
Not a valid reply to the Positive Prescription, 
But unquestionably so against the Negative, 
Though strictly Equitable and not Statutory, 
Non valens agere vi majore, 










2. Mental Disability, .....'. 


3. Minority, ....... 


Bargany case, ...... 


37 and 38 Vict. c. 94, § 34, 


4. Ex facie Nullity, ...... 


5. Falsehood, ....... 


6. Interruption, ...... 


Of Positive Prescription, .... 


Of Negative Prescription, .... 


Judicial : 

(1) By Citation, ..... 


(2) By Action, ...... 


(3) By Diligence, ..... 


Extra-Judicial, ...... 


Hay V. King's Advocate, . . . 


Diligence by, or Acknowledgment to. Putative Creditor, . 


Partial Interruptions, ..... 


In Annual Rents, etc., ..... 


And Adjudications, ..... 






Act 1579, c. 81, 



Act 1579, c. 82, 



Act 1579, c. 83 





Confined to Mode of Proof, . 

What is Pursuit ? 

Broad Interpretation of the Statute, 

Procedure after the Three Years, 

Ltdit y. Mollison, 

Chdlen v. SmecUy 

'Eliding' Prescription, 



I. House-maills, 
11. ' Mennis Ordinars ' 

III. Servants' Wages, 

IV. * Merchants ' Accounts, 

V. Other the Like Debts, 
Debts not affected by the Statute, 
Employment must be in Ordinary Course, 
Account to be taken as a Whole, 
The Debt must not be founded on Written Obligation, 










§ 6. THE Termimis a quo 

Prescription runs from Close of Account, 

Effect of Debtor's Death, 

Identity of Creditor, .... 


Jl arty, . • . • . 

Writ of Party, .... 

Account Books as Writ of Party, 
Date of Writ, ..... 
Oath of Party, .... 

When Documents imported into Oath, 
Interpretation of Oath, 
* Intrinsic ' and * Extrinsic ' Quality, 
Cowbrough v. Robertson 

Stipulation at time of Contract as to Extinction, 
Subsequent Agreement as to Extinction, 
Subsequent Agreement to forgive Debt, 









Compensation, ....... 147 

Qualification of Constitution, ..... i&. 

Judicial Admission in lieu of Oath, . .149 

Rule that Judicial Admission supersedes Oath may be carried too far, 150 
And the Court has thrown grave doubt on it, .152 




Act 1669, c. 9, 

1 and 2 Vict. c. 114, . 


Act 1669, c. 9, 



Reference to Oath, 







Act 1669, c. 9., 

Contracts to which it applies. 

Writ or Oath of Party, 



Act 1669, c. 9., 

Actions to which it applies, . 



None of the Prescriptions of Act 1669, c. 9. to run against Minors, 160 


37 and 38 Vict. c. 94 § 42, . 






12 Greorge iii. c. 72, . 

23 Greorge iii. c. 18, . 

Terminui a quo, ..... 

Effect of the Statute, ..... 

Bill destroyed as a Document of Debt, 

But the Debt contained in the Bill may be sued for. 

And the Bill may be produced. 

Is Prescription barred by Action raised within the Six Years 

The Decisions say. Yes, .... 

There must be Diligence or Action to exclude Prescription, 

Writ of Debtor, ..... 

After Six Years, the Bill is no longer unum quid, 

Oath of Debtor, ..... 

Judicial Admissions, .... 

Extrinsic Quality, ..... 

Intrinsic Quality, ..... 

Years of Minority of Creditor not to be Counted, 












Act 1695, c. 5, 

Obligation extinguished after Seven Years, . 

What is a Cautionary Obligation ? . 

Intimation of Bond of Belief, 

Certain Cautionary Obligations not affected by the Act, 

MoUeson v. Hvichison, .... 

Minority not deducted, .... 



Act 1669, c. 10, 



XV 11 



Act 1696, c. 9, 
ExtiDguishes Kight of Action, 



Churchman's Title presumed from Possession, 







Hume's Doctrine, 



Act 1617, c. 13, . 

Its Relation to Act 1617, c. 12, 

It only excludes one Claiming to be the True Heir, 

Years of Minority to be deducted, 

37 and 38 Vict. c. 94, § 13, . 


Act 1669, c 9, ....... 

Holograph Writings good for nothing after Twenty Years, . 

The Prescription excluded by Action or Diligence, . 

Does not run against Minors, ..... 



Prescription of Heritage, 
Prescriptions affecting the Remedy, . 
Prescriptions affecting the Claim, 
Prescriptions forming a Condition of the Contract, 

XNDEX. . . • • • 











A V. B (1589), 3. 

(1618), 2. 

Aberdeen, Magistrates of. University 

of^ v., 34. 
University of, v. Magistrates 

of, 34. 
Abemethy, Ker v., 15, 17. 
Aberscherder, Minister, etc. of, v. 

Minister, etc. of Gemrie, 2. 
Abinger, Lord, Mackintosh v., 64, 

Advocate, Lord, v. Balfour, 56, 65. 

V, Lord Blantyre, 29. 

Buchanan & Geils v., 29, 39. 

V. Cathcart, 29. 

Cheape t?., 64, 91. 

V. Lord Dundas, 9, 66. 

Farquharson v., 128. 

V. Graham, 10, 20, 67. 

V. Hall, 41. 

Hay v., 110, HI. 

17. Hebden, 29. 

V. Hunt, 25. 

V. Lord Lovat, 29, 36. 

V. M'CuUoch, 28, 38, 41. 

M^DouiiU v., 28. 

V. Earl of Mansfield, 17, 66. 

Milne's Trustees v., 25. 

V. Sinclair, 29, 38. 

Agnew V. Macrae, 176. 

V. Magistrates of Stranraer, 26. 

Aikenhead & Hunter v. Aitken, 73. 
Aikman, Auld i?., 124. 
Aikmans & Paterson v. Walker, 130. 
Ainslie, Cameron v., 69. 
Aitken v. Finlay, 149. 

Aitken, Hunter & Aikenhead v., 73. 
V, Malcolm, 109. 

Alcock V. Easson, 122, 124, 127, 

145, 152. 
Alexander v. Badenach, 180, 184, 

Allan 17. Brander, 103, 105. 

V. Ormiston, 171, 173. 

AUardyce, Taylor v., 126. 
Allison, Paul v., 174. 
Anderson, Grant v., 194. 

V. Hally, 150. 

Laing v., 127. 

M^Kercbar v., 180. 

V. Nasmyth, 22. 

V. Wood, 184. 

Andersons v. Low, 13. 
Angus, Brunton v., 129. 
Arbroath, Guildry of, Gray t?., 74. 
Arbuthnot v. Douglas, 169. 
Argyll, Duke of, v. Campbell, 126. 

Douglas v., 127. 

V. M^Naughton, 16, 45. 

Armour's Trustees, Galbreath v., 78. 
Armstrong v. Johnstone, 163. 

Nobles v., 158. 

Arnot, Earl of Leven, v., 194. 

Arrol, Gellatly v., 87. 

Arrott, Campbell v., 125. 

Athole, Duke of, Robertson v., 21, 41. 

Torrie v., 75. 

Auchincloss, Watson v., 169. 
Auchindachy, Creditors of, v. Grant, 

Auchtermuchty, Magistrates of, v. 

Officers of State, 31. 
Auld V. Aikman, 124. 



Auld V, Hay, 12. 

Ayton 1?. Monypenny, 49, 104. 

Aytoun, Bryson v., 150. 

V. Magistrates of Kirkcaldy, 

15, 24. 
V, Stoddart, 133. 


B, A V. (1589), 3. 

(1618), 2. 

Badenach, Alexander i?., 180, 184, 

Baikie, Heddle v., 157. 

Nisbet v., 156, 157. 

Bailie i?. Menzies, 103. 
Baillie v. Cochrane, 90. 
V. Doig, 169. 

M*Intosh v., 156, 157. 

v. Young, 116. 

Bain v. Officers of State, 65. 
Baird v. Magistrates of Dundee, 89. 

V. Fortune, 68, IQp, 126. 

17. Little's Trustees, 177. 

Miller v., 147. 

V. Minister of Polmont, 65. 

Baker, Gedd v., 17, 23. 

Bald V. Buchanan, 58. 

Balfour, Lord Advocate v., 56, 65. 

Blair v., 146. 

Johnston v., 21. 

Lumsdaine u, 50, 55. 

17. Simpson, 175. 

Balgony, Lord, Lindsays t?., 2. 
Ballantyne, Campbell i?., 172. 
Bal merino, Lord, v. Hamilton, 113. 
Balvaird v. Watson, 182. 

Bank of Scotland v. , 193. 

17. Tayler's Trustees, 171. 

Bankes, Mackenzie v., 77. 
Banks, Mowat v., 193. 
Banner v. Gibson, 77. 
Barclay, Buchan v., 170. 

Burt 17., 75. 

Bargany Case (FuUarton t*. Dal- 

rymple), 104, 191. 
Barker v. Kippen, 135. 

Barns i7. Bams' Trustees, 89. 

Barr i7. Edinburgh and Glasgow 

Kailway Company, 130. 
Batchelor^s Trustees i7. Honeyman, 

Bathgate Brewers, Earl of Hope- 

toun, 17. 71. 
Baxter, Carlyle v., 61. 
Bayn, 128. 

Beaumont i7. Lord Glenlyon, 73. 
Beck 17. Learmonth, 134. 
Belhaven, Lord, Johnston v., 109. 
Bell 17. Herdman, 181. 
Kinloch i7., 106. 

Berry's Keps. i7. Wight, 129, 142. 
Bertram v. Stewart's Trustees, 136, 

Bethune, Crawfurd i7., 36, 86. 

Fergusson i7., 163. 

Horsburgh i7., 171. 

Birtwhistle, Sloan i7., 120. 
Black 17. Black, 173. 

17. Mason, 104. 

17. Shand's Creditors, 172. 

Blackadder i7. Milne, 127, 130, 132. 
Blair-. Balfour, 146. 
— Dundas v., 67. 

17. Horn, 169. 

McNeil 17., 164, 172, 177. 

17. Sutherland, 112. 

Blake i7. Turner, 171. 

Bland 17. Short, 129. 

Blantyre, Lord, Lord Advocate v., 

Blasquez, Bracken 17., 127. 
Bogle, Buchanan i;., 104. 

Cochrane i7., 21. 

Gordon v., 168. 

& Smith, Gray i7., 52, 56. 

Bontine i7. Graham, 58. 

Duke of Montrose 17., 28. 

Borthwick i7. Crawford, 182. 

17. Scott, 116. 

Turn bull i7., 144. 

Boyd, Duke of Buccleuch i7., 11. 

17. Eraser, 173. 

Boyes v, Henderson, 156. 



Boyes' Trustees v. Hamilton, 131. 

Boyle, Earl of Glasgow v., 56, 58. 

Bracken v. Blasquez, 127. 

Bradly, McLaren i?., 129. 

Braid v. Douglas, 28. 

Brand v, Charteris, 69. 

Brander, Allan (;., 103, 105. 

M*Innes v. 89. 

Breadalbane, Marquis of, v. Camp- 
bell, 67, 112. 

v. M'Gregor, 69, 76. 

V. Sinclair, 98. 

Breadalbane's Trs., Home v., 98. 

V. Sinclair, 98. 

Brechin, Magistrates of, Leslie r., 

Bremner v. Campbell, 184. 

Briggs v. Swan's Executors, 89, 

British Linen Company v, Drum- 
mond, 197. 

Broddelius v. Grischotti, 162. 

Brodie, Brown v., 126. 

V, Mann, 74, 97. 

V. Shedden, 170. 

Broughton v. Weston, 135, 150. 

Lord, 70. 

Brown v, Brodie, 126. 

v. Brown, 127. 

V, Crawford, 194. 

Ligertwood t?., 126. 

V. Macfarlane, 158. 

V, M*Intyre, 175. 

V. Mitchell, 77. 

17. Paterson, 122. 

Scott i7., 163, 169. 

Simpson v., 194. 

Brown Brothers, Stewart v., 73. 

Bruce v, Bruce-Carstairs, 59. 

of Kennet, 69. 

Spence v., 21. 

Bruce v. Stein (1769), 71. 

v. (1793), 184. 

Bruce Stewart, Scott v., 12, 18, 96. 

Brunton i?. Angus, 129. 
Bryson v. Aytoun, 150. 
Torrance r., 133. 

Buccleuch, Duke of, v, Boyd, 11. 

v. Cunynghame, 10, 12, 18^ 



V. Magistrates of Edinburgh, 


17. Erskine, 34, 80. 

17. Officers of State, 86, 90. 

Buchan v. Barclay, 170. 

Earl of, Lindsay v., 168. 

Buchanan, Bald v.,* 58. 

17. Bogle, 104. 

17. Magistrates of Dunfermline, 



— & Geils i7. Lord Advocate, 29, 

M*Culloch 17., 81. 

17. Macdonald, 170. 

Smith 17., 198. 

Snodgrass i7., 53. 
Budge, Solicitor of Teinds i;., 63. 
Buik, McLaren v., 118. 
Burdekin, Robertson i?., 197. 
Burden, Macdanald i7., 141. 
Burgy 17. Strachan, 40. 
Burnet, Irvine i7., 63. 
Burntisland Case, 31. 
Burt 17. Barclay, 75. 

17. Burt, 92. 

Butchart v, Mudie, 129. 
Butter 17. Gray, 97. 


Cairns, Denovan i7., 162, 167. 
Caitcheon i7. Ramsay, 21, 45. 
Caledonian Railway Company v. 
Chisholm, 121. 

White 17., 128. 

Cameron v. Ainslie, 69. 

Chisholm Batten i7., 87. 

17. M'Ewen, 154. 

Camerons i7. Macdonald, 184. 
Campbell, 42. 

17. Arrott, 125. 

Campbell, Duke of Argyll i7., 126. 
r. Ballantyne, 172. 



Oampbell v, Breadalbane, Marquis of, 
67, 112. 

Bremner v., 184. 

V. Campbell (1793), 164. 

17. (1848), 190, 192. 

Crichton i?., 143. 

V. Douglas, 149. 

Elibank v., 58. 

V. Grant, 132, 139. 

V, Grierson, 117, 159. 

u Halket, 79, 93. 

V. Jolly, 133, 142. 

V. Lang, 76. 

M*Dougall v., 128. 

M'Mathv., 124. 

V. Macneill, 121. 

Napier v., 79. 

Neill & Co. v., 137. 

Roy v., 167. 

V. Scotland, 20. 

V, Stein, 121. 

Stewart v., 184. 

- V. Wilson, 43, 100, 102, 106. 
Wilson t7., 126. 

Campbell's Trustees, Sinclair v., 95. 
Campbeltown, Magistrates of, v. 

Galbreath, 30. 
Cardross, Lady, v. Graham, 93. 
€arfrae, Fyfe u, 143, 173. 
Carlyle v. Baxter, 61. 
CJarmichael v. Carmichael, 93. 

Mackay u, 128, 133. 

damegie v. MacTier, 27. 

u Magistrates of Montrose, 34. 

Oarrick v. Carse, 179. 
-Carse, Carrick v., 179. 
-Cathcart, Lord Advocate v., 29. 

Lord, V. Laird of Gadzat, 3. 

Oatto's Trustees, Rocca v., 192. 
Oauvin's Hospital, Governors of, v. 

Falconer, 86. 
Caves V. Spence, 184. 
Chalmers, Leek v., 12, 70. 

V, Walker, 132. 

Chambers v. Law, 12. 
dharteris, Brand v., 69. 
Chatto V. Lockhart, 67. 

Chatto V. Moir, 63. 
Cheape v. Lord Advocate, 64, 91. 
Cheyne v. Smith, 87. 
Chisholm, Caledonian Railway Com- 
pany r., 121. 

V, Chisholm Batten, 82, 85. 

V. Robertson, 132. 

Chisholm Batten, v. Cameron, 87. 

Chisholm t?., 82, 85. 

Christie v. Henderson, 164. 
Clark, Jamieson t?., 89. 

V. Stuart, 180. 

Trotter v., 149. 

Clarkson, Robertson u, 175. 
Clarkson's Trustees v. Gibson, 164. 
Cleghorn v. Dempster, 70. 
Clerk V. Earl of Home, 40. 
Clydesdale, Marquis of, v. Earl of 

Dundonald, 44, 60. 
Clyne v. Snody, 151. 
Cochran v. Prentice, 118, 120. 
Cochrane, Baillie v., 90. 

V, Bogle, 21. 

v. Ferguson, 157. 

Jackson v., 142. 

Smellie t?., 127. 

V, Smith, 186. 

Cochrane's Representatives, Neilson 
v., 190. 

Colmslie, Lauder v., 2. 

Colquhoun v, Fogo, 65, 94. 

Cooke V. Falconer's Representatives, 

Cooper V. Hamilton, 142. 

V. Marshall, 141. 

Cormack, Governors of George Wat- 
son's College 17., 30. 

Cowan, Paterson i?., 154. 

Cowbrough v. Robertson, 145. 

Cowie's Executrix, Ross v., 133. 

CraigiehaU, Hope Vere v., 49. 

Crawford, Brown v., 194. 

V. Durham, 45. 

Macdonald v., 171, 175. 

17. M*Michen, 18. 

V. Menzies, 106. 

V. Simpson, 154. 



Crawford's Trustees v. Haig, 168. 

Crawfard v. Bethune, 36, 86. 

Borthwick v., 182. 

Crichton V. Campbell, 143. 

Drummond r., 177. 

Crighton, Gay lor i?., 148. 

Cubbison v, Hyslop, 83, 107. 

CuUen r. Smeal, 123, 125, 153, 167. 

CumiDe, Ewing v., 169. 

Cuming, Earl of Fife's Trustees t;., 

Stewart v., 96. 

v. York Buildings Company, 


Cumming v. Irving, 15. 

Cumming's Trustees v, Simpson, 126. 

Cuninghame, Cuninghame's Trustees 
v., 50, 51. 

Cuninghame's Trustees v, Cuning- 
hame, 50, 51. 

Cunningham v. Curators, 185. 

Muir v., 194. 

Strahorn v.^ 156. 

Cunynghame, Duke of Buccleuch t;., 
10, 12, 18, 106. 

Currie, Whyte v., 133. 

Cuthbertson v. Lyon, 184. 

v. Young, 75. 

Cutler V, M'Lellan, 22. 


Daes V, Scougal, 156. 

Dalhousie, Earl of, v. M*Inroy, 36. 

DaJrymple v. Earl of Stair, 56. 

Fullarton v., 104, 191. 

Dalyell v. Dalyell, 51. 

Mette v., 143. 

D.ilziel V. Lord Lindores, 195. 
Dangerfield, Traill v., 72, 187. 
Darnley v, Kirkwood, 123, 152, 162, 

Davidson v. Earl of Fife, 72, 74. 

u Hay, 140. 

V. Watson, 126. 

Deans v. Steele, 130. 

Deans of Chapel Royal r. John- 
stone, 79. 

Dempster, Cleghorn t?., 70. 

DenoTan v. Cairns, 162, 167. 

Dickson, Millers v., 9, 46, 100. 

Dobie & Dow, Shaw r., 117. 

Dobson, Young i'., 31. 

Doig, Baillie v., 169. 

Don v. Lippman, 196, 198. 

Donaldson v. Ewing, 128. 

Home t7., 194. 

V, Murray, 137. 

Donaldson's Trustees v, Forbes, 68. 

Dougall, Dundee Harbour Trustees 
v., 88. 

Douglas, Arbuthnot v., 169. 

V, Duke of Argyll, 127. 

. Braid r., 28. 

Campbell v,^ 149. 

V, Douglas, 49. 

Graham v., 87. 

Heron & Co. v. Grant's Trus- 

tees, 162. 

— v. Richardson, 168, 169. 

— V, Riddick, 180. 
Stewart v., 184. 

Douglas, Stuart v., 121. 
Dow & Dobie, Shaw v., 117. 
Drummond, British Linen Company 
V,, 197. 

tj. Crichton, 177. 

Kinuaird v, 70. 

r. Lees, 163, 171. 

V. Stewart, 129. 

Drymen, Heritors of, v. Officers of 

State, 93. 
Drysdale v. Johnstone, 181. 

Paton tJ., 80. 

Duff, Earl of Fife v., 94, 102, 121. 
Hunter v., 170. 

Dufft?. Innes, 156. 

Dumfries, Provost of. Maxwell v.^ 

Dunbar, Forbes v., 184. 
Dunblane, Bishop of, 186. 
Duncan v. Forbes, 136, 137. 
V. Lees, 76. 



DuncaD, Thomson i;., 145. 

Lord, Thomson v., 126. 

Dundas, Lord Advocate v., 9, 66. 

1;. Blair, 67. 

Dundee, Constable of, v. Laird of 
Strathmartin, 116. 

Harbour Trustees v. Dougall,88. 

Harris v., 70. 

Magistrates of, Baird v., 89. 

Police Commissioners of, Jamie- 
son 1?., 27. 

Presbytery of, v. Magistrates 

of, 34 

Dundonald, Earl of. Marquis of 
Clydesdale t?., 44, 60. 

V. Dykes, 81, 83. 

Dunfermline, Magistrates of, Buch- 
anan t;., 139. 

Palace Case (Lord Advocate 

V, Hunt), 25. 

Dunlop, Heritors of, Mure v., 61. 

Dunmore, Earl of, Middleton v., 45, 

Dunn V, Lamb, 119, 121. 

Dunse u Hay, 68. 

Durham, Crawford v., 45. 

v. Durham, 52. 

Moncreiff v., 130. 

Dyce V. Hay, 70. 

Dykes, Earl of Dundonald ^?., 81, 83. 

Dysart, Magistrates of, Sinclair v., 68. 


Earlsferry, Magistrates of, v. Mal- 
colm, 70. 

Earlshall, Earl of Southesk v., 28. 

Easson, Alcock v., 122, 124, 127, 145, 

Easton r. Hinshaw, 169. 

Eddie v. Monklaud Railways Com- 
pany, 118. 

Edgar v. Maxwell, 52, 101. 

Edinburgh, City of, Learmonth v., 64. 

Magistrates of, Duke of Buc- 

leuch u, 25. 

Edinburgh, Magistrates of, Hill t?., 30^ 

Officers of Ordnance v., 82. 

V. Scott, 88. 

Edinburgh and Glasgow Railway 

Company, Barr v., 130. 
Edmonstone v. Jeffray, etc., 25. 
Eglinton, Earl of, v. Eglinton, 44, 90. 

Fullerton v., 28. 

Wallace v., 107, 190. 

Elder r. Hamilton, 123, 134. 

Elgin, Magistrates of, v, Robertson,. 

87, 108. 
Elibank, Lord, v. Campbell, 58. 
Elliot 17. Maxwell, 96. 
Ellis V. White, 139. 
Elsieshiells Case (Edgar v. Maxwell)^ 

Errol, Earl of, Ferrier v., 117, 121. 
Erskine, Duke of Buccleuch u, 34, 


Nielson v., 43, 46. 

Ettles V. Robertson, 168. 
Ewart V. Murray, 158. t 
Ewing -y. Cumine, 169. 
Donaldson u, 128. 
M^Kinlay v., 184. 

Eyemouth Case (Home %\ Young), 

Fairie, Russell r., 170. 
Fairholm v, Livingstone, 156. 
Falconer, Governors of Cauvin's Hos- 
pital 17., 86. 

Smith v., 125, 136, 138, 140. 

Falconer's Representatives, Cooke v.^ 

Falkland Case, 68. 
Farquhar, Kincaid's Crs. v., 184. 
Farquharson r. Lord Advocate, 128. 
Farrar v. Leith Banking Company,, 

Ferguson, Cochrane v., 157. 
Fergusson v, Bethune, 163. 

V. Gracie, 24. 

Ferrier v. Earl of Errol, 117, 121. 




Ferrier, Mitchell v., 147, 160. 

Galbreath to. Armour's Trustees, 78. 

Fife V, Innes, 144. 

Magistrates of Campbeltown v., 

Earl of, Davidson r., 72, 74. 


Fife, Karl of. v. Duff, 94, 102, 121. 

Gallic 10, Ross, 184. 

17. Earl of Seafield, 63. 

Galloway, Listen t;., 73. 

Fife's, Earl of, Trustees, v. Cuming, 

V, Moffat, 176. 


Sheriff of, Neilson r., 72. 

r. Sinclair, 36. 

Garden t7. Rigg, 109, 169. 

Finlay, Aitken i?., 149. 

Gaylor v. Crighton, 148. 

Fisher v. Ure, 134. 

Gedd 17. Baker, 17, 23. 

Fiske V, Walpole, 138. 

Geddes, Hunter t;., 142. 

Fleming, Grant r., 129. 

V, Miller, 96. 

V. Howden, 33. 

Geils & Buchanan v. Lord Advocate, 

Ross v., 126. 


Fogo, Colquhoun v., 66, 94. 

Gellatly v. Arrol, 87. 

Forbes, Donaldson's Trustees v., 68. 

Gemrie, Minister, etc. of, Minister, 

v. Dunbar, 184. 

etc. of Aberscherder v,^ 2. 

Duncan v., 136, 137. 

Gibson, Clarkson's Tmstees v., 164. 

V, Forbes, 78. 

Gilmour v, Stuart's Representatives, 

V. Livingstone, 9, 36, 86. 


v. Wilson, 70. 

Glasgow, Earl of, v. Boyle, 66, 68. 

Forster, Paxton t?., 167. 

University of. Maxwell v., 93. 

Fortune, Baird v., 68, 106, 126. 

Glassford v. Mackenzie, 16. 

Fortune's Executors v. Smith, 128. 

Glen tJ. Scales' Trustees, 10, 16. 

Fothnngham, Gray v., 190, 192. 

Glenlyon, Lord, Beaumont t?., 73. 

Fowles, Montgomery v., 109. 

Gloug V, Mcintosh, 165. 

Frame, M*Indoe v., 163. 

Gobbi V. Tiazzaroni, 121, 129, 168. 

Eraser, Boyd v., 173. 

Goodall V. Hay Newton, 143. 

v. Eraser, 176. 

Goodlet, Livingstone v., 20. 

t'. Grant, 28, 38. 

Gordon v. Bogle, 168. 

V. Hogg, 16. 

V. Gordon, 104. 

tj. Urquhart, 169. 

V. Grant, 36. 

Frazer v, M*Keich, 126. 

17. Innes, 150. 

Freer v. Paterson, 129. 

V. Kennedy, 63. 

French v. Pinkstan, 43, 66. 

Lockhart v., 92. 

French's Trustees, M*Arly v., 30. 

V, Pratt, 143, 176. 

Fullarton v. Dalrymple, 104, 191. 

Gordon, Duke of, Mucdonnell v., 37, 

FuUarton v. Earl of Eglinton, 28. 

67, 81, 82. 

V. Hamilton, 191. 

Go van, Paden v., 148. 

Fyfe v. Carfrae, 143, 173. 

Governors of Cauvin's Hospital v. 

. V. Miller, 142. 

Falconer, 86. 

of George Watson's College v. 


Cormack, 30. 


Gow's Executors V. Sim, 146, 147, 150. 

Gadzat, Laird of. Lord Oathcart u, 

Trustees v. Mealls, 68. 


Gowans v. Oswald, 185. 

-Gairlton, 69. 

Gracie, Fergusson i?., 24. 



Oraham, Lord Advocate v., 10, 20, 67. 

Bontine v., 58. 

Lady Cardross t?., 93. 

17. Douglas, 87. 

17. Kennedy, 176. 

V. Earl of Leven, 129. 

Little 17., 137. 

— — r. M^Farlane, 154, 160. 
Munro t?., 129. 

V, Pate, 155. 

17. Stanebyres, 135. 

V. Watt, 102. 

<^rahaine v. Magistrates of Kirkcaldy, 

•Grant v. Anderson, 194. 

Creditors of Anchindachy r., 


Campbell v,, 132, 139. 

V. Fleming, 129. 

Fraser v., 28, 38. 

Gordon t\, 35. 

17. Grant, 26, 41. 

Shepherd i7., 106. 

17. Wishart, 147. 

<3rrant's Trs., Douglas, Heron & Co. 

17., 162. 

Shepherd v., 106. 

■Gray, Butter u, 97. 

Duke of Portland i7., 37. 

17. Fothringham, 190, 192. 

17. Guildry of Arbroath, 74. 

Smith & Bogle i7., 52, 56. 

<Jrregory's Trustees, Scott i7., 131. 
Greig i7. Magistrates of Kirkcaldy, 30. 

17. Duke of Queensberry, 186. 

<Treenock Harbour Trustees, Stewart 

17., 34. 
Grierson, Campbell i7., 117, 159. 
Grieve, Walker i7., 58. 
<Jrischotti, Broddelius i7., 162. 
Grubb 17. Porteous, 128. 
Guthrie, Ross i7., 123. 
-Guy, Shelby i7., 198. 


Haddington, Countess of, Richardson 
17., 198. 

Haddington, Earl of, Officers of State 

17., 25, 33. 
Haig, Crawford's Trustees i7., 168. 
Halket, Campbell i7., 79, 93. 
Halkett, Lord Panmure u, 66. 
Hall, Lord Advocate i7., 61. 
Hally, Anderson v., 150. 
Hamilton, Lord Balmerino i7., 113. 

Boyes' Trustees i7., 131. 

Cooper 17., 142. 

Elder 17., 123, 134. 

FuUarton i7., 191. 

Harvey i7., 58. 

Laidlaw i7., 163, 173. 

Lennox i7., 98. 

r. Martin, 127. 

Smith f., 128. 

r. Lady Ormiston, 126. 

Lady Ormiston v., 135. 

V. Scotland, 42. 

17. Lord Sinclair, 2. 

Hamilton, Duke of, i7. Magistrates of 

Hamilton (1726), 88. 

17. (1846), 73. 

Learmonth v., 63. 

17. Westenra, 49. 

Magistrates of, Duke of Hamil- 

ton (1726) 17., 88. 

17. (1846), 73. 

Harris i7. Magistrates of Dundee, 70. 
Harvey i7. Hamilton, 58. 

Sharp 17., 184. 

Harvie i7. Rodgers, 78, 108. 
Hawthorne, Hozier i7., 77. 
Hay i7.iKing's Advocate, 110. 

Auld 17., 12. 

Davidson i7., 140. 

Dunse i7., 68. 

Dyce 17., 70. 

Hay Newton, Goodall i7., 143. 
Hebden, Lord Advocate r., 29. 
Heddle i7. Baikie, 157. 
Heggie i7. Nairn, 73. 
Henderson, Boyes i7., 156. 

Christie i7., 164. 

M^Lachlan i7., 167. 

17. Earl of Minto, 69. 



Henderson, Stirling v., 123, 174. 

V. Wemyss, 72. 

Henderson's Trustees, Wotherspoon 

v., 134, 135. 
Hepburn v. Hepburn, 147. 

Heriot's Hospital v., 14, 15, 103. 

Herdman, Bell r., 181. 

Heriot's Hospital r. Hepburn, 14, 

15, 103. 
Hill V. Magistrates of Edinburgh, 30. 

Ormiston u, 21. 

Stuart v., 180. 

Hinshaw, Easton v/, 169. 

Hinton v. Hobbs, 23, 39. 

Hobbs, Hinton v., 23, 39. 

Hoby, Magistrates of Renfrew v., 88. 

Hogg, Eraser r., 15. 

r. Low, 156. 

Home V. Donaldson, 194. 

V. Young, 31. 

Home, Earl of. Clerk v., 40. 

Earl of Marchniont u, 45, 113. 

Honey man, Batchelor's Trustees \\^ 

Hope, National Bank v., 168, 169. 
Hopetoun, Earl of, v, Bathgate 

Brewers, 71. 

17. York Buildings Company, 109. 

Hope Vere v, Craigiehall, 49. 
Hopkirk, Neill & Company v., 128, 

Horn, Blair t., 169. 
Home V. Marquis of Breadalbane's 

Trustees, 98. 
Horsburgh v. Beihune, 171. 
Hotson V, Thresh ie, 131. 
Houston, Stewart v., 81. 

V, Yuill, 173. 

Howden, Fleming v.^ 33. 

Wood v., 162, 171, 172. 

Howison V. Howison, 184. 
Hozier v, Hawthorne, 77. 
Huber v, Steiner, 198. 
Hunt, Lord Advocate r., 25. 
Hunter & Aikenhead v. Aitken, 73. 

1-. Duff, 170. 

V. Geddes, 142. 

Hunter v. Lord Kinnaird's Trustees,. 


Macandrew r., 138, 140, 141. 

Saunders r., 73. 

v. Smith, 56. 

V. Thomson, 158, 165. 

Hutchieson, Incorporation of Wrights 

u, 190. 
Hutchison, MoUeson v., 182. 
Hyslop, Cubbison v., 83, 107. 

Innes of Auchluncart, 8, 47. 

Duff v., 156. 

Fife V,, 144. 

Gordon t?., 150. 

Wilson u, 108. 

Irvine v. Burnet, 63. 

Mercer v., 185. 

Irving, Camming r., 15. 
Ivory, Smith v., 144. 

Jackson v. Cochrane, 142. 

Macdonald t'., 157. 

Jaffray v. Duke of Roxburghe, 68. 
Jameson v. Sharp, 155. 
Jamieson v. Clark, 89. 

V, Police Commissioners of 

Dundee, 27. 
Jeffray, etc., Eduionstone u, 25. 
Jenkins v. Murray, 74, 75, 76. 

V. Robertson, 75. 

Johnston t?. Balfour, 21. 

V, Lord Belhaven, 109. 

Law u, 146. 

V, Scott, 128. 

Johnstone, Armstrong r., 163. 

Deans of Chapel Royal v., 79. 

Drysdale v., 181. 

Younger ^•., 43. 

Jolly, Campbell v., 133, 142. , 

v. Macneill, 166. 

Jones, Williams v., 197. 




Keith, Nicolson v., 96. 

Lord, M*Kerrel v., 42. 

Kelso V. Duke of Roxburghe, 88. 

Kennard v. Wright, 159. 

Kennedy, Gordon v., 63. 

Graham v., 176. 

V. M*Dougal, 135. 

Ker V, Abernethy, 15, 17. 

Kerr's Trustees v., 162, 163. 

V, Magistrates of Kirkwall, 129. 

Kermack v. Kermack, 79, 109. 

Kerr's Trustees v. Ker, 162, 163. 

Kibbles v. Stevenson, 18. 

Kilbucho, Minister of, 126. 

Kilmarnock, Magistrates of, v. In- 
habitants of, 31. 

Lord, Whitefoord. i?., 102. 

Kincaid's Crs. v. Farquhar, 184. 

Kinghorn, Magistrates of, Earl of 
Moray v., 34. 

King's Advocate. /See Advocate, 

Kinloch v. Bell, 106. 

Bocheid v., 81. 

Kinnaird v. Drummond, 70. 

Kinnaird's Trustees, Lord, Hunter v., 

Kippen, Barker v., 135. 

Kirkcaldy, Magistrates of, Aytoun 
u, 15, 24. 

Greig v., 30. 

Grahauie v., 31. 

Kirkwall, Magistrates of, Ker v., 129. 

Kirkwood, Darnley i;., 123, 152, 162, 

Knapperny, Walkingshaw v., 194. 

Knockdolian v. Tenants of Partick,72. 

Knox V. M^Caul, 148. 

Kyle, Stevenson v., 128, 138, 140. 

Laidlaw v. Hamilton, 163, 173. 
Laing v, Anderson, 127. 

Lamb, Dunn u, 119, 121. 
Lamond, Ralstou u, 166. 
Lang, Campbell v., 76. 

Stirling v., 163, 164. 

Lauder v. Colmslie, 2. 

V, M'Gibbon, 149. 

Lauderdale, Duke of, v, Tweeddale, 

Marquis of, 102. 
Laurie's Trustees, Murray v., 173. 
Law, Chambers v., 12. 

V, Johnston, 146. 

Lazzaroni, Gobbi t;., 121, 129, 158. 
Learmonth, Beck v., 134. 

V. City of Edinburgh, 64. 

V, Duke of Hamilton, 63. 

Mackenzie v., 69. 

Leek V. Chalmers, 12, 70. 
Lees, Drummond v., 163, 171. 

Duncan v., 76. 

Sanderson v., 31, 70. 

Leith Banking Company, Farrar v.j 

Lennard v. Meyer & Mortimer, 148. 
Lennox v. Hamilton, 98. 
Leslie v. Magistrates of Brechin, 139, 
V. Mollison, 122, 123, 124, 128, 


V. Earl of Moray, 92. 

Leven, Earl of, v. Arnot, 194. 
Graham v., 129. 

Ligertwood v. Brown, 126. 
Lindores, Lord, Dalziel v., 195. 
Lindsay t?. Earl of Buchan, 168. 
Lindsay v. Moffat, 170. 

V. Robertson, 37. 

Stewart v., 21. 

Lindsays v. Lord Balgony, 2. 
Linlithgow, Magistrates of, v. Mit- 
chell, 88. 
Lippmann, Don v., 196, 198. 
Liston V. Galloway, 73. 
Little V. Graham, 137. 

Ritchie v.^ 149. 

Little's Trustees, Baird v., 177. 
Livingstone, Fairholm v., 156. 

Forbes v., 9, 36, 86. 

V. Goodlet, 20. 



Lockhart, Chatto t'., 67. 

V. Gordon, 92. 

Macdonald, v., 11, 4^, 49. 

T. Mitchell, 163. 

Longmuir v. Longmuir, 126. 

Lord Advocate. Bm Advocate, Lord. 

Loudon, M*Dowall v., 128. 

Lovat, Lord, Lord Advocate v., 29, 36. 

Low, Andersons v., 12. 

Hogg v., 156. 

Lowden, Sandys v., 127. 
Lumsdaine v. Balfour, 50, 55. 
Lutefoot V. Prestoun, 97. 
Lyon, Cuthbertson u, 184. 
17. Mitchell, 135. 


M*Alister, Nicolson v., 157. 
Macandrew r. Hunter, 138, 140, 141. 
M*Arly v. French's Trustees, 30. 
Macartney, Mackenzie v., 184. 
M'Barnet, Stuart v., 28, 36. 
M*Caul, Knox u, 148. 
M*Coll, Reid v., 34. 
M*Culloch, Lord Advocate \\, 28, 38, 


v. Buchanan, 81. 

Macdonald, Buchanan v., 170. 

Camerons u, 184. 

V. Burden, 141. 

V. Crawford, 171, 175. 

V. Jackson, 157. 

V. Lockhart, 11, 42, 49. 

Mackinnon v.^ 191. 

Macdonnell v. Duke of Gordon. 37, 

67, 81, 82. 
MacDouall v. Lord Advocate, 28. 
M*Dougal, Kennedy v., 135. 

V. Macdougal, 48, 54, 104. 

Macdougall v, Campbell, 128. 
Macdowall v, Loudon, 128. 
M*Ewen, Cameron v., 154. 
MTarlane v. Brown, 158. 

Graham v., 154, 160. 

V, Morrison, 77, 87. 

M*Ghie v. Tinkler, 126. 
M*Gibbon, Lauder i;., 149. 
McGregor, Marquis of Breadalbane v., 

69, 75. 
MacGregor v. MacGregor, 171, 172. 

17. Stewart, 128. 

M*Indoe v. Frame, 163. 
M*Innes v. Brander, 89. 
M*Inroy, Earl of Dalhousie v., 36. 
M*Intosh, Baillie v., 156, 157. 
Gloug v., 155. 

M*Intyre, Brown v., 175. 

Duke of Montrose v., 29. 

Mackay v, Carmichael, 128, 133. 

Lord Reay v., 53. 

V, Ure, 125, 144. 

M*Keich, Frazer i?., 126. 

Mackenzie v. Bankes, 77. 

Glassford v., 15. 

X). Learmonth, 69. 

V. Macartney, 184. 

M'Pherson v., 30. 

V. Kenton, 36. 

-17. Robertson, 22. 

M*Kerchar v. Anderson, 180. 

M'Kerrel v. Lord Keith, 42. 

Mackerston Case (Macdougal v. Mac- 
dougal), 48, 54, 104. 

Mackie, Magistrates of St. Monance 
v., 34. 

Mackinlay i?. Ewing, 184. 

17. Mackinlay, 127, 158. 

Newlands u, 144. 

Mackinlay v. Wilson, 127. 

Mackinnon v. Macdonald, 191. 

Mackinnon v. Mackinnon. 

Mackintosh v. Lord Abinger, 64, %^. 

V. Moir, 77. 

V. Taylor, 129. 

Warrand's Trustees v., 36. 

M*Kissock, Wallace v,, 128, 138. 

M*Lachlan v. Henderson, 167. 

MacLagan, Stocks v, 179, 180. 

M*Laren i\ Bradly, 129. 
17. Buik, 118. 

M*Lean, Saddler r., 129. 
M*Lellan, Cutler i7., 22. 



M'Lellan v. Menzies, 103. 

Meld rum. Shepherd v., 121. 

Murray v., 60. 

Menzies, Bailie v., 103. 

Macleod v. Paterson, 66. 

Crawfurd v., 106. 

V. Suiith, 79. 

M'Lellan v., 103. 

M*Math u Campbell, 154. 

Mercer v. Irvine, 185. 

M*Michen, Crawford v,, 18. 

V, Reid, 78. 

M*Nair, Walker v., 130. 

Merry, Richardson v., 131. 

M*Naughton, Earl of Argyll v.^ 16, 

Mette V. Dalyell, 143. 


Meyer & Mortimer v. Lennard, 148. 

Macneal, McNeill v., 46, 100. 

Middleton v. Earl of Dunmore, 45, 

McNeil V. Blair, 162, 172, 177. 


McNeill, Campbell u, 121. 

Mill V. Skene, 87. 

Jolly i?., 166. 

Miller i;. Baird, 147. 

V. Macneal, 46, 100. 

Fyfe v., 142. 

M^Nicol V, M^Niell, 170. 

Geddes v., 95. 

M^Niell, M^Nicol v., 170. 

Sn)ith v., 128. 

M*Pherson v. Mackenzie, 30. 

V, Storie, 88. 

Scottish Rights of Way Society 

Millers v. Dickson, 9, 46, 100. 

v.y 75. 

'- V. Short, 182, 183. 

V. WiUiamson, 139. 

Milne, Blackudder t-., 127, 130, 132. 

Macrae, Agnew v., 176. 

Cruden & Co., Ross v., 25, 33. 

M*Rankin v. Schaw, 181. 

V, Smith, 36. 

MTavish v. Lady Saltoun, 170. 

Milne's Trustees v. Lord Advocate, 25, 

M*Tier, Carnegie t*., 27. 

V. Ormiston's Trustees, 165, 166, 

Maderty, Locality of, 65. 

167, 168. 

Malachi, Pearson t'., 89. 

Minto, Earl of, Henderson v., 69. 

Malcolm, Aitken v., 109. 

V. Pennell, 87, 94. 

Magistrates of Earlsferry v., 70. 

Mitchell V. Brown, 77. 

Mann, Brodie v., 74, 97. 

V. Ferrier, 147, 150. 

Mansfield, Earl of. Lord Advocate v.^ 

Matiistrutes of Linlithgow v., 88. 

17, 66. 

Lockhart v., 163. 

March in ont, Earl of v. Earl of Home, 

Lyon u, 135. 

45, 113. 

Mitchell's Trustees, Smith v., 129. 

Marshal), Cooper v., 141 

Mitchells v. Moultrys, 136, 139. 

Moffat u, 133. 

Moffat, Galloway r., 176. 

Martin, Hamilton v., 127. 

Lindsay v., 170. 

Wilson v., 27. 

V, Marshall, 133. 

Mason, Black u, 104. 

Moir, Chatto v., 63. 

Masterman, Strathern u, 197. 

Mackintosh v., 77; 

Maule V. Maule, 15, 53, 55, 61, 104. 

MoUe V. Riddel, 53. 

V. Sommers, 150. 

MoUeson v, Hutchison, 182. 

Maxwell, Edgar v., 52, 101. 

Mollison, Leslie v., 122, 123, 124, 

Elliot V,, 96. 

128, 132. 

V. Provost of Dumfries, 30. 

Moncreiff v. Durham, 130. 

V, University of Glasgow, 93. 

Monkland Railways Coy., Eddie v., 

Reid v., 180. 


Mealls, Gow's Trustees v., 68. 

Monro, Nicolson v., 129. 



Monro, Pitmedden v., 109. 
Monteith v. Pattison, 181. 
Montgomery x, Fowles, 109. 
Montrose, Duke of, v. Bontine, 28. 

V, Mlntyre, 29. 

Magistrates of, Carnegie r., 34. 

Monypenny, Ayton v., 49, 104. 
Moray, Countess of, v. Earl of 

Wemyss, 26. 
' Earl of, r. Magistra^tes of 

Kinghorn, 34. 

Leslie v., 92. 

V. Feuars of Ness, 28. 

Morison v. Robertson's Executors, 

Morrison, M'Farlane r., 77, 87. 

Napier's Trustees v., 74, 75. 

V. Yorstoun, 112. 

Zuille i;., 52. 

Morrison's Trustees, Nisbet's Trus- 
tees v., 137, 139. 

Mortimer & Meyer r. Lennard, 148. 

Wink V,, 117. 

Morton, Waddel t\, 129. 

Morton's Trustees, White v., 75. 

Moultrys, Mitchells v., 136, 139. 

Mowat V. Banks, 193. 

Mudie, Butchart v., 129. 

Muir r. Cunningham, 194. 

Muirhead, Executors of, Somerville 
v., 128, 132. 

Munro v. Graham, 129. 

V, Munro, 16, 96. 

Murdoch, Thomson r., 74. 

Mure of Caldwell v. Heritors of 
Dunlop, 61. 

Murray, Donaldson r., 139. 

Ewart v., 158. 

Jenkins i'., 74, 75, 76. 

V. Laurie's Trustees, 173. 

r. MLellan, 40. 

V, Peddie, 71. 

r. Peebles, 68. 

Sinclair v., 93. 

t'. Trotter, 156. 

Vans v., 109, 168. 

V. Wright, 131. 


Nairn, Heggie v., 73. 

Napier v. Campbell, 79. 

Scott v., 25. 

V. Smith, 144. 

Napier's Trustees r. Morrison, 74, 75. 

Nasmyth, Anderson v., 22. 

National Bank v. Hope, 168, 169. 

Neil's Trustee, Nisbet v., 164. 

Neill & Co. V. Campbell, 137. 

V. Hopkirk, 128, 137. 

Neilson r. Cochrane's Representa- 
tives, 190, 191. 

V. Sheriflf of Galloway, 72. 

Ness, Feuars of. Earl of Moray, r., 

Newlands r. Mackinlay, 144. 

Nicoll, Nisbet v., 163. 

Nicolson v. Keith, 95. 

V. M'Alister, 157. 

V. Monro, 129. 

v. Lord Philorth, 113. 

Nielson v. Erskine, 43, 46. 

Nisbet V. Baikie, 156, 157. 

V. Neil's Trustee, 164. 

V, Nicoll, 163. 

Nisbet's Trustees v. Morrison's Trus- 
tees, 137, 139. 

Noble \\ Scott, 162, 174. 

Nobles V. Armstrong, 158. 

North British Railway Company v. 
Smith Sligo, 132. 

Young u, 10, 29, 37. 

Ochterlony v. Officers of State, 15. 
Officers of Ordnance r. Magistrates 

of Edinburgh, 82. 
Officers of State, Magistrates of 

Auchtermuchty r., 31 

Bain -v., 65. 

Duke of Buccleuch v., 86, 90. 

Heritors of Drymen v., 93. 

V. Earl of Haddington, 25, 33 

- Ochterlony r., 15. 



OflBcers of State, Speir v, 64. 

Peebles, Murray r., 68. 

Thomson v., 93. 

Pennell, Earl of Minto v., 87, 94. 

Ogilvies, Smith u, 181. 

Perth, Glovers of. Earl of Zetland v., 

Ogilvy '0. Ogilvy, 2. 


Oliphant Murray v. Ramsay, 55. 

Magistrates of. Presbytery of, 

Ormiston, Allan v., 171, 173. 

v., 80. 

v. Hill, 21. 

V. Earl of Wemyss, 26. 

Lady, Hamilton v., 126. 

Presbytery of, v. Magistrates 

X). Hamilton, 135. 

of, 80. 

Ormiston's Trastees, Milne's Trustees 

Philorth, Lord, Nicolson v., 113. 

v., 165, 166, 167, 168. 

Pinkstan, French r., 43, 56. 

Oswald, Gowans t'., 185. 

Pitmedden v. Monro, 109. 

Playfair, Young & Company v., 



Pollock V. Porterfield, 89. 

Paden v. Go van, 148. 

w Storrie, 96. 

Paisley v, Wright's Incorporation, 

Waddell u, 58. 


Wilson v., 59. 

Panmure Leases case (Maule v. 

Polmont, Minister of, Baird i\, 65. 

Maule), 15, 33, 35, 61, 104. 

Porteous, Grubb r., 128. 

Panmure, Earl of, v. 

Porterfield, Pollock v., 89. 

i7. Halkett, 66. 

Partick, Tenants oF, Knockdolian r., 

Pate, Graham v., 155. 
Paterson & Aiknians v. Walker, 

Paterson, Brown r., 122. 

V. Cownn, 154. 

Freer v., 129. 

Macleod v., 66. 

V, Purves, 49. 

V, Magistrates of St. Andrews, 


V. Walker, 

V, Wilson, 82, 84. 

Paton r. Drysdale, 80. 
Patrick, Shedden v., 191. 

v. Watt, 177. 

Pattison, Mouteith t'., 181. 
Paul V, Allison, 174. 

V, Reid, 82. 

Pax ton V. Forster, 167. 

Storeys v. 163, 164, 171. 

Peacock, Williamson v., 175. 
Pearson v. Malachi, 89. 
Peddie, Murniy r., 71. 

Stewart t'., 51. 

Portland, Duke of, v. Gray, 37. 
Pratt, Gordon -??., 143, 176. 
Prentice, Cochran u, 118, 120. 
Prestoun, Lutefoot r., 97. 
Purdie v. Lord Torphichen, 16, 46. 
Purves, Paterson r., 49. 


Queensberry, Duke of, Greig r., 186. 


Ralston v, Lamond, 166. 
Ranisjvy, Caitcheon i?., 21, 45. 

Oliphant Murray i?., 55. 

V, Duke of Roxburghe, 28, 36. 

Reay, Lord, v. Mackay, 53. 
Reid V. M*Coll, 34. 

V. Maxwell, 180. 

Mercer v., 78. 

Paul v., 82. 

Reid's Trustees v. Duchess of Suther- 
land, 87. 



Renfrew, Magistrates of, v, Hoby, 

Eennie v, Urquhart, 172. 

BentoD, Mackenzie v,y 36. 

Renton, Watson v., 198. 

Richardson, Douglas, Heron & Com- 
pany v., 168, 169. 

r. Lady Haddington, 198. 

V, Merry, 131. 

Richmond, Duke of, v. Earl of Sea- 
field, 36. 

Riddel, MoUe v., 53. 

Riddick, Douglas, Heron & Company 
r., 180. 

Rigg, Garden r., 109, 169. 

Ritchie v. Little, 149. 

Robertson v. Arbuthnot, 

V. Duke of Athole, 21, 41. 

V. Burdekin, 197. 

Chisholm v., 132. 

V. Clarkson, 175. 

Cowbrough v., 145. 

Magistrates of Elgin v., 87, 108. 

Ettles v., 168. 

Jenkins t?., 75. 

Lindsay v.^ 37. 

V, Mackenzie i?., 22. 

V. Robertson (1770), 114. 

V. (1776), 112. 

Ross v., 169. 

V. Royal Association of Con- 
tributors, 121. 

Stewart t?., 175. 

v. Thomson, 174. 

Robertson's Executors, Morison v., 

Rocca V. Catto's Trustees, 192. 
Rocheid v, Kinlocb, 81. 
Rodgers, Harvie r., 78, 108. 
Ross V. Cowie's Executrix, 133. 

V. Fleming, 126. 

Gallie v, 184. 

V. Guthrie, 123. 

V, Milne, Cruden & Company, 

25, 33. 

V. Robertson, 169. 

V. Master of Saltoun, 127. 

Ross, Smith v., 97. 

Duke of Sutherland v., 36. 

Roxburghe, Duke of, Jaflfray v., 68, 

Kelso v., 88. 

Ramsay i?., 28, 36. 

V, Scott, 11. 

Roy V, Campbell, 167. 

Royal Association of Contributors^ 

Robertson t?., 121. 
Rule, Representatives of, 186. 
Russell V. Fairie, 170. 
Rutherford Scott v., 184. 
Rutherfurd, Wilson v., 133. 


Saddler v. McLean, 129. 

St. Andrews, College of, Straton v.^ 


Magistrates of, Paterson v., 65. 

Wallace v., 31. 

St. Monance, Magistrates of, v, 

Mackie, 34. 
Saltoun, Lady, MTavish r., 170. 
Saltoun, Master of, Ross t?., 127. 
Sanderson v. Lees, 31, 70, 76. 
Sands, Stein u, 195. 
Sandys v. Lowden, 127. 
Saunders v. Hunter, 73. 
Scales' Trustees, Glen v., 10, 15. 
Schaw, M*Rankin i;., 181. 
Scotland, Bank of. See Bank. 

Campbell v., 20. 

Hamilton v., 42. 

Scott, Borthwick v., 116. 

V. Brown, 163, 169. 

V, Bruce Stewart, 12, 18, 96. 

Magistrates of Edinburgh r., 88. 

V. Gregory's Trustees, 131. 

Johnston t?., 128. 

V, Napier, 25. 

Noble v., 162, 174. 

Duke of Roxburghe v., 11. 

V. Rutherford, 184. 

V, Kirk-Session of South Leith, 


Stewart v., 133. 



Scott, Yuille v., 180, 198. 

Scottish Rights of Way Society v. 
MTherson, 75. 

Scougal, Daes u, 156. 

Seafield, Earl of, v. Earl of Fife, 63. 

Duke of Richmond v., 36. 

Shand's Creditors, Black i?., 172. 

Sharp V. Harvey, 184. 

Jameson v., 155. 

Shaw V. Dow & Dobie, 117. 

Shedden, Brodie v., 170. 

17. Patrick, 191. 

Shelby v. Guy, 198. 

Shepherd v. Grant's Trustees, 106. 

V. Mel drum, 121. 

Short, Bland v., 129. 

Millers v., 182, 183. 

Sim, Gow's Executors u, 146, 147, 

Simpson, Balfour v., 175. 

V. Brown, 194. 

Crawford v., 154. 

Simpson, Cumming's Trustees v., 126. 

Earl of Southesk v., 158. 

V, Stewart, 162. 

V. Walker, 130. 

Sinclair, Lord Advocate v.^ 29, 38. 

V. Marquis of Breadalbane, 98. 

Marquis of Breadalbane's Trus- 
tees v., 98. 

17. CampbelPs Trustees, 95. 

V. Magistrates of Dysart, 68. 

Earl of Fife's Trustees 17., 36. 

Lord, Hamilton i7., 2. 

r. Murray, 93. 

17. Threipland, 36. 

Skene, Mill v., 87. 

Skirving v, Smellie, 74. 

Sloan 17. Birt whistle, 120. 

Smeal, Cullen v., 123, 125, 153, 167. 

Smellie v. Cochrane, 127. 

Skirving i?., 74. 

Smith & Bogle, Gray v., 52. 

17. Buchanan, 198. 

Cheyne i7., 87. 

Cochrane u, 186. 

V. Falconer, 123, 136, 138, 140. 

Smith, Fortune's Executors v., 128. 

17. Hamilton, 128. 

Hunter i?., 56. 

17. Ivory, 144. 

Macleod t-., 79. 

17. Miller, 128. 

Milne i7., 36. 

17. Mitchell's Trustees, 129. 

Napier i7., 144. 

Smith 17. Ogilvies, 181. 

17. Ross, 97. 

17. Stewart, 87. 

Smith Sligo, North British Railway 

Company i7., 132. 
Snodgrass i7. Buchanan, 53. 
Snody, Clyne i7., 151. 
Solicitor of Teinds i7. Budge, 63. 
Somerville v. Muirhead's Executors, 

128, 132. 
Sommers, Maule i7., 140. 
South Leith, Kirk-Session of, i7. 

Scott, 72. 
Southesk, Earl of, i7. Earlshall, 28. 
Earl of, 17. Simpson, 158. 

Speir 17. Ofl&cers of State, 64. 

17. Lord Willoughby D'Eresby, 

Spence i7. Bruce, 21. 

Caves 17., 184. 

White 17. 158. 

Stair, Earl of, Dalrymple i7., 66. 
Stanebyres, Graham i7., 135. 
State. &M Officers of State. 
Steele, Deans i7., 130. 
Stein, Bruce i7. (1769), 71. 
, 17. (1793), 184. 

Campbell i7., 121. 

17. Sands, 195. 

Steiner, Huber i7., 198* 

Stephenson i7. Stephenson's Trustees, 

Stevenson, Kibbles i7., 18. 

17. Kyle, 128, 138, 140. 

17. Stevenson, 175. 

Stewart, 92. 

17. Brown Brothers, 73. 

Stewart i7. Campbell, 184. 



Stewart v. Cuming, 96. 

u Douglas, 184. 

DrummoDd v., 129. 

V, Greenock Harbour Trustees, 


-». Houston, 81. 

V. Lindsay, 21. 

McGregor v., 128. 

V. Porterfield, 51. 

V. Robertson, 1 76. 

V. Scott, 133. 

Simpson t?., 162. 

Smith ^^, 87. 

— — V. Stewart, 173. 

-y. Walpole, 148. 

Stewart's Trustees, Bertram v., 136, 

Stirling v, Henderson, 123, 174. 
Stirling i?. Lang, 163, 164. 
Stiven, Thomas v., 140. 
Stocks v. M*Lagan, 179, 180. 
Stoddart, Aytoun v., 133. 
Storeys v, Paxton, 163, 164, 171. 
Storie, Miller u, 88. 
Storrie, Pollock v., 96. 
Strachan, Burgy v., 40. 
Strahorn v. Cunningham, 156. 
Strang, Wilson u, 173. 
Stranraer, Magistrates of, Agnew i;., 

Strathem v. Masterman, 197. 
Strathmartin, Laird of, Constable of 

Dundee v., 116. 
Straton v, CoUege of St. Andrews, 

Stuart, Clark v., 180. 

V. Cuming, 96. 

V. Douglas, 121. 

V. Hill, 180. 

V, M'Barnet, 28, 36. 

Stuart's Bepresentatives, Gilmour u, 

Sutherland, Blair u, 112. 

V, Thomson, 78. 

Duchess of, Beid's Trustees v., 

Sutherland, Duchess of, v. Watson, 29. 

Sutherland, Duke of, v. Boss, 36. 
Swan's Executors, Briggs v., 89, 109. 


Tait, Wilson u, 181. 
Taylor v. Allardyce, 126. 

Mackintosh v., 129. 

Taylor's Trustees, Bank of Scotland 

v., 171. 
Tennent's Trustees, Earl of Zetland 

v., 35. 
Thain v, Thain, 33. 
Thomas v. Stiven, 140. 
Thomson v, Duncan, 145. 

V. Lord Duncan, 126. 

Hunter v., 158, 165. 

V, Murdoch, 74. 

u Officers of State, 93. 

Robertson t?., 174. 

Sutherland i?., 78. 

V. Westwood, 126. 

Threipland, Sinclair v., 36. 
Thresbie, Hotson v., 131. 
Tinkler, M*Ghie v., 126. 
Torphichen, Lord, Purdie v., 16, 46. 
Torrance v. Bryson, 133. 
Torrie v, Duke of Athole, 75. 
Traill v. Dangerfield, -72, 187. 
Trotter v, Clark, 149. 
Murray*?., 156. 

TurnbuU v, Borthwick, 144. 
Turner, Blake v., 171. 
Tweeddale, Marquis of, Duke of 
Lauderdale v., 102. 

Weatherstone v., 94. 

Tweedie v, Williamson, 128. 

Ure, Fisher v., 134. 

Mackay v., 125, 144. 

Urquhart, Fraser v., 169. 
Rennie v., 172. 



Vans V. Murray, 109, 168. 


Waddel v. Morton, 129. 
Waddell v. Pollock, 58. 
Walker, Chalmers v., 132. 

V. Grieve, 68. 

V. M*Nair, 130. 

Paterson & Aikmans v., 130. 

Simpson r., 130. 

Walkingshaw v. Knappemy, 194. 
Wallace v. Earl of Eglinton, 107, 190. 
V. Magistrates of St. Andrews, 


V, M*Kissock, 128, 138. 

Walpole, Fiske v., 138. 

Walpole, Stewart v., 148. 

Warrand's Trusteesi;. Mackintosh, 36. 

Watt, Patrick u, 177. 

Graham v., 102. 

Watson V, Auchincloss, 169. 

Balvaird v., 182, 183. 

Davidson v., 126. 

V. Kenton, 198. 

Duchess of Sutherland u, 29. 

Wauchope v. York Buildings Com- 
pany, 82. 

Weatherstone v. Marquis of Tweed- 
dale, 94. 

Welsh Maxwell v. Welsh Maxwell, 
50, 55. 

Wemyss, Henderson u, 72. 

Countess of, 159. 

Earl of, Magistrates of Perth 

v., 26. 

Countess of Moray v., 26. 

Westenra, Duke of Hamilton u, 49. 
Weston, Broughton t?., 135, 150. 
Westwood, Thomson v., 126. 
White v., Caledonian Railway Com- 
pany, 128. 

Ellis v., 139. 

V. Earl of Morton's Trustees, 76. 

V. Spence, 158. 

Whitefoord v. Lord Kilmarnock, 102. 

Whyte v. Currie, 133. 

Wight, Berry's Representatives v., 

129, 142. 
Williams v, Jones, 197. 
Williamson, MTherson v., 139. 

V, Peacock, 175. 

Tweedie v., 128. 

Willoughby D'Eresby, Speir u, 106. 
Wilson, Campbell i;., 43, 100, 102, 106. 

V, Campbell, 126. 

Forbes v., 70. 

V. Innes, 108. 

M*Kinlay v., 127. 

V, Martin, 27. 

Paterson i;., 82, 84. 

Pollock, 59. 

V. Rutherfurd, 133. 

V. Strang, 173. 

V, Tait, 181. 

V, Wilson, 145. 

Wink V, Mortimer, 117. 
Wishart, Grant u, 147. 
Wood, Anderson r., 184. 

V, Howden, 162, 171, 172. 

Workman v. Young, 148. 
Wotherspoon v, Henderson's Trus- 
tees, 134, 135. 
Wright, Kennard «?., 159. 

Murray t?., 131. 

V, Wright, 109, 168, 194. 

Wrights, Incorporation of, v, Hutchie- 
son, 190. 

Paisley v., 72. 

Wyse V. Wyse, 195. 

York Buildings Company, Cuming 
. v., 113. 

Earl of Hopetoun v., 109. 

Wauchope v., 82. 

Yorstoun, Morrison v., 1 12. 
Young, BailHe v., 116. 

Cuthbertson v„ 75. 

V, Dobson, 31. 

Home u, 31. 



Young v. North Britbh Railway 
Company, 10, 29, 37. 

& Company v. Playfair, 136. 

Workman v., 148. 

Younger v. Johnstone, 43. 
Yuill, Houston r., 173. 
Yuille V. Scott, 180, 198. 

Zetland, Earl of, v. Glovers of Perth, 

V. Tennent's Trustees, 35. 

Zuille 17. Morrison, 52. 


Act 1469, c. 28, 
Act 1474, c. 54, 
Act 1579, c. 81, 
Act 1579, c. 82, 
Act 1579, c. 83, 
Act 1594, c. 218, 
Act 1617, c. 12, 

Act 1617, c. 13, 
Act 1617, c. 16, 
Act 1669, c. 9, 
Act 1669, c. 10, 
Act 1685, c. 14, 
Act 1695, c. 5, 
Act 1696, c. 9, 
29 George ii. c. 23, 
12 George iii. c. 72, ) 
23 George iii. c. 18, J 
1 and 2 Vict. c. 114, . 
21 and 22 Vict, c 76, 
23 and 24 Vict. c. 143, 
31 and 32 Vict c. 100, 
31 and 32 Vict. c. 101, 
37 and 38 Vict. c. 82, 
37 and 38 Vict. c. 94, 


1, 8, 79 

2, 8, 79 
. 115 
. 116 
116 zeq, 
. 3,16 

and passim through Part 1. 

189 seq, 


154 seq. 193 



178 seq. 



161 seq. 

7, 19, 23, 39, 46, 97, 106, 160, 192 



(Stair, 2. 12. 1-27, and More's Note AA.) 
(Erskine, Inst, 3. 7. 1-15.) 



Prescription — which originally signified any exception, but introduc- 


came latterly to be especially identified with the exceptio ratione 
temporis — is a plea which may be employed for the purpose 
either of extinguishing or of establishing a right of property. 
The manifest desirability of ' fixing and ascertaining property,' 
and of preventing forgeries, has procured it a place in the muni- 
cipal code of all human societies. Whether, and to what 
extent, prescription was originally known to the common law of 
Scotland is a question which shall be briefly considered here- 
after. (See infra p. 72.) But for almost all practical purposes 
it may be taken to be wholly the creature of statute ; and it is, 
therefore, as unnecessary here to discuss the Eoman law of 
prescription, to which that of Scotland owes little or nothing, 
as it is to enter upon the speculation whether prescription be 
' repugnant to natural equity,' or, on the contrary, * agreeable 
' to the law of nature.' 

The first Scots statute dealing with prescription is the Act Act 1469, 

C. aO* 

1469, c. 28, entitled, 'Of obligations to be followed within 
' fortie zeir, or else prescrive.* 



*Item, as anent Obligations, that sail be followed in time 

* camming, except them that are dependand in the law before the 
' making of this act, — It is advised that the partie to quhome the 

* obligations is maid, that has interest therein, sail follow the said 

* obligation, within the space of fourtie zeires, and take document 
' thereupon ; and gif he dois not, it shall be prescrived, and be of 
' nane availe, the said fourty zeires beand runnin, and unpersewed 
' be the pairtie.* 

Act 1474, This was soon followed by the Act 1474, c. 54, entitled 

c. 54. 

' Prescription of Obligations,' which wa^ explanatory of the 
former enactment. 

* Item, anentis the acte maid of before of prescription of 
' Obligations : It is ordained to be understandin in this wise ; 
' that all auld obligations maid of before, that is elder then the 

* date of fourtie zeires, not dependant in the law in the time of the 
' making of the said actis, shall be prescribed, and of na strength : 
' and in likewise in time to cum, all obligations maid, or to be 
' maid, that beis not followed within fourtie zeiris, sail prescrive 

* and be of nane availe/ 


In course of time these acts came to be applied to all 
moveable rights and actions. So late, indeed, as 1622, the Act 
1469, c. 28, was held not to affect an obligation for payment of 
an annual-rent in a marriage contract.^ But this view was 
wisely departed from in two later cases,^ and the Act has been 
held applicable to testaments,^ to tutors* accounts,* to decreets 
though inforo contradictorio,^ and to moveable subjects gener- 
ally, e.g, a bell.® 
Not appiic- Wide, however, as was the interpretation put upon these 

ablG to 

heritage. Acts, their application was rigorously excluded from anything 
in the nature of an heritable right. An heritable title was 
found not to be affected by the statutes of obligations, and the 
same decision was pronounced in the case of a bond for the 

1 Hamilton v. L. Sinclair, 1622, M. 10, 718. 

M. 10, 717. * A. V. B., 1618, M. 10, 717. 

2 Lauder v. Golmdie, 1630, M. 10, « Stair, 2. 12. 12; 1637, M. 10, 719. 
655 ; Ogilvy v. Ogilvy, 1630, M. 10, « Minister and Session of Aher- 
719. scherder v. Minister and Parishioners 

3 Lindsays v. L. Balgony, 1627, ofOemrle, 1633, M. 10, 972. 


delivery of a reversion, ^quiafuit eptsdem 7iaturae} Similarly, 
it was held that because an obligation and the bond thereof 
were heritable, ' et sapebant naturafrv hereditatis/ they could not 
be comprehended under the Act 1469, c. 28.^ Mere possession 
of a moveable subject unchallenged for forty years afforded a 
sufficient presumption of property. No written title was 
required. But ' possession of an immoveable subject, though 
' for a century of years together does not create even a pre- 
* sumptive right to it. Nulla sasina nulla terra' ^ The 
feudal proprietor, therefore, who failed to connect himself with 
the crown — in the complete progress of whose titles one link 
was missing — no matter for how many years he might have 
enjoyed peaceable and uninterrupted possession of his lands, 
was at the mercy of the forger, or of any one who could pro- 
duce a perfect series of infeftments with their warrants reaching 
back to the original grant from the sovereign. 

For the hardship involved in such a case, the Act 1594, Act 1594, 
c. 218 was designed to supply a remedy. 

* Our Sovereign Lord and Estates of this present Parliament 
understanding that sundry of his Highness's lieges are heritably 
infeft in divers lands and annual-rents within this Eealm, likeas 
their predecessors and authors, from whom their rights thereof 
proceed, have been heritably infeft in the same lands and annual- 
rents ; and, by virtue of their several infeftment and liferents 
therein reserved, they, and their predecessors and authors, have 
bruiked (possessed) the foresaid lands and annual-rents by the 
space of forty years together : notwithstanding whereof, the said 
infeftments, made and granted to them and their predecessors 
and authors^are sundry times drawn in question, for laik and 
want of procuratories of resignation, instruments of resignation, 
precepts of dare constat, or other precepts of sasine, which are not 
extant to be produced and used, in respect the same are tynt 
(lost) and amitted, — ^partly by iniquity of time, — partly by 
perishing of protocols, and scrolls of notaries, — partly for 
non-delivering of the same by the persons sellers, and disponers 
thereof, partly because the evidents of comprised lands use to be 

1 Lord CathcaH v. Laird of Gad- ^ A v, B, 1589, M. 10, 717. 

zat, 1686, M. 10, 716. ^ Ersk., Prin., 2. 1. 15. 


abstracted and withh olden upon malice of parties, — and partly 
as evidents not thought necessary to have been kept after so long 
tim6, by reason that the charters make mention of the procura- 
tories and instruments of resignation, and instruments of sasine 
make mention of the precepts of sasine whereupon the same pro- 
ceed : For remedy whereof, our said Sovereign Lord, &c., finds, 
decerns, and declares, that none of his Highness lieges may be 
compelled, after the space of forty years, to produce procura- 
tories or instruments of resignation, precepts of dare constaty 
or other precepts of sasine of lands, or annual-rents, whereof the 
present heritable possessors, and their predecessors and authors, 
and other persons, by virtue of liferents reserved in the said 
infeftments, are, and were in possession by the space of forty 
years together; and that the wanting and in-laik thereof, nor 
none of them, shall be no cause of reduction of the infeftments 
granted to the proprietors, or their predecessors or authors, of 
the lands or annual-rents whereof the charter or charters (making 
mention of the resignation or resignations to have been made), and 
the instruments of sasine (making mention of the precepts of sasine 
by virtue of which the sasines were given) are extant. And wills, 
statutes and ordains, that this act shall be extended to all procura- 
tories and instruments of resignation, precepts of dare constat, or 
other precepts of sasine, the wanting and inlaik whereof, nor none 
of them, shall be no cause of reduction, nor other quarrel (question) 
whatsoever, after the space of forty years, where infeftments have 
taken effect by possession, by the said space of forty years, in 
manner above rehearsed, and where the charters and instruments 
of sasine are extant as said is/ 

The production, then, of charter and instrument of sasine, 
and the possession of the lands by the space of forty years 
together were the conditions of a proprietor's freedom from the 
risk of having his title reduced or quarrelled ; and this was, 
doubtless, a most important step towards putting heritable 
proprietors ' in certainty of their heritage in all time coming/ 
But that desirable object was not fully accomplished until the 
passing of 'that excellent statute of prescription,'^ 'the 
palladium of our land proprietors,' ^ the Act 1617, c. 12, the 
text of which will be found in the next chapter. 

1 Stair, 4. 35. 15. 

2 K&me3,Eluc.y p. 262. 


^ THE ACTS 1617, C. 12 ; AND 37 AND 38 VICT. c. 94 

The Act 1617, c. 12, runs as follows : — Acti6i7 

c. 12. 

* AnerU Prescription x)f Heritable Rights. 

* Our Sovereign Lord, considering the great prejudice which his 
Majesty's Lieges sustain in their Lands and Heritages, not only by 
the abstracting, corrupting, and concealing of their true evidents, in 
their minority and less-age, and by the amission thereof by the 
injury of time, through war, plague, fire, or such like occasions, — 
but also by the counterfeiting and forging of false evidents and 
writs, and concealing of the same to such a time that all means of 
improving thereof is taken away; whereby his Majesty's Lieges are 
constitute in a great uncertainty of their heritable rights, and 
divers pleas and actions are moved against them, after the expiry of 
thirty or forty years, which nevertheless by the Civil Law, and by 
the laws of all nations, are declared void and ineffectual ; and his 
Majesty, according to his fatherly care which his Majesty hath to 
ease and remove the griefs of his subjects, being willing to cut off 
all occasion of pleas, and to put them in certainty of their heritage 
in all time coming, — Therefore his Majesty, with advice and con- 
sent of the Estates of Parliament, by the tenor of this present 
act, statutes finds and declares, that whosoever his Majesty's 
Lieges, their predecessors and authors, have brooked heretofore, 
or shall happen to brook in time coming, — by themselves, their 
tenants, and others having their rights, — their lands, baronies, 
annual rents, and other heritages, by virtue of their heritable 
infeftments made to them by his Majesty, or others their superiors 
and authors, for the space of forty years, continually and together, 
following and ensuing the date of their said infeftments, and that 
peaceably, without any lawful interruption made to them therein, 
during the said space of forty years ; that such persons, their 
heirs and successors, shall never be troubled, pursued nor 
inquieted, in the heritable right and property of their said 
lands and heritages foresaid, by his Majesty, or others their 
superiors and authors, their heirs and successors, nor by any 
other person pretending right to the same by virtue of prior 
infeftments, public or private, nor upon no other ground, 


reason or argument, competent of law except for falsehood : 
Providing they be able to shew and produce a charter of the said 
lands, and others foresaid, granted to them, or their Predecessors, 
by their said superiors and authors, preceding the entry of the 
said forty years possession, with the instrument of sasine following 
thereupon : Or, where there is no charter extant, that they shew 
and produce instruments of sasine, one or more, continued and 
standing together for the said space of forty years, either 
proceeding upon retours, or upon precepts of dare constat: 
Which rights his Majesty, with advice and consent of the 
Estates foresaid, finds and declares to be good, valid, and suffi- 
cient rights (being clad with the said peaceable and continual 
possession of forty years), without any lawful interruption, as 
said is, for brooking of the heritable right of the said lands, 
and others foresaid. And sicklike, his Majesty, with advice fore- 
said, statutes and ordains, that all actions competent of the law, 
upon heritable bonds, reversions, contracts, or others whatsoever, 
either already made, or to be made after the date hereof, shall be 
pursued within the space of forty years after the date of the 
same ; except the said reversions be incorporate within the 
body of the infeftments used and produced by the possessor of 
the said lands, for his title of the same, or registrated in the Clerk 
of Register's books ; in the which case, seeing all suspicion of 
falsehood ceases most justly, the actions, upon the said reversions 
ingrossed and registered, ought to be perpetual : Excepting 
always, from this present act, all actions of warrandice, which 
shall not prescribe from the date of the bond, or infeftment, 
whereupon the warrandice is sought, but only from the date of 
the distress, which shall prescribe, it not being pursued within 
forty years, as said is. And sicklike' it is declared, that in the 
course of the said forty years' prescription, the years of minority 
and less age shall no ways be counted, but only the years during 
the which the parties, against whom the prescription is used and 
objected, were majors and past twenty-one years of age. And 
his Majesty, being careful that no person, who hath any just 
claim, be prejudged of their actions by the prescription of forty 
years already run and expired before the date of this present act, 
hath, with advice foresaid, granted full liberty and power to them 
to intent their said actions, within the space of thirteen years, 
next following the date hereof ; which shall be as effectual as if 
the same had been intented within the said space of forty years 
prescribed by this present act ; after the expiring of the which 
thirteen years this present act shall have full force and effect, 
after the tenor thereof in all points. And nevertheless it is 

THE ACTS 1617, c, 12, AND 37 AND 38 V/CT c, 94 7 

' declared that the persons, at whose instance the foresaid actions shall 
' be moved and intended within the said space of thirteen years, 
' shall not be compelled to insist in the said actions, at the desire of 

* their parties, upon the, first summons and citation thereof only, 

* except that the said first summons be called and continued, and 

* the defenders of new summoned thereby ; in the which case and 
' no otherwise, it is declared that they may be compelled to insist 
' at the instance of the party having interest.' 

The series of prescriptive enactments is brought to a close 37 and 38 
by the Conveyancing Act of 1874 (37 and 38 Vict. c. 94), the §"3^' ""' ^^' 
34th section of which is to this effect : 

' Any ex facie valid irredeemable title to an estate in land 
recorded in the appropriate register of sasines shall be sufficient 
foundation for prescription, and possession following on such 
recorded title for the space of twenty years continually and 
together, and that peaceably, without any lawful interruption 
made during the said space of twenty years, shall, for all the 
purposes of the Act of the Parliament of Scotland, 1617, c. 
12, "Anent prescription of heritable rights,** be equivalent to 
possession for forty years by virtue of heritable infeftments for 
which charters and instruments of sasine or other sufficient titles 
are shown and produced, according to the provisions of the said 
Act ; and if such possession as aforesaid following on an ex facie 
valid irredeemable title recorded as aforesaid shall have continued 
for the space of thirty years no deduction or allowance shall be 
made on account of the years of minority or less age of those 
against whom the prescription is used and objected, or of any 
period during which any person against whom prescription is 
used or objected was under legal disability. This enactment 
shall have no application to, and shall not be construed so as to 
alter or affect, the existing law relating to the character or period 
of the possession, use, or enjoyment necessary to constitute or 
prove the existence of any servitude or of any public right of 
way or other public right, [and shall not be pleadable to any 
effect in any action in dependence at the commencement of this 
Act, or which shall be commenced prior to the first day of 
January one thousand eight hundred and seventy-nine :] Pro- 
vided always, that the possession for any space of time prior to 
the first day of January one thousand eight hundred and seventy- 
nine shall not have effect for the purposes of this section unless 
such space of time immediately preceded and was continuous up 
to the said first day of January.' 


Positive The Act 1617, c. 12, consists of two portions: one rendering 

Negative, invulnerable a certain specified written title, clothed with forty 
years' possession, in a competition for the right to heritable 
property ; the other cutting oflf all actions upon heritable bonds, 
etc., not pursued within forty years. The plea of prescription 
may accordingly be proponed either (1) positive — i.e. in terms 
of the first part of the Act ; or (2) negative — i.e. in terms of the 
second part of the Act (taken along with the Acts 1469, c. 28, 
and 1474, c. 54); ^ and since the beginning of last century the 
terms Negative and Positive Prescription have been freely 
employed. This nomenclature has led to serious confusion, but 
has long been so firmly established that its abandonment would 
now be attended with even greater inconvenience than its 
retention. In dealing, however, with the Positive and the 
Negative Prescription as distinct branches of the subject, it is 
essential to bear in mind that by the former is merely meant 
the plea as advanced under the first, or feudal, section, by the 
latter the plea as advanced under the second or general section 
of the statute. 

1 Stair, 4. 40; 20; Innes of AucMwnca/rt, 1695, M. 11, 212. 



(Stair, 2. 12. 16-27, and Note AA, pp. cclxxvL-cclxxix.) 
(Ersk., Inst., 3. 7. 1-7) (Bell, Prin., § 2002-2025) 

The function of the Positive Prescription is twofold: (1) It its 

^ functions. 

secures the progress of titles to an estate against any one 
alleging a better title ; (2) It determines the extent or com- 
prehension of an estate, the title to which is not questioned. 
The essential conditions upon which the effective discharge of 
these functions depends are (1 ) a clear and distinct title ; and 
(2) continued and unequivocal possession. 

Given, then, the statutory title and the requisite possession its condi- 
tions : titlt 
referable to that title, the right of the party assailed is impreg- and pos- 


nable, even as against the Crown,i except on the ground of 
intrinsic nullity or forgery. It matters not that his infeftments 
have proceeded upon precepts from one who was not the true 
superior. Forty years' possession upon these infeftments will 
give a sufficient right to the subjects in question.^ So exclusive 
is the nature of the prescriptive title that it will bar all inquiry 
into the previous origin and history of the title produced. 
' Nullity from [extrinsic] error is not a relevant ground of 
' objection to a prescriptive title.' ' The Positive Prescription 

* operates by excluding all enquiry beyond the forty years into 

* the previous titles and rights to the lands.' * All the prior 

* history of the lands is excluded.' ^ ' I hold,' says Lord 

1 Act 1617, c. 12; Lord-Advocate ^ Jlf^7;€r« v. />»cA»o?i,l 766, M. 10,937. 
V. Dundas, 1830, 8 S. 755 ; 1831, ' Forbes v. Livingstone, 1827, 6 S. 
5 W. & S. 723. 167 ; 1 W. & S. 657. 


Moncreiff,^ ' that it is the purpose of prescription to exclude all 
' enquiry as to whether titles habile in their form upon which 
' prescriptive possession has folio wed were in their original nature 
' good or bad, and specially the enquiry whether the author 

* from whom they have proceeded had power to grant them 

* or not. When prescription has run, there is an absolute pre- 
' sumption that they are good/ No enquiry into the initium 
possessionis is necessary or competent. A party having pos- 
sessed an estate on a title from the Crown for more than forty 
years was held to have a prescriptive right to the subjects, 
though his title bore that the Crown, his author, had right 
only by virtue of the Act of Annexation, in which there was 
an express exception of the right of the Crown to the lands in 
question.^ A proprietor had titles flowing from a subject 
superior in which his lands were described as ' bounded by the 
' sea.' No crown-grant of the foreshore to that subject superior 
could be produced. The superior, therefore, had no right to the 
foreshore. Yet forty years' possession of the foreshore attribut- 
able to that grant a non habente potestatem was held sufficient to 
establish in the proprietor of the lands a prescriptive right of pro- 
perty in the foreshore.^ It is, indeed, this ' very objection which 
' it is the object and especial virtue of the long prescription to 
' exclude' (p. Lord Young).* Where part of a barony was held of 
the Crown, and part of a subject-superior, and where after a judi- 
cial sale a purchaser resigned the whole lands in the hands of the 
Crown, and got a Crown charter, under which several successive 
heirs made up titles, ignoring the subject superior, and pos- 
sessed for forty years, it was held in an action of reduction, 
improbation and declarator of non-entry raised by the subject 
superior, that the defender might plead prescription on the 
Crown chartet clothed with possession, for that, though the 

1 Lord-Advocate v. Graham, ^ Young v. N. B, Ry.Goy,, 1887, 
1844, 7 D. 183, 205. 14 R. H. L. 53 ; 1885, 13 R. 314. 

2 Duke oj Buccleuch v. Ounyng- * Olen v. Scales^ Trustees, 1881, 
hame, 1826, 5 S. 63. 9 R. 317. 


feudal relation never terminated through mere non-user, there 
was no room for that doctrine in a case where possession was 
referable to a charter and sasine inconsistent with the feudal 
relation attempted to be set up.^ 

The same view was taken by the Lord Ordinary, in the 
unreported case of Lockhart v. Duke of Hamilton and Others, 
1890, in which the pursuer challenged the right of the Duke 
of Hamilton to a superiority of teinds, and the right of Mr. 
Wolfe Murray to the dominium titile of the teinds, founded 
upon a grant (free of feu-duty) by the Duke of Hamilton, 
admittedly fortified by possession. ' It may be,' says Lord 
Kinnear in his Opinion, ' that prescriptive possession upon a 
charter a nx)n domino, although it will give a good right to 
the grantee, may be unavailing to create an estate in the 
granter if he has no title in his own person to which he can 
ascribe the possession of his vassal. If that be so, the true 
superior may exclude the non-dominus from the dominium- 
directum. But that will not enable him to challenge, or in 
any way to aflfect, the right of the vassal which ex hypothesi 
has been established by prescriptive possession upon a habile 
title. For prescription operates not merely to secure the 
right of property, but to protect the title from question. . . . 
The extent and conditions of the right must be ascertained 
from the titles on which prescriptive possession has followed, 
and from no others. ... It appears to me to be just as 
inconsistent with the settled law of prescription to say that 
by earlier titles the teinds were held in feu of the titular for 
payment of a feu-duty, as to say that the earlier titles would 
show that there had never been any good right to teinds in 
the heritor or his authors. . . . The defender is entitled to 
stand upon the grant which has now been fortified by his 

1 Macdonald v. Lockhart, 1853, 1 Boyd, 1890, 18 R. 1 ; and Duke of 
MacQ. 790 ; 25 S. J. 559. Roxhurghe v. Scott, 1871, 18 R. 8. 

See also Duke of Bucchiich v. 


' possession, and may refuse to look at any other title flowing 

* from any other author/ 

Good faith BonafideSy in short, is no element in the Positive Prescrip- 


required, tion. ' Even granting that the titles had been derived a non 

* domino, still the heir is entitled to plead prescription, whereby 
' any enquiry into that fact or into mala fides is excluded ' (p. 
Lord Balgray).! ' If the title be in itself perfectly good, and 

* derived from the true proprietor, there can be no need of pre- 
' scription, which is only necessary to cure bad titles ' (p. Lord 
P. Hope).^ ' It is the great purpose of prescription to support 
' bad titles. Good titles stand in no need of prescription'^ (p. 
Lord Braxfield).^ If a party's title be such as may comprehend 
everything he claims under it, and prescriptive possession of 
the whole have followed, ' he cannot be called upon either to 
' support that title or to contradict it by producing any older 

* title or titles he may be possessed of. Nor can his position be 
' varied for the worse by any production of older titles made by 
' his opponent ' (p. Lord Deas).^ So a disposition and sasine ex 
facie absolute, clothed with possession for forty years, are 
sufficient to exclude an allegation that the right originally 
flowed from a title qualified by a power of redemption.* 

Conditions But the two essentials, title and possession, must coincide, 
coincide, or prescription cannot operate. ' It is undoubted that simply 
' Twn utendo a feudal proprietor cannot lose his right of pro- 
' perty, or any of its consequents. Another party having a 
' title may acquire an adverse right and interest through pos- 
' session upon a sufficient title. That is quite true : but there 

* must be a title ' (p. Lord Cowan).^ A proprietor disponed a 
storey of a house to a purchaser in 1792. In 1793 he dis- 
poned the whole tenement gratuitously to his wife, who took 
infeftment upon the disposition in 1794. The purchaser and 

^ Duke of BuccUuch v. Cunyng- ^ Avid v. Hay, 1880, 7 R. 663. 

hame, 1826, 5 S. 53. * Chambers v. Law, 1823, 2 S. 326. 

2 Scott V. Bruce Stewart, 1779, M. ^ Leek v. Chalmers, 1859, 21 D. 

13, 519 ; 3 Ross L. C. 334. 408. 


his heirs possessed the storey on the personal title without 
taking infeftment till 1837, when the heir of the purchaser 
was infeft. In 1862, a singular successor of the wife, who 
acquired his right in |853 and was duly infeft, raised an 
action of removing against the heir of the purchaser, who 
pleaded prescription. Here, it will be observed, one party 
could point to an infeftment going back for more than forty 
years but without possession, while the other party could point 
to possession for more than forty years, but possession not 
referable to any infeftment. It was held that neither party 
had established an exclusive right, and that upon a con- 
sequent comparison of titles the heirs of the purchaser were to 
be preferred as standing in right of an onerous disponee.^ 

It is now necessary to consider somewhat more attentively 
the nature of the Title and of the Possession which are required 
by the Act 1617, c. 12. For convenience sake, we shall 
attempt, as far as possible, to discuss the two topics separately, 
though it is often difficult to keep them apart, and always 
undesirable to lose sight of their intimate connection. 

1 Andersom v. Low, 1863, 2 M. 100. 


I 1 f ' r I. 



t1ti*es™*'''^ ^^^ titles are specified by the Act 1617, c. 12, as habile for 
prescription ; one of which has been settled by practice to be 
that which is available to singular successors ; the other to be 
that which is available to heirs. 

Charter 1. The first title is * a charter of the said lands and others 

and sasine. 

' foresaids granted to them or their predecessors by their saids 

* superiors and authors, preceding the entry of the saids forty 

* years' possession, with the instrument of sasine following 

* thereupon.' * By charter,* says Lord Stair,^ * must not be 

* understood a solemn charter as it is distinguished from a 
' disposition or precept, but as it comprehends these, for many 

* valid infeftments have no charter, but sasine proceeds upon 
' the precept of sasine in the disposition.* The word ' charter,' 
indeed, may be said to be understood as comprehending any 
deed whose form of expression is considered legaUy dispositive 
— e.g, not merely a disposition, but a procuratory of resignation 
or a precept of sasine separate from a disposition or charter.^ 
No authority can be found in support of Lord Stair's further 
proposition that an obligation to infeft with instrument of 
sasine will afford a good title for prescription.^ But the 
Court is so desirous of putting a liberal construction upon 
the Act, that, in the opinion of at least one judge, an invalidly 
executed disposition of heritage by a proprietor, followed by a 
ratification by the heir apparent (which contained no words of 

1 2. 12. 20. 

2 Heriofs Hospital v. Hepburn, 1697, M. 10, 787. 

3 2. 12. 20. 


conveyance) was equivalent to the disposition of that apparent 
heir, and therefore, though proceeding a non Jidbente protestatem, 
was a habile title to found prescription.^ A seisin of burgage- 
tenements bearing resignation to have been made in the hands 
of a bailie is a good foundation for a prescriptive right, the 
resignation and the sasine being contained in one instrument.^ 
A charter restoring certain lands forfeited and annexed to the 
Crown under the Vesting and Annexing Acts, with infeftment 
following thereon, has been held a good title on which to pre- 
scribe an absolute right to an estate.^ A sasine without its 
warrant is worthless as a title for prescription,* and of equally 
little value is a * charter ' unaccompanied by instrument of 
sasine.^ The instrument of sasine is the sine qud Tvon of a 
prescriptive title to a feudal subject. * Infeftment ' may mean 
more than the instrument. It never can mean less. Extracts 
of sasine have been found not to be a title for prescription,® 
though a * transumpt out of the ofl&cial of Lothian's book ' was 
held to be probative * in re tarn antiqim ' ; ^ though a charter 
of confirmation and new erection in favour of a Eoyal Burgh, 
narrating and confirming rights set forth as previously belong- 
ing to the Burgh, even if no sasine is produced, is a sufficient 
title for the magistrates to acquire a right of property upon ; ® 
and though, as we shall have occasion to see hereafter {infra 
p. 61), the statute is applied by analogy to cases where 
sasine is incompetent or unnecessary, and that in a very 
thoroughgoing manner.^ 

2. The alternative title admitted by the Act is, ' Where Sasine upon 

. . V « . retours,etc. 

* there is no charter extant, instruments of sasine, one or 

'^ OleuY. Scales' TrmteeSyl^^l,^!^. ^ Ochterlony v. Officers of State, 

317 (p. Lord Young). 1825, 1 V7. & S. 533. 

2 Ker V. Ahemethy, 1705, M. 10, "^ Gumming v. Irving, 1680, M. 10, 

813. ^^^• 

. "^ HerioVs Hospital v. Hepfnirn, 

^ Glassford v. Mackenzte, 1829, 2697 M 10 787 

^ ^* *^^- 8 Aytoun v. Magistrates of Kirk- 

* Eraser v. Hogg, 1679, M. 10, coZc^y, 1833, 11 S. 676. 
784. 9 Mavle v. Maule, 1829, 7 S. 527. 


' more, standing together for the said space of forty years, either 
' proceeding upon retours, or upon precepts of dare constat' 
The production of the retour or precept of dare constat upon 
which the sasine proceeds had been rendered unnecessary by 
the Act 1594, c. 218. They are merely referred to in the Act 
1617, c. 12 to characterise the particular instrument of sasine 
which is to obtain the favour of being probatio probata of its 
own narrative without production of the dispositive writ of the 
granter. It must be the ex fade sasine of an heir. In JEarl of 
Argyle v. MacNaughton ^ the Lords found ' that there was no 

* necessity to produce or instruct that there was a precept or re- 
' tour otherwise than by the relation of the sasine/ In Purdie 
v. Lord Torphichen ^ an attempt to cut down an heir's title on 
the ground that infeftment was not taken upon the precept of 
dare constat till after the granter's death, failed in respect of 
the reply that the sasine being ex facie valid, the possessor was 
not bound to satisfy any farther production in support of his 
prescriptive right, the very intention of the statute being to 
remove all objections to the title other than that of falsehood. 
In Munro v. Munro ^ it was maintained, in view of the clause 
in the statute, ' if there is no charter extant,' that if there be 
a charter extant, the heir is bound to produce it. The Court, 
however, sustained the defender's contention that ' where the 
' question is with heirs, it is enough to produce the infeftments 

* and not the charter, even where the charter exists ' (p. Lord 
Gillies). In cases where estates have descended to heirs for 
himdreds of years, if the pursuer's argument were good a 
party might come forward and insist for the production of the 
original charter. 'The charter is to be held as not extant 
' quoad all the world, if the defender does not choose to pro- 
' duce it. ... I think we would strike at the root of the 

* doctrine of exclusive title, if we were to go back and force 
' parties to produce their charters, perhaps at the distance of 

1 1671, M. 10, 791. 2 1739^ m. 10, 796. ^ 19 May 1812, F. C. 


' centuries/ (p. Lord Meadowbank). Sasine by hasp and staple 
in a Eoyal Burgh is equivalent to sasine proceeding on a 
precept of dare constat} 

While the consideration of every step in the progress of Production 
titles is excluded save of what actually composes the pre- ex facie 
scriptive title, and while an ex facie nullity in a deed not^ ^ ' 
required to be produced is of no consequence, whatever objec- 
tion is suggested by, and can be urged by way of exception to, 
the production itself is invulnerable to prescription. The 
statutory production cannot be held to exclude itself. It must 
be an apparently good title. If it be ex facie vicious, it can- 
not be habile to found prescription. No lapse of time can 
cure what is in itself radically defective. Tempus ex sudpte 
naturd vim nullam effectricem habet, ' No possession can make 
' a title, by itself insufficient, a good title on which to pre- 
' scribe ' (p. Lord Justice-Clerk Boyle).^ Thus the want of a 
symbol in the delivery of sasine appearing in the instrument 
destroys it as a title. Or if a deed be not subscribed, or if it be 
tested by only one witness, or if there be a manifest contradiction 
on the face of the title {e.g, if the precept be to infeft one party, 
and the sasine bear that another party having no right has 
been infeft), these objections may be urged at any time by ^ 
pursuer, and constitute a valid answer to the plea of prescription. 
But if an extrinsic enquiry be necessary to determine whether 
a title be consistent with right, the plea that it is not con- 
sistent therewith fails as a reply to prescription. Thus where 
prescription was pleaded upon a charter of adjudication clothed 
with forty years' possession, it was held that the charter and 
sasine being liable to no apparent objection excluded all 
enquiry into nullities alleged to exist in the creditor's diligence 
which founded the investiture.^ So an objection to a title on 
the ground that sasine had not been given on the lands was 

1 KevY, Abemethy, 1705, M. 10,813. Jield, 1830, 8 S. 765. 

2 Lord-Advocate v. Earl of Mans- » g^^ y. Baker, 1760, M. 10, 789. 



held to be extrinsic. It might have had to be met withiu 

forty years, but not after they had expired.^ The case where 

the granter of a precept is alleged to be n(m hdbens potestcUem 

or the granter of a disposition non dominus has already been 

sufficiently discussed. 

Reg^stra- The question whether the obiection that a sasine has not 

tion of ^ ** 

sasine. been registered is fatal to that sasine as a prescriptive title 

gave rise at one time to considerable controversy, and Mr. 
Napier devotes several ingenious and plausible pages to a com- 
parison of the Act 1617, c. 12, with the registration statute 
1617, c. 16: whence he draws the conclusion that an un- 
recorded sasine is a perfectly good title on which to found the 
plea of prescription. The point is of some nicety, but was 
emphatically decided so long ago as 1729, when the Court held 
that a sasine must be recorded to afford a good title for pre- 
scription.^ The decision was upheld by the opinion of the 
majority of the judges in Kibbles v. Stevenson,^ to the effect 
that a sasine not recorded has not exhausted its precept, and 
that upon a fair construction the words of the Act 1617, c. 16, 
' make no faith in judgment, etc.,' amount to a declaration of 
•False- 'Falsehood' is expressly excepted by the feudal clause of 

the Act 1617, c. 12, from the grounds and arguments com- 
petent for troubling land-owners in their lands which are struck 
at by prescription ; and ' falsehood ' seems to have no other 
meaning than forgery. ' I have always understood that the 

* exception of falsehood in relation to prescription means that 

* the title was forged' (p. Lord Craigie).* The same judge 
expressed a doubt as to whether the exception would not apply 
to cases where there was a manifest untruth ex fade of the 
title. But this was met by Lord Gillies, who pointed out how 
serious a thing it would be if effect must be denied to a pre- 

1 Scott V. Bruce Stewart, 1779, M. » 1830, 9 S. 233. 
13, 619. 

2 Crawford v. M'Michen, 1729 ; 2 * Duke of Bucclmch v. Cunyng- 
Boss L. C. 112. hame, 1826, 5 S. 53. 


scriptive title because it appeared ex fade of the deed that 
the titles had not been correctly deduced or that a wrong one 
had been stated. 

How far titles are affected by reversions either in gremio of 
the production, or recorded in the appropriate register, may 
be more properly considered under the Negative Prescription. 

The above, which is conceived to be a correct statement of Changes in 
the law as it stood at the time when Mr. Napier wrote, must 
be taken under qualification of the important changes which 
the legislature has since seen fit to introduce into our system 
of land-rights. 

The Conveyancing Act of 1874 (37 and 38 Vict. c. 94), § 25, l^j^t^'cfi 
abolishes ' any distinction between estates in land held burgage § 25. 
' and estates in land held feu in so far as regards the conveyances 
' relating thereto or the completion of titles, or any of the matters 
' or things to which the provisions of this Act relate.' 

By the Titles to Land Consolidation Act 1868 (31 and 32 31 and 32 
Vict. c. 101), § 14, it is no longer necessary to expede and superseding 
record an instrument of sasine. It is sufficient for the person vict c 76. 
in whose favour the conveyance is granted to record the con- 
vey auce itself, with a warrant of registration thereon, in the 
appropriate register of sasines. 

The same statute, § 17, provides that in the case of convey- 
ances which contain clauses of a private nature (such as the 
purposes of a trust), or where the deed contains matter un- 
necessary for the completion of the disponee's title or the pro- 
tection of the public, a notarial instrument may be expeded 
in favour of the grantee setting forth the nature of the convey- 
ance, and those parts of it which relate to the lands in which a 
real right is intended to be obtained, and by which real burdens, 
conditions, or limitations are imposed. This instrument being 
recorded is equivalent to a recorded sasine. 

The Conveyancing Act of 1874 (37 and 38 Vict. c. 94), § 34, 37 and 38 

Vict c 94 

enacts, as we have seen {mpra p. 7), that ' any ex fade valid § 34.* 
' irredeemable title to an estate in land, recorded in the appro- 


' priate register of sasines, shall be sufficient foundation for 
* prescription.' The obvious purpose of this provision is not 
to supersede the old statutory title demanded by the Act 1617, 
c. 1 2, but ' to add a new rule to the system according to which 
' registration takes the place of infeftment.' ^ ' Ex fade valid ' 
means free from any ex facie nullity, i.e, from anything that 
will ' deprive the title of the character of a formal, complete, 
' and valid instrument ' (p. Lord Justice-Clerk Hope).^ The 
word ' title ' is to be taken in the widest sense as including all 
deeds by virtue of which one holds, or has held, a legal right. 
' Estate in land ' is defined in the Act as ' any interest in land, 
' whether in fee, life-rent, or security, and whether beneficial 
' or in trust, or any real burden on land,* and as including an 
estate of superiority. The significance of the word ' irre- 
' deemable ' will appear later on {infra p. 23). 
Adjudica- Adjudication and sasine, followed in due course by decree of 
declarator of expiry of the legal (ie. ten years from the date of 
the adjudication) constitutes an unassailable title to heritage. 
The declarator makes an end for ever of the qualifying right 
of redemption. For long, however, the doctrine prevailed that 
while a conventional penal irritancy in a reversion required 
declarator to make it effectual, it was otherwise with a legal 
irritancy, and that the expiry of the legal in an adjudication 
converted the creditor's right ipso jure into one of absolute 
property if the smallest fraction of the debt remained undis- 
charged.^ But the point was reconsidered in Campbell v. Scot- 
land,^ where, after an elaborate discussion, it was laid down 
by Lord President Campbell that the legal of an adjudication 
being expired does not without decree of declarator, or the 
express act and consent of the parties, vest the right of pro- 
perty in the creditor, but that, like all other penal irritancies, 
it must be declared. This view was followed in Ormiston v. 

^ Rankine, Ltand Ownership, 3d ^ Livingston v. OoocUet, 1704, M. 

ed., p. 32. 73. 

^ Lord-Advocate V, Chrahamy 1844, 
7 D. 183, 196. 1794, M. 321. 


Hill^ and, though vehemently opposed by Lords Meadowbank 
and Newton, was upheld by a majority of the Court, with a 
view to maintaining consistency of decision, in Stewart v. 
Idndsay? Decree of adjudication, in short, without declarator 
of expiry of the legal, is simply a pignus jpraetoHum? The 
principles applied by the Court to adjudications were these: — 

(1) After the expiry of the legal the debtor may still purge 
that irritancy until the expiry has been judicially declared 
against him. 

(2) But if he suffer forty years to elapse from the expiry of 
the legal without attempting to purge the irritancy, his equitable 
claim to be reponed is cut off by the negative prescription, and 
the expiry of the legal becomes effectual against him without 

From the latter proposition it is no great step to what is un- Prescrip- 
questionably a settled principle of our law, that adjudication from^piry 
and sasine, clothed with forty years' possession from the expiry ^ ® ®« • 
of the legal, without declarator of expiry, is a good prescriptive 
title. This was admitted in Caitcheon v. Ramsay,^ it was 
taken for granted on both sides of the bar in Johnston v. 
Balfour,^ though it was questioned in Spenx^e v. Bruce? Finally, 
in Robertson v. Duke of Athol^ Lord Chancellor Eldon discussed 
the point with great fulness, though it was not material to the 
case, and expressed the opinion (confirmatory of the view of 
the Court of Session) ^ that forty years' possession from expiry 
of the legal upon adjudication with infeftment, without any 
declarator of expiry of the legal, forms a good title by pre- 
scription. (Adjudication, of course, eveu when clothed with 
infeftment, if not followed by possession, remains a mere right 

1 7 Feby. 1809, F. C. « 21 Jany. 1807, 1 Ross L. C. 206. 

2 26 Nov. 1811 (not reported), '1808, Hume 463; 1815, 3 Dow 
1 Bell, Comm., 744. 108 ; 1 Ross L. C. 208. 

* Cochrane v. Bogle, 1849, 1 1 D. ^ * Nemo mutare potest causam pos- 

908 ; 1850, 7 Bell's Ap. 65. * sessionis suae is good Roman Law, 

4 1791, M. 10, 810. * but very bad Scots Law ' (p. Lord 

6 1745, M. 10, 789. Hermand). 


in security, and is not a right of property at all).^ The theoreti- 
cal explanation of the doctrine seems to be that the positive 
prescription running from the time when expiiy might have 
been declared supplies the omission to have this done and be- 
stows upon the adjudger's title an equivalent for declarator.^ 
Why not But, since the mere lapse of the legal does not convert the 

from date , . ^ ° 

of infeft- adjudger's right into one of property, and since, nevertheless, 
forty years' possession from the expiry of the legal is held to 
be possession animo dominii, why should not forty years* posses- 
sion from the date of infeftment upon the adjudication suffice 
to establish a good prescriptive title? Struck with the difficulty 
of finding a satisfactory answer to this question. Baron Hume 
opined that prescriptive possession begins to run from the date 
of the investiture to which it is referable, and that adjudication 
followed by infeftment, on which forty years' possession has 
immediately followed, affords an unassailable title to heritage. 
But however tempting and plausible this view may be, and 
however inconsistent the opposite opinion may appear, it is 
impossible to get over the authority of Cutler v. M'Lellan^ 
where the Lords were all unanimous that upon a charter of 
adjudication prescription of the absolute irredeemable property 
could not run except from the expiration of the legal. Lord 
Monboddo added that if prescription had been pleaded against 
any other than the debtor or his heir it would doubtless have 
run from the date of sasine ; and that in a question with any- 
body, if the adjudger claimed no more by prescription than the 
redeemable right, the prescription would run from the date of 
sasine. With this case the later one of M'Kenzie v. Robertson * 
is in complete accordance. There adjudication and infeftment 
had been followed by possession for forty years from the date 
of sasine, but not from the expiry of the legal. In 1809, within 
forty years from the adjudication, the adjudger obtained decree 

1 Anderson v. Nasmyth, 1758, M. « 1762, 5 Br. Sup. 893 ; 1 Eoas L. 
10, 676. C. 204. 

2 Napier, p. 138. ■* 1827, 5 S. 648. 


of declarator of expiry of the legal without calling the pursuer, 
who stood in the reverser's right. In 1817 the pursuer brought a 
reduction of that declarator, against which the defender pleaded 
prescription, founded on the adjudication and infeftment clothed 
with forty years* possession. The Court repelled the defender's 
plea of prescription. The case of Gedd v. Baker} to which 
Baron Hume appeals in support of his opinion, in reality 
makes for neither view of the question. For there the de- 
fender was not in a position to plead forty years' possession 
from the expiry of the legal owing to the deduction of minori- 
ties, and all that was decided was that the lapse of forty years 
from the date of charter of adjudication and infeftment barred 
the pursuer from challenging the adjudication on the ground 
of extrinsic nullity. No doubt, however, was expressed but 
that the pursuer might have alleged ' satisfied and paid within 
* the legal ' at any time within forty years from the expiry of 
the legal. 

A decree of adjudication with infeftment thereon duly re- Fortyyears' 
corded, even when followed by decree of declarator of expiry stiii*^*^^'^ 
of the legal, has been held not to be such an ex fade irredeem- ^®<^®"*'*^' 
able title as the Statute 37 and 38 Vict. c. 94, § 34, declares shall 
be a good prescriptive title when clothed with only twenty 
years' possession. Forty years' possession is, therefore, still 

1 1760, 1 Ross L. C. 200 ; M. 10, « HinUm v. Hohb8y 1883, 10 R. 

789. 1110. 



Title must The second requisite of a good prescriptive right is possession 
with of a certain quality for a certain length of time. On the one 

possession, i j t_ , ■% • ..-i . • • t 

hand charter and sasme without possession enjoy no peculiar 
privilege under the Act 1617, c. 12, in a competition of titles. 
A superior conveyed his superiority to another, but still re- 
tained it in his own titles. It was held that he reacquired it 
by the vassal in the lands obtaining entry from him instead of 
frcmi the disponee of the superiority. His title, that is to say, 
phis possession through the vassal, prevailed against the infeft- 
ment of the disponee on which no possession had followed.^ 
So where the Magistrates of a Eoyal Burgh had granted re- 
peated renewals more hurgi of investitures specially containing 
a piece of ground in dispute, their continued possession of the 
subject following on charter of confirmation and new erection 
was held to establish in them a good prescriptive right as 
against the competing party to whom and to whose authors 
these renewals had been granted.^ ' Can a superior,' asked 
Lord Cringletie, ' prescribe against a vassal a subject previously 

* granted to him ? I have no doubt he can. If the vassal does 

* not possess, it is an abandonment of the feu. Prescription is 
' not interrupted by renewals of the grant.' 

Possession On the other hand, no peculiar privilege is conferred by the 

referable to Act upon possession, no matter for what length of time, with- 

out charter and sasine. ' Possession is of no sort of importance 

* in a question of prescriptive right to a feudal subject unless 

* there have been a legal title on which prescription was to 

^ Fergusson v. Grade, 1832, 3 Ross » Aytoun v. Magistrates of Kirk- 
L. C. 370. caldy, 1833, 11 S. 676. 


' begin its course ' (p. Lord Cringletie).^ Prescriptive posses- 
sion of salmon fishings iu the sea Avill not confer a right of 
salmon fishings on the proprietor of a barony bounded by the 
sea, unless that possession can be ascribed to the barony title.* 
Possession alleged upon a minute of council (on which no title 
had been made up) was held to be an irrelevant plea, inasmuch 
as the minute was contradictory of the right claimed.' The 
Duke of Buccleuch raised an action against the Mt^istrates of 
Ediubui^h for reduction of a decree of the Judge Admiral re- 
lative to the boundaries of conterminous oyster fishings in the 
Filth of Forth, combined with declarator of the extent of his 
right. The defenders admitted that they could not resist re- 
duction of the decree, but in regard to the declamtor pleaded 
their possession a3 limiting the pursuer's right The plea of 
possession was held irrelevant, since possession could only be 
referred to the decree, which was admittedly open to reduction.* 

Although possession must be referable distinctly to an in- ' Part wui 
feftment and to the infeftment produced, a right or subject p^"^'"™*' 
may nevertheless be carried by prescription (even if it be not 
expressed in the prescriber's charter), which has been possessed 
for the statutory period as "part and pertinent of another subject 
specially mentioned in it. Where, however, a proprietor founds 
on a conveyance of heritage with part-s and pertinents as a pre- 
scriptive title to lands not mentioned iu the conveyance, it is 
not enough for him to show that he has possessed them along 
vyiih the principal lands for forty years. The onvs lies on him 
of proving that he has had possession of them as part and 
pertinent of the principal lands.* So powerful is the effect of 
possession upon a clause of part and pertinent that it prevails 
in a competition against an express grant of the subject in 
' OJUera 0/ State v. Earl 0/ Had- ^ Eou v. Milne, Oruden * Co., 
dwgtim. 1830, 8 S. 867, 874. See, 1843, 5 D. 648. 

too, Edmonntone-v. Jeffray^etc, 1886, * Dvice 0/ Btiecleuch v. Magittratu 

13 E. 1038. 0/ EdiTiburgh, 1843, 5 D. 846. 

» Lord-Advocoii v. Huid, 1867, 
Advo- S M. H. L. 1 ; Scotl v. Napkr, 1869, 
7 M. H. L. 35. 


question upon which infeftment has followed, but not posses- 
sion. Thus the titles to the barony of Elcho, with parts and 
pertinents, clothed with possession for forty years, were held 
sufficient to constitute a good right of property in an island in 
a river opposite the barony, though the island was included 
•per expressum as a separate tenemenli in the titles of a third 
party, and though a decree of declarator of property in the 
island had passed in 1637 in favour of that third party, who 
had never enjoyed possession of the subject.^ So, too, an in- 
feftment in lands with parts and pertinents was found a suffi- 
cient title on which to acquire by possession gicd dominus a 
right of property in an adjoining moor not expressly included 
in that infeftment, and expressly included in the titles of 
another, and that notwithstanding an old decree finding the 
prescriber's right in the moor to be one of servitude only.* In 
like manner, possession for forty years as part and pertinent 
constitutes a good prescriptive title to property, even where the 
pursuer produces a tack prior to the forty years, and alleges 
that possession originally began upon it.^ On the other hand, 
an express grant renewed in all succeeding investitures cannot 
be lost by failure to possess unless the competing party can 
produce a proper title to which his possession may be ascribed. 
Where the charter of a burgh of barony contained no right of 
fishing in a certain loch, but merely a right of harbour, although 
in the tenendas * cum aucupationibus, piscationibus' was thrown 
in, forty years* possession of oyster fishings in the loch by the 
Magistrates was held not to constitute a good prescriptive right 
to the oyster fishings in a competition with one holding an ex- 
clusive right to them by charter and sasine, though not clad 
with possession.* In such cases, however, the bare title with 
sasine that prevails must be express and unmistakeable ; and 

1 Magistrates of Perth v. Earl of Wemysa, 1675, M. 9636. Grant v. 
Wemyss, 1829, 8 S. 82. Grant, 1677, M. 10, 876. 

2 JUarl of Fife's Tnistees v. Cum- 
ing, 1830, 8 S. 326. * Agnew v. Magistrates of Stran- 

8 Countess of Moray v. Earl of ra^r, 1822, 2 S. 36. 


where a proprietor claimed as property the alveus of a stream 
which he admitted had been possessed and administered by 
the Magistrates of the town for more than forty years, he was 
required to produce a title from the Magistrates divesting 
them, and it was held that his mediate titles, implicitly in- 
cluding the alveitSy not being clad with possession were of no 

But where both competing parties produce titles equally Possession 
habile for prescription, the state of possession will determine mining a 
whose is the right. Two baronies, A and B, the titles to which "^ 
contained clauses of parts and pertinents, were erected into one 
barony, C. The proprietor sold a portion of A with parts and 
pertinents, and this portion was excepted, and the clause of 
parts and pertinents applicable thereto was omitted, from his 
subsequent titles. A competition arose between the heir of 
the seller and the heir of the purchaser as to a tract of gix)und 
belonging to A, not expressly mentioned in either of their 
titles, but claimed by both as part and pertinent, by the heir of 
the purchaser as his exclusive property, by the heir of the 
seller in common property with the heir of the purchaser. It 
was held that the heir of the seller had a good title on which 
to prove prescriptive possession of commonty or of a servitude ; 
and that as both parties claimed under clauses of part and 
pertinent, the extent of their rights fell to be determined by 
proof of the state of possession.^ A, by contract ratified by 
Act of Parliament, acquired right to certain feu-duties which 
had pertained to an hereditary keepership. Infeftment followed, 
and feu-duties were paid down to within forty years of the 
action. Then B, a proprietor of lands, refused to pay feu- 
duties, on the ground that he had possessed for more than the 
prescriptive period upon a Eoyal Charter converting his holding 
into blench, and that under this investiture the subsequent 

1 Jamieaon v. Police Commissonera Carnegie v. MacTier, 1844, 6 D. 

of Dundee, 1884, 12 K. 300. See 1381. 
WUson V. Martin, 1843, 6 D. 7. 



as inter- 


titles had been made up. It was held that A had a right to 
the feu-duties in virtue of the constant possession that had 
followed on his titles, notwithstanding the lands having been 
held blench in the proprietor's titles for more than the years of 

Possession then for the prescriptive period may be said to 
explain and illustrate the import of a grant. Thus a grant 
from the Crown of lands cum piscationibvs with forty years' 
uninterrupted possession of the salmon fishings establishes an 
invulnerable right to these salmon fishings.^ A proprietor infeft 
upon Crown charter cum piscationibus was held to have estab- 
lished a right to salmon fishings in the Tweed ex adverso of lands 
belonging to other proprietors.^ A grant of lands with parts 
and pertinents is sufficient title on which to acquire by posses- 
sion a prescriptive right to eel-cruives in a river to which the 
lands are adjacent.* A Crown grant of lands on the banks of 
a loch, * with the salmon fishings in the wester end ' of the loch 
' efifeiring thereto,' may be set up as a title to salmon fishings 
ex adverso of lands belonging to other proprietors by proof of 
the exercise of salmon fishing for the prescriptive period.^ 
Infeftment in a sheriffship, with all the casualties belonging to 
the office, plvs possession for forty years, sufficiently instructs a 
right to salmon fishing.« 

Similarly, infeftment in a barony, followed by possession of 
the salmon fishings for the prescriptive period, will be a good 
title to the salmon fishings even against the Crown.^ A ques- 
tion arose between the Crown and the owner of a barony as to 
salmon fishings in a particular part of a river. It was held not 

^ Duke of Montrose v. Bontine, 
1840, 2D. 1186. 

^ Earl of Southesh v. Earlehall, 
1667, M. 10, 842 ; FvUerton v. Earl 
ofEglinUm, 1672, M. 10, 843 ; Stuart 
V. M' Bar net y 1867, 6 M. 763 ; 1868, 
6 M. H. L. 123. 

' Ramsay v. Duhe of Roxburghe, 
1848, 10 D. 661. 

* Braid v. Douglas, 1800, M. Pro- 
perty App. I. 2* 

« Fraser v. Grant, 1866, 4 M. 596. 

* Earl of Moray v. Feua/rs of Ness 
Water, 1677, M. 10, 903. 

^ M^DouaU V. Lord ' Advocate, 
1876, 2 R. H. L. 49, reversing Court 
of Session, 11 M. 688. Lord- Advocate 
V. M'Culloch, 1874, 2 R. 27. 



necessary to inquire whether the owner of the barony had by 
express grants acquired rights to the whole salmon fishings in 
the river ex adverso of his lands ; because the full possession he 
had had in one part of the river, in conjunction with his title, 
sufficed by prescription to confer a right to the salmon fishings 
in the whole river as tcnum quid, ex adverso of the lands in- 
cluded in the barony.^ A Crown title to a barony with fishings 
was found to be sufficient title on which to establish by evidence 
of exclusive possession for the prescriptive period an exclusive 
right to mussel scalps betwen high- and low-water mark.^ 
Barony titles which contained no express grant of foreshore, 
nor any description of the land by boundaries, were held, when 
clothed with possession, to be sufficient foundation for a pre- 
scriptive right of property in the foreshore.^ A charter of 
barony with a clause of parts and pertinents is a sufficient 
title, when clothed with the requisite possession, to constitute 
a prescriptive right to ferry over a navigable river.* 

But it is not only upon Crown charters or upon barony titles Base rights 

to regalia, 

that possession for the prescriptive period operates in this 
manner. A base right to salmon fishings, or even 'fishings,' will 
probably be converted by possession into a good prescriptive title 
to salmon fishings.^ A disposition of lands and shore-ground, 
though not confirmed by the Crown, clad with possession for 
the prescriptive period, was held sufficient to instruct a pre- 
scriptive title to the foreshore of a navigable tidal river.® And, 
in general, a Crown charter by progress, or even a charter from 
a subject, is a good title upon which forty years' possession 
may erect a prescriptive right to regalia^ 

^ Lord-Avocate v. Lord Lovat, 
1880, 7 R. H. L. 122. But see Lord 
Advocaie v. Cathcart, 1871, 9 M. 

' Dtichess of Sutherland v. Waison, 
1868, 6 M. 199. 

* Lord-Advocate v. Lord Blantyre, 
1879, 6 R. H. L. 72. 

* Duke of Montrose v. Macintyre, 
1848, 10 D. 896. 

^ Lord-Advocate v. Sinclair, 1865, 
3 M. 981 ; 1867, 5 M. H. L. 97. 
Earl of Zetland y. Glovers of Perth, 
1868, 6 M. 292. 

* Buchanan db Geils v. Lord-Advo- 
cate, 1882, 9 R. 1218 ; cf. Towig v. 
N, B. Ry, Coy., 1886, 13 R. 314; 
1887, 14 R. H. L. 53. 

^ Lord-Advocate v. Hebden, 1868, 
6 M. 489. 



As a further illustration of the operation of possession in 
explaining a grant, we may note M'Arly v. FrtndCs Trustees} 
A cornice and sign-board projected beyond the centre of the 
joists between the ground floor and the first floor of a tenement, 
and had been in their then position for forty years. They were 
found to have been possessed during that period as part and 
pertinent of the shop on the ground floor, and it was held that 
the proprietor of the upper flat was not entitled to have them 
removed. Again, in the case of a garden in a square in a town, 
it was held that the past possession and administration thereof 
must be the measure of the feuars* rights therein, which were 
not expressly defined in the titles.^ 
Charters to A similar principle governs an important class of cases, 
where the question at issue has been the extent of the right 
enjoyed by the magistrates or the inhabitants of a royal burgh 
or a burgh of barony. Thus, the charter of a Eoyal burgh is a 
habile title on which to prescribe a right to exact harbour and 
shore dues, and the usage of exaction for more than the pre- 
scriptive period will fix the limits of the right.^ A charter to a 
royal burgh with grant of havening places and petty customs, 
but with no express grant of ferry, was held suflBcient, when 
clothed with prescriptive possession, to sustain a right to 
ferries.* The charters of the royal burgh of Edinburgh were 
held to vest in the magistrates a sufficient title on which to 
acquire by immemorial possession the right to levy certain 
petty customs.* A Royal charter clothed with forty years' 
exercise of the right constitutes a good title in the magistrates 
of a burgh to levy tolls.® But a right to levy bridge custom 
under ancient charters was held to be qualified by usage and 
restricted by prescription.^ 

1 1883, 10 R. 574. ^ Hill v. Magistrates of Edinburgh, 

2 Oovemors of George Watson's 1830, 8 S. 449. 
//ojjpJtoZv. Cormac^, 1883, 11 R. 320. „ ,^ ^ ^ , 

» MacPheraon v. Mackenzie, 1881, \Mo.gistraies of Campheltoum v. 
g j^ yog Oalhreath, 1845, 7 D. 482. 

* Oreigv.Ma^gistrates of Kirkcaldy, ' Maxwell v. Provost of Dumfries, 
1851, 13 D. 975. 1866, 4 M. 764. 


The use to which the lands of a Eoyal burgh, or a burgh of Explained 

by use. 

barony, have been put by the inhabitants for the prescriptive 
period constitutes such a qualification of the right of property 
in these lands as will effectually prohibit any change in the 
enjoyment of them that may threaten to impair that use. In 
the Kilmarnock case the magistrates were held not to be entitled 
to feu ground which had always been used by the manu- 
facturers and the inhabitants of the burgh for bleaching, drying, 
and other purposes.^ In the Burntisland case, the judgment 
of the Court finds, * that the uses to which the property in 

* question since the acknowledged grants thereof, has been 

* applied sufficiently instruct that it is so far juris publici that 

* the magistrates as managers- of the property of the burgh 

* are not entitled to dispose of the subjects in question 
' so as to defeat and impair the right and interest of the 
' public in the enjoyment of the said public use.' ^ This rule, 
that when any part of the burghal estate has been applied 
for the common purposes of the inhabitants from time im- 
memorial, these purposes form a condition of and burden on 
the magistrates' right which they connot reject, was followed 
in the EyeTrwuth case,^ where a charter of erection into a burgh 
of barony, followed by immemorial possession, was held to be 
a sufficient title on which the inhabitants might prescribe a 
right to the use of a bleaching-ground and a well within the 
territory of the burgh. The whole question was very fully 
discussed in the case of Sanderson v. Lees,^ where a burgess of 
the Eoyal Burgh of Musselburgh sought with success to inter- 
dict the magistrates from feuing a portion of the links, over 
which he maintained that the inhabitants had prescribed 
a right of playing golf by possession and use from time 

1 1776, 5 Br. Sup. 406. See ^ ^^^g y. Young, 1846, 9 D. 286. 
Young v. Dohwn, 2 Feby. 1816, * 1869, 21 D. 1011 ; 22 D. 24. See, 

F.C. J Wallace v. Ma^/istrates of St, too, Paterson v. Magistrates of St, 

Andrews, 1824, 2 S. 629 ; Magis- Andrews, 1879, 7 R. 712 ; 1881, 8 R. 

trates ofAuchtennuchti/Y, Officers of H. L. 117 ; Orahame v. Magistraies 

State, 1827 ; 6 S. 690. of Kirkcaldy, 1879, 6 R. 1066 ; 1881, 

3 1812, noted in 9 D. 293. 8 R. 395 ; 1882, 9 R. H. L. 91. 



immemorial. From the opinions delivered from the bench, 
we extract the following passages, premising that it was 
agreed by the magistrates to admit that from time imme- 
morial the links and the piece of ground in question had 
been possessed and used by the inhabitants for the purpose 
specified : — ' It appears to me that with that fact established 
the right of the complainer and the other inhabitants is not 
to be regarded as a servitude right at alL . . . I think that 
the possession contended for, and established, was all along a 
quality of the right which the magistrates had in this property, 
and that the inhabitants are entitled to protect it from encroach- 
ment ' (p. Lord President McNeill.) •' The magistrates have 
right to administer this portion of the common good not for 
purposes exclusive of the members of the community, but 
because it was vested in them subject to the community — 
that is to say, the title is explained by the possession as a title 
of property to certain effects in the members of the community. 
. . . The grant in the magistrates is one which use shows to 
be a grant supporting the possession of the inhabitants' 
(p. Lord Ivory). * Inveterate usage has the effect of an exponent 
of the meaning and purport of ancient writings upon which 
such usage has followed. It has been held that though the 
property is vested in the corporation, or even in the superior 
of the burgh, yet one of the purposes for which it is so vested 
in them is to hold it for the use of the inhabitants and others, 
to the effect of their enjoying the privileges which they have 
so exercised ; that this would be an unquestionably good 
title in law if that purpose had been distinctly expressed in 
the charters of incorporation of the burgh ; and that though 
it be not particularly set forth in these charters, yet the im- 
memorial usage following upon them is sufficient to show that 
such was their meaning and effect. . . . The legitimate effect of 
usage following upon the grants to the corporation is to explain 
their import, and the nature and extent of the grants thereby 
made to the burgesses and the inhabitants' (p. Lord Curriehill). 


While, however, possession may legitimately serve to The right 


interpret the written title, a claim to any right based upon a must be 
title clad with possession will not be maintained if the right ^th*titie. 
claimed be inconsistent with or contrary to the title produced, 
to which, possession is referred. Thus a disposition of a 
superiority, bearing on the face of it to be a conveyance of the 
superiority and nothing more, will probably not be so fortified 
by possession of the minerals for forty years as to constitute 
an unassailable title to the minerals.^ The Earl of Haddington 
sought declarator of his right to work quarries in the park of 
Holyrood House, in virtue of forty years' possession of the 
right as part and pertinent of his feudal grant as ranger and 
keeper of the park. The House of Lords held, upon the facts, 
that the exercise of the right alleged was not sufficiently 
proved ; and, on the law, that the privilege claimed, instead of 
being a pertinent of the ofiice, was actually opposed to the 
duty it involved of preserving the park from delapidation. 
The question of the validity of a grant may be determined by 
prescription. If the grant were questioned, prescription wotdd 
establish and confirm it. But prescription cannot raise up a 
a title against the granter to the effect of altering the nature 
of the grant. What the grant carries must be determined by 
its own terms, and though these may be explained by usage, 
the import of the grant can never be turned by prescription 
into something contradictory of its express terms.^ A vassal 
cannot exclude his superior from the dominium directum by pos- 
session upon the charter proceeding from the superior, for that 
title carries on the face of it the negation of any such right. 
On the same principle, no misapplication of a fund or non-fulfil- 
ment of a trust can be fortified by long usage or prescription 
so as to afford a defence to an action for enforcing the due 
execution of the trust ; ^ and usage adverse to the terms of a 

^ Fleeming v. Howden, 1868, 6 M. 570 ; R088 v. Milne, Cruden <fc Co. , 
7 82. 1843, 6 D 648. 

2 Officers of State v. Earl of Had » See Thain v. Thain, 1891, 18 R. 

dingUm, 1830, 8 S. 867 ; 5 W. & S., 1196, (p. Lord Kinnear), at p. 1201. 



grant cannot be founded on as conUmporanea exposition So 
the magistrates of a burgh have no right to impose customs or 
restrictions which their general title will not support.^ A 
fortiorif possession cannot be attributed to an absolute title 
when it has really taken place upon some other. In this sense 
Tiemo mutare potest catcsam possessionis suae? If the title be 
Bounding limited, as in the case of a bounding charter, possession will 


not remove the limitations. One who held lands upon a 
bounding title was found to have acquired no right to a piece 
of ground outside his boundary by the unchallenged possession 
for more than forty years of a building upon it.* Where in a 
feu-contract there were measurements and speciBcations of 
certain boundaries, it was held that since these, taken together, 
' bring out precisely the whole of the boundaries so as to leave 
' the space enclosed a matter of certainty,' there was a bounding 
title which prevented the acquiring by prescription of any 
property outside the boundary.^ The proprietor of a barony to 
which a commonty belonged feued out the whole barony at 
dififerent times to dififerent persons, giving to some feuars a 
right of common property in the commonty, to others a right 
of servitude only, and to others again no right in the commonty 
at all. In an action for division of the commonty, the feuars 
who had a right of property in the commonty were found to 
have 2i Justus titulus which fortified by possession might have 
deprived some one of the property. But such Justus titulus, it 
was held, could not in the case of each feuar be broader than 
the share effeiring to his portion of the valued rental of the 
barony ; so that the body of the feuars could not make out an 
exclusive right of property to the whole commonty. The 
limitation acted like a bounding charter.^ The proprietor of a 

1 Presbytery of Dundee v. Magis- * MagistrcUea of St, Monance v. 

trates of Dundee, 1858, 20 D. 849 ; Mackie, 1845, 7 D. 582. See, too, 

University of AherdeenY, Magistrates Beidr. M'Collf 1879, 7 R. 84. 

ofAberdemy 1876, 3 R. 1087. 50.. n l tt t. 

^ Earl of Moray v. Magistrates of ^^trS^G^ S"^3 

Kinghom, 1762, M. 1988. Jruslees, 186b, 4 M. 283. 

^ Carnegie V, Magistrates of Mont- « Duke of Buccleuch v. Ershine, 

rose, M. voce Possession App. 1. 16 June 1812, F. C. 


barony under titles which contained a clause of parts and 
pertinents, but which described the lands as all lying within a 
particular parish, was held to be unable to acquire by prescrip- 
tive possession any right of common property in lands lying 
beyond the limits of the parish.^ On the other hand, where a 
proprietor had a grant of lands described as lying within a 
county bounded by a river which separated that county from 
another, with the salmon-fishings pertaining to the said lands, 
it was held that the description applied to the lands and not to 
an incorporeal right attached to them, and that a title to 
salmon-fishings not confined to that part of the river eaj adverso 
of the lands, and also to fishings beyond the medium JUum might 
be instructed by corresponding possession of the salmon-fishings 
for the prescriptive period.^ 

Possession must not only be referable to some habile title. It Possession 

. must be 

must also be fully, unequivocally, and specifically applied, fuu, un- 
without any doubt to the subject claimed. In a competition and^^°^* * 
for the minerals of an estate, the party in possession of the ^^^^^^ » 
lands pleaded his infeftment in the lands, with parts and per- 
tinents, followed by possession of the minerals, as against an 
express grant of the minerals. As from the very nature of the 
plea of prescription the Court could not go beyond the titles 
of the proprietor of the estate to discover their import, and as 
his infeftment, if followed by possession for a suflBcient period, 
would constitute under the statute an unassailable title, the 
question to be determined was whether the requisite possession 
had taken place. It was held that there must be possession of 
the minerals themselves and not merely of the surface, that 
while possession for every day of the forty years, or even for 
every year, cannot be required, there must be such possession 
by working the coal as must, or in reason ought to, have 
kept up in both parties, during the whole of the prescrip- 
tive period, the impression that the coal was in possession 
of the party pleading prescription, and that proof of the 

1 Gordon v. Grant, 1850, 13 D. 1, 

* Earl of Zetland v. Tennent's Trustees, 1873, 11 M. 469. 




and exclu- 

possession of the coal was required in each separate parcel of 
the lands.^ But where there is an express title to minerals, 
possession of the surface alone is sufficient to complete a pre- 
scriptive right to the minerals; working the minerals being 
held res merae facvltatis? . The fact, however, of this full, 
unequivocal, and specific possession must be judged of secuTidwm 
svhjectam mcUeriam. Thus, while, as a general rule, possession 
of salmon-fishings to constitute a prescriptive title thereto 
must be by net and coble,® and while, for example, fishing with 
a rod for salmon for the prescriptive period will not make a 
grant of lands cum piscaiionihus a good title to the salmon- 
fishings,* an exception will be made in cases where, from the 
nature of the river, fishing by net and coble is impracticable.^ 
Proof of prescriptive possession by means of a cairn-net was 
held to have established a right to salmon-fishings ex adverse 
of another proprietor's lands in one who was infeft upon a 
crown charter cum piscationibus.^ But a right cannot be con- 
stituted, or a title interpreted contrary to the established law, 
by possession for the prescriptive period in violation of the 
law ; ^ though an illegal mode of possession may be strong 
evidence of the existence of a legal right® 

Possession, moreover, must be continuous, peaceable, un- 
interrupted, and exclusive.® The fact of possession may be 
continuous, though the several acts of possession are at con- 
siderable intervals. How many acts will infer the fact is a 
question of proof and presumption independent of prescrip- 

^ Forbes v. Livingstoney 1827, 6 S. 

* Cratqfurd v. Bethuney 1821, 1 S. 

^ Dtike of Sutherland V. Boss, 1836, 
14 S. 960 ; Duke of Richmmd v. Earl 
ofSeafield, 1870, 8 M. 530; Sinclair 
V. Threipland, 1890, 17 R. 607. But 
see Lord Watson's opinion in Wa/r- 
rand's Trustees v. Ma^kintoah, 1890, 
17 R. H. L. 13. 

< Milne V. SmUh, 1850, 13 D. 112. 

» StuaH V. M'Bamet, 1867, 5 M. 
753 ; 1868, 6 M. H. L. 123 ; Earl of 
DaXhousie v. M*Inroy, 1865, 3 M. 

* Ramsay v. Duke of Roxhurghe^ 
1848, 10 D. 661. 

^ Ma>ckenzie v. Renton, 1840, 2 D. 

^ Lord-Advocate v. Lord Lovat^ 
1880, 7 R. H. L. 122, 166. 

9 Earl of Fife's Trustees v. Sin- 
dairy 1849, 12 D. 223. 


tion.^ 'Though possession be not proved to have continued 

* every quarter, month, or year, yet ordinary possession will be 

* sufl&cient ad victoriam caii&ae (albeit it be proponed in the 

* terms of a continual possession) quia probatis extremis pt^ae- 
' snmuntur media ; if the distance be not great.' ^ Exclusive 
possession is essential,* and where the question goes to a jury, 
the word * exclusive ' must qualify possession in the issue.* 
The degree of exclusiveness, so to speak, required, will diflfer 
somewhat according to the nature of the subject claimed to 
have been possessed for the prescriptive period. In Lindsay 
v. Robertson,^ where the pursuers claimed a right to mussel- 
lishings on a barony title plus possession. Lord Barcaple thus 
directed in the jury. (1) The prescriptive possession of the 
pursuers must be continuous, open, and exclusive; (2) the 
exclusive nature of the possession, if proved otherwise, would 
not be disproved by the fact that others had fished mussels 
there furtively, or so as to show that they believed they were 
committing a trespass, but (3) members of the public commit 
no wrong in taking mussels the title to which is in the Crown, 
so long as the Crown does not interfere, and counter-possession 
of the public during the prescriptive period will exclude the 
claim of the pursuers founded on exclusive possession and 
their barony title. In complete agreement with this direction 
are the observations of Lord Watson in Young v. N, B. Ry. 
Coy,^ where the right to a foreshore was at stake. * In cases 
' where the sea-shore admits of an appreciable and reasonable 

* amount of beneficial possession, consistently with the rights 
' of navigation and of the general public, the riparian proprietor 
' must be held to have had possession within the meaning of 

* the Act 1617, c. 12, if he has had all the beneficial uses of 
' the foreshore which would naturally have been enjoyed by 

1 Se6 Macdontiell v. Duke of Gor- * Lindsay v. Hobertson, 1867, 6 M. 

don, 1828, 6 S. 600. 889. 

» Stair, 4. 40. 20. „ 

8 Duke of PorOamd v. Qray, 1832, ^^^' * ^* ^^• 

11 S. 14. 6 1887, 14 R. H. L. 53. 


' the direct grantee of the Crown. In estimating the character 
' and extent of his possession, it must always be kept in view 
' that possession of the foreshore in its natural state can never 
' be, in the strict sense of the term, exclusive. The proprietor 

* cannot exclude the public from it at any time, and it is 

* practically impossible to prevent occasional encroachments 
' on his right.* With regard to concurrent acts of possession 
by members of the public who have no grant or license from 
the Crown, Lord Watson went on to say : * These were in no 

* proper sense the acts of the Crown, but acts of that descrip- 
' tion, though done without title, tend to derogate from the 

* possession of the riparian proprietor, and, if carried far 
' enough, will deprive his possession of that exclusive character 

* which is necessary in order to establish a prescriptive right/ 
Formerly Possession must be for the whole of the statutory period. 

* In all actions begun prior to 1 January 1879, that period was 

* the space of forty years continuously and together.* When 
possession for forty years back has been proved, it is presumed to 
have continued from time immemorial, so as to connect it with 
an earlier habile title, which it may serve to interpret.^ Lord 
Benholme once endeavoured to draw a distinction between 
possession extending the scope of a grant, which required to 
continue for forty years, and possession merely explaining a 
grant for which he held a shorter period would sufl&ce. But 
the distinction was expressly rejected by Lord Justice-Clerk 
Inglis,^ who insisted that nothing short of forty years would be 
enough. The interruption of possession on the last day of the 
forty years will wipe out all the possession that has gone 
before. * It is the uninterrupted completion of the full pre- 
' scriptive period that alone makes prescription, and after dis- 
' possession, if prescription is to run again, it must be com- 

* menced upon a new course of time.'* (See infra p. 107). 

1 Lord-Advocate v. Sinclair , 1865, ^ Fraser v. Grant, 1866, 4 M. 596. 
3 M. 981; 1867, 5 M. H. L. 97; Lord- 
Advocatev, M'Cvlloch, 1874, 2. R. 27- » Napier, p. 704. 


By the Statute 37 and 38 Vic. c. 94, § 34, it is enacted that Now 
possession following on such a title as is declared by the Act yl^s.^ 
to be sufl&cient foundation for prescription, ' for the space of 
' twenty years continually and together, and that peaceably 

* without any lawful interruption made during the said space 

* of twenty years shall for all the purposes of the Act 1617, c. 
' 12., ... be equivalent to possession for forty years by virtue 
' of the titles ' specified in that Act. This enactment may only 
be pleaded in actions begun on or after 1 January 1879, and 
possession for any time prior to that date is to have no efiFect 
for the purposes of this section * unless such space of time 

* immediately preceded and was continuous up to the said * 
date. The Court has construed the language of this statute in 
the widest sense, and has held that twenty years' possession 
has been substituted for forty for all the purposes of that Act 
as interpreted in the decisions of the Court, e,g, the case of 
prescribing a right as a part and pertinent.^ But forty years' 
possession from the expiry of the legal is still necessary to 
convert an adjudication into a good prescriptive title, an 
adjudication not being an * ex facie valid irredeemable title ' in 
terms of 37 and 38 Vic. c. 94, § 34.^ A curious conflict, it 
may be noted, might readily enough arise between this section 
of the Conveyancing Act and the second, or general, portion of 
the Act 1617, c. 12. A party may still successfully quarrel 
and reduce a deed, on the ground of extrinsic nullity, at any 
time within forty years of its date. Yet one who had possessed 
for twenty years upon such a deed, would be able, supposing 
it to be ex facie valid, to found upon it a good prescriptive title 
to the lands which it purported to convey. His deed, of which 
the nullity had ex hypothesi been demonstrated and judicially 
declared, on extrinsic grounds, would if clothed with possession 
for the statutory period prevail over any the most correct pro- 
gress of titles. 

1 BucJianan <fc Oeils v. Lord- ^ Hinton v. HobhSy 1883, 10 R. 
Advocate, 1882, 9 R. 1218. 1110. 


Possession Possession may be either natural, Le. in the person of the 
cML ^^ proprietor, or civil, i.e. in the person of another for behoof of 
the proprietor. Where one possesses in his own right, his 
possession can profit none but himself. Mr. Bell lays down 
that the possession of a disponee will profit his author ; ^ but 
it is submitted with great deference that this proposition is 
erroneous, and that, on the contrary, a disponee can by his own 
possession acquire a right against his author.^ 
Wadsetter On the Other hand, wherever one possesses in the right of 
reverser. another, his possession will profit that other person.* Upon 
this principle, the possession of a reverser who possessed the 
lands for half the prescriptive period upon a back-tack from 
the wadsetter was held to be that of the wadsetter, and capable 
of being conjoined to his ; and he having possessed for the 
other half of the prescriptive period in person was found thus 
to have acquired a good prescriptive right.* Similarly, where 
the proprietor of lands sold in an adjudication had redeemed 
them either before declarator of expiry of the legal, or before 
the running of prescription, in a question with a third 
party who challenged his right to the lands, he was held 
entitled in pleading prescription to found upon the adjudger's 
possession as having been prescriptive for him.^ 
Landlord The simplest illustration of the doctrine is found in the 
an enan . ^^^ ^£ ^ tenant whose possession in this respect profits not 
himself but his landlord. So long as a tenant continues to 
possess upon his tack, his possession is the landlord's possession, 
and he can prescribe no right of property in virtue of that 
possession against the landlord from whom his right flows. 
But if the tenant procure a grant of the lands a non domino, 
pay no rent, and continue in full possession for the prescriptive 
period, he will then be in a position to propone a good statutory 

1 Prin,, § 2005. * Murray v. Madellan, 1713, M. 

2 CUrk V. Earl of Home, 1746, M. 10, 934. 
10, 662. 

^ Kilkerran, voce Adjudication, ^ Bnrgy v. Strfzchan, 1667, M. 
p. 11. 1305. 


prescriptive right to the lands which will prevail alike against 
the original landlord and against third parties. Though the 
tenant may not change his title in course of possession, and 
ascribe to the new title the possession that was really referable 
to the old one, he is free if he can to complete the full period 
of possession upon the new title of property.^ Hence Lord 
Hermand's sweeping dictum, already quoted, that nemo mutare 
potest cavsam possessionis suae, ' is good Roman law, but very bad 
' Scots law/ ^ The equivalent of that maxim in Scots law 
is the proposition that no one can prescribe a right contrary 
to the terms of the title to which he ascribes the possession of 
that right. If there be a change of title, there must be a shift- 
ing of the ascription of possession.  

In like manner the possession of the vassal is the possession Superior 
of the superior in questions between the superior and third 
parties. The proprietor of a barony, upon a Crown charter 
with fishings, granted a feu charter of the lands with fishings 
in the tenendas. Immemorial possession was proved. It was 
held that the Crown charter of barony, followed by possession, 
was sufficient to divest the Crown of the right to salmon-fishings, 
and that it was immaterial whether the proprietor had possessed 
in person, or through his vassal.* On the other hand, the 
proprietor of a barony, with no express grant of salmon-fishings, 
was held not to have instructed a prescriptive right thereto, by 
proving that the tenants of cottages on his estate had been in 
use to fish for salmon in the sea for their own behoof,. without 
paying rent.* As between superior and vassal, the principle 
that we have so often had occasion to insist upon again con- 
fronts us, namely, that the vassal cannot by possession prescribe 
a right contradictory of that contained in the title to which his 
possession is to be ascribed. Failure to exact feu-duties or the 

^ Orant v. Grant, 1677, M. 10, ^ Lord-Advocate v. M^Cviloch, 

876. . 1874, 2 R. 27. 

* Robertson v. Dulte of Athole, 1 * Lord-Advocate v. Hall, 1873, 

R088, L. C. 208. 11 M. 967. 


like will not imply a dereliction of his right by the superior, 
or an interruption of his possession, for the vassal's possession 
is his. It has long been settled law that * the possession of a 
' superiority is not by uplifting feu-duties or casualties ; but if 

* the vassal has possessed upon a right derived from the superior 

* or any of his authors, then his possession is in the construction 
' of the law accounted the possession of the superior/ ^ With 
this doctrine it seems quite impossible to reconcile the case of 
MKerrel v. Lord Keith^ where a series of investitures bearing 
a reddendo of £12 Scots was found insufficient to alter an old 
blench tenure in respect of want of possession of the £12 Scots. 
While, however, failure to pay feu-duties for forty years will 
not avail to destroy the feudal relationship, or to impair the 
superior's right, still, if the vassal obtain a charter from some one 
other than the true superior, and possess upon that for forty 
years, at the same time paying no feu-duty to the true superior, 
the vassal will have acquired a good prescriptive right against 
the true superior, and their feudal relationship will be extin- 
guished.^ So a right to burgage tenure was found to have been 
gained by forty years' possession upon burgage titles, not the 
less easily, that the party claiming the superiority could pro- 
duce no feu-charter or disposition.* It is in this sense that, in 
the phrase of Lord Armadale, 'a change of tenure may be 
' gained by prescription.' 

Liferenter In the same way, the possession of the liferenter is that of 

and nar. 

the fiar. In 1678, the Earl of Argyle disponed the estate of 
Otter to Colin Campbell, expressly reserving a life-rent of part 
of the lands, which had been constituted, not by the Earl nor 
by his author, but by a party from whose heir the estate had 
been adjudged by the Earl's author, and whose representative 
claimed the lands as vervs dominvs against the Earl or those in 
his right. Colin Campbell obtained a Crown charter of the whole 

1 (7a?np&eK, 5 Br. Supp., 812. MacQu. 790; 25 S. J. 659; Pater- 

' ' * "* Hamilton v. Scotland, 1807, 

3 Macdona^d v. Lochharty 1853, 1 Hume, 461. 


estate of Otter in the same year 1678, and was infeft thereon* 
The charter made no reservation of the life- rent in the dispositive 
clause, nor was it mentioned in the precept or the instrument 
of sasine. About the same time Colin Campbell, by means of 
an excambion with the life-rentrix, obtained possession of the 
liferent lands. He possessed the lands down to 1759, when an 
action was raised against him at the instance of a representative 
of the xerus dominus, from whom the estate had been originally 
adjudged. The question arose, Was Colin Campbell's possession 
of the liferent lands to be attributed to the charter and sasine 
of 1678, or to the assignation by the life-rentrix of the liferent 
flowing from the venis dominus ? The Court of Session held 
that the defender had not produced enough to exclude the 
pursuer's title to the liferent lands ; that, in fact, possession by 
a liferenter, or by one possessing in right of a liferenter, cannot 
be counted against the party from whom the liferent flowed. 
But the House of Lords, while not opposing this view, gave 
judgment for the defender, on the broad ground that by his 
charter and sasine, clothed with possession, he had instructed a 
good prescriptive right to the lands, and that it would be ' highly 
' inexpedient and endless for courts to make enquiries about the 
' origin of possession after it was continued for forty years, and • 
' complete heritable titles in the possessor's person.' ^ The rule 
that possession by the liferenter cannot operate to the prejudice of 
the granter of the liferent, or of his representatives, was aflSrmed 
in Nielson v. Erskine^ and is implicit in the early case of 
Younger v. Johnstone? There the assignee of an heir challenged 
the right of a competing heir, who pleaded prescription upon 
forty years' possession of the lands by a life-rentrix, whose grant 
flowed from one of whom the rival heirs each claimed to be the 
representative. The heir pleading prescription could only 
benefit by the possession of the life-rentrix (the grant not having 

1 Campbell v. WUsov, 1770, 6 Br. « 1823, 2 S. 216. 
Sapp. 643. See also French v. Pink- 
8tan, 1835, 13 S. 743. 3 i665, M. 10, 925. 

J I 


proceeded from him) ia so far as he stood in the original pro- 
prietor's (and granter's) right. And as the true representation 
of that original proprietor was just the de quo qaaeritur^ the 
Court held that in a competition between heirs, the possession 
of a liferenter, whose right had flowed from the defunct to whom 
both pretended to be heirs, was not profitable to either to the 
prejudice of the other; and that the liferenter's possession 
should be interpreted to be the possession of him who should 
be found the lawful and righteous heir. But the possession of 
a liferenter by reservation is not to be accounted the possession 
of the fiar.i 
Ck)njunc- Where there is an habile feudal title preceding the f-orty 

tion of 

possession, years' possession, and where the party pleading prescription 
can connect his own possession with that investiture even in 
the person of another, his own possession may be conjoined to 
that of his author so as to make up the requisite prescriptive 
period. One who was infeft on a general conveyance from 
another (who was infeft and possessed as institute under an 
invalid entail), and who completed the years of possession in 
his own person, was held entitled to conjoin his possession 
to his author's, and thus connect with that author's infeft- 
• ment so as to instruct a good prescriptive title against 
trustees who had executed the invalid deed of entail, and 
claimed that they were entitled to reduce it and execute 
a valid one.^ According to Mr. Erskine,* *No part of the 
' possession of a singular successor, upon a bare personal right, 
' as a charter or disposition, can be computed to make up the 
^ years of prescription. And this is also the case of an heir's 
' possession before he hath completed his titles by sasine ; 
' because such possession by the heir is grounded barely on the 
' right of apparency, and not upon sasines.' But this interpre- 
tation of the statute has not been adhered to by the Court, 

^ Marquis of Clydesdale v. Earl of * Earl of Eglinton v. Eglinton, 

DundonaXdy 1726, M. 1262. 1861, 23 D. 1369. 

^ Institutes, 3. 7. 5. 



which has more than once held that, where charter and sasine 
are produced as the title to which possession is ascribed, it is 
enough for the heir or singular successor to prove possession 
for forty years by persons who can connect themselves with 
that charter and sasine, and that it is of no moment whether 
that connection be established by deeds clothed with in- 
feftment, or by deeds merely personal, or even by simple 
apparency.^ The Court will even allow a party to feudalise 
a personal right pendente lite, in order that his alleged con- 
nection with the original infeftment may be made plainer.^ 
But a distinction must be drawn between these cases, where 
the title pleaded upon was the first alternative allowed by 
the statute, viz., charter and sasine, — where, i.e., there is direct 
evidence that the author or ancestor had himself a title fit 
in its own nature for vesting the property in him, — and those 
other cases where the party pleading prescription produces the 
second alternative title, viz., bare sasines, one or more, pro- 
ceeding upon retour or precepts of dare constat, — where, i,e., 
there is merely a reasonable presumption of an original title. 
If the first heir infeft upon this second alternative title com- 
plete forty years' possession in his own person, he has un- 
doubtedly established an unassailable prescriptive right which 
his heir in apparency may plead upon, not in virtue of his own 
but of his ancestors' possession. But if the first heir infeft on 
a bare sasine have not himself possessed for the full prescrip- 
tive period, his heir, in order to conjoin his possession to his 
ancestor's, so as to make up the necessary tale of forty years, 
must renew the infeftment in his own person.* Such is the con- 
struction placed upon the words, ' sasines one or more standing 
' together.' But when the heir-apparent has made up a feudal 
title, the years of possession on a bare apparency are reckoned 

^ MidcUeton v. Earl of Dunrnwe, ^ Crawford v. Durham, 20 Dec. 

1774, M. 10, 944 ; Earl of March- 1822, F. C. 
mont V. Earl of Home, 1724, M. 10, 

797 ; Oaitcheon v. Ramsay, 1791, ' Earl of Argyle v. M^NaughUm, 

M. 10, 810. 1671, M. 10, 791. 


as years of possession on a habile title, and are counted as part 
of the prescriptive period. Nay, if there be an interval of 
apparency, no matter how long, between two periods of posses- 
sion upon such infeftments, the years of that interval are in- 
cluded in the calculation of the term of possession.^ The 
singular successor of one whose title was a bare sasine may, 
equally with an heir, conjoin his possession to his author's, if 
the connecting link be clothed with infeftment.^ 
Vesting by The Act 37 and 38 Vic. c. 94, sec. 9, provides that 'a per- 
' sonal right to every estate in land descendible to heirs shall, 
' without service or other procedure, vest or be held to have 
' vested in the heir entitled to succeed thereto by his survivance 

* of the person to whom he is entitled to succeed . . . and 

* such personal right shall, subject to the provisions of this Act, 

* be of the like nature and be attended with like consequences, 
' and be transmissible in the same manner as a personal right 
' to land under an unfeudalised conveyance, according to the 
' existing law and practice/ Possession on apparency thus 
disappears from our system. But it is conceived that this 
enactment makes no alteration in the law as above stated with 
reference to the possession of heirs before their infeftment, or 
to the distinction between the alternative titles allowed by the 
Act 1617, c. 12. 

1 J^wfoon V. igV«Jfcin«, 1823, 2 S. 216. M. 10, 937; M'Ntiil v. Macneal, 

2 Purdie v, Torphichen, 1739, M. 1858, 20 D. 735. 
10, 796 ; Millers v. Dickson, 1766, 



Ersk., Prin., 3. 7. Note A by Mr. Moir (17th edition). 

The efifiect of the positive prescription is to make a certain Two titles 
feudal title unchallengeable in competition with another feudal ^reon. 
title, and hitherto we have observed its operation in cases where 
the competing titles have existed in the persons of different 
parties. But there may be two distinct investitures upon 
either of which the same man may base his claim to a pro- 
perty, and we are now to inquire into the operation of prescrip- 
tion in such a state of matters. It may be the most convenient 
course to examine the leading cases, and to endeavour to gather 
from that examination the principles to which they seem to 

In the case of Innes v. Innes} the estate of Auchluncart was innes of 


destined to heirs- male by an onerous bond of entail in 1641. cart 
In 1649, Walter Innes, the institute of entail, having acquired 
some expired apprisings of the property, took the rights thereof 
to heirs whatsoever. In 1695, a competition arose between the 
heir-male and the heir of line. The heir of line (defender) 
proponed the plea of prescription against the pursuer's claim 
to the property (1) negativd, to the efifiect that the pursuer's 
right had been cut oflF, no document having been taken nor 
diligence done upon it within forty years, and (2) positive, the 
lands having been possessed by him for forty years after Mr. 
Walter Innes had taken the right to heirs whatsoever. The 

1 1695, M. 11, 212. 



Court held that, while the negative (or privative) prescription 
did not cut ofiF the boud of entail, the positive prescription did ; 
and they repelled the pursuer's plea of non vcdens agere on the 
ground that an heir-of-entail has B.jus agendi. 
Mackerston In the Mackerston case,^ the facts were these. In 1669 


Macdougal of Mackerston settled his estate upon his son 
Thomas and the heirs-male of his body by a simple destination 
containing a power to alter. Thomas (I.) was infeft and 
possessed upon this title till his death, when his son Henry was 
infeft as heir to his father in the same investiture, and so 
possessed till his death in 17.22. In 1715 he had settled the 
estate by bond of tailzie in favour of himself and the heirs-male 
of his body, whom failing, to his daughter Barbara and the 
heirs-male of her body, whom failing, to his younger brother 
William (passing over an intermediate brother Thomas (II.)> 
and so forth. Barbara, served heir to Henry, was infeft in 
terms of the above settlement, and so possessed till 1738. In 
that year William, her father's youngest brother, discovered a 
bond of tailzie, of date 1684, bearing to be an exercise of the 
power to alter contained in the disposition of 1669, and settling 
the estate upon Thomas (I.) and the heirs-male of his body, 
with stringent irritant, resolutive, and prohibitory clauses. 
Upon this bond William, as representing his elder brother, pro- 
ceeded to found a title to the estate ; and his claim was met 
by Barbara with the plea of prescription proponed positive to 
the effect that the estate had been possessed upon the settle- 
ment of 1669 down to 1738, and negative to the effect that the 
bond of entail, having lain dormant from 1684 to 1738, was 
cut off. The Court sustained both pleas, and the decision is a 
precise application of the terms of the statute 1617, c. 12. On 
the one hand there was possession upon a feudal title adverse 
to another competing title, which — though it too afforded the 
immediate right of possession to the party holding on the other 
investiture — afforded a legal right to others to interrupt the 

^ Macdotigal v. Macdougal, 1739, M. 10, 947. 



. , 

possession as held. On the other hand, the action competent 
to the heirs of entail, being of the nature of document taken on 
an obligatory contract, and not of a direct declarator of property, 
necessarily fell within the scope of the second portion of the 
Act. The same view was taken in Douglas v. Douglas,'^ In 
Ayton V. Monypenny^ it is true, the Court, having upon a 
similar state of facts repelled the plea of negative prescription, 
proceeded to complicate the error by also repelling the plea 
of positive prescription, on the ground that the one plea was- 
the inseparable counterpart of the other. But the House of 
Lords, by reversing this judgment, upheld the authority of the 
previous decisions. 

Among more modem cases to the same effect may be men- More 
tioned The Duke of Hamilton v. Westenra^ and Hope Vere v. cases. 
Craigiehall,^ where an heir of entail in possession destined the 
lands, by a marriage-contract which referred to the entail, to a 
different series of heirs from that specified in the entail. 
Possession for more thaii forty years followed on the disposition 
in the marriage-contract, which was accordingly held to be the 
governing investiture. The reference to the entail imported 
nothing, and the substitute under the entail had lost the power 
of challenging the new disposition Twn utendo. The decision 
in Paterson v. Purves ^ was the same in an almost identical state 
of facts. In Macdonald v. Lockhart^ a deed of entail specially 
referred to a previous marriage-contract which it professed to 
implement. The marriage-contract contained a clause excluding 
heirs-portioners, which the entail omitted. Possession followed 
on the infeftment on the entail for more than forty years. The 
last heir of entail left two daughters, between whom arose a 
question as to the right to the lands. It was held that the 
daughters succeeded as heirs-portioners in terms of the subsist- 
ing investiture which had been fortified by prescription, and 

1 1753, M. 10. 965. * 1828, 6 S. 517. 

2 1756, M. 10, 956. « 1823, 1 S. App. 401. 
« 1827, 6 S. 44. 8 1842, 5 D. 372. 



that the right of action to reduce the entail and enforce the 
obligations contained in the marriage-contract had been cut off 
by the second portion of the Act 1617, c. 12. 
In all these In all these cases there are two competing and adverse in- 
sity of feftments ; in all there is the right to disturb possession on the 
title to which possession is being palpably ascribed ; in all there 
is that something 'expressly contrary to the right against 
' which prescription is pleaded' which is necessary to render ' the 

* lapse of forty years of importance/ For to make out a party 
to be free from the obligation to possess under a particular deed, 
' it must be shown that during the forty years that obligation was 

* denied, so that after forty years a right against such obligation 
' has been made good by positive or negative prescription.' i 

In all these cases, moreover, two familiar principles are 
implicit : (pi) A feudalised adverse title is absolutely necessary 
to found a plea of prescription. Where a man has right to 
lands under two titles, one unlimited, the other limited, and 
does not make up a title upon either, but possesses for forty 
years upon apparency, the limited title is not extinguished by 
prescription (for possession cannot be ascribed to any adverse 
title) but remains the preferable and governing title. The only 
infeftment that can be appealed to by the heir in possession 
is that of his ancestor, qualified, as that is, by the limited title.^ 
(i) A right cannot be prescribed by possession in defiance of 
the title to which that possession is attributed. A party was 
heir under two different entails. Entail No. 2 was not affected 
by the limitations in entail No. 1, but No. 2 contained a clause 
declaring that it should not prejudge any other right or title to 
the lands, but that they might be possessed ' without extinction, 
^ innovation, or confusion of rights . . . oixumularidojurajuribus' 
The lands were possessed for more than forty years under 
No. 2. It was found that that clause preserved No. 1 to all 

1 Cuninghame*8 Trustees y. Ouning- welly 1808, M. voce Prescr., App. 22 ; 

?Mme, 1852, 14 D. 1065, p. Lord- Lumsdainev, Balfour, 13 June ISll, 

Justice Clerk Hope, p. 1076. P. C. 

^ Welsh Maxwell v. Welsh Max- 


intents and purposes, and prevented prescription running 
against it, and that an heir of entail whose predecessors and 
himself had possessed under No. 2 was entitled to attribute his 
possession to No. 1.* A deed of entail contained an obligation 
on the heirs to insert verbatim in all subsequent charters, etc., 
its whole conditions, limitations, and irritancies. The investi- 
tures, though they fulfilled this obligation to a certain extent, 
and referred to the entail as the title of possession, differed 
from the entail in the resolutive clause, and in a question with 
creditors the entail as set forth in the investiture was held to be 
invalid. But, inter haeredes, it was held that the entail was 
not extinguished by possession for the prescriptive period in 
terms of the defective investiture, which referred to the entail 
as the title of possession.^ A party executed a deed of entail 
containing a substitution haeredihus nominandis, and reserved 
a power to alter the succession. He afterwards made a deed 
nominating heirs preferably to other heirs, called after the 
substitution haeredihiis nominandis. The estate was possessed for 
forty years without reference to the deed of nomination. It 
was held that the deed of nomination was not extinguished by 
prescription, for that haeredes nominandi were precisely in the 
position of other contingent heirs, and that the contingency 
was purified by the execution of the deed of nomination. The 
heir under that deed was therefore found preferable to an heir 
called under a posterior substitution.^ 

We now turn to the cases in which there is no such collision, cases where 
or adversity of interest between the two titles. 8^/0^^ 

In 1671 James Carbarn disponed his estate to Thomas, his"^*®^®^** 
eldest son, and the heirs of his body ; whom failing, to James, 
his second son, and the heirs of his body ; whom failing, to the 

1 DcUyell v. DcUyell, 17 Jan. 1810, » Stewart v. Porterfidd, 1821, 1 S. 

r. C. 5 ; 1829, 8 S. 16 ; 1831, 5 W. & S. 

* Cuninghame^a Trustees y. Cuning- 515. 
hame, 1852, 14 D. 1065. 


SmWi and heirs of the body of his own second wife. Thomas, ignoring this 

Bogle, «-» t» 

disposition, made up titles to the estate as heir of his father, and 
was succeeded by his brother James, who made up titles as 
heir to Thomas. James conveyed the estate to his own heir- 
at-law, altering the destination to the heirs of Ann Johnston, 
his father's second wife. This destination of James's was 
quarrelled on the ground that he was fatuous and incapable 
of alienating. In reply it was argued that, admitting James's 
disposition to be invalid, possession by him and his brother for 
forty years on the title of heirs had established that investiture 
to the extinction of old Carbarn's destination and all claims 
depending thereon. The Lords repelled this plea of prescrip- 
tion.^ Here there was no adversity of interest. It was admitted 
that old Carbarn's destination could be validly altered at any 
time. Not one of the heirs under it had 21, jus crediti, or could 
call upon the heir in possession to make up a title under the 
destination and possess thereon. The possessor could plead 
all titles, whether feudalised or not, against a third party 
challenging his possession. When old Carbarn executed his 
disposition, his reserved possession was in no sense running 
counter to, or prescribing against, the destination it contained, 
which, until revoked, continued to qualify his right. His heir, 
being eadem persona cum defuncto, possesses exactly his ancestor's 
right ; and that right is still qualified by the destination, until 
the heir chooses to exercise his power of altering it. His 
making up titles as heir was in no sense a repudiation of 
his title under the disposition. The same course of reason- 
Eisieshiells ing is applicable in the Elsieshiells case,^ where one who was 
heir both under the old investiture and under a separate but 
unfettered destination had made up his title under the old 
investiture only, and had then altered the destination. The 
validity of this alteration was questioned on the ground that 

^ Oray v. Smith and Bogle, 1752, v. Morrison, 4 March 1813, F. C. 
M. 10, 803. See also Durham v. ^ Edgar v. Maxwell, nSQ,M.S089. 

Durham, 24 Nov. 1802, F. C. ; Zuille 



he ought, before altering, to have made up his title under the 
destination. It was, in fact, admitted by those who quarrelled 
the deed altering the destination, that if the granter of that 
deed had inade up titles under the personal title, he would 
have been .perfectly able to grant the conveyance, which, they 
alleged, the personal title prohibited him from doing. The alter- 
ation was held to be habile; and this judgment involved the 
admission, afterwards expressly made,^ that every disposition 
or settlement containing a destination must continue to qualify 
a right until it is altered by the heir in possession, and that 
such an alteration is not implied by a possessor having served 
himself heir to the person last vested in the fee, instead of 
having made up titles on the disposition. On the other hand, 
where the heir expressly takes a new investiture, e.g. by resig- 
nation and charter, he is held to have repudiated the destina- 
tion. He no longer stands in his ancestor's shoes ; his ancestor's 
right is no longer qualified in him, for the qualifications have 
heen swept away by a totally new infeftment.^ 

For the reasons just assigned, it is impossible to prescribe 
on one unlimited title to the extinction of another ; and it is 
equally out of the question to prescribe upon a limited title to 
the extinction of an unfettered destination. An entail cannot be 
fortified by prescription so as to extinguish a fee-simple title.^ 

No better or more lucid statement of the doctrine of Double Panmure 
Title in relation to prescription is to be found than Lord Core- case, 
house's judgment in the great Panmure Leases case.* There, 
no doubt, the doctrine of Double Title was applied to leases 
with very questionable propriety, as we shall hereafter see 
(infra p. 61). But the opinions about to be quoted are alto- 
gether independent of such an extension of the principle, 
' Suppose a person,' says Lord Corehouse, ' to be infef t in a 
' landed estate in fee-simple on a charter to himself and his 

^ 8nodgrtt88 v. Buchanan, 16 Dec. ^ Lord Reay v. Mackay, 1823, 2 S. 

1806, F. C. 457 ; 1826, 1 W. & S. 306. 

^MoUe V. Riddel, 13 Dec. 1811, * Maule v. Mavle, 4 March 1829, 

F. C. ' * F. C. ; 7 S. 527 and App. 41. 


heirs whatsoever, and that his son enters into possession on 
apparency, i.e. without renovating the title, in that case he 
may plead his father's title joined with his own possession to 
create a prescriptive right against any one claiming a better 
right than his father on whose title he founds. . • . But vary 
the case. Let the father as before be infeft in fee-simple, and 
then suppose that he makes a personal deed of entail to a 
different series of heirs, fenced with irritant and resolutive 
clauses^ his eldest son being the first member of tailzie ; in 
that case, if the eldest son enters into possession without 
making up a title, he could not found on his father's fee- 
simple title and his own possession to cut off the personal 
deed of entail. To do this effectually he must have a title in 
his own person, or at least there must be a title adverse to, 
or independent of, his father's title, to which he can ascribe 
his possession. If it be a title in his own person, it is of no 
consequence whether it be completed by service or precept of 
dare eonstat to his father ; for after the lapse of the prescrip- 
tive period there is no room to look back to the warrant of 
his infeftment. If he has an infeftment in fee-simple inde- 
pendent of his father's, and forty years' possession, he has all 
that the statute 1617 requires. On the other hand, if he 
wants that independent title, it will not avail him though he 
should ascribe his possession by the most unequivocal acts to 
his father's fee-simple infeftment, in contradistinction to the 
personal deed of entaiL Prescription is prevented not in con- 
sequence of any quality in the possession, but from the want of 
a habile title. The personal deed which qualifies his father's 
infeftment is the lex fevd% until prescription has run on a 
different title from that infeftment. In the cases of Macker- 
ston} etc., and in every other case in which a personal deed 
of entail was found to be cut off by the positive prescription, 
possession invariably proceeded on an infeftment different 
from the infeftment of the maker of the personal deed. On 

1 1739, M, 10, 947. 


' the other hand, in circumstances precisely similar in every 

* respect, except that the heir had no fee-simple title to found 
' upon, save the fee-simple title of the maker of the entail, it has 

* uniformly been decided that prescription did not run. That 
' was the species facti in Welsh Maxwell v. Welsh MdxwelP and 

* in Lumsdaine v. Balfour.^ In the first of these, the positive 

* prescription was not so much as pleaded ; in the second, it 

* was pleaded and overruled. And it will be observed that the 
' judgment did not proceed on the ground that the heir had 

* not de facto ascribed his possession to the unlimited title in 
' the ancestor (in the case of Lumsdaine he had done so in the 
' most unequivocal manner), but on the ground that there was 

* no double title — that is, no title unqualified by the personal 
' deed of entail/ 

Where prescription, then, operates in cases of double title, it Ascription 

of posses- 
is not that a man prescribes against himself, or his right leg sion. 

against his left leg, but that one right prescribes against another 

distinctly adverse and competing right, though existing in the 

same person. In as much, however, as title pltts possession is 

the statutory requisite for establishing a prescriptive right, it 

is obviously of very great moment to be able to determine to 

which of two titles existing in the same person possession is 

feerbe ascribed. Mr. Bell lays down, to begin with,^ that where 

the titles are equally beneficial, the law presumes possession to 

proceed upon that which the possessor is under an obligation 

to adopt; but since the possessor is, ex hypothesi, under an 

obligation to adopt neither, that principle will not carry us 

very far. His second rule requires closer attention. 'Where 

' one title is more beneficial than another, possession in dvbio 

' is to be ascribed to the more beneficial title.' This doctrine 

was first explicitly enunciated in Oliphant Murray v. Ramsay^ 

by Lord President Blair. In Maule v. Maule ^ and in Hunter v. 

1 1808, M. voce Prescr. App. 22. < 17 Jan. 1811, F. C. 

8 13 June 1811, F. C. 

» Prin., § 2020. ' 1829, 7 S. 527 and App. 48. 


Smith} Lord Mackenzie combated this view with great vigour. 
In all cases of double title, he contended, it must be made out 
by proof, in point of fact, that the possession was by virtue of 
the unlimited title to the total exclusion of the limited one. 
But the correctness of Lord President Blair's view was taken 
for granted by Lord Cuninghame in Dairymph v. Earl of Stair} 
and has been expressly and emphatically affirmed in the recent 
case of The Earl of GloBg&w v. Boyle? 

Mr. Bell's third rule is, that in order to prescribe on an un- 
limited against a limited title, there must be a choice made of 
the former by an indication so clear as to create an independent 
and separate title capable of being fortified by possession. This 
maxim seems to be entirely at variance with the doctrine of 
presumption of possession. There is no doubt, however, and 
enough has already been said to show {supra p. 53), that when 
such a choice has been clearly and unmistakeably indicated pre- 
scription will be the effect of possession for the requisite 
period. It is no less certain that the explicit choice of the 
limited title excludes prescription.^ It remains to be said that 
an heir who deliberately chooses to ascribe his possession to 
one rather than to the other of two titles existing in his per- 
son, is not therefore debarred, if necessity arise, from ascribing 
his possession to that other title against which prescription is 
running. It is equally available to him as a title to the pro- 
perty, though subject, ex hypothesi, to limitation. Every pro- 
prietor is understood to possess in virtue of all the collateral 
rights and titles in him to the same property. ' Where one 
' has several rights in his person, prescription cannot be 
^ pleaded against any of them by a third party, because posses- 
' sion is available to preserve to the possessor any right in his 
' own person.' ^ 

^ 1829, Napier, 274. ^ Lord Kilkerran's report of Smith 

2 1841, 3 D. 837. *fc Bof/le v. Gray, 1752, p. 424. See 

» 1887, 14 R. 419. also Lord- Advocate v. Balfour, 1860, 

4 French v. Piukstan, 1835, 13 S. 23 D. 147 (p. Lord Deas, 166). 



A word must now be isaid about ' Prescriptive Con- 'Prescnp- 
' solidation/ which Mr. Eankine specifies as a third and soUdation.' 
distinct function of the positive prescription,^ but which, 
it is subiriittied, is merely a plain and straightforward applica- 
tion of the statute, which has in reality nothing to do with 
Consolidation, properly speaking, or with the doctrine of 
double title. 

A conveyance of superiority in its scientific feudal form, siibank v. 
bears to be a conveyance of the lands. Hence, as possession is ^^^^^*^' 
the measure of the right conveyed, a superior's infeftment in 
the dominium directum, clothed with possession of the 
dominium utile for the prescriptive period, will vest in the 
superior a full right to the lands as efifectually as an instru- 
ment of resignation ad remanentiam, or a minute of consolida- 
tion.2 Suppose that a isuperior, after granting f\ feu -charter on 
which the vassal takes infeftment, not only continues to 
possess the lands but takes a reconveyance of them from the 
vassal during the running of prescription. Suppose, further, 
that the superior, without taking infeftment on the reconvey- 
ance, executes an entail of the whole estate, including nomina- 
tim, the lands in which the vassal stands infeft, and that the 
heir of entail, who is also heir to the unfeudalised disposition 
granted by the vassal, makes up his title by executing the pro- 
curdtory of entail and obtaining a Crown charter ; that suc- 
ceeding heirs of entail make up their titles in like manner ; 
and that their conjoined possession lasts for more than forty 
years. The heir in possession then takes infeftment upon the 
personal disposition and endeavours to sell the lands in it, on 
the ground that they had never been included under the en- 
tailed title. The heirs under the entail object to that transac- 
tion. Their objection will be sustained on the ground that 
the only title to which the heir in possession can attribute his 
possession of the lands is the entail, which debars him from 

' Land Otonership, 3d ed., pp. 28, 61. 

2 JSarl o/Dunmore v. Middleton, 1774, M. 10, 944 ; 5 Br. Sup., 614. 



Earl of 
V. Boyle, 

alienating them. The expiry of forty years' possession upon 
that title extinguished the uufeudalised disposition altogether ; 
possession could not be attributed to it; and the taking of 
infeftment upon it after the lapse of the prescriptive period 
was a meaningless act.^ 

But suppose that the superior, instead of leaving his vassal's 
reconveyance uufeudalised, had taken infeftment upon it ; that 
he had executed an entail and made up titles under it ; that 
forty years' possession afterwards took place ; and that the heir 
in possession then desired to sell the lands. It will be vain 
for the heirs under the entail to object. For the heir in 
possession may attribute his possession to each or all of his 
titles ; he has in his person two equally habile and perfectly 
distinct feudalised titles, the vassal's reconveyance, and the 
entail of the lands, to either of which he may ascribe his 
possession (for consolidation does not act ipsofure^); if he has 
not hitherto given any clear and deliberate indication as to 
which title he chooses to possess on, there is a presumption 
that he possesses upon the more favourable one. He has, 
accordingly, an unlimited right to the lands, and may there- 
fore dispone them. In such a case there is clearly no room 
for prescription.^ 

In Waddell v. Pollock * the heir under an old mid-superiority 
title of date 1714, who entered into possession of the dominium 
utile in 1763, and possessed for more than forty years, was held 
to have established by prescription a good right to the property 
in face of a marriage-contract of date 1754, whereby the doTiii- 
nium utile was conveyed to all the children of the marriage (of 
WcUker v. whom he was one) equally. In Walker v. Grieve^ A was infeft 
in lands on a precept m a feu-contract in 1730. In 1735 A's 

1 L<yrd Elihanh v. Campbell, 1833, 
12 S. 74. Bontine v. Graham, 1837, 
15 S. 711 ; 1840, H. L. 1 Rob. App. 

2 Bald V. Biichanan, 1786, M. 
15, 084. 

' Earl of Glasgow v. Boyle, 1887, 
14 R. 419. 

4 1828, 6 S. 999. 

8 1827, 5 S. 442. See Han^ey v. 
Hamilton, 1822, 1 S. 259. 

—_- ■■- * - ■^■'^^ 


superior disponed the lands to him, with an exception of the said 
feu-contract in the warrandice clause, and A was infeft in 1737 
upon Crown charter of resignation and confirmation. Thus he 
was unlimited proprietor of two separate estates under separate 
and distinct titles. He conveyed to his son in 1749, who took 
infeftment on the precept and disponed in 1787 to his son, who 
took infeftment in like manner; and in 1813 obtained Crown 
charter of confirmation of all the titles whereby the lands had 
been held since the Crown charter of 1737, When a trustee 
in whom the estate had vested sold the property the pur- 
chaser objected to the title. But the Court held that the title 
was a good one. No doubt the dominium utile had never been 
taken out of the haereditas jacens of A. But any one who stood 
in right of it, and who might have attempted to assert that 
right, would be at once successfully met with the plea of pre- 
scription, based upon a good statutory title to the lands plus 
possession for forty years. All these cases, in short, and the 
others,^ which so exercised Mr. Napier's mind, become per- 
fectly intelligible and consistent when stripped of the considera- 
tions about adversity of title which make them seem compli- 
cated and contradictory in the reports. They are cases in which 
we see one title competing with another. The unsuccessful title 
doubtless affords a perfectly good right to property, which can- 
not be lost merely non utendo, and which might prevail over 
many others, but must agreeably to the statute be excluded by 
that highly privileged right, which is constituted by possession 
for the prescriptive period following upon a certain specified 
ex fade valid irredeemable title. It is the very purpose of the 
Act to destroy and extinguish such rights to property as were 
unsuccessfully asserted in those cases, and to fortify a particular 
species of right at their expense. Consequently, when the full 
prescriptive course has riot run, it will be quite competent to 
explain that such and such a charter of the lands imports no 

1 Bruce v. Bruce Carstairs, 1770, M. 10, 805 ; WUson v. Pollock, 1839, 
2 D. 159. 


more than a conveyance of the superiority, and a right to the 
dominium utile derived from an ancestor, who stood infeft in it, 
and in whose haereditas jacens it is still lying, will be preferred 
to the competing title.^ 

1 Marquis of Clydesdale v. Earl qfDundoruUd, 1726, M. 1262. 

^mRT^pPil^ ^ . .l.-'-^^^^^H^ 



1617 C. 12 

' The framers of the statute/ says Lord Corehouse/ ' when Leases. 
' they introduced the positive prescription, had clearly nothing 
' in view but feudal rights, where there is a title by infeftment. 
' . . . But in practice the statute has been extended to tacks, 
' rights of teinds, patronage, etc., which do not admit of, or 
' may not require sasine.' * The Court of Session,' says Lord 
Kames,2 ' preferring the end to the means, and consulting its 
' own powers as a court of equity to prevent mischief, secures 
' by prescription every subject possessed upon a good title ; a 
* right to tithes, for example, a long lease of land or of tithes, 
' which are titles that admit not of infeftment.' It is, no 
doubt, quite possible to explain many of the cases in which 
prescription has been found applicable to leases by reference 
to the general clause of the Act. But in Mure v. Heritors of 
Dunlop^ the defender pleaded the positive prescription upon a 
tack of teinds followed by possession, and the Court explicitly 
sustained the plea ; while possession for forty years upon a tack 
was held to validate it in Carlyle v. Bouxter.^ In the case of the 
Panmure Leases,^ this novel application of the Act was carried 
to an extent to which Lord Balgray's epithet of ' incautious * 
seems far from inappropriate. The question there at issue 
was, substantially, whether possession for forty years upon an 
unfettered assignation to the leases of Brechin and Panmure 
sufl&ced, in virtue of the doctrine of double title, to extinguish 

1 Mavde, v. Mwulty 1829, 7 S. 527 ^ 1869, 41 S. J. 342. 

and App. 41. 
2Prin. of Equity, p. 119. ^ Maute v. MauU, 1829, 7 S. 527 

» 1746, M. 10, 820. and App. 


an entailed assignation to the same leases, the righ't to which 
had come to be in another person. Lord Balgray at once put 
his finger upon the radically weak point in the plea of pre- 
scription. 'In feudal rights/ he said, 'no ambiguity arises 
' from possession where two or more titles exist ; the posses- 
' sion is fixed and determined by the infeftment, which again 
' points out the title of possession : that title and that posses- 

* sion are pointed out to the world by regular publication 
' where everyone may look, and everyone concerned is bound 
' by the law to look. . . . But in personal rights all this stands 
' very differently : there is nothing to mark the title of posses- 
^ sion. If there are various personal titles and possession 
' follows, no one can say on what title the party possesses : 
' there is no promulgation to the world of the will and inten- 
' tion ; there can be no indication of it ; in such cases, if such 
^ separate titles can possibly exist from the same granter, 

* the granter possesses equally upon the whole of them, and 
^ law supposes that he gives equal effect to the whole.' ^ Lord 
Corehouse, too, admitted that the doctrine of double title, even 
as applied to feudal rights, *is intricate and involves nice 

* distinctions : but when it is applied to rights which transmit 
' without infeftment from the ancestor to the heir, the analogy 
' is so unsatisfactory that it cannot be relied on.' Yet so con- 
vinced were he and the great majority of the Court, ' that a 
' lease is a good title for the positive prescription,' that, in 
the face of a previous decision in the same case (5 March 
1782), they insisted on applying that unsatisfactory analogy. 
Granting the major premise that the feudal clauses of the Act 
1617 c. 12 are applicable to leases, it must be admitted that 
their decision was a logical and consistent interpretation of the 
doctrine of double title, for they found, with regard to the 
lease of Brechin, that a party holding a fee-simple assignation 
thereof in his own favour, and being also substitute under an 
entailed assignation of the same lease granted by the same 

^ 7 S. App. p. 15. 


party, having held possession of the subjects for forty years, 
and done certain acts referring his possession to the fee-simple 
assignation, had acquired a prescriptive fee-simple' right, and 
that the entailed assignation was extinguished; while with 
regard to the lease of Panmure, it was held that the same 
party having right thereto as heir of his father, and also as 
institute under an entail made by his father, and having pos- 
sessed for forty years, must impute his possession to the 
entailed assignation, which qualified his father's right existing 
in him, and had not acquired a prescriptive fee-simple right to 
the lease. 

Teinds constitute a separate estate from the lands, and may Teinds. 
either be carried by sasine, or, where they have never been 
feudalised, by a personal right. When a right to teinds has 
been feudalised, the feudal clause of the statute is at once 
applicable. But how if it has not been feudalised ? It was 
held in Chatto v. Moir} that prescription was not pleadable 
where there had been no infeftment. But that decision has 
been overturned, and cannot now be considered law.^ Whether 
a personal right to teinds clothed with possession will exclude 
a feudal right to the teinds on which no possession has followed, 
is a question which it would be unsafe to answer in the 
affirmative on the authority of Learmonth v. Duke of Hamil- 
ton? In that case it is by no means clear that the right to 
teinds ever had been feudalised ; the Court declined to enter 
upon the question whether teinds once feudalised must after- 
wards be held by feudal title ; and all that the decision of the 
majority seems to come to is this, that the conveyance of a 
hypothetical right to teinds (' whatever right ' the disponer 
' had to the teinds ') is as good for founding prescription by 
possession as an absolute conveyance. Certainly in Earl of 
Fife V. Earl of Seafield^ it seems to have been taken for 

1 1745, M. 15, 657. 1797, Hume, 455. 

2 0(yrdon v. Kenmdy, 1758, M. 10, 3 

825 ; Irvine v. Burnet, 1764, M. 10, ^^^^' ^- ^^""^ ^*^®^' ^^^• 

830 ; Sdicitor of Teinds v. Budge, * 1831, S. Teind Cases, 254. 

^ M*-—^^- 


granted in the course of the argument, that in no circumstances 
could a personal prevail against a feudal title. 
Title and Not a few of the cases which deal with prescription as affect- 


in Teinds. ing teinds afford excellent Ulustrations of the rules with regaxd 
to title and possession, which have been already discussed. 
The necessity for a habile title is shown in LzarmotdU v. City of 
Edirimryh,} where a charter of erection of certain lands into a 
burgh was held not to found a prescriptive right to teinds ; in 
Mackintosh v. Lord Abinger,^ where a pretended title to teinds 
was so ambiguous as to compel reference to previous infef tments, 
which showed that there was no right to teinds in the author ; 
and even more strikingly in Cheape v. Lord-Advocate? The 
proprietor of certain lands took a tack of certain teinds from 
the Crown, and tack-duty was paid for more than forty years. 
His successor discovered a conveyance of the teinds to one of 
his authors in 1629, and raised a declarator of his own right to 
the teinds. The Crown replied by the plea of prescription, 
founded on its own right plus possession through its tenant. 
The plea was repelled because the Crown produced no title to 
the teinds in question. Lord Benholme observed that the jus 
co7vnce could not constitute a good title to teinds on which pre- 
scription could run ; that whatever teinds are possessed by the 
Crown are held by singular and secondary title, derived 
mediately or immediately from the Church, and that in cases of 
positive prescription it is necessary to have a title which not 
only quadrates with the nature and evidence of possession, but 
is in its own ierms capable of comprehending the subject pos- 
sessed. Where the party who had right to teinds by a tack 
from the Crown disponed to another the lands and teinds, as 
possessed by himself, without mentioning the tack, the question 
was raised, but not settled, whether such a conveyance would 
afford a habile title for prescription.* But there is no doubt 

1 1869, 21 D. 890. . . * Speir v. Officers of State, 1858, 

2 1877, 4 R. 1069. 20 D. 525. 
» 1871, 9 M. 377. 

mv^^m^i'- -  ''J' i"'  ' 


whatever that one whose possession is due to a tack of teinds 
cannot prescribe a right to the teinds against his author.^ 

But a good title followed by possession is unassailable. A 
charter of resignation under the great seal followed by infeft- 
ment, in favour of a heritor of certain lands in a parish, who 
had a tack of the teinds, contained a grant of the patronage 
and teinds of the parish generally. The heritor had admittedly 
possessed only the teinds of his own lands uninterruptedly, 
and had applied to the Crown subsequently to the charter of 
resignation, but more than forty years before the action was 
raised, for a renewal of the tack of the teinds, which was not 
granted. It was held that the charter afforded a good pre- 
scriptive title in so far as followed by possession.^ A final 
decree of locality is a good title, on which a minister may pre- 
scribe a right to stipend, if stipend has been paid for forty 
years under that decree,^ and even to over-payments of stipend 
in excess of sub- valuations of the teinds. Nor is such title 
qualified by subsequent decree of approbation of the sub- 
valuation.* A minister's possession of over-payments on such 
a title will cut off the heritor's right to surrender his teinds 
upon the value as fixed by such decree of approbation.^ But 
if the decree of locality has been reduced, the continuance of 
over-payments will not suffice to sustain the minister's right, 
for he has lost the title to which his possession was attri- 

Again, possession may serve to interpret and illustrate an 
equivocal title. But where a claim to teinds was based on a 
title which the Court held was not a title for prescription, it 
was observed that even had the title been habile, it would not 
have been fortified by possession, for the alleged proprietor had 

^ StraUmv, CoUegeo/St. Andrew8y"\ * Maderty, 9 July 1817, F. C. 

1756, M. 10,824. Colquhxmn v. Fogo, 1873, 11 M. 919. 

2 Lord-Advocate v, Baifour^ 1860, ' Golquhoun v. Fogo, 1873, 11 M. 

23 D. 147. 919. 

* Bain v. OffieerB of StcUtf 1868, * Baird v. Minister of Polmont, 

20 D. 1006. 1832, 10 S. 752. 



paid stipend on the footing of not being heritable proprietor of 
the teinds.^ Nor can prescriptive possession operate to extend 
a right in face of the express terms of the grant on which it 
depends. A decree of valuation of teinds is not a title upon 
which a proprietor can by possession acquire a right to the 
teinds of lands not originally included in the valuation.^ 

It may be remarked that a designation to a glebe by a presby- 
tery, followed by possession, has been held to be a sufl&cient 
title to the glebe to exclude others.^ 
Patronage. Although by the Act 37 & 38 Vict. c. 82, the right of ap- 
pointing ministers to vacant churches and parishes was vested 
in the congregations of such vacant churches and parishes res- 
pectively, it may be worth while to note the following cases as 
illustrative of general principles, premising that a right to 
patronage stood on very much the same footing with regard to 
prescription as a right to teinds. A grant of patronage was 
held to form a sufficient title on which, if followed by possession, 
to acquire a prescriptive right against the Crown, as coming in 
the place of the Bishop, to the patronage of parishes specially 
contained in the titles of the Bishopric* But a grant of 
patronage, though followed by exercise of the right by the 
grantee, was found to be not a habile title for prescription, 
because qualified by a reservation of the Crown's right to pre- 
sent.^ With reference to the necessity of a feudalised title. 
Lord Justice-Clerk Hope uneqidvocally laid down the law that 
a personal title clad with possession would constitute a sufficient 
prescriptive right to patronage, and pointed out that the feu- 
dalisation of the title was only important in the case of two 
competitors, for a right that had been feudalised in a common 
author. Lord Medwyn held that a personal title followed by 
possession, which did not connect with a feudal title, was not 

^ MwM'nJtoBh V. Liyrd Abinger, 22 D. 1357. 

1877, 4 R. 1069. * Lord-Advocate v. Lord DundaSy 

2 MacUod V. PaUraon, 1869, 7 M. 1830, 8 S. 765 ; 1831, 5 W, & S. 723. 

614 ; 1873, 11 M. H. L. 62. « Lord-AdvoccUe v. Earl of Mans- 

8 Lord Panmure v. ffalkeU, 1860, JUldy 1830, 8 S. 765. 


habile, if the right had once been feudalised, to found prescrip- 
tion against a right that could so connect. Lord MoncreiflF, on 
the other hand, held that any personal right clothed with pos- 
session was sufficient on which to prescribe, even against a 
feudal right.^ The point was never determined. Since a 
minister might live for more than forty years after his present- 
ation, and since during his incumbency the right to present 
could not be exercised, it was a nice point what acts of posses- 
sion would suffice to build up a good prescriptive right to 
patronage. It was decided that at least two acts of presentation 
were requisite to instruct possession, and to afford the pre- 
sumption that the possessor was possessing in the interval 
animo doininii} 

While a negative servitude can be constituted only by grant,^ Servitudes. 
a positive servitude may be constituted either by express grant, 
or by prescriptive possession. In the latter case no grant what- 
ever is necessary, and the superior's consent to the servitude is 
presumed from his having used no acts of interruption.* A 
right of winter pasturage on stubble and lea lands, exclusive of 
the stocking of the servient heritor, was sustained upon the 
exercise of that right by the tenants of the dominant heritor 
for more than forty years, though there was no grant or even 
mention of the right in either title.^ But, in conformity with 
the Act 1617, c. 12, a title must be produced; and a person 
can only have right to a servitude by producing a right to the 
dominant lands clothed with infeftment, to which possession of 
the right claimed may be referred. There must, then, in all 
servitudes proper be a dominant and a servient tenement, and 
there must be a habile title. A servitude, the right to which 
rests upon forty years' possession upon an infeftment in the 
dominant lands, is extinguished when the dominant and servient 

^ Lord-Advocate v. Orakam, 1844, * Marquiaof Breadalbanev, Camp- 

7 D. 183, &e«, 1851 5 13 D. 647. 

^ Maedonell v. Duke of Gordon, 

1828, 6 S. 600. ^ ChaUo v. Lockhart, 1790, Hume, 

» Dundas v. Blair, 1886, 13 R. 769. 734. 


tenements come into the same hands, unless they continue to 
be held on separate titles, and the servitude does not revive, 
even if the tenements come to be again separated.^ Where a 
claim to a right of servitude over one tenement was made by the 
proprietor of another, it was proved that the two tenements had 
come into the same hands in 1814, and had been possessed 
together till 1842. It was held that there were no termini 
hdbiles for prescription, for during that time prescription could 
not run in favour of one tenement against the other, and a 
proprietor's own use of his own property can never imply a 
grant against himself. Ees sua nemini servit. Even if there 
had been any ground for saying that prescription was running 
prior to the union of the two properties, that union would in- 
terrupt the currency of prescription.^ 
Servitudes A grant of a burgh of barony is not in itself a sufficient title 
by^S^hs. for the inhabitants of the burgh to prescribe a servitude of 
pasturage.^ On the other hand (though in the Falkland case * 
there was held to be no such thing as a servitude of bleaching) 
it was found that the charter of a Eoyal burgh was a good title 
on which to prescribe a servitude of bleaching clothes,^ and 
in the case of Kelso, the claim of a burgh of barony to the same 
servitude was unsuccessful only because there had been no 
grant of lands to the incorporation which could serve as a 
dominant tenement.® The magistrates of a burgh may be 
taken to be the dominant heritors of a rural servitude for the 
use of the community.^ The proprietor of a well closed it, 
and certain ' householders and inhabitants ' of a village raised 
an action of suspension and interdict against him, on the plea 
of a prescriptive right to draw water from it. The note was 
refused in the case of all the complainers except one, who 

^ Donaldsons* Trustees v. Forbes, ^ Sinclair v. Magistrates ofDysart, 

1839, 1 D. 449 ; Baird v. Fortune, 1779, M. 14, 619. 

1861, 4 MacQ. 127. 

2 Oow's Trustees v. MeaXU, 1875, 
2 R. 729. 

3 Dunse v. Hay, 1732, M. 1824. ^ Murray v. Town of Peebles, 8 

^ Jaffray v. Duke of JRoxburghe, 
1756, M. 2340. 

* 1708 M. 10, 916. Dec. 1808, F. C. 


averred that he was a feuar, and craved a diligence to recover 
his titles, which was granted.^ There the feuar was obviously 
in a position to plead as the heritor of a dominant tenement 
which the * householders and inhabitants ' did not pretend to 
be. So an infeftment in a tenement with parts and pertinents 
was held a sufficient title on which to found a prescriptive 
right to a servitude of drawing water, and all inquiry into 
previous titles was excluded.^ When certain fishermen 
founded on prescriptive use and possession of the sea-shore 
with a view to having a servitude found to exist as at common 
law, it was held that their possession must be ascribed to the 
Act 29 George ii. c. 23, which specially allowed them to use 
the sea-shore for the purpose of their trade, and therefore that 
they could not prescribe a right to such servitude.^ In an 
action to establish a right to drove-road and stances with 
pasturage for cattle, the House of Lords, reversing the decision 
of the Court of Session, refused to listen to the suggestion that 
the right to the pasturage or stances could be accessory to a 
right of public way which they held had been established* The 
right to stances could only be instructed as a gervitude, which 
implied a dominant and a servient tenement, and none of the 
pursuers claimed to be heritor of any such dominant tenement.* 

While there must be an infeftment in the dominant lands Possession 

. . . . , . , must be un- 

to supply a foundation for a prescriptive right to a servitude, equivocal 

there must be unequivocal possession for forty years ^ to com- 
plete it. Possession will be the precise measure of the right 
acquired, and the maxim tantum jpraescriptum quantum 
possessum will be strictly applied, unless without some slight 
extension of the former usage the right would be unprofitable 
to the acquirer.^ Uninterrupted possession for forty years may 

^ Mackenzie v. Learmonth, 1849, * Marquis of BreadcUbane v. 

12 D. 132. See, too, Henderson v. M'Oregor, 1846, 9 D. 210; rev. H.L. 

Hcurl o/Minto, 1860, 22 D. 1126. 7 BeU's App. 43. 

2 Brand v. Charteris, 1841, 4 D. « 37 & 38 Vict. c. 94, § 34. 

292. 6 Ersk., Inst,, 2. 9. 4 ; Oairlton, 

3 Cameron v. Ainslie, 1848, 10 D. 1677, M. 14, 636 ; Bi-uce of Kennet, 
446. 1 741 , Elchies, * Servitude, ' 2. 


even avail sometimes slightly to extend the scope of a servitude 
beyond the original grant.^ But no amount of possession will 
suffice to establish a right to a servitude not recognised as such 
in the law of Scotland, e.g, a jus ^atiandi^ or the exclusive 
use of a common subject.* In the Earlsferry case,* the rubric 
runs that the burgh of Earlsferry has a servitude of golfing 
over the Ferry links ; but Lord Eldin in his first note expresses 
a doubt whether 'the rights which the magistrates and inhabi- 
' tants have been exercising may be called servitudes,' and in 
his second note he seems inclined to hold that the property 
of the links was in the burgh ; which would bring the case 
into the category of Sanderson v. LeesJ" {supra p. 31). At all 
events, this one decision is scarcely sufficient ground for hold- 
ing that a servitude of golf may be acquired over lands by the 
constant playing of the game on them for forty years ; though 
a servitude of recreation for the use of inhabitants and ' others,' 
expressly reserved by the magistrates of a Eoyal burgh in a 
charter of certain lands granted by them has been sustained, 
and may be vindicated by the inhabitants individually.^ 
Thiriage. It is to be observed that, as a general rule, a title in writing 
is required in order to constitute the servitude of thiriage by 
prescription."^ But the mills belonging to the Crown, or to 
church lands, may acquire a right to the servitude by possession 
alone ; and payment of dry multures (i.e. of duties in grain or 
money paid whether corn be ground or not) for the pre- 
scriptive period will of itself imply a title,^ as will also pay- 
ment of insucken multures accompanied by ' services.' ® Un- 
equivocal use of the servitude by payment of insucken 
multures will serve to bolster up titles which contain no 

1 F<yrU8 V. WUsm^ 1724, M. 14, « Cleghom v. Dempster, 1805, M. 
605. 16, 141. 

2 Dyce V. Hay, 1849, 11 D. 1266; ^ Harris v. Magistrates of Dundee, 
1 MacQ. 305. 1863, 1 M.f^833. 

^ Leckv. Chalmers, 1859,211^.408, ^ Kinnaird v. Drummond, 1676, 

* Magistrates of Earlsferry v. M. 10, 862. 

Malcolm, 1829, 7 S. 755. » L<yrd Broughton, 1745, Ersk.. 

6 1859, 22 D. 24. 2. 9. 29. 


express grant of thirlage, e.g, the grant of a barony mill with 
multures, or with pertinents.^ The occasional carrying of 
astricted corns to another mill is not necessarily an interrup- 
tion of prescription. (See Ersk., Inst,, 2. 9. 28-30.)2 

^ Earl of Hopetoun v. BoUhgate when feudalised, Busceptible of the 
Brewers, 1753, M. 16, 029 ; Bruce v. positive prescription — e,g, the right 
Stemy 1769, M. 16,061. and privilege 'of one tide's fishing 

of salmon yearly.' Murray, etc,, v. 

^ Certain minor rights, which it P^c^ie, e^c, 1880, 7R. 804 ; Rankine 
is not very easy to classify, are also, on Land Ownership, p. 90. 



tion at 


Hitherto we have considered prescription as proponed in 
terms of the feudal clause of the Act 1617, c. 12. But there 
are certain cases where prescription was undoubtedly applied 
to fortify a right, but which cannot even with an efifort be 
brought within the scope of that statute, for their leading 
characteristic is that immemorial possession (for which forty 
years' possession *is taken as being in general a sufficient 
' equivalent ') ^ is enough to establish a right without any 
antecedent title whatever. To explain these cases we must 
fall back upon the hypothesis of some common-law doctrine of 
prescription existing prior to the legislation of 1617. 

Thus, though no title was libelled but possession, the Lords 
sustained a claim to a servitude.^ Where the members of a 
friendly society had for more than a century exercised the right 
of levying dues for the hire of mortcloths, etc., used for a 
burying-ground, there having been no grant of such right, it 
was held in a question with the heritors and kirk-session that 
the society was entitled to continue to exercise the right.^ 
Where parties have for a long time past the forty years en- 
joyed possession of seats in a parish church, under some title or 
other not plainly discoverable, it is not competent to dis- 

^ Davidson v. Harl of Fife, 1863, 

1 M. 874 (p. Lord J.-C. Inglis). 

2 NeiUon v. Sheriff of Gallowai/y 
1623, M. 10, 880. Cf. KnocMolian 
V. Tenants of Particle, 1583, M. 
14, 541 ; Henderson v. Wemyss, 1672, 

2 Br. Supp. 706. 

^ Kirk-session of South Leith v. 
Scott, etCy 1832, US. 75. See 
Paisley v. Wrights^ Incorporation, 
1761, M. 1956, and Lord Deas's judg- 
ment in Traill v. Dangerfield, 1870, 
8 M. 579, 588. 

'1' ivy -«■ ; »wr» ■. -^ - *-. T —  au .... ^ j."v>*" ■. fj^' ,  mmw^^r^^^wtmf'^m 


possess them after a mere repair and reseating of the church.^ 
In Saunders Y, Hunter^ it was held that a proprietor on a bound- 
ing charter with no clause of parts and pertinents could not 
by mere possession acquire right to a servitude over lands out- 
side the limits of his charter. Lord FuUerton expressed a con- 
trary opinion in lAston v. Galloway^ and his view was expressly 
given effect to in Beaumont v. Lord Glenlyon.^ 

Now the decision in Beaumonty it would seem, cannot be 
based on the Act 1617, c. 12, for there was no feudal title 
to which possession could be ascribed. Possession was rather 
in defiance of the terms of the title; and, indeed, it might 
plausibly be contended that the prescription of servitudes in 
general is independent of statute.^ In Hunter & Aikenhead v. 
Aitken,^ it was expressly said that a right not founded on 
any grant in the titles of the parties to interrupt the flow 
of water in a stream by storing it in a dam rested * entirely 
' upon possession for the prescriptive period,' and was acquired 
by such possession ; and therefore might equally be lost by 
non-user or non-possession during the subsequent prescriptive 
period. In Heggie v. Nairn} the question was raised, but 
not decided, whether a lower heritor on a stream could by use 
for the prescriptive period acquire right to water which had 
from time immemorial been artificially discharged into the 
stream from a mine, so as to entitle him to prevent its diver- 
sion. But whatever right to interrupt the flow of a stream may 
be acquired by possession, no such right as that of obstructing 
a public or servitude road, by from time to time placing obstruc- 
tions upon it, can be acquired by mere use of that practice con- 
tinued for forty years.^ Prescription has also been applied to 
fortify grants in no wise feudal, and presenting no analogy to 

1 Magistrates 0/ Hamilton v. Duke ^ 1623, M. 10, 880. 
ofHamUton, 1^46, 8 D. 844 ; H. L. « 1880, 7 R. 510 (p. Lord Shand, 
7 BelPs App. 1. 519). 

2 1830, 8 S. 605. 7 1882, 9 R. 704. 

3 1835, 14 S. 97. 8 Stewart V, Broxm Brothers, 1878, 
* 1843, 5 D. 1337. 6 R. 35. 


those contemplated by the Act 1617, c. 12. The magistrates 
of a burgh made an onerous contract with a society of brewers 
that two brewers elected by the society should be admitted 
members of the Guild Council. This contract 'plus forty years' 
possession was held to give the brewers a prescriptive right to 
elect two of their number members of the Guild Council.^ 
Public right But by far the most important class of cases referable to an 

of WftV 

old common-law rule of prescription and not to the statute is 
that which is concerned with public right of way. It has, 
indeed, been attempted to bring that species of right under the 
Act 1617, c. 12, by the hypothesis of an implied grant to which 
possession is to be referred, or of a right vested in the Crown 
to the benefit of which the public is entitled. But, though 
Lord J.-C. Hope spoke of the presumption that such a 
right has been granted as being the condition of its estab- 
lishment by possession,^ Lord J.-C. Inglis, twelve years later, 
expressed grave doubts as to the applicability of the statute,^ 
and the matter may be said to have been definitely settled 
by the emphatic judgment delivered in Mann v. Brodie^ by 
Lord Watson, who said : — ' According to the law of Scotland, 
' the constitution of a right of public road does not depend 
' upon any legal fiction, but upon the fact of user by the public 
' as matter of right, continuously and without interruption, for 

* the full period of the long prescription. ... I am aware that 

* there are dicta to be found in which the prescriptive acquisi- 
' tion of a right of way by the public is attributed to implied 
' grant, acquiescence by the owner of the soil, and so forth ; 
' but these appear to me to be mere speculations as to 

* the origin of the rule.' A public right of road is, therefore, 
something totally distinct from a servitude right of road. The 
former admits, the latter excludes the public.^ A public right 

* Gray v. Guildry of Arbroath, ^ Davidson v. Earl of Fife, 1863, 

1823, 2 S. 113. Cf. Skirving v. 1 M. 874. 
Smellie, 1803, M. 10, 921. * 1885, 12 R. H. L. 52. 

«* Thomson v. Murdoch, 1862, 24 

2 Napier's Trustees v. Morrison^ T>. 975, p. Lord Deas ; Jenkins v. 
1851, 13 D. 1404. Murray, 1866, 4M. 1046. 


of way, moreover, excludes the idea of a dominant tenement to 
be benefited by the right. Hence, three persons, residing in 
dififerent towns, at a considerable distance from the disputed 
road, who averred no local connection with the district, or 
special interest in the road, further than that they and their 
fellow- citizens had been in immemorial use to travel along it, 
were held to have sufficient title to sue in a declarator of right 
of way.^ When an action of declarator brought to establish a 
public right of way is tried upon the issue whether there is a 
right of way or not, the verdict on that point, when allowed 
to become final, is a conclusive settlement of that question, and 
is res judicata against the whole public.^ 

The conditions of use and possession requisite to instruct a Conditions 
right of public way are stringent but very plainly laid down, sion!*^^^^ 
' The essential thing is the open assertion of the right, and if a 
i path is used in such a way that the right to use it is asserted, 
* the proprietor must stop the path if he wishes to preserve his 
' rights.' * The use of the road must be such as to instruct 
right, and to exclude the idea of mere tolerance.* The unin- 
terrupted use for forty years of a path made originally by the 
proprietor for his own convenience will not suffice to instruct 
a public right of way.^ At the same time, obstruction of the 
road to which right is alleged is a weapon which may be 
turned against the proprietor using it ; for there can be no 
better proof of an assertion of a right of way than the repeated 
demolition of obstacles set up to exclude the public. 

Furthermore, to constitute a public right of way through a Entry and 


^ Twrie, v. Duht of Athole, 1849, ^ CiUhhertson v. Young^ 1851, 14 

12 D. 328; H. L. 1 MacQ. 65 (see D. 300 (p. Lord J. -C. Hope), 

judgment of Lord St. Leonards), 24 * Jenkins v. Murray, 1866, 4 M. 

S. J. 478; Breadalhanev. M'Gregor, 1046; Burt v. Barclay, 1861, 24 D. 

1846, 9 D. 210, 1848, 7 Bell's App. 218; Napier's Trustees v. Morrison, 

43. 1851, 13 D. 1404. See, too, Scottish 

BiglUs of Way Society v. MacPherson, 

2 Jenkins v. Robertsm, 1864, 2 M. 1887, 14 R. 875 ; 1888, 15 R. H. L. 

1162; rev. 1867, 5 M. H. L. 27; 68. 

White V. Earl of Morton's Trustees, ** Napier's Trustees v. Morrison, 

1866, 4. M. H. L. 53. 1851, 13 D. 1404. 


at public proprietor's grounds, the public must go through the grounds 


from an entry at one place to an ish at another ; * it will not 
' do for people to enter the ground of a proprietor and walk 
' about in it as much as they choose, and come out where they 
' entered ' (p. Lord Curriehill) ; and the points where ish and 
entry are must be public places.^ A public place, in the proper 
sense of the term, is ' a place to which the public resort for 
* some definite and intelligible purpose.* *^ But the question 
whether the terminus of an alleged public way is a public place 
does not arise when the allegation is that the way goes beyond 
that terminus, so to speak, over another's land to a public place. 
It is enough if the public get legally away from the inter- 
mediate place somehow.^ But suppose a path runs from A to 
B through the lands of X, and on from B to C, undoubtedly 
a public place, through the lands of Y. An action of declarator 
of public right of way from A to B is brought against X, 
without Y being called. After proof led, the jury finds that 
there is a public right of way from A to B, which it is not 
contended is a public place in any other sense than that the 
public can get legally therefrom to C ; and this decision, be- 
coming final, is consequently res judicata as far as the road from 
A to B is concerned. But A . . . B can only be a public road 
because B is a public place; and B is only a public place 
because B ... C is a road along which the public can legally pro- 
ceed to C. Now, if Y suddenly disputes the right of the public 
to travel over his lands from B to C, the decision in the case 
of the path A . . . B cannot be res judicata against him, so as to 
afford an immediate answer to all objections he may bring 
against the pursuer's claim in an action brought against him to 
vindicate a public right of way from B to C, and if Y suc- 
cessfully defeats the claim to a public right of way, then over 
X's lands there exists a public right of way from A to B 

^ Jenkins v, Murray, 1866, 4 M. (p. Lord-President Inglis). 
1046. 3 Campbell v. Larig, 1851, 13 D. 

2 Duncan v. Lees, 1871, 9 M. 855 1179; H. L. 1 MacQ. 451. 


though B has lost its sole title to be considered a public place ; 
which according to the law of Scotland is absurd. 

Once more, the right claimed must be a right ' in some definite Definite 
' and ascertained track* (p. Lord President* Inglis). ' The merefact 
' of people going for more than forty years in a certain direction 
' does not necessarily infer a right of public road. ... It is a 
' possible thing that even through the wildest desert there may 
' be a public footpath, but there must be something to mark 
' the fact that it is a public footpath and is used as a matter of 

* right ' (p. Lord Deas). ' If there has been for the prescriptive 
' period a walking along a definite line from one public place 
' to another, in the assertion of a right to use that line, that 
' may make the foundation of a right of way to be declared by 

* competent authority in a court of law ' (p. Lord Ardmillan).^ 

But where there had been extensive encroachments by a 
navigable river on its banks, throwing back the line of road, 
and where there had been deviations and substitutions in other 
portions of the road during the prescriptive period, it was 
nevertheless held that there was evidence of sufficient use for 
forty years to establish a public right of way. The rule which 
requires use for forty years has no application to a substitute 
road provided in lieu of a previous public road, and consent to 
the use of the substituted road by the public amounting to 
acquiescence will create a right to the new road.^ 

The maxim tantum praescriptum tantum possessum is Possession 
applied.* Where the whole of a road was not fitted for carriage of^the^ 
trafi&c, but only a part, it was held not to be a carriage road, "^ *' 
but only a public road for walking or riding.* But where a 
public road had been used for more than forty years for carrying 
burdens, etc., on horseback, and for carts and carriages since 
their introduction, which was within the forty years, it was 

^ Mackintosh v. MoiVy 1871, 9 M. ^ M^Farlant v. M(yrr%son, 1865, 

674. 4 M. 257. 

* Mackenzie v. Bankea, 1868, 6 M. 

2 ffozier y, Hawthorne, ISSi, 11 R. 936; Mitchell v. Broum, 1826, 5 S. 
766. 66. 



held that the road was subject to be used as a cart and carriage 
Must con- Possession must continue for the whole of the prescriptive 
forty years, period. But it need not be continuous up to the date of the raising 
of the action ; and it is enough if possession for forty years be 
proved up to some date within the last forty years.^ Accord- 
ingly the word ' immediately ' in the phrase ' immediately pre- 
' ceding' the interruption, which was the occasion of the action 
being raised, was struck out of the issue in Mercer v. Rdd? So 
that an interruption within forty years of the action does not 
necessarily destroy the prescriptive right claimed, any more 
than an attempt to interrupt which has been successfully 
The solum Finally, in no case does the right of public way amount to 

belongs o x ^ 

to the more than a right of free passage. The solum of a public foot- 

path belongs to the proprietor of the land through which it 

runs; and his right to erect gates across the path (not to 
obstruct the public, but for his own convenience) is consequently 
a right to make a certain use of his own property at his own 
pleasure, is res merae facultatiSy and is not liable to be ex- 
tinguished by failure to exercise it.* 

1 F<yrhes v. Fwhea, 1829, 7 S. 441. ' 1840, 2 D. 520. 

* Sutherland v. Thomson, 1876, 3 
a HarvU v. JRodgers, 1827, 5 S. R. 485. See GcUbreath v. Armour's 
917 ; 3 W. & S. 251. Trustees, 1845, 4 BeU's App. 374. 



(Bell, Prin., §§ 605-627.) 

What is called the negative prescription is, as we have seen, Totally er- 
the plea of prescription proponed under the second portion of cwSin ^ 
the Act 1617, c. 12, along with which must be taken the earlier "^ ^* 
statutes, 1469, c. 28, and 1474, c. 54. Mr. Erskine explains the 
operation of these statutes to be ' the loss or forfeiture of a right 
' by the proprietor neglecting to exercise or prosecute it during 
' that whole period which the law hath declared to infer the 

* loss of it.' 1 Their efifect is not merely to change the oniis 
prdbandi or to limit the mode of proof, but to extinguish alto- 
gether the personal rights to which they apply, so that, even 
if the subsistence of the debt be referred to, and proved by, the 
debtor's oath after the expiry of forty years, he is nevertheless 
not liable. No action will lie on an obligation granted forty 
years before.^ It is now settled that the negative prescription 
runs against the Crown,^ as well as against private persons. 
Where, in answer to the production of an ex facie valid deed, 
it is alleged that the deed produced does not apply to the lands 
or rights in dispute, the lapse of forty years without action 
having been taken will not exclude proof of that averment, for 
the negative prescription * will never prove the identity of one 

* set of lands with another.' * 

^ Inst. 3. 7. 8. ' Deans of Chapel Royal v. John- 

2 Napier v. Campbell, 1703, M. 10, atmey 1867, 5 M. 414 ; 7 M. H. L. 19. 

656 ; Campbell v. HdUcet, 1747, M. 

11, 634. 1 Pat App. 427 ; Kermack * Macleod v. Smith, 1869, 7 M. 

V. Kermack, 1874, 2 R. 156. 821. 


But not While the general clause of the Act 1617, c. 12, is of a very 

property. Sweeping nature, there is one class of rights which the mere 
lapse of time without pursuit will never extinguish. No right 
of property can be lost iwn iitendo} This important principle 
has too often been lost sight of, though it was early recognised 
by the Court. Nothing could be plainer than the decision in 
the Presbytery of Perth v. Magistrates of Perth^ to the effect 
that the negative prescription is no answer to a direct declarator 
of property. In Paton v. Drysdale^ indeed, the rubric bears 
that the defender, not having been infeft, could not plead the 
negative prescription against the pursuer. But the action was 
for reduction of a deed on the ground of ex facie nullity, and to 
such an action it was rightly held that prescription did not 
apply. In the first of these cases the defender produced no 
title ; in the second, there had been no infeftment. In both, 
therefore, all question of the positive prescription was excluded. 
It was the decisions in these cases that prompted Mr. Erskine's 
well-known dictum, that * the negative prescription of heritable 

* rights of property cannot be pleaded even by one who hath a 
' title in himself proper to be the foundation of a positive pre- 

* scription, if it be not actually established in him by that pre- 
' scription ; because the negative prescription confers no right 
' on him who pleads it, but barely extinguishes that which is 

* in the adversary ; and consequently that none but he who 
' hath in himself a full right of property in the lands can 
' have any interest to plead against his party that he has 
' lost his by the negative prescription, since by that plea his 

* adversary's right cannot be transferred to himself.' * These 
remarks, which are indisputably true of prescription of ' herit- 
' able rights of property,* which is what Mr. Erskine is speaking 
about, have been strangely distorted, and have often been taken 
to apply to the negative prescription of all obligations. In 

1 See Duke ofBuccleaeh v. Erskine, » 1726, M. 10, 709. 
16 June 1812, F. C. 

2 1728, M. 10, 723. 4 Imt., 3. 7. 8. 

 ai^ kiJU' ■' 



MCvUoch V. BuchaTian^ the pursuer explicitly pleaded that 
because the defender could not plead the positive prescription, 
so neither was he in titulo to allege the negative. In Stewart 
V. Houston^ in an action of reduction of certain titles by a mid- 
superior on the ground of multiplication of superiors over him, 
the Court held that the privilege of challenging rights in them- 
selves null could not be lost by the negative prescription, unless 
a correlative right had been acquired by some one else by the 
positive. A decision doubly wrong: for if the rights were 
intrinsically null, no one could acquire anything by prescrip- 
tive possession upon them, and if they were not intrinsically 
null, the right to challenge them would be lost by the mere 
failure to exercise it, whether or no a corresponding right had 
been established in another by prescriptive possession. In 
Macdonnell v. DuJce of Gordon,^ the Lord Justice-Clerk Boyle 
expressed the opinion that the defender could not avail him- 
self of the negative prescription unless his own titles were 
fortified by the positive. Lord President Hope, indeed, in the 
same case, and again in Earl of Thindonald v. Bykes^ explained 
Mr. Erskine's doctrine to mean that the negative prescription 
cannot be pleaded except by a person who has in him such a 
title as would be good if the positive prescription had run. 
But this interpretation is expressly excluded by Mr. Erskine's 
own words ; and it seems better at once to admit that the 
question whether the plea is validly proponed depends not on 
the rights which the party pleading it may or may not allege, 
but upon the question (1) whether the right asserted by the 
party, against whom prescription is pleaded falls within the 
terms of the statute, and (2) whether he has neglected to 
prosecute that right for forty years. This view was taken so 
long ago as the end of last century,^ and may be held to 

1 1828, 6 S. 1059. 
a 1823, 2 S. 263. 
» 1828, 6 S. 600. 

* 1836, 14 S. 737. 

" RocTieid v. Kinloch, 1800, M. voce 
Prescr. App. 1. Nos. 4 and 7 ; 1805, 
5 Pat. App. 35. 



represent the undoubted state of the law/ subject only to the 
proviso that one who pleads the negative prescription must 
have a legal interest in his own person to enable him to do so.* 
Whatever doubt may exist as to whether a party may plead the 
negative prescription who is not in a position to plead the 
positive, ' there can be no question that, where he can avail 
' himself of the positive, he can plead the negative,' p. Lord 
Deas, in Officers of Ordnance v. Magistrates of Edinburgh^ 
where the Crown, being in a position to plead the positive pre- 
scription, was held entitled to plead the negative against a 
decree of reduction of a charter which had never been acted 
upon, and which formed an important step in the competing 
progress of titles to the subjects in question. 
Rights of Eights of property, then, which are not struck at by the 


distinct general clause of the Act, must be carefully distinguished from 
of property, rigbts of action which are, though Lord President Hope pro- 
fessed his inability to draw the distinction.* In Paul v. Reid^ 
an action was brought for reduction of declarator of expiry of 
the legal, and was met with the plea of negative prescription, 
which was sustained. It was not that the pursuer was de- 
barred lapsv, temporis from producing, and competing on, his 
own heritable title. But in a competition of titles he was con- 
fronted with a title of the defender's which he mitst reduce in 
order to prevail. And in the attempt to reduce it, not on the 
ground of forgery or any ea; /acie invalidity, but upon some 
extrinsic quality or question he necessarily failed, not having 
pursued such action within forty years. In Macdondl v, Duke 
of Gordon,^ where the defender pleaded that the pursuer had 
lost his title to a right of patronage by negative prescription. 
Lord Corehouse said : * If there be a principle well settled in 

1 Paterson v. Wilson, 1859, 21 D. « 1859, 22 D. 219 (p. Lord Deas, 

322 ; ChisJiolm v. Chisholm BaUen, 236) ; 1862, 24 D. H. L. 3. 

1864, 3 M. 202 (p. Lord Deas, 225). * Macdonell v. Gordon, 1828, 6 S. 

^ WaucTiope v. York Bgs, Coy., 600. 

1781, M. 10, 706 ; 2 Pat. App. 695. « 8 Feby. 1814, F. C. 


* the law of Scotland, it is this — that the right of ownership 

* in a feudal subject, being complete, cannot suffer the negative 
' prescription. . . . There is not the trace of an authority or 

* decision that a title to land, radically defective in its con- 
' stitution, and followed by a possession short of forty years, 
' is preferable to a title radically good, but upon which no 
' possession has followed/ Lord Mackenzie also pointed out 
that if the negative prescription could extinguish a right of 
property, there would be no room for the positive, because in 
every case the negative prescription must be the stronger of 
the two. In Earl of Dundoncdd v. Dykes} the pursuer's right 
to reduce a decree-arbitral more than forty years' old was held 
to be cut off by the negative prescription. In CvJbhison v. 
Hyshp? a party had been infeft in certain lands in 1803 under 
a charter of sale granted in 1791, following on a decree of sale 
in 1787. The ranking and sale had been preceded in 1774 by 
an adjudication, in which there was no ex facie nullity. In 
1832 a reduction was raised of the decrees of adjudication and 
sale and of the title made up under them. It was held that the 
defender (whose title was not fortified by the positive prescrip- 
tion) was entitled to plead the negative prescription as cutting 
off the right of reduction, and that the right of challenge was 
so extinguished. Lord Corehouse again enunciated the prin- 
ciple with great force and lucidity, though he held that in this 
case the pursuer was not barred by the negative prescription 
from challenging the defender's right, and that the competing 
titles must be tried on their own merits. ' I may possess,' he 
said, *for a hundred years, but if [I am] not infeft, any 
' competitor who has neglected his right for that time may 
' competently establish it, if his right is better than mine. . . . 
' What is the result ? Not that the person who brings the 

* challenge shall succeed because the negative prescription can- 

* not be objected, but that both parties must produce their 

* respective progresses and compete upon them. . . , The nega- 

1 1836, 14 S. 737. * 1837, 16 S. 112. 


' tive prescription is not of use in being objected directly against 
' a heritable right of ownership, but in trying the validity of 
' the competing progresses, and in getting rid of various ob- 
' jections which might otherwise have been competent. For 
' example, A disposes to B, B to C, and so on. One of these 

* dispositions is objected to on the ground of forgery, or because 
' it was impetrated by force or fraud. Now all these objections 

* are cut off by the negative prescription. For although ex- 
' ceptions founded on ex fade nullities, for example, that the 
' deed is not subscribed, or that it is tested by only one 
' witness, and the like, are not barred, yet all objections not 
' appearing ex facie on the deed are effectually cut off by the 
' negative prescription.' Lastly, in Fatersan v. Wilson ^ an ac- 
tion concluded for (1) production of an alleged disposition of, 
and (2) declarator of right of property in, a park. The dis- 
position had never been feudalised, and it was alleged to have 
been returned, in security for a loan, sixty-four years ago to 
the defender or his father, who, during the interval, had been 
in undisturbed possession of the park, which was included in 
their titles from 1767, though infeftment had not been taken 
till 1832. Here, no doubt, there was a declarator of property, 
and to that alone, based upon titles in the pursuer, the de- 
fender's plea of negative prescription would have been no 
answer. But the pursuer's success in the declarator, nay his 
continued insistence in that conclusion, depended upon his 
prevailing in the conclusion for the production of the alleged 
disposition, which was the sole ground of the right of property 
he claimed. The question, said Lord Deas, whether the right 
of action as a declarator of property is cut off would only arise 
if the pursuer could maintain his case without first getting a 
decerniture for exhibition and production of the disposition he 
founds upon. ' But, admittedly, he has no case without such 
' decerniture ; and it is for this reason that the whole case 
' comes to 'turn on the primary conclusion. Now against the 

1 1859, 21 D. 322. 



* right of action to recover the deed out of the defender's reposi- 
' tories, I have no doubt the negative prescription is pleadable. 
' It is the strongest case possible for the application of the 

* plea where the pursuer, admitting possession upon an ex fame 
' good title (though not fortified by the positive prescription) 

* for the last sixty or seventy years, simply says — If you 

* will admit me to your charter-chest, 1* shall recover an un- 
' feudalised disposition which will upset your title/ The Court, 
accordingly, unanimously sustained the plea of prescription. 
It is to be noted that, if Lord Deas's opinion be correct, the right 
of raising an action of adjudication and implement upon a general 
disposition — which used to be the method of obtaining a proper 
feudal title upon such a disposition — is lost if such action be 
not pursued within forty years.^ It is conceived that the right 
to expede and record notarial instrument upon such a convey- 
ance — which by the Acts 21 and 22 Vic. c. 76/ § 12, and 23 
and 24 Vic. c. 14-3, § 8, is substituted for the older form of 
making up a feudal title — ^is also extinguished by failure to 
exercise it for forty years from the date of the conveyance. 
Where two titles to an estate, one limited and the other un- 
limited, with different destinations, exist in the same person, 
one who has a jus crediti under the limited destination loses 
his right to compel the heir in possession to make up his title 
under the limited destination by mere failure to put that right 
in force for forty years. But if the right to succeed under the 
unlimited title and the right to succeed under the limited title 
come to exist in different persons before the lapse of forty 
years, the claim of property put forward by the heir under 
the entail cannot be defeated by the negative prescription 
alone, and can only be met successfully by the plea of the 
positive prescription based upon the possession for forty years of 
the heir under the fee-simple title, or of his ancestors, upon that 
title. These propositions will be found illustrated in any case 

^ Ohisholm v, Chiaholm- Batten, 1864, 3 M.- 202. 



where prescription has been found to ' work off the fetters/ as 
it is called, of a limited title. (See supra, p. 47.) 
Rea inerae The rule that a right of property cannot be lost Tvon utendo 
may be regarded as a branch of the more general principle 
that res merae facvltatis are exempt from the operation of the 
negative prescription. A man may do what he pleases with 
his own property, and his neglect to turn it to any particular 
purpose in no wise implies a dereliction of it, far less that 
establishment of a right to it in another, which Mr. Erskine 
postulates as the indispensable correlative of the effectual 
extinction of a right of property by disuse. Mines and minerals, 
for example, constitute in themselves ^plenum dominium^ and 
failure to work them for forty years on the part of one who 
has an express title to them will not forfeit his right.^ Not 
so, however, if the minerals are claimed in virtue of an infeft- 
ment in the 'lands not specially conveying them.^ The right 
of a titular to parsonage tithes is a right to a separate estate. 
The obligation to pay parsonage tithes has been imposed by 
public law on all lands not expressly exempted from the 
burden; consequently the fact that the titular has failed to 
enforce that obligation will not extinguish his right. The 
right to vicarage tithes, on the other hand, being established 
by mere usage, may be lost by disuse of payment. A superior 
does not lose his right to demand feu-duties or feudal casualties 
by omitting to exact them for forty years, nor can a vassal claim 
immunity from them on the score of that omission, for the 
right is inherent in, and essential to, the dominium directum,^ 
So the fact that lands had lain in non-entry for more than 
forty years did not exclude the process of non-entry.* The 
right of a vassal to enter with an over-superior is res merae 
facultatiSy and failure to exercise it does not imply its abandon- 

1 Grawfurd v. Bethune, 1821, IS. ' Duke of Bucdeuch v. Officers of 
110. State, 1768, M. 10, 711. 

2 Forbes v. Livingstone, 1827, 6 S. * Governors of Cauvin^s Hospital y, 
167 ; 1 W. & S. 657. Falconer, 1863, 1 M. 1164. 


ment, or indicate any choice to hold base.^ The jus sanguinis 
never prescribes. The person who is entitled to take up the 
heritable succession of a person deceased may do so at any 
time provided he is not anticipated by somebody else acquiring 
a right in the meantime, and having that right fortified by 
prescription. (See infra^ p. 189.) A right of redemption is 
res merae facultatis,^ and so is the right to surrender teinds.^ 
The right of a seller of part of a heritable estate to be relieved 
of a proportion of the public burdens corresponding to the 
part sold cannot be lost by prescription, whether there is a 
stipulation for relief in the conveyance or not.* The right of 
the proprietor of a ground storey of a tenement (reserved in 
his own titles and in those to the other storeys) to open and use 
a door in the common stair, was held to be res merae facuUatis, 
and therefore not subject to prescription.^ 

The exercise of servitudes, on the other hand, is by no Servitudes 
means res merae facvltatis, for a servitude is not a right of merae 
property. One whose tenement is subjected to a servitude in ^^ ***' 
favour of another tenement may prescribe immunity from that 
servitude by the omission of the dominant proprietor for forty 
years to use the servitude, or by himself doing that from 
which he is bound by the servitude to refrain, provided that 
for the prescriptive period the dominant proprietor fails to 
assert his right to the abstinence in question. It makes no 
difiference though the servitude be engrossed in the titles of 
both tenements.® A public right of way is no more res merae 
facvitatis than a right to a servitude, but may be lost by disuse 
during the whole of the prescriptive period,^ even if its exist- 

1 Cheyne v. Smith, 1832, 10 S. 622. 11 R. 921, where the distinction 
^ Reid^a Trustees v. Duchtss of drawn between a servitude and a 
SutherUmdy 1881, 8 R. 509. res 7n. /. is extremely subtle. 

i<. -^r «/v^ ET J -<• ».r- a D 71 Orcbham v. Douglas, 1735, M. 10, 

11 M. 292 ; Earl of Mtnto v. Pennell, v * > » 

1873, 1 R. 156. ' 
* MiU V. Skene, 1794, M. 10, 715. "^ M*Farlane v. Morrison, 1865, 

*» GeUatly v. Arrol, 1863, 1 M. 592. 4 M. 267 ; Magistrates of Elgin v. 

See also Smith, etc., v. StewaH, 1884, Robertson, 1862, 24 D. 301. 


ence prior to the beginning of that period be fully established. 
Certain public or quasi-public rights — none of them rights of 
property — have also been held liable to the negative prescrip- 
tion, though expressly granted in a charter ; e.g, the right of a 
burgh of barony to have its customs, tolls, etc. (which were 
granted to the baron under a royal charter), applied to its 
common good, though the charter contained an express pro- 
vision that the money was to be so applied ^ ; and the rights of 
a royal burgh when the charter of erection has been altogether 
neglected, and the burgh has accepted a charter from a 
neighbouring proprietor.^ A right to levy dues under a 
charter of free harbour is also probably liable to the nega- 
tive prescription.^ Where the magistrates of a town had a 
right to levy tolls on a certain river within definite limits, it 
was held that a particular ford within those limits had pre- 
scribed an immunity from tolls because for more than forty 
years it had been employed by the public without any toll 
being exacted.* In like manner, where a town had a grant of 
harbour, the use of a place within the limits of that grant as a 
separate harbour for forty years, without any dues being ex- 
acted, was held to extinguish the right of levying dues at that 
particular spot.^ In both these cases, the toleration by the 
grantee of open and habitual defiance of his right was held to 
infer a dereliction of that right. They are, therefore, easily 
distinguishable from the case of the Magistrates of Edinburgh 
V. Scotty^ where it was held that a grant conferred by royal 
charter on the city of Edinburgh to levy harbour dues within 
certain limits entitled the magistrates to levy dues at all places 
within these limits as well as at the two recognised ports within 
them ; and that a proprietor on the shore was not entitled to 

1 Kelso V. Duke qfRoxburghe, 1755, * Magistrates of Linlithgow v. Mit- 
M 10, 737 ; rev. 1757, H. L. chell, 1822, 1 S. 476. See MiUer v. 

2 Magistrates of Hamilton v. Duke Storie, 1757, M. 10, 738. 

of Hamilton, 1726, M. 10, 777. " Dundee Harbour Trustees v. 

^ Magistrates of Renfrew v. Hohy, Dougall^ 1848, 11 D. 6. 
1864, 16 D. 348. « 1836, 14 S. 922. 

•— -^«-^-ii»- i 


load or unload at any spot within the limits, and so infringe 
the grant, merely because dues had not been levied at that 
particular place. There was no averment of constant and 
universal use to land in defiance of the charter, and such 
<5onstant and universal use must have been proved in order to 
imply dereliction of the right. 

Without pretending to exhaust the various obligations and Rights 
rights of actions which fall within the scope of the statutes, by the 

st &t utfiS 

we may now proceed to note some of the cases in which the 
application of negative prescription has been discussed and 
considered by the Court. A claim by a legatee against an 
executor is cut off by the negative prescription,^ but not if, 
within forty years, the executor has acknowledged that the 
legacy has not been paid.^ A trust fund had been bequeathed 
to the provost and bailies of a town for certain purposes, and 
had been taken possession of and administered for two hundred 
years by the town-council. An action calling on the council 
to denude in favour of the provost and bailies was held cut off 
by the negative prescription.^ Where beneficiaries raised an 
action to have it declared that a certain transaction entered 
into by the trustees more than forty years before was ultra 
vires oi the trustees and could not be binding on the trust 
estate, the plea of negative prescription proponed by the 
trustees was sustained ;* and in general beneficiaries under a 
trust-deed lose their right under it against the trustees non 
utendo,^ A bond obliging the granter to consign the price 
of an estate purchased at a judicial sale, if not enforced by the 
creditors within the pirescriptive period prescribes, and so does 
the obligation to consign.® A right to have an obligation made 
a heritable burden is lost by not being enforced.^ In Baillie 

1 Jamieaon v. Clark, 1872, 10 M. 19 D. 626. 

399. 6 Pollock V. Porterfieldy 1778, M. 

2 Br%gg8 v. Sioan'a ExeciUors, 10, 702 ; 1779, 2 Pat. App. 495. 
1854, 16 D. 385. « M'Innes v. Brander, 1844, 6 D. 
, ' Baird v. Magistrates of Dundee, 612. 

1862, 24 D. 447; 1863, 1 M. H. L. 6. '^ Pearson v. Malachi, 1892, 20 Jl. 

4 Barjis V. Bains' Trustees, 1857, 167. 


V. Cochrane} the question was raised whether a valid obliga- 
tion to entail is struck at by the negative prescription ; and 
it seems to have been answered in the aflBrmative in Earl of 
Eglinton v. Earl ofEglinton,^ where substitutes under an entail 
which trustees were directed, but failed, to make, were held to 
have lost their right to call upon the trustees to execute the 
entail, by neglecting to enforce it for forty years. The old case 
Duke of of the Duke of Buccleuch v. Officers of State ^ is an excellent illus- 
v.o#;er» o/tration of the negative prescription, and the reports, which are 
extremely confused, and which led even Mr, Napier astray^ 
are worth unravelling. The facts are these. The Earl of 
Buccleuch held a barony upon a base infef tment from Sir John 
Ker (who held ward of the Crown), and got a perpetual 
discharge of the feu-duty. His heiress, on marrying the Duke 
of Monmouth, granted procuratory for resigning these lands, 
and took a charter of them as holding feu of the Crown, 
'aliisque jus habentibus,' in 1664, for payment of a specified 
feu-duty, which, however, was not exacted till 1760, when 
the barons ordered that the Duke of Buccleuch should be 
charged with the arrears of the feu-duty for forty years back, 
and in all time coming. The Duke brought an action to have 
it declared that his barony was held ward of the Crown in the 
original author. Sir John Ker, and therefore was now held 
blench of the Crown. He averred that the Countess had 
taken a feu-holding of the Crown by mistake. The Crown 
pleaded positive prescription upon the superiority title, and 
added the plea that the Duke was barred by the negative pre- 
scription, since he or his ancestor might have brought an 
action within the prescriptive period to correct the alleged 
error in the investiture. After many vicissitudes, the Lords 
found the feu-duty payable to the Crown, and the case was 
settled upon this rubric. ' The right of superiority of lands 

1 1856, 17 D. 669; 1857, 19 D. H. » 1768, M. 10, 711 ; 1 Hailes, 237, 
L. 14. 303, 333 ; Napier, p. 559-563. 

2 1861, 23 D. 1369. 


' held by an erroneous tenure being found to be established 
' by prescription in the Crown, the right to the feu-duties 
' found to be vested in like manner in the Crown, and the 
' vassal accountable for a retrospective period for forty years/ 
It is difficult to see how the positive prescription comes into 
the case. Had the right of the Crown to the superiority of 
the lands been challenged (in the same way that the right of 
the Crown to teinds may be challenged),^ by any one offering 
to compete, the possession of the vassal upon the Crown 
charter would have been the possession of the Crown and 
would have sufficed to clothe any title the Crown might pro- 
duce (supposing such a title to be necessary in the Crown). 
But a grant by the Crown to a vassal would, whether clothed 
with possession or not, afford no title to the Crown as against 
one challenging the Crown's right of superiority, which was 
not challenged here. Again, if any one had challenged the 
Duke's right to the lands, the Crown charter (even if the 
Crown had been non dominus) clothed with possession, would 
have given the Duke a prescriptive title good against the 
world. But there was no question of that sort here. What 
the Duke was seeking was, in fact, the alteration or reduction 
of his charter, not by reason of any intrinsic nullity, but, upon 
the wholly extrinsic ground that his ancestor had been careless 
and had made a mistake. It is, therefore, submitted that the 
decision of the Court amounted to this: (1) that the Duke's 
right to correct the charter and to make good the alleged 
mistake — a right which at one time had been indisputably his or 
his ancestors' — ^had been lost by not being put in force within 
forty years from the date at which it emerged ; and (2) that a 
superior's right to exact feu-duties and casualties is not lost 
non utendo. The case upon the whole does not justify Mr. 
Napier's interpretation of it as illustrating the doctrine that 
the possession of the vassal is the possession of the superior, 
any more than it justifies Mr. Bell's inference (which is also 

^ Cheape v. Lord-Advocate^ 1871, 9 M. 377. 


the rubric in the dictionary), that an original tenure of lands 
may be lost by the negative prescription.^ It merely gives 
effect to the statutory provision that a right of action must be 
enforced within forty years or else prescribe. In a feu-con- 
tract, a vassal was taken bound to relieve the superior of all 
public burdens under the qualification that the superior was 
to pay a fourth thereof. In the feu-charter the qualification 
was omitted, and the vassal discharged the whole public 
burdens for two centuries. It was held that the vassal had 
lost his right to be relieved of one-fourth of the public burdens 
by failing to enforce it. The charter on which he held his 
lands was free from any such qualification.^ On the other 
hand, where the original investiture of lands contained limi- 
tations upon the casualties exigible by the superior, and where 
the investiture was renewed by precept of dare constat in 
which these limitations were not repeated, it was held that the 
right to enforce these limitations was not lost by forty years 
possession on the precept, for that a precept of dare constat 
is not such a new title as will import, when fortified by 
possession, disuse extinctive of the original privilege, but is 
simply the acknowledgment of a person as lieir under the 
original investiture which still remains qualified by the 
limitation, and can never be released from the limitation by 
the negative prescription.^ 

Bonds of annuity, annual pensions, and the like obligations, 
which cannot be discharged at once, do not prescribe through 
failure to enforce them for forty years. Their arrears, however, 
like arrears of feu-duty, are extinguished by the lapse of forty 
years, and each year's payment runs a separate course of pre- 
scription.* But a bond bearing interest may be extinguished by 
no demand being made for payment of interest for forty years, 
for the bond is a single obligation, and the interest an accessory 

1 Prin., § 2017. ^ Stewart, 3 June 1813, F. C. 

2 Leslie v. Earl of Moray, 1827, 5 ^ Lockhart v. Gordon, 1730, M. 10, 
S. 284. 736 ; Burt v. Burt, 1858, 20 D. 402. 




or quality thereof. A defence or exception competent to a 
defender is not lost non utevdo if it be merely an answer to the 
pursuer's claim, for it cannot be used until the claim be raised 
which it is to meet, e.g. a receipt, the essence of which is to 
afford a perpetual protection. Temporalia ad agendum sunt per- 
petim ad excipiendum} But where the exception is founded on 
some claim of the defender against the pursuer, which is itself 
productive of an action, e.g. compensation, it may be lost by 
prescription, because it ought to have been insisted in within 
forty years.2 

Where a heritor obtained decree of sale of teinds, with power Negative 
to intromit with his own teinds until he should get a heritable tion as 
right, and where he continued in possession for forty years, it teinds"^ 
was held in an action at the instance of the titular for bygone 
teiud duties, that the decree of sale was not affected by the 
negative prescription, his right to require the titular to denude 
at any term being res merae facultaiis. The fact of his intro- 
missions with the teinds excluding the supposition of dereliction 
was also an important element in the decision.^ Whether a 
decree of valuation of teinds by the sub-commissioners is liable 
to prescription is a point that has occasioned some doubt. On 
the one hand it is argued that such a decree is a right which is 
lost by not being pursued for forty years,* on the other that it 
implies the creation of no new right, but is merely evidence of 
matter of fact, and furnishes the heritors with a perpetual ex- 
ception to meet any claim in excess of their valued teinds.^ In 
Maxwelly the Court seems to have held that there was sufficient 
evidence of dereliction, and in Drymen that there was not. 
Some countenance seems also to have been given in the latter 
case to a plea of non valens agere, based upon the fact that the 

^ Sinclair v. Murray, 1712, M. M. 10, 657. 

10, 735 ; Campbell v. Halket, 1747, * MoxweU v. University of Glas- 

M. 11, 634 ; 1 Pat. App. 427. gcyw, 1764, M. 10, 692. 

2 Gfirmichael v. Carmichael, 1719, ^ Heritors 0/ Drymen v. Officers 0/ 
M. 2, 677. State, 1757, M. 10, 675 ; Thomson v. 

3 Lady Gardross v. Oraham, 1710, Officers of State, 1763, M. 10, 687. 


decrees had been carried off to London during the usurpation, 
and had only been recently discovered, and upon the consequent 
principle that the heritors could not have abandoned a right of 
which they knew nothing. There is now no doubt that if there 
are contrary actings for the prescriptive period, sub- valuations 
are lost, and cease to have any effect. Not so, however, with 
the decrees of the High Court, or with decrees of approbation 
of sub-valuations pronounced by the High Court. These are 
not lost by dereliction, and qualify all subsequent decrees of 
Rights of The application of prescription to the rights of heritors ivJter 


inter se. SB was Settled in the case of the £arl of Fife v. JDuff,^ where it 
was held that though prescription does not begin to run against 
a claim for repayment by an overpaying heritor in a locality 
against an underpaying heritor till a final decree of locality is 
pronounced, it does operate where the  overpayments by the 
heritor are caused by his own act in failing to produce a decree 
of valuation. From Lord Adam's judgment we extract the 
following synopsis of the previous decisions, and the principles 
deducible therefrom. 

1. Heritors are at common law precisely in the same position 
as debtors, bound jointly and severally. The title of an over- 
paying heritor to relief from an underpaying heritor depends 
upon the fact that he has paid to their common creditor the 
whole, or part, of the debt for which they are both liable in 
solidum. The liability to relieve, and the consequent ground of 
action, arises when each overpayment is made, and therefore 
the long prescription begins to run when each payment is 

2. Upon this rule, the case of Weatherstone v. Marquis of 
Tweeddale ^ has grafted this exception, that where payments of 
stipend are made under an interim decree of locality, there is 

1 Colquhoun v. Fogo, 1873, 11 M. 2 i887, 15 R. 238. 
919, Lord-President Inglis, 928 ; Earl 
of Minto V. Pennell, 1873, 1 R. 166. 3 1333^ 12 s. 1. 


an implied judicial contract among all the parties, that when 
the legal obligations of the heritors have been determined by 
final decreet, their several interests shall be adjusted from the 
commencement of the process or processes, according to the 
true state of their rights and obligations, and that the claims of 
relief thus arising cannot be affected by the length of time 
during which the settlement of the locality may have been 
delayed. The dependence of the process keeps alive until final 
decree that right to a future adjustment of such payments as shall 
be made under interim decree, which is implied in the very 
nature of their concursus in that process. No right of action 
emerges, and therefore prescription cannot begin to run, till 
final decree has been pronounced. 

3. But where an under-paying heritor who has been a party 
in a process of locality sells his lands and leaves the parish 
more than forty years before an action of repetition is brought 
against him by an over-paying heritor, it will be held that the 
right of relief is cut off by the negative prescription on the 
ground that the under-paying heritor, by selling his lands and 
leaving the parish, becomes a stranger to the proceedings, ceases 
to have power to intervene in them to any purpose, and there- 
fore cannot be afifected by them.^ 

Eeversions would seem of their own nature to be res rnerae Reversions. 
factUtatis. They are therefore expressly named in the Act 
1617, c. 12, as being, nevertheless, subject to the operation of 
the negative prescription, and only those incorporate with the 
infeftment, or registrated in the Clerk of Eegister's books, are 
excluded from its influence. For a reversion to satisfy the 
condition of being 'incorporate with the infeftment,* it need 
not be inserted verbatim in the sasine. But there must be 
such a clear and explicit expression of the nature of the 
right as is capable of putting people on their guard.^ A general 

^ Sinclair v. CamphelVs Trustees, ' Oeddes v. Miller, 28 May 1819, 

1877, 4 R. 1126 rev. 1878, 6 R. F. 0. ; mcolson v. KeUh, 1810, 
H. L. 119. Hume, 470. 


reference to reversions engrossed in previous titles will not 
suflSce.^ Nor will the privilege of exemption be extended to 
any other class of rights than reversions, e,g, a liferent reserved 
in gremio of a party's titles.^ It is a nice point how long re- 
versions limited in point of time continue to qualify the titles 
in gremio of which they are engrossed. In the case of a con- 
ventional right of reversion limited to seven years and in 
gremio of the grant, it was contended for the pursuer that 
an incorporate reversion could not be lost non utendo, that 
the defender's title bore ex facie to be only a title in security, 
and that, though the right of reversion was temporary, that 
limitation went for nothing until declarator had passed upon it. 
This amounted to the contention that a temporary right of 
reversion should have all the eiSfect of a perpetual one, where 
there was no declarator of expiry ; and the Court held, though 
by the narrowest majority, that the defender's title was now 
irredeemable, the reverser not having offered to redeem since the 
term, more than forty years ago, when the right of redemption 
was by paction to become void.^ 

Eegistered reversions are by the very terms of the statute 
entitled to exception from prescription equally with reversions 
incorporated with the title; and so it was held in Mliot v. 
Maxwell* But in Scott v. Bruce-Stewart ^ the Court emphati- 
cally overturned that decision, holding that in a competition 
with the feudal clause of the Act the general clause must 
yield ; and that no reversion, even when registered, which has 
not been acted on within forty years of its date, could qualify 
an ex fade absolute title to lands clothed with forty years' 
possession. Such a reversion is extinguished by failure to 
pursue upon it just as much as a registered bond. 
Terminus The statute provides that prescription is to run from the 

^Munro v. MunrOy 19 May 1812, M727, M. 10, 977; Ersk., InsL, 

F. C. 3. 7. 10. 

^Stuart V. Cuming, 1711, M. 10, 

722. ^ 1779, M. 13, 519 ; 3 Ross L. C. 

3 Pollock V. Storrie, 1738, M. 7216. 464. 

■■■HPV|PPPiVWaHBHM|«P««n«MWMiPHBI«i^^^^a^^n  '■ 


date of the bond containing the obligation. But this has long a quo. 
been interpreted to mean, from the date of payment or fulfil- 
ment of the obligation.! The general principle, of course, is 
that until a right of action emerges, prescription cannot begin 
to run, for there is no right to prescribe. Thus, in an action 
of damages against a law agent, who had blundered in an in- 
hibition, it was held that prescription did not run upon the 
right of action from the date at which the error was committed, 
but from that at which it was discovered, and at which the 
inhibition was set aside.^ Prescription runs de die in diem, 
and the prescriptive period is not altered as regards the 
negative prescription by 37 and 38 Vict. c. 94, § 34.^ 

The statute takes special notice of actions arising upon warran- 
warrandice to the eiJect, not of excepting them from prescrip- ^^' 
tion, but of providing that prescription shall run upon them 
from the date of distress only, and not from the date of the bond 
or infeftment which contains the warrandice. This clause may 
seem unnecessary, in as much as a clause of warrandice can, 
as a general rule, only supply a ground of action when there 
has been eviction. But warrandice may take effect before 
eviction, if the cause inferring eviction be evident and clear, 
especially if the same be the deed of the party wanander;* 
and it is conceived that in such a case the right of action 
against the granter of the warrandice will begin to suffer the 
course of prescription not from the time when the valentia 
agendi comes into existence, but, from the date of actual dis- 

With regard to warrandice, an interesting question has arisen, EflFect of 
whether it is altogether lost non utendo for forty years after eviction, 
partial eviction, or whether it is only lost as regards the 
particular lands, or the particular right, evicted. Where in 
a conveyance of lands to the pursuer's author, in 1715, there 

1 B-uUer v. Gray, 1665, M. 11, 183 ; Uvea, 1850, 13 D. 167. 
iM^oot V. Prestoun, 1780, M. 11, 187. ^ Brodie v. Mann, 1884, 11 R. 925. 

* Cooke V. Falconer's Representa- * Smith v. Boss, 1672, M. 16, 596. 



had been a clause of warrandice against future augmentations of 
stipend, and where successive augmentations, in 1719, 1793, 
1807, and 1823 respectively, had been granted to the minister, 
without any action on the part of the disponee of the lands 
against the granter of the warrandice, it was held that the whole 
obligation to relieve against augmentation did not prescribe 
because there had been distress to a certain extent ; yet that 
distress was made perfect even by an interim locality, and that 
the claim of relief to the extent of the right then evicted began 
from that moment to prescribe. * We think that what prescribes 
' under the statute of 1617 is the right of action for any distress 
' or loss actually incurred by eviction, and that the prescription 
' cannot .extend farther than the eviction/ ^ In this case, on 
a remit back from the House of Lords, the Court held that a 
general clause of assignation of writs and evidents was sufficient 
to connect the purchaser with the warrandice against future 
augmentations in his author's titles. This judgment the House 
of Lords reversed,^ and in so doing apparently laid down the 
proposition that such a warrandice is altogether distinct from 
warrandice of a title to lands, and is a collateral and inde- 
pendent contract. If this distinction be correct, it seems 
natural to inquire with Lord Moncreiif whether such a war- 
randice, being merely a collateral obligation, really falls under 
the statutory exception as to the terminus a quo, and whether 
prescription must not be taken to run from the date of the 
obligation.^ The difficulty was got over by Lord Justice-Clerk 
Hope, who pointed out that even if such clauses of warrandice 
are to be treated like ordinary bonds, prescription does not 
begin to run till they are exigible, i.e, from the date of eviction. 
The other problem suggested by Lord Moncreiif — whether a 
valentia agendi would not be raised by the right to cause such 

^ Home V. Marquis of Bread- 1843, 5 D. 1357. 

alhane's Trustees, 1835, 13 S. 296. ^ i Bell's App. 1, at pp. 36 and 58. 

See Breadalbane*s Trustees y, Sinclair, ^ Sinclair' v. Marquis of Bread- 

1838, 16 S. 815 ; Lennox v. Hamilton, aibane, 1844, 6 D. 378. 


independent obligation to enter the feudal titles in terminis 
and whether the obligation may not be 'worked off' like the 
fetters of an entail — was not then, and has not since been, 
solved by the Court. 



N<mvaiens 1. Non voiens Off ere. — An adversity of right would naturally 
^^^' seem to be an essential condition of there being termini hdbiles 
for prescription. Contra non vaierUem agere non currit j^ae- 
scriptio is a maxim which appears to be involved in the very 
notion of prescription, and we have noted its application in 
cases of prescription on double title. The vaientia agendi 
signified is a legal and not a merely physical ability, and an 
impedimentum juris is required to constitute the corresponding 
inability. In spite, however, of the general principle that 
unless there be a vaientia agendi there can be no prescription, 
the Court has repeatedly expressed the opinion that non voiens 
agere is not a valid reply to a plea of prescription under 
the feudal clause of the Act 1617, c. 12 (except in cases of 
double title). Lord-President Dundas, with Lord Kames and 
Lord Pitfour, declared, in Campbell v. JFUson} that the plea of 
non valens agere belonged to the negative, and not to the positive, 
prescription ; the doctrine was even more explicitly laid down 
in Millers v. Dickson f' and was emphatically affirmed in M'Neill 
V. Macneal^ where the facts were as follows. In the marriage- 
contract of A, lands were destined to the heirs-male of the 
marriage, whom failing, to the nearest lawful heirs-male of A. 
A was succeeded by his son B, and B by his son C, who made 
up a title as nearest lawful heir-male of his father, but not as heir- 
male of provision, and was infeft on a precept from Chancery in 

1 1765, 6 Br. Supp. 926. « 1868, 20 D. 735. 

•^ 1766, M. 10, 937. 


1788. He executed an entail of the estates in favour of D, an 
illegitimate son^ who was infeft therein in 1818^ and possessed 
till 1854, when his right was challenged by X, the heir-male 
under the marriage-contract, who sought to reduce the retour 
of 1788. D pleaded prescription upon his father's infeftment 
in 1788 (which would, of course, preclude inquiry into the 
retouf), clothed with possession by his father C and by himself 
conjoined. X in reply pleaded rum valens agere during the 
years of C's possession. ' The principle of the law of Scotland,' 
it was urged, ' was now clearly, that when a party against 
' whom prescription is pleaded could have derived no benefit 
' from an interruption of prescription, there are no termini 
' hahUes for prescription/ The Court sustained D's title, clothed 
with forty years' possession, as a habile ground of prescription, 
and expressly repelled the plea of non valens agere. ' I cannot 

* hold that because the possession must be uninterrupted, it 

* follows by necessary inference that it was meant that pre- 
' scription should not run, whenever it happened that there was 
' no party who could take any substantial benefit by the inter- 
' ruption ' (p. Lord Wood). Those who are startled by the 
view that there can be prescription where there is no 
valentia agendi may be content with the less sweeping proposi- 
tion that, though there must always be an abstract valentia 
agendi, there need by no means be an actual person .in the 
enjoyment of that valentia, and may believe that M'Neill might 
have been more easily disposed of on the analogy of the Elsie- 
shiells case;i for the pursuer's contention was neither more 
nor less than this, that D's father, C, who was both heir- 
male of provision and heir-male of line, and who could not be 
compelled to serve as heir-male of provision, was debarred, 
because he had made up a title as heir-male of line, from 
altering the destination (which would otherwise have continued 
to be the lex fevdi) — an act which he would admittedly have 
been entitled to perform if he had made up titles under the 

» Edgar v. Maxwell, 1736, M. 3089. Supra, p. 52. 




marriage-contract, which, according to the pursuer's contention, 
prohibited him from altering, since he had neglected it. 

That the plea of W)% valens agere is unreservedly a competent 
answer to that of the negative prescription has never been 
questioned. It is to be noted, however, that the plea is not 
statutory, but purely equitable. If, then, the legal inability to 
pursue be due to the conduct of the very party pleading it, e.g. 
his failure to produce a document of whose existence he was 
well aware, the plea of non valens agere will be repelled.^ 

The cases which deal with the answer, non valens agere vi 
majore, are somewhat conflicting. In Laitderdale v. Tweeddale^ 
the Duke of Lauderdale was held entitled to deduct from the 
prescriptive period the years during which he was under for- 
feiture by the usurpers. The same result was arrived at in 
Whitefoord v. Kilmarnock,^ though in a previous case Colonel 
Whitefoord had not been permitted to deduct the years during 
which he had been absent on service with the King's army.* 
Yet, in Campbell v. Wilson,^ it was laid down by the Court of 
Session, and afiirmed by the House of Lords, that the plea of 
forfeiture by an established government is no reply to that of 
prescription. So we arrive at the singular conclusion that 
forfeiture by a foreign prince, or a band of usurpers, constitutes 
an inability to take action, while forfeiture by a lawful govern- 
ment does not. The whole subject was thoroughly discussed 
in Graham v. Watt,^ where the plea of non valens agere was 
proponed by one who had been pressed into the navy, and 
owing to continued service for five-and-twenty years, had been 
ignorant of, and unable to assert, his rights. The Court 
decided that * there must be a legal incapacity to sue, not 
' merely a dilB&culty to do so, nor even a real ignorance of 
' [one's] rights * (p. Lord Medwyn). 
Mental 2. Mental IHsaMlity, — There is considerable doubt as to 

disability. "^ 

1 Earl of Fife v. Duff, 1887, 16 R. * 1678, M. 11, 196. 

^'1678. M. 11. 193. ' "65. 6 Br. Supp. 916. 926. 

» 1681. M. 11, 198. « 1843, 6 1). 1368. 


whether mental disability is an answer to the plea of prescrip- 
tion. It does not fall within iion valentia, as Mr. Bell holds,^ 
if, as we have just seen, that is to be truly interpreted as being 
not so much any personal disability as the absence of any legal 
right upon which a claim may be based ; nor can it safely be 
reckoned as analogous to infancy. Sir George Mackenzie was 
of opinion that it must be taken to have been deliberately 
omitted from the Act 1617, c. 12, and therefore cannot be a 
valid reply to the statutory plea. The point has never been 

3. Minority, — After the feudal and general clauses, the Act Minority. 
1617, c. 12, goes on to provide for the exclusion of the years of 
minority and less-age from the reckoning of the prescriptive 
period. Minority acts merely as a suspension of the course of 
prescription, and the term of possession that precedes it is not 
deprived of its prescriptive quality. The Court soon established 
the applicability of this exception to the feudal as well as the 
general clause. But its operation is kept within certain 
bounds. Thus, the plea of minority is a purely personal 
privilege in favour of individuals, and is therefore not available 
to hospitals for the education of children,^ or to a body of 
creditors of whom one is a minor.^ The party who pleads it 
must have in his person the specific and immediate right 
(though not necessarily a formal title) against which prescrip- 
tion is urged. Thus prescription upon the general clause of a 
bond; conveyed to trustees for behoof of minors, and not pur- 
sued for forty years, was held not to be suspended by the 
minority of the beneficiaries, because prescription was running 
against the trustees, and not against the minors, so long as no 
division was made among them, and so long as the trustees 
continued alive.* With regard to entails, the minority of the 
prescribing heir in possession is not to be deducted to his 

1 Prin., § 027. 678 ; 1842, 1 BeU*s App. 167. 

* HerioVs HospitcU v. Hepburn, * Maddlan v. Menzies, 1756, M. 

1695, M. 11, 149. 11, 160. But see BaUie v. Menzies, 

3 Allan V. Brander, 1839, 1 D. 1756, 5 Br. Sup. 847. 



disadvantage, and the years of minority of substitutes can be 
deducted only in favour of those who, while minors, had vested 
in them an immediate claim to the right in question.^ But one 
substitute heir of entail cannot deduct the years of minority of 
prior substitutes,^ nor indeed his own, unless the succession has 
opened to him as a minor.^ For the right to suspend prescrip- 
tion on the plea of minority is confined to those who have a 
present, and not a mere contingent, right to claim possession ; * 
and only the minority of a party claiming directly as verus 
dominus can be deducted.^ There was much confusion on this 
Bargany head in the Bargany case.^ There, an heir substitute of entail 
brought a declarator of irritancy against the heir in possession, 
together with a declarator of her own consequent right to the 
property. The heir in possession met her with a plea in terms 
of the feudal section of the Act; he produced a valid, unlimited 
title, clothed with his possession for more than forty years. 
The substitute maintained that the years of her minority ought 
to be deducted from that term ; but the Court held that they 
were not to be deducted. Solicitor-General Blair, however, 
threw out the suggestion, which was at once taken up, that the 
substitute was really vera domina, for that if she established 
the irritancy she would be entitled to enter upon immediate 
possession of the lands. Misled by this notion, a majority of 
the Court came round to be of opinion that the pursuer was 
entitled to deduct the period of her minority. That is to say, 
it chose to assume (1) that there had been an irritancy ; and 
(2) that the pursuer was consequently next heir under the 
entail ; for without these assumptions it could not be main- 
tained for a moment that the pursuer was claiming qud vera 

1 MacdougcU v. MacdougcU, 1739, ^ BjicJianan v. Bogky 1847, 9 D. 
M. 10, 947. 686 ; Black v. Mason, 1881, 8 R. 497. 

2 Ayton V. Monyyenny, 1766, M. * FuUarton v. Dalrympk, 1796, 
10, 956. 1 W^. &S. App. I., p. 3 ; 1798, M. 11, 

3 jifatde V. Maule, 1829, 7 S. 527. 171 ; 3 Pat App. 691 ; 4 Pat. App. 
* Gordon v. Gordon, 1784, M. 10, 175 ; 3 Ross L. 0. 484 ; Napier, p. 

968 ; Creditors of Auchinda^hy v. 494, seq. 
Grant, 1792, M. 10, 971. 


dx)mina. In other words, it was quietly taken for granted that 
the pursuer was right both in fact and law in the first con- 
clusion of her action, in order that she might have a valid 
answer to the plea of prescription proponed against her. In 
vain did Lord-President Campbell and Lord Meadowbank 
insist on the vital distinction between a direct declarator of 
property, where the party against whom prescription has been 
running, and is pleaded, may deduct the years of his own 
minority, and a declarator of irritancy and contravention of the 
fetters of an entail, which is founded on a jus oUigationis, 
vested equally in all the substitute heirs of entail, and capable 
of being asserted by any one of them;^ who, in this respect, 
form, as it were, a class- — though not an actual corporation ; 
who cannot therefore plead the minority of any of their 
number ; ^ and of whom no one is preferable to another ; so 
that an heir of entail, who if his declarator of irritancy 
succeeds, will become heir in possession, no more pursues such 
a declarator qud verus dominies, than would the last heir named 
in the substitution. ' The circumstance of afterwards getting 
' possession is merely a consequence of vacating the fee, but 
' adds nothing to the right of making it vacant ' (p. Lord 
Glenlee). The House of Lords corrected, indeed, the view of 
the Court of Session that a near heir of entail is preferable in 
such a matter to a more remote one, but attempted to substitute 
for it the doctrine that all heirs of entail are entitled to 
plead their minority : which would in many cases render the 
Act 1617, c. 12 useless. No more, however, has been since 
heard of a principle so completely at variance with the settled 
law of Scotland ; and the ultimate decision in the Bargany case 
was a finding on the merits that the matters in the appellant's 
summons were not sufficient to sustain the conclusions. 

The years of minority also fall to be deducted in cases lying 
outside the statute, e,g. such as involve public right-of-way. 

1 Ersk. 3. 8. 32. 678 ; 1842, 1 Bell's App. 167 ; supra, 

* Cf. Allan V. Brander, 1839, 1 D. p. 103. 


Acts of possession by the public during the minority of a de- 
fender in a declarator of right-of-way cannot be founded on to 
his prejudice.^ But when usage is founded on as interpreting 
a grant, what occurred during the minority of the granter's re- 
presentative is not to be thrown out of account.^ The phrase- 
ology of the Act seems to leave no room for doubt that the 
time during which a child is in utero is to be deducted from 
the prescriptive period as well as the twenty-one years subse- 
quent to its birth. ^ 
37 and 38 The Act 37 and 38 Vic. c. 94, § 34, provides that where 

V^ict c 94 

§ 34. * ' thirty years' possession has followed upon an ex facie valid 
irredeemable title, no deduction or allowance is to be made on 
account of the years of minority or less-age of those against 
whom the prescription is objected, or of any period during 
which any person against whom prescription is objected was 
under legal disability. 

Exf(wie 4. Ex facie nullity, — A deed which is ex facie null, e.g. not 


duly tested, can never be fortified by the positive, or saved from 
challenge by the negative, prescription. • An action to reduce a 
deed on the ground of an erasure was held not to be barred by 
the lapse df the prescriptive period ; for the error was in sub- 
stantialibuSy and the. deed was consequently alleged .to be ex 
facie void.* In Kinloch v. Bell^ the Court held that objections 
to a decree of locality founded on incompetency or nuUity 
appearing ^ facie of the deed were not affected by the nega- 
tive prescription; and remitted to the Lord Ordinary to 
decide (1) whether certain objections .were ex facie of the de- 
cree, and (2) Whether, if so, they amounted to nullities. (See 
supra p. 17). 
Falsehood. 5. Falsehood, — ^^Falsehood, i,e, forgery,* is a valid answer to 

1 Craufurd v. Menzies, 1849, 11 D. ^ 1844, 6 D. 464 ; 6 Bell's App. 153 ; 
1127. 3 Ross L. C. 336. 

2 Baird v. Fortune, 1861, 23 D. » 1867, 5 M. 360. See Speir v. 
1080. Lord Willoughby d'Ereshy, 1891, 18 

3 CampbeU v. Wilson, 1765, 5 Br. R. 407. 

Sup. 915, at p. 917. * Dukeo/Buccleuch'v, Cunynghame, 

* Shepherd v. QranVa Trustees, 1826, 5 S. 53. 


the plea of prescription (in spite of a remark of Lord Core- 
house's in Cuhbison \, Hyslop)^ first, because of the general 
maxim, numquam praescriHtur in falso ; and secondly, because 
of the feudal clause of the statute which expressly excepts 
' falsehood ' from the grounds on which a right of property may 
not be impugned by one producing a competing title after the , 
lapse of the prescriptive period.^ (See supra, p. 18). 

6. Interruption. — Interruption of the course of prescription intemip- 


entirely cancels that portion of the prescriptive period which 
has already elapsed. A new term of forty years begins to run 
from the date of the interruption, and this new term must 
be completed before prescription can take place. Interruption 
is competent at the last moment of the last day of the forty 
years, but if postponed to so late a date, it must be explicit 
and direct, and must unequivocally imply a challenge of the 
right which possession has all but fortified, or an assertion of the 
right which failure to assert is on the point of extinguishing. 

The positive prescription may be interrupted judicially or of positive 
extra-judicially. Judicial interruption is efifected by citation, tion*^; 
which, unless renewed, is extinguished as an interruption 
after seven years ; ^ or by an action brought into Court, which 
endures as an interruption for forty years. A vassal obtained 
decree of declarator of tinsel of superiority against his superior, 
who held of the Prince, and obtained an unqualified charter 
from the Prince as immediate vassal, on which he was infeft, 
and possessed for more than forty years. It was held that 
the vassal had not prescribed a right as against his former 
superior so as to exclude the latter from challenging his infeft- 
ment, because his possession had been interrupted by a de- 
clarator of non-entry brought by that superior within the 
forty years and still depending.* 

Extra-judicial interruption is efifected by demanding and 

1 1837, 16 S. 112. -» Wallace v. Earl of Eglintmn, 

2 Bankton, 11. 166. 1830, 8 S. 1018. 
8 Act 1669, c. 10. 


obtaining, or by effectually assuming possession ; or by notarial 
protest, upon which an instrument must be extended and 
recorded in the General Eegister of Sasines,^ to make it 
available to or against singular successors. When a public 
right-of-way has once been established, it requires evidence 
of interruption and acquiescence therein for forty years to 
extinguish it.^ 
of negative In like manner, interruption of the course of the negative 

tion, prescription may be either judicial or extra-judicial. 

Judicial interruption may be (1) by citation, (2) by action, 
or (3) by diligence. 
Judicial. (1) When interruption is by citation, the citation, as we 
have seen, must be renewed every seven years on pain of pre- 
scribing.^ A citation, however, followed by such judicial .acts 
as suffice to constitute a process, or depending action, e.g, 
appearance of parties, affords a plea of interruption for forty 
years, and requires no statutory renewal.* 

(2) To effect interruption by action, the summons must be 
called in Court ; though if execution be prior to the expiry of 
the forty years, the calling need not be; the pursuit must 
have a direct reference to the debt in question and to the party 
debtor; and must be founded upon an absolute right to the 
debt. Interruption by process, however, no matter by whom 
it has been used, 'may be pleaded by any creiiitor where the 

* bringing of such suit has been intended by law to promote 

* the common interest of all the creditors.'^ Hence claims 
entered formally, and fulfilling all statutory requirements, in 
processes of ranking and sale, multiplepoiuding, and sequestra- 
tion, are a good interruption. But an action of debt in general 
is no interruption of the prescription of a particular debt; 
nor can an action resulting in a decree assoilzieing the de- 

1 31 and 32 Vict. c. 04, § 15. ^ ^ct 1669, c. 10. 

^ Magistrates of Elginy.Rohertam, a miuon y Innea 1705 M 10 

1862, 24 D. 301, at p. Z{^\ Rodgers ^^'^^^ ^' ^^^* ^'"^' ^- ^"' 

V. Harvie, 1827, 5 S. 917 ; 1828, 3 ^' 

W. and S. 251. ^ Er8k.,/w«^ 3. 7. 41. 


fender be pleaded against him as an interruption of prescrip- 

(3) Diligence done upon a debt, effectually to interrupt 
prescription, must be such as affords the debtor a distinct 
notification that the creditor means to prosecute his claim. 
A general charge, or letters of horning without a charge, or, 
generally, any informal diligence, will not afford an interrup- 
tion.2 Even where a threatened charge was suspended by the 
debtor, and therefore prevented from following upon a homing, 
there was held to have been no valid interruption.^ An 
assignation or transference of his debt by a creditor is not an 
interruption, even though it be duly intimated to the debtor. 

The terms of the Act have not been held to exclude the Extra- 
possibility of effectual interruption by some act of the debtor's ^"^ 
implying an acknowledgment of his obligation. An admission 
by a trustee that a legacy is owing will prevent the legatee's 
claim to it from suffering prescription.* A submission of the 
particular debt will interrupt,^ but not a general submission of 
all debts.® A decree in terms of the libel, followed by a bond 
of corroboration and a letter asking for indulgence on a 
demand for payment is a good interruption ; ^ but mere com- 
munings on the subject of a claim, and craving time to 
investigate it, are not.® Payments of interest will preserve a 
bond from prescription, but they cannot be proved by parole.® 

In both species of interruption the important points are that Hay v. 
(1) the action shall be raised against, or the acknowledgment Advocate, 
granted by, the proper debtor; (2) with regard to the par- 

^ Montgornery v. Fowles, 1795, F. C. 
BeU's Fo. Ca. 203. 6 Garden v. Higg, 1743, M. 11, 

^ Johnston v. Lord Belhaven, 1672, 274. 

M. 11, 237; Earl of Hopeioun v. r'^uj^nv. Malcolm, 1766, HaUes, 

YorkBgs. Coy,, 1784, M. 11, 286. 143 

8 Wright V. WHght, 1717, M. 11, .'.^ ., „ ,^a« tvt ,, 

* Briggs v. SwavCs Executors, 1854, 


16 D. 385. ' Kermack v. Kermack, 1874, 2 R. 

' Vans V. Murray, 14 June 1816, 156. 


ticular obligation, and (3) shall proceed upon, or refer to, a 
proper right or claim to that obligation. The case of Hay v. 
King's Advocate ^ affords a good illustration of these indispen- 
sable conditions. The Crown, in right of the forfeited estate of 
Lovat, stood in the place of the proper debtor. The pursuer 
was a creditor against the estate by virtue of a bond and subse- 
quent adjudication to which she had acquired a right. Against 
her claim the Crown pleaded prescription, the answer to which 
was interruption, efifected by the pursuer's author having for- 
merly produced his grounds of debt in an action of reduction 
brought against him, not by the proper debtor but by another 
adjudger. The pursuer also relied upon an obligation to enter 
into a submission of all the debts in question, undertaken by a 
son of one of these co-creditors with another co-creditor, as a 
valid interruption. Against this it was argued that the per- 
sons concerned in the submission were not the persons properly 
liable in payment of the debt, and that as an action brought 
against either of them would not have sufficed to interrupt 
prescription, far less could any private unfinished transaction 
with them have that efifect. This contention was upheld by 
the House of Lords, which, reversing the judgment of the 
Court of Session, dismissed the claim against which prescrip- 
tion was pleaded. In another case between the same parties, 
an important variation in the species fojcti led to a different 
result.^ In 1690 Lord Lovat had come under a bond for 1600 
merks, which debt, and various others, were accumulated under 
one adjudication at the instance of a trustee for the whole 
creditors. In 1703 the trustee obtained decree of constitution 
cognitionis causd, to make all these debts effectual against Lord 
Lovat's estate: upon which there followed in 1704 decree of 
adjudication against the whole Lovat estate for all these 
several debts, with interest, accumulated into one large sum. 
To the bond for 1600 merks the pursuer had acquired right 

11756, M 11, 276; rev. 1758, ^2 Pat., App. 272; Napier, p. 
H. L. 272 ; Napier, p. 665 aeq, 668 seq. 


from her father, and the debt was assigned to her in 1737. 
Under this assignation, the pursuer entered her claim for the 
debt in 1749 to the Court of Session, after the forfeiture of the 
Lovat estates. More than forty years had elapsed between 
the decree of adjudication in 1704 and the presentation of the 
claim in 1749 : and the Crown pleaded prescription. In reply 
interruption was proponed. (1) It was alleged that Lord 
Lovat had in 1738 entered into a submission with a creditor 
of severial of the debts comprehended in the adjudication. A 
decree-arbitral had followed, under which he was paid off. 
This transaction had no direct relation to the particular debt 
on which pursuer founded, but it was contended that it 
amounted to an express written recognition of the whole debts 
under the adjudication, and therefore interrupted the course of 
prescription upon pursuer's debt. (2) After 1715, the life 
interest in the Lovat estate fell into the hands of the Govern- 
ment Commissioners, and in 1718 the pursuer's trustee entered 
a claim before that Court upon the bond and adjudication. 
This claim was discovered entered in the Eegister of Claims ; 
and it was contended that the claim itself was sufl&cient 
interruption, as it amounted to the raising of an action before 
the only court competent in the circumstances. (3) The 
minority of several of the pursuer's children was also pleaded. 
The House of Lords, following the Court of Session, held that 
the pursuer's claim was not cut off by the negative prescrip- 
tion. The precise grounds of the decision cannot certainly be 
determined. The plea of minority was manifestly unsound. 
The first ground for the plea of interruption was no doubt a 
transaction in which the proper debtor was concerned ; though it 
is submitted that it cannot be regarded as an acknowledgment 
of the separate and particular debt in question. But the 
second ground — the creditor's pursuit before the commissioners 
in 1718 — supplies jper se ample reason for sustaining the plea 
of interruption. 

While in any act sufficient to interrupt prescription, it is 


DUigence absolutely necessary that the proper debtor should be involved, 
aJknow- it has been held, and is apparently the law, that where a putative 
to, putative Creditor has done what, if done by the real creditor, would have 
creditor, sufficed to interrupt, the real creditor if he pursues his claim 
afterwards is entitled to the benefit of that interruption.^ Nay 
more, the acknowledgment of a debt by a debtor, by means of a 
formal transaction with a mere putative creditor, whose title is 
thereafter rejected, will probably suffice to found a plea of inter- 
ruption for the true creditor, in a question of prescription with 
that debtor.2 gu^ ^n action raised by a creditor on a wrong title, 
even though he has a good title in his person, will not form a 
sufficient ground for him to plead interruption of the course of 
prescription.^ The case of Robertson v. Bobertson,^ indeed, seems 
at first sight to conflict with Campbell ^ and Morrison.^ There a 
party pursued payment to himself of the whole sum provided 
in a marriage-contract to heirs, male or female. He was held 
entitled to only one-third of the amount, as there were two 
other children of the marriage. Ten years after, the pursuer, 
by assignation granted by his sister, acquired right to another 
third of the provision: and he enrolled the cause to obtain 
decree for that amount also. But more than forty years had 
elapsed between the date when the sister might have claimed 
her provision and the date of her assignation. Prescription 
was accordingly pleaded against the pursuer : and if that plea 
was valid, it is obvious that the sister had, at the date of the 
assignation, no claim to assign. The pursuer argued that pre- 
scription was interrupted as to his sister's claim by his having 
raised an action prior to the expiry of the forty years. The 
Court sustained the plea of prescription. Yet, asks Mr. Napier, 
if it be law that a creditor can plead as an interruption the 
pursuit of one who is an entire stranger to the right, why might 

^ Campbelly, Earlo/BreadcUbanef ^ Blair v. Sutherland, 1735, M. 

1746, M. 6554. 11, 270. 

*-* Morriscm v. Yorstoun, 1849, 

Napier, p. 676 seq. * 1776, M., voce Prescr. App. 2. 

PP^WP^IffWKSJllSPPWWBBPiiPPWW^iW^ii^^w^"^* mil ■» p wp n im i 


not the brother's action save the sister's claim from prescription ? 

The answer probably is that an action where the defenders are 

assoilzied is no interruption ; and the pursuer's action having 

failed, except as regards his share of the property, it could not 

be held to be an interruption as regards any other claim. 

It remains to consider whether partial interruption afiPects Partial in- 
terruption ; 
the course of prescription on the whole right or no. A debt 

may undoubtedly be so divided by assignation, that interruption 

as to one part will not apply to the rest.^ On the other hand, 

in the case of a right held jpro indiviso by several creditors, 

interruption effected by one will benefit all.^ Diligence used 

against one of two or more co-principal debtors preserves the 

debt itself, and so interrupts prescription against all the co- 

obligants,^ and diligence used against a cautioner interrupts 

prescription as to the principal debtor.* 

An annual-rent was granted out of two tenements in Leith in annual 


over the whole subjects, and the burden was constituted by 
separate sasines. The two tenements were afterwards trans- 
mitted to different proprietors, A and B, by singular titles. 
The annual-renter only pursued his right against A, which it 
was held perfectly competent for him to do, but reserving A's 
right to relief from B. "When A sought to obtain relief 
from B, B pleaded the statute 1617, he having bruiked his 
tenement for more than forty years before the pursuit, free 
from such annual-rent. The Court held that an annual- 
rent was an indivisible obligation, the whole of which was 
preserved from prescription by the assertion of any part of 
the right ; while such assertion also operated as an interruption 
to the possession necessary to found a plea upon the feudal 
clause.^ But it is otherwise with adjudications. An adjudica- and adjudi- 

^^ " cations. 

tion being a right of property under reversion, partial possession 

1 Cuming v. York BuUdinga Cma- Philorth, 1667, M. 11, 233. 
pany 1790, M. 11 l70. , j,^^^ 3 ^ 

* Napier, p. 698. 

* Ea/rl of Marchmont v. Home, ' Lord BcUmerifio v. Hamilton, 
1714, M. 11, 154 ; Nicolam v. Lard 1671, M. 11, 234. 



cannot apply to protect the whole right.^ The distinction 
between the two classes of obligation seems to be this. The 
drawing a portion only of the annual-rent, or drawing the whole 
from a portion of the lands, is the assertion of a right to draw 
the annual-rent. The right to draw being asserted, it becomes 
res merae famdtatis how or in what quantity it is to be drawn. 
But adjudication is a transference which gives the right to 
possess. Possession of one tenement can never be construed to 
be the assertion of a right to possess another : and to take pos- 
session of a portion only of the lands transferred is practically 
to derelinquish the right as regards the rest of the land. It is 
quite possible, however, for the whole debt to be saved from 
prescription by partial payment, though the security be des- 
troyed pro tanto by merely partial possession. 

1 Robertson v. Robertson, 1770, M. 10, 694. 






(Stair, 1. 9. 16 ; 2. 12. 30.) 
(Erskine, Inst, 3. 7. 16.) 

The Act 1579, c. 81, runs as follows : — Act 1679, 

c. 81. 

' Item, it is statute and ordained by Our Soveraine Lord, with 
' advise of his three Estaites in Parliament, that all actiones of 
^ spuilzies, ejectiones, and utheris of that nature, be persewed befoir 
' the ordinar judge within three zeires after the committing theirof, 
' utherwise the perseweris alledged hurt never to be heard there- 
' after. Providing that this act extend not to minours, bot to 
' persew within three zeiris after their perfite age/ 

Spuilzie is the taking away of moveables without consent of 
the owner, or order of law. Ejection is the casting out violently 
from lands the then possessor, and unwarrantably entering into 
the same. Intrusion, which is understood to fall within the 
statute by force of the clause, * others of that nature,' is the 
entering into possession of lands, being for the time void, 
without consent of the parties interested, or order of law. The 
statute has from the first been interpreted to mean, not that 
actions for reparation of these delicts are incompetent unless 



pursued within three years, nor that there has been any dere- 
liction of his claim on the part of the person injured, but that 
the privilege enjoyed by the pursuer of such actions — viz. that 
of proving the extent of his injury by his own oath in litem — is 
cut oflF, if the action be not brought within the specified limit 
of time.^ It is expressly provided that, where the party alleging 
wrong is in minority, the course of prescription is not to begin 
till he is of full age. 


(Stair, 2. 9. 43 ; 2. 12. 30). 
(Erskinb, Imt 3. 7. 18 & 36). 

Act 1679, The Act 1579, c. 82, runs as follows : — 
c. 82. 

' Item, it is statute and ordained be our Soveraine Lord, with 

' advise of his three Estaites in Parliament, that all actiones of 

' remooving be persewed within three zeires after the warning, with 

' certification and they failzie, the wameris sail never be heard 

' thereafter to persew the samin upon that warning.' 

The three years run from the term to which the warning is 
made.^ If the action be not pursued within three years from 
that term, the pursuer is presumed to pass from his warning, 
and cannot pursue his action of removing, except upon a new 


(Stair, 2. 12. 30.) (Ersk. ItkM, 3. 7. 17, 18.) . 
(Bell, Prin, §§ 628-633.) (Bell, Gimm, 7th ed. i. pp. 348-351.) 
(Dickson on Evidence, §§ 484-528 [476-520].) 

Act 1579, By far the most important and far-reaching of the short 
prescriptions is that established by the Act 1579, c. 83. 

^ CowAMt of Dundee v. Laird of ^ BorthwichY, Scott, 1629, M. 11> 

StrcUhmaHin, 1587, M. 11, 067; 076. 
BaiUie v. Young, 1835, 13 S. 472. 


' Item, it is statute and ordained be Our Soveraine Lord, with 
' advise of his three Estaites in Parliament, that all actiones of 

* debt, for house-mailles, mennis ordinars, servands fees, merchants 
' comptes, and uther the like debts, that are not founded upon 
' written obligationes, be persewed within three zeires, utherwise 

* the creditour sail have na action, except he outher preife, be writ, 
' or be aith of his partie.' 

The terms of the statute are brief, and apparently simple 
enough. But their interpretation has given rise to much con- 
troversy, and many of the cases seem to conflict, though the 
law may now be considered as tolerably well fixed. 


The statute does not entirely cut off the claims with which Operation 
it deals. * It is confined barely to the mean of proof, and does of the 

* not import a total loss of the claim.' Hence a debt, though 
not pursued within the three years, afifords good ground for an 
e^xvQ^tiiLQnt juHsdicti(ytiis fundaridae causd i; though a prescribed 
account will not entitle a creditor to vote in the election of a 
trustee on the debtor's sequestrated estate.^ The object of all 
enactments of this sort (cf. the quinquennial prescription of 
moveables, iii/ra, p. 158, and the sexennial prescription of bills, 
infra, p. 161) is to protect against the demand for payment of 
old debts, and * to throw the onus of establishing the same on 
' the pursuer by a certain specified and very safe mode of proof.* ^ 
If the action be brought within the three years, the pursuer 
may establish his claim by proof pro ut dejure\ if he pursue 
after the expiry of the three years, he is tied down to a parti- 
cular mode of proof. Hence there can, properly speaking, be 
no ' interruption ' of prescription ; for the effect of a so-called 
interruption is not to start the short prescription upon a fresh 
course, but to make the claim last for forty years.* * The true 

^ Shaw V. Dow and Dobie, 1869, ^ Campbell v. Oriermn, 1848, 10 

7 M. 449. D. 361, p. Lord Justice-Clerk Hope. 

2 Winkv, Mortimery 1849, 11 D. * Ferrierv, Earl 0/ Errol, 9 July 

995. 1811, F. C. p. Lord Meadowbank. 


' sense of the statute is, that unless the action in which you 
' seek to prevail [rather, the action against which the statute 

* is pleaded] is brought within three years, you have no action 
' at all [save by the limited mode of proof], and any other action 
' just goes for nothing ; ' ^ i,e, in respect of barring the plea of 
prescription. ' I can find no authority in the statute for hold- 
' ing that there can be any such defence as interruption.' 
Where the plea is urged that prescription is barred by a 
previous action having been raised, it can make no diflference 
whether such an action, brought within the three years and 
dismissed, was really competent or not, because it is not the 
action against which the statute is pleaded, or in Lord Pitmilly's 
phrase, the action ' in which the party is to recover.' * So long 
' as the action has to be brought to recover, the action for debt 

* has not been pursued, and therefore the statute is pleadable 
' and applies.' ^ But this rigid interpretation of the Act has 
not been generally acted upon, and it may be taken that pursuit 
within the three years other than that against which the statute 
is pleaded will bar the plea. 

^J^*j}.^p The question, what constitues pursuit in the sense of the 
statute was very fully discussed in the case of Eddie v. Monk- 
land Railways Company? A sued a Eailway Company in 1851 
on an account alleged to have been incurred in 1842. The 
Company pleaded the triennial prescription. A replied that 
in 1843 the Eailway Company had sued him for various sums, 
to account of which they said they had received the sum of 
the account now sued for ; that he had lodged defences con- 
taining a reservation of his claim on this account ; and that 
judgment had been given against the Company. It was held 
that the proceedings in the former action did not amount to 

* pursuit ' on A's part, so as to obviate the Company's plea of 
prescription. * While it has not been held essential,' said Lord 

1 M'Laren v. Bulk, 1829, 7 S. 76, Lord Justice-Clerk Hope. 
483 (p. Lord Glenlee). 

2 Cochran v. Prentice, 1841, 4 D. ^ i855, 17 D. 1041. 



Wood/ ' to exclude prescription having effect that there shall 
be a direct action instituted at the instance of the creditor 
in the debt, and while, on the contrary, it has been held that 
without such direct action there may, on a reasonable and 
sound construction of the Act, be a pursuit within the three 
years — as, for instance, by the claim being made and insisted 
in in a process of multiplepoinding or of ranking and sale, or 
in a submission which the parties have entered into for the 
settlement of their claims, embracing the one in question, 
which forms a contract between them, and to which the law 
gives its sanction and authority — still there is no case in 
which it has been found that there has been a compliance 
with the requisites of the statute, except where the claim has 
been made in a competent judicial or quasi-judicial proceed- 
ing in which it could be given effect to, and in which the party 
asked that effect should be given to it. In that sense and to 
that extent it is true that a suit in the name of the creditor 
is not necessary. Without it he is truly in petitorio. But it 
must come up to that. Mere notice of a demand in a judicial 
proceeding is not sufficient, for the statute does not rest upon 
any principle of abandonment of the claim, as the longer pre- 
scriptions do, but upon a presumption of payment which is 
not removed by demand only. ... If in an action of debt 
against a party, he within the three years makes a counter- 
claim upon a debt due to him, and insists that it shall 
receive effect in compensation or credit against the debt sued 
for, I think there would be that which in conformity to the 
recognised principle of construction of the word " pursued," as 
used in the Act, would be a pursuit. The judgment in the 
case of Dunn v. Laifrib ^ certainly determines nothing which is 
in the slightest degree opposed to what I have stated to be 
necessary as an answer to the plea of prescription. ... I 
am of opinion that the debt in question was not made the 
subject of pursuit within three years. . . . The pursuer did 

1 Pp. 1046, 1047. 2 ig54^ ig d. 944^ gee infra, p. 121. 



* not insist in Lis debt as a counter-claim, and instead of asking 
' that effect should be given to it, he asked that it should be 
' reserved to him to sue for it in any other action, so that, 

* according to his own view, it never could in that action re- 

* ceive effect/ Lord Cowan also defined the principle to be 
' that there must be an insisting in judicial measures for the 
' constitution of the debt by decree in some action suited by 
' its nature and character for discussion of the claim and for 
' obtaining such decree, and brought into a Court which can 
' competently entertain the one and pronounce the other. 
' Judicial measures thus resorted to may, or may not, result in 
' effective decerniture, so as to lead to recovery of the debt. 
' That is not essential. The fact of such measures having been 

* resorted to by the creditor in pursuit of his debt within the 
' three years will satisfy the statute.'^ 

Broad in- These judgments plainly countenance a much broader inter- 
tion^oftiie prctation of the statute than Cochran v. Prentice^ would seem 
to sanction. At the same time they supply a satisfactory test for 
determining whether or no there has been such pursuit as will 
exclude the plea of prescription, and a test which reconciles all 
the cases on the point. Thus the plea was held to have been 
barred by the judicial production of the account in question in 
defence as a counter-claim.^ Again, where a debtor died in- 
solvent leaving minor children to whom a factor loco tutoris 
was appointed, the factor attended a meeting of creditors, at 
which were present certain creditors whose debts were pre- 
scribed. It was agreed that all the creditors should assign 
their debts to a Trustee, in order to get a general decree of 
constitution against the debtor's representatives. In a process 
of ranking and sale, it was found that the debts prescribed 
before the meeting remained prescribed, notwithstanding the 
decree of constitution, but that those on which the three years 
expired between the meeting and the granting of the decree 


1 P 104S. 

2 1841, 4 D. 76. 

3 Sloan V. BirtwhisUe, 1827, 5 S. 

I III p ■■■^Jl.ijll»j 

t, .1 LJIWMJI 



were preserved from prescription. ' The act of the representa- 
' tives, through their factor, acknowledging the debt is equiva- 

* lent to a decree of constitution/ p. Lord Balgray.^ One who 
had entered into a reference of a disputed claim within the 
three years was held to be barred persoTiali exceptione from 
pleading the triennial prescription in an action raised after the 
three years, and rendered necessary by the death of the referee 
before giving a decision.^ Nay, where the pursuer's failure to 
sue timeously is due to the conduct of the defender, the 
defender may not plead the statute.^ 

On the other hand, a mere citation will not exclude the plea 
of prescription,* nor will an action raised within the three 
years and afterwards abandoned.^ The production of a claim 
for furnishings, accompanied with an oath of verity in a process 
of cognition and sale at the instance of tutors, was held not to 
constitute pursuit. The proceedings were not of the nature of 
an action of ranking and sale, or of multiplepoinding, where a 
discussion of the claims takes place, and where decree may 
follow in favour of the creditor. ' There was no procedure by 

* which the creditors could have enforced their claim or 

* obtained a decree.' ^ 

The statute, then, provides what, in the event of there being Procedure 
no pursuit within three years, must be the course of procedure, three years. 
The only resource left to the pursuer is to prove (1) the consti- 
tution, and (2) the resting-owing of the debt he sues for,^ in the 
way prescribed by the statute, i.e. by the writ or oath of * his 
' party.' ^ Grave exception must be taken to the opinion ex- 
pressed by Baron Hume in his note to Shepherd v. Meldrum^ 

1 Stvjart V, Douglas, 1823, 2 S. 200. 

•^ Dunn V. Lamb, 1854, 16 D. 944. 

^ Caledonian Railway Company 
V. Chiaholm, 1886, 13 R. 773. Cf. 
Earl of Fife v. Duff, 1887, 15 R. 
238, Bupra p. 102. 

^ Campbell v. Macneill, 1799, M. 
11, 120. 

« Oobbi V. Lazzaroni, 1859, 21 D. 


* Ferrier v. Earl of Erroll, 9 July 
1811, F. C. (p. Lord Robertson). 

^ Robertson y. Royal Association of 
Contributors to the National Monu- 
ment of Scotland, 1840, 2 D. 1343. 

8 Campbell v. Stein, 23 Nov. 1813, 
F. C, 6 Dow, 116. 

9 1812, Hume, p. 394. 


and we may venture to deny that in any case where the statute 
is pleaded it can lie with the defender to establish by evi- 
dence on his part, in due course of law, his defence against the 
pursuer's claim. Nor is it easy to reconcile with the statute 
the decision in Brown v. Paterson} to the effect that because 
the defender's oath was ' not decisive either way/ the Sheriff 
should proceed and determine the case by any other competent 
mode of proof. Alcock v. Easson ^ has determined once for all 
that there is no need for the defender who pleads prescrip- 
tion to aver payment. The denial of the debt is contained in 
the statutory defence, and is the presumption on which the 
statute is founded. (See infray p. 152.) 
Ledie v. Considerable confusion has not unfrequently arisen in cases 


complicated by the fact that the pursuer's ' party ' is not the 
original debtor but his heir or representative. In 1802 Thomas 
Leslie sued Thomas MoUison for payment of an account due to 
the late William Leslie, pursuer's father, who had been employed 
by the late John MoUison, defender's father, in a process in which 
John Mollison was defender. Before the end of that process 
John MoUison had ceased to employ "William Leslie, and in 1789 
he died. The defender had been sisted in the process, but 
denied having employed William Leslie as his agent. The 
pursuer did not raise an action for payment of his father's 
account till twelve years from its close. The defender pleaded 
prescription, and, that plea being sustained and reference made 
to his oath, he averred ignorance of the constitution of the 
debt, and his belief that his father had settled it, while he ad- 
mitted that he himself had not made payment of the sum 
claimed. The defender contended that his oath did not im- 
port resting-owing, inasmuch as it did not show that his 
father, the original contractor of the debt, had not paid it. 
The pursuer, on the other hand, laid stress on the fact that the 
account was still current at the date of the defender's father's 

1 1809, Hume, p. 469. ^ 1842, 5 D. 356. 


death, and argued that prescription had not then begun to 
operate ; that the course of employment had been continued 
by the defender; that prescription did not begin to run till 
the close of the account, which was in the defender's life- 
time ; and that the defender had admitted non-payment. In 
giving judgment for the pursuer the Court seems to have 
gone entirely upon the ground of the continuity of the 
account (though it does not sufficiently appear how that con- 
tinuity was established in the face of the defender's conten- 
tion that he had employed a different agent) ; and Lord 
President Blair distinctly laid down that the presumption 
established by the Act 1579, c. 83 is, that accounts have been 
paid, not during their currency, but, after their close.^ Lord 
Justice-Clerk Hope, indeed, in reviewing this case in Cvllen 
v. Smecd^ asserts that the account was closed in the de- 
fender's father's lifetime, and that the Court, in giving judgment 
upon the assumption that the fact was so, must needs have 
based its interpretation of the oath on reference upon the be- 
lief that the Act establishes a presumption of payment after 
the lapse, and not during the course, of the three years. But 
while it may be readily admitted that the consideration of 
the presumptions established by the statue has too often dis- 
tracted attention from the plain meaning of its provisions, 
the session papers, in conjunction with the report, leave no 
room for doubt that Leslie v. Mollison goes no farther than to 
affirm the proposition that prescription operates solely on a 
closed account, and that the oath of party to the effect that 
it has not been paid since the date of the last article estab- 
lishes resting-owing. This view was followed in subsequent 
cases ; ^ and no more was implied in Elder v. Hamilton,^ 
where the account libelled on was held not to have been closed 

1 Ltdit V. MoUisoii, 15 Nov. 1808, 11 March 1817, F. C. ; Ross v. 
F. C. Guthrie, 1839, 2 D. 6 ; Damley v. 

2 1853, 15 D. 868. Kirhwood (sexennial), 1845, 7 D. 595. 
' Stirling V, Henderson (BexeimisA), * 1833, US. 591. 


in the lifetime of the defender's ancestor, and her oath was 
— perhaps questionably — held to establish resting-owing. 
But Lord Gillies, in his judgment, gave some countenance to a 
contention that made its appearance in Ledie, v. M6lliso7i — 
though it would seem not to have been insisted on — viz., 
that if an account be closed during the lifetime of the de- 
fender's ancestor, but within three years of his death, the plea 
of prescription is not applicable, and the defender's oath 
negative of payment by himself necessarily instructs resting- 
owing. ' The first question,' said Lord Gillies, ' is, supposing 
' action to have been raised against the late Mr. Hamilton 

* before the close of his life, was the account then current, 
' or, could prescription have been pleaded then ? If not so, 

* it cannot be pleaded runo, for the possibility of payment sub- 
' sequent to his death is directly excluded by the oath.' 
Lord Gillies here appears to divide accounts into accounts 
still current, and accounts upon which the term of prescrip- 
tion has run. He omits to notice a third and important class : 
accounts upon which prescription has begun to operate, but 
on which it has not yet run for the statutory period. The 
tendency thus indicated to extend the doctrine of Leslie v. 
Mollison to the degree of holding that the statute cannot be 
successfully pleaded unless the whole prescriptive period of three 
years from the close of the account has run during the an- 
cestor's lifetime, came to a head in Auld v. Aikman} A debtor 
died within three years of the last article of an account. His 
creditor sued his representative no less than four and a half years 
after the debtor's death, and five years after the close of the 
account. In the face of these facts, of the statute, and 
of AlcocJc V. Easson^ decided a few months before by the 
Second Division, the First Division, from a mistaken reading 
of Leslie v. Mollison and Elder v. Hamilton, felt compelled 
to hold that the plea of prescription was inapplicable. To 

1 1842, 4 D. 1487. « 1842, 5 D. 356. 


hold this meant to hold not merely that for the Act to be- 
come available the d^t must outlive the allotted period of 
general proof, but that the debtor must do so too, and that 
unless the three years had run out in the lifetime of the 
original debtor, the debt could only be affected by the long 
negative prescription of forty years. 

This confusion was happily dispelled by the decision oiOaUenw, 
the whole Court in Cullen v. Smeal^ which expressly reversed 
Auld V. Aikman, and which settled the point that there is no 
warrant for allowing any presumption of payment or non- 
payment to bear on the construction of the statute or to 
regulate its operation. * The statute,* said the Lord Justice- 
Clerk Hope in a weighty opinion, ' is general and unlimited in 
' its terms. It states no exception. It contemplates none.* 

* Under the statute neither more nor less is to be proved 

* after the three years than during the three years — although 
' what the pursuer has during the three years to make out, 

* may be much more easily done, and by evidence or presump- 
' tions, which after the lapse of three years are excluded by the 

* statute.' 

It may be convenient here to note two distinct senses in 'EUding' 
which the phrase ' eliding prescription ' is used. In the one, tion. 
the pursuer is said to have elided prescription when, the statute 
having been found to be applicable, he has proved the constitu- 
tion and subsistence of the debt in the statutory manner. The 
phrase is so employed (by Lord Glenlee and Lord Justice-Clerk 
Boyle) in Smith v. Falconer^ and in Campbell v. Arrott^ 
The other signification of the phrase is that the statute is 
altogether inapplicable, so that proof may proceed pro ut de 

It is a general rule that minority is never deducted unless Minority. 

1 1853, 15 D. 868. * Machay v. Ure, 1847, 10 D. 89 

-^ 1831, 9 S. 474. (p. Lord Justice-Clerk Hope.) 

3 1835, 13 S. 557. 



when particularly excepted.^ Minority is, therefore, not de- 
ducted in the case of the triennial prescription .2 Nor will 
absence from the country bar the operation of the statute,* 
The annvjs deliberandi is not to be discounted.* 



I. ' Hotcse-MdUls,^ — House-rents on a verbal lease prescribe 
from year to year,^ But arrears of rent of a farm,^ or of a 
minister's glebe,^ do not fall within the statute. 

* Mennis 

II. ' Mennis Ordinars* — by which is understood debts due 
for the entertainment of persons at board, e,g, for board supplied 
by an innkeeper at a boarding-house, or a tutor at an academy.^ 
The most important class of obligations coming under this head 
is alimentary debts which arise ex contractu, and not ex debito 
natv^ae.^ Aliment arising from a natural relationship does 
not suffer this prescription.^^ But a claim against a father 
for board and lodging supplied to his child, the claim being 
founded on contract, falls within the scope of the statute,^^ 
and that though the contract be not express but only 
implied.^^ Each term's or year's aliment has generally been 
supposed to be a separate debt running its own course of pre- 
scription.^^ But where a claim was made for a debt due for 
the aliment of an illegitimate child, it was held that the whole 

^ Campbell v, Wilson, 6 Br. Supp. 
915 ; p. Lord Pitfour ; Baird v. 
Fortune, 1861, 23 D. 1080. 

2 Brovon v. Brodie, 1709, M. 

11, 150. 

3 M'Ohie V. TinUer, 1776, M. 
11, 112. 

4 Duke of Argyll v. Campbell, 
1736, Elch. Preset. 10. 

^ Cumming'a Trustees v. Simpson, 
1825, 3 S. 377. 
• Ross V. Fleming, 1627, M. 

12, 735. 

7 Minister oj KUbucho, 1628, M. 
11, 083. 

8 Thomson v. Lord Duncan, 1808, 
Hume 466. 

^ Hamilton v. Lady Ormiston, 1716, 
M. 11, 100. 

1® Davidsonv, Watson, 1739, M. 11, 
077; Thomjionv. Westwood, 1842, 4 
D. 833. See too Longmuir v. Long^ 
muir, 1893, Scots Law Times, vol. i. 
p. 143. 

" Taylor v. Allardyce, 1858, 20 D. 

" Ligertwood v. Brown, 1872, 10 
M. 832. 

18 Fraaer v. M'Keich, 1838, 16 S. 




account was to be regarded as continuous, in respect that no 
agreement to make termly payments was averred.^ 

III. ' Servands' Fees! — Each term's wages prescribes separ- Servants* 
ately.2 A claim made by a woman for remuneration for 
services rendered to her brother-in-law was held to be 
equivalent to a claim for wages as a housekeeper, though 
there had been no agreement as to the remuneration, and 

to be therefore liable to the triennial prescription.^ 

IV. ' Merchantes Gomptes' — This is not held to include all ' Mer- 
mercantile accounts, or proper accounts current between accounts, 
merchants,* but is taken to signify solely shopkeepers' 
accounts, ' merchant ' being equivalent in the Scotch idiom 

to shopkeeper.^ The Court will decide under what category, 
as a matter of fact, a particular account falls. Where a 
cattle-dealer sued a farmer for the balance of his account, 
and the account had cross entries wherein the pursuer 
had entered items of cash paid, the value of dung delivered, 
and cows sold to him by the farmer, the account was held not 
to be an account-current between merchants, but to be 
susceptible of the triennial prescription.^ 

V. ' Other the Like Belts! — In virtue of this clause the Act other the 
has received a very wide interpretation, which has sometimes 

been complained of, but which, as Lord Mackenzie pointed out,^ 
was inevitable. * Likeness ' cannot be interpreted strictly. 

1 Bracken v. BlasqueZf 1891, 18 E. 

s Boss V. Master of Saltoun, 1680, 
M. 11, 089; Dougla>8 v. Duke of 
ArgyU, 1736, M. 11, 102; Akock v. 
Eaason, 1842, 5 D. 356. 

2 SmeUie v. Cochrane, 1835, 13 S. 

4 Hamilton Y, Martin, 1795, M. 11, 
120 ; M^Kintay v. M'Kinlay, 1851, 

14 D. 162 ; Laing v. Anderson, 1871, 
10 M. 74 ; M'Kirday v. Wilsm, 1885, 
13 R. 210; Brmm v. Brown, 1891, 
18 B. 889. 

^ See Sandys v. Lowden, 1874, 2 
R. Just. 7. 

^ Batchdor^s Trustees v. Honey- 
man, 1892, 19 R. 903. 

7 Blackadderv, MUne, 1851, 13 D. 



Thus, the fee or remuneration due to an engraver for pre- 
paring parliamentary plans ; ^ to a factor ; ^ to a printer ; * to a 
surveyor;* to a clerk to a submission;^ to an advocate's 
clerk ; ^ to a surgeon ; ^ to a stockbroker for services in pro- 
moting a railway;® and to law-agents;* falls within the 
Act. The salary of a writer's clerk engaged at so much a week 
prescribes from year to year, though it be alleged to come in 
lieu of fees for writings.^® * Tradesmen's ' accounts, which the 
Lords would not distinguish from merchants' accounts,^^ are 
affected by the statute,^^ and so are contracts of locatio 
operanim;^^ though the Act seems to have been found not 
applicable to a claim for remuneration for superintending the 
execution of a contract for building houses.^* There has been 
doubt whether the furnishing of a single article without a con- 
tinuous series of furnishing or employment constitutes an 
obligation to which the statute applies. It was held that it 
did not, in the case of a claim for the price of 130 sheep all 
sold at one time,^^ and of a claim for the price of a bullock 
purchased by one gentleman from another (not by a customer 
from a tradesman).^® Lord Chancellor Brougham thought 
it very doubtful whether a claim for the price of cattle 
sold under one contract, but delivered at different times, 
was affected by the triennial prescription.^'' Yet in Gobbi 

1 Johnston v. Scott, 1860, 22 D. 393. 

2 Grubb V. Porteous, 1835, 13 S. 

3 mm V. HopHrk, 1850, 12 D. 618. 
* Stevenson v. Kyle, 1850, 12 D. 


** Farquharaon v. Lord- Advocate, 
1755, M. 11, 108. 

^ Fortune*8 Executors v. Smith, 
1864, 2 M. 1005. 

^ MacdowaU v. Lovdon, 1849, 12 
D. 170. 

® White V. Caledonian Railway 
Company, 1868, 6 M. 415. 

^ Somerville v. Execviors of Muir- 
head, 1675, M. 11, 087; Leslie v. 

Mollisan, 15th Nov. 1808, F. C; 
WaUace v. M'Kissock, 1829, 7 S. 542. 

i« Smith V. Hamilton, 1845, 7 D. 

" Tweedie v. Williamson, 1694, M. 
11, 092. 

12 Bayn v. , 1692, M. 11, 092. 

1* Mackay v. Carmicha^l, 1851, 14 
D. 207. 

1* Domddson v. Emng, 10th Dec. 
1819, Hume, p. 481. 

" Macgregor v. Stewart, 1811, 
Hume, p. 472. 

w Smith V. MUler, 1827, 5 S. 314. 

" M'DougaU v. Campbell, 7 W. & 
S. 19. 



V. Zazzaroni, it was held by Lord Kinloch in the Outer House, 
and acquiesced in, that the statute applies to a single purchase 
of goods,^ and this decision may be taken to represent the 
existing state of the law. 

But while the statute covers these various species of employ- Debts not 

affected by 

ment, it does not extend to the contract of negotiorum gestio ; 2 the statute. 
nor to that of mandate ; ^ nor to a mandatory's claim against 
a mandant for outlay ; * nor to a soldier's claim for pay against 
his oflRcer;^ nor to a parochial schoolmaster's salary;® nor 
to a claim founded upon cash advances made by a tradesman 
or an agent ; ^ nor to accounts between the master and owners 
of a ship ; ® nor to the claim of that one of several debtors who 
has paid a merchant's account, against his correi\^ nor to 
poor's rates.^^ One who has obtained payment of money on 
behalf of another is not entitled to the benefit of the prescrip- 
tion, though otherwise liable for the debt;^^ nor is the pre- 
scription applicable when the case really resolves itself into one 
of accounting ; ^^ nor to the claim of a farmer's daughters (who 
had succeeded to his moveables) against their brother (who 
had succeeded to the lease of the farm) for the value of seed 
and labour of downlay of crop.^^ 

What has been said as to the remuneration of law-agents. Employ- 

. -I i»TT» •I'T ••!• Ment iQiist 

and certain other persons falling within the statute, is subject be in ordin- 
to the important qualification that the employment for which ^^ °°""®- 
they claim the fees alleged to have sufifered prescription must 

1 1859, 21 D. 801. 
' Dmmmond v. Stewart, 1740, M. 
11, 103. 

* Berry* 8 BepresentcUives v. Wight, 
1822, 1 S. 402. 

* Saddlery, M'Lean, 1796, M. 11, 
120; Grant v. Fleming,lSSl, 9 R. 257. 

^ Graham v. Earl of Leven, 1709, 
M. 11, 093. 

* Ntcolsonv. Monro, 1747, M. 11, 

' Ker V. Magistrates 0/ Kirkwall, 
1827, 5 8. 742 ; Smith v. MitchdVs 

Trustees, 1829, 7 S. 771; Maclarenv, 
Bradly, 1874, 2 R. 185. 

8 BiUchart v. Mudie, 1781, M. 11, 

» Bland v. Short, 1825, 3 S. 294. 

" Munro v. Graham, 1867, 20 D. 

" Freer V, Paterson, 1826, 4 S. 399. 
See Waddel v. Morton, 1826, 4 S. 

" Brunton v. Angus, 1822, 2 S. 54. 

i« Mackintosh v. Taylor, 1849, 11 
D. 1244. 



have taken place in the ordinary course of their business. 
Otherwise, prescription will not apply. Lord -President Boyle 
laid great stress on this distinction in JBlackadder v. Milne} 
where the claim of an engineer for fees as a parliamentary 
witness was held to be outside the scope of the Act, on the 
ground that the particular employment was not in the ordinary 
course of his profession, though a still stronger consideration 
with the Court was the fact that the contract depended upon 
a written obligation. On the strength of Blachadder it was 
subsequently decided that the employment of a contractor to 
give evidence in London before a Parliamentary Committee did 
not fall within the statute.^ 

An Edinburgh agent claimed remuneration for attending to 
the interests of certain distillers during the progress of certain 
bills through Parliament. The defenders pleaded prescription. 
The question was, in what character the pursuer had acted, and 
as the majority of the Court held that he had acted ex mandate 
(which in the law of Scotland does not exclude the idea of 
remuneration), the statute was held not to apply .^ On the 
other hand, an account incurred to a London solicitor for 
opposing a bill in Parliament was held to be liable to the pre- 
scription, the employment being in the ordinary course of his 
business.* Sometimes the Court will break up an account, and 
find that one part falls within the statute and another does not. 
That portion of a law agent's account which related to business 
done as a law agent was held to sufifer prescription, but not the 
articles in the account for money advanced to his client, for 
travelling expenses incurred on behalf of his client, or for 
town-clerk's fees.^ But, as a rule, the Court will take the 
Account to account into consideration as a whole, and not allow articles to 

be taken 

as a whole, be picked out here and there as susceptible of prescription, or 

1 1851, 13 D. 820. Wdtlcer, 1812; Simpson v. Walker, 

2 Barr v. Edinburgh and Glasgow 1813, both noted in 13 D. 825. 
Railway Company, 1864, 2 M. 1250. * Deam v. Steele, 1853, 16 D. 317. 

3 Walker v. M'Nair, 1832, 10 S. Moncreiff v. Durham, 1836, 14 S. 
672; Palerson and Aikmana v. 830. 


the reverse ; and in a general accounting the triennial prescrip- 
tion is not pleadable as to particular parts of the accounts on 
one side. In Boye^ Trustees v. Hamilton} it was decided that 
business charges occurring incidentally in an account not 
falling under the statute are not to be held to have incurred 
prescription separately ; and so where a creditor held an 
absolute • disposition, of his debtor's property in security for 
advances made and to be made, and besides making advances 
to his debtor had supplied him with furnishings, it was held 
that the triennial prescription did not apply to his account.^ 
In like manner, a contractor who had done certain pieces of 
work for road trustees, some on estimate and some not, was not 
allowed to pick out from his whole account the pieces of work 
executed on estimate in order to obviate the application of the 
statute to them.^ In Richardson v. Merry ^ the facts were 
these: — A Glasgow agent was employed to oppose a biU in 
Parliament, which he did in conjunction with a London firm 
of solicitors. It was held that the accounts of both fell within 
the statute, and that travelling expenses, fees to witnesses, 
counsel, etc., were not to be excluded from its operation. The 
distinction was clearly drawn between two sorts of cash 
disbursements made by agents in the course of their services, 
and two points, said Lord Curriehill, are settled: 'In the 

* first place, that to ordinary disbursements which fall within 
' the usual province of a law agent to make, the statute applies ; 
' in the second place, that to advances made by the agent in 

* any different character, for example, as cashier and factor, 

* though these charges be included in his accounts, the statute 

* is inapplicable.' So while cash advances do not fall within 
the statute, commission charges for payments made, forming 
part of a law agent's account, do.^ 

1 30th June 1829, F. ; 7 S. 816. 482. 

a Murray v. Wright, 1870, 8 M. * 1863, 1 M. 840. 

722. ^ Scott V. Gregory's Trustees, 1832, 

8 Hotson V. Threshie, 1833, 11 S. 10 8. 376. 


Must not ^n essential feature of all the actions of debt that fall 

be founded 

on written within the Statute is that they are not founded upon ' written 

obligation. '' •*■ 

obligations.' In Blackadder v. Miliu} as we have seen, the 
decision j)roceeded at least as much upon the fact that the 
claim was founded upon an obligation in writing as upon a 
consideration of the nature of the pursuer's employment. But 
not every writing will withdraw a claim from the operation of 
the statute. Prescription is excluded only when the writing 
sued upon contains a distinct obligation by the defender.^ 
Thus, where a written offer by a tradesman to execute furnish- 
ings was verbally accepted, and acted upon, it was held that 
his claim was not founded on a written obligation, and that 
therefore the Act applied,^ and where the pass-book of the 
pursuer, the keeper of an eating-house, was produced, bearing 
to be signed by the debtor, in which, however, the entries had 
been made after he had signed the pages, the pass-book was 
held not to constitute a written obligation.* But where a sack 
contractor issued a printed form, containing the conditions of 
his contract, to his customers, which they signed, this was found 
to constitute such a written obligation as rendered the statute 
inapplicable to his claim.^ 


Close of The last act of the current employment is the terminus a 


. quo of the prescription. Thereafter the statute operates on 
the closed account.^ Thus the date of the completion of the 
work contracted for, and not the date of a measurer's report as 
to the extent of the work, is the date at which prescription 

1 1851, 13 D. 820, supra, p. 130. 756. 

^ N.B, Railway Co. Y, Smith SligOy ^ ChisJiolmy. Rohertson, 1883, 10 

1873, 1 R. 309. R. 760. 

s Chalmers Y. Walker, 1878, 6 R. ^ Somerville y. Exrs, of Muirhead, 

199. 1675, M. 11, 087 ; Leslie v. Mollison, 

* Campbell v. Orant, 1843, 5 D. 15 Nov. 1808, F. C. 

^ 1- l~Ti — B M^gTTTI — BTirWTMMTTiBTTTjn YXTIIi^rrTjrTwJir"ZJliT__i 


begins to run.^ But the account may be re-opened by the 
addition of a new item within the three years,^ and even where 
each year's account was summed up and interest charged upon 
it, the whole account was held to be continuous.^ Whether 
an account be current or not, is a question of fact which the 
Court will determine according to the circumstances of each 
case. Thus, where an agent sued his debtor's representative, 
and in answer to the plea of prescription, averred that he had 
completed certain transactions only after the debtor's death, 
and had moreover been employed by the defender as her 
father's representative, the Court held that the pursuer's 
account had closed with the defender's father's death, chiefly 
on the ground of the irregularity with which the pursuer's 
books had been made up.* In Stewart v. Scott ^ it was held that 
the account sued upon and alleged to be still current had been 
made up by contrivance, and brought down to within three 
years of the raising of the action, by fictitious entries, and 
that, therefore, the statute was applicable. On the other 
hand, in Aytoun v. Stoddart^ the last items of an account 
were found to be a hond fde charge, and not a mere trick to 
exclude prescription, inasmuch as they had appeared in an 
account rendered within three months of its close. Where in 
an action on a tradesman's account the defender stated that 
the last two articles were fictitious, and inserted to avoid the 
operation of prescription, the Court allowed proof before 
answer as to these items." The items within the three years 
by which it is sought to exclude prescription must not be on a 
separate account or on other employment.^ Where an agent 
had six dififerent accounts against his employer for dififerent 

1 M*Kay v. Carmichaely 1851, 14 » 1344^ q d. ggS. 

^- 207. 6 1882, 9 R. 631. See Mofat v. 

2 Torrance v. Bryson, 1840, 3 D. MarshaU, 1825, 3 S. 329. 

8 Whyte V. Gurrie, 1829, 8 S. 154. ' ^^« v- ^^^*«'« ExectUrix, 1888, 

4 Wilson V. Rutherfurdy 1826, 4 S. ^^ ^' 2^' 

427. ^ Campbell v. JoUy, 1824, 3 S. 25. 


pieces of business, the whole was regarded as one account, 
representing one course of employment on the part of the 
client,^ and so a claim by an Edinburgh agent against a 
country agent is a continuous account, though the account be 
divided into branches applicable to different clients.^ In the 
same case it was decided that the currency of an agent's 
account may be preserved by the later items, which may be 
referred to (even if they are not libelled on) to exclude a 
plea of prescription, although payment for them may have 
been recovered from a correus of the defender : and in Wother- 
spoon V. Henderson's Trustees,^ where a law-agent sued for 
payment of two accounts separated by an interval of three years, 
the pursuer was held entitled, in answer to a plea of prescrip- 
tion, to show that the account was continuous by proving 
continuity of employment during the intervening period, his 
summons containing a general reservation of other claims not 
mentioned in it. But where furnishings had been supplied in 
1823, and other furnishings were supplied in 1825 and paid 
for in 1826, and an action was raised in 1828 for payment of 
the outstanding account, it was held that prescription ran from 
the last item in the account before the items of 1825, which 
latter had been specially paid and no longer remained in the 
Effect of The eflfect of the debtor's death upon the currency of an 

debtor's ^ "^ 

death. account has been the subject of some doubt. Mr. Erskine says 
that ' an account is deemed to be current though part of it was 
' furnished to the deceased and the remainder to his heirs, 
'because the heir is eadem persona cum defuncto-, and the 
' same doctrine may perhaps hold in executors. But the 
' currency of an account between a merchant and a person 
' deceased is not preserved by furnishings made by the same 
'merchant after the debtor's death for his funeral, if these 

1 Elder v. Hamilton, 1833, 11 S. » 1868, 6 M. 1052. 

591. * Beck v. LearmorUh, 1831, IDS. 

2 Fisher v. Ure, 1836, 14 S. 660. 81. 


' furnishings were made, not to the executor himself, but to a 
' negotiorum gestor for him/ ^ Thus, in Oraham v. StaTiehyres? 
the death of a debtor did not interrupt the continuity of an 
account when the same merchant had furnished the debtor's 
funeral to his heir; while in Ormiston v. Hamilton^ it was 
held that an account was not continued by articles advanced 
to the deceased's widow for his funeral, mournings, etc., 
because she did not represent the deceased. But Mr. Bell 
says,* ' it is now quite settled that the debtor's death closes an 
' account, and that furnishings to the widow or heir begin a 
* new one.' This principle was the ground of the decisions in 
Kennedy v. M'Dougal^ and Lyon v. MitchelL^ Where, however, 
the last article in an account had been ordered by the debtor, 
but had not been furnished till after his death, the account 
.was held to have been continued by that article, and the 
judicial admission of the debtor's representative negative of 
payment was found to establish resting-owing.^ 

Identity of the creditor throughout is an indispensable ele- identity of 
ment in the continuity of an account against which prescrip- ^^® 
tion is pleaded.^ Every change in a firm of partners will not 
affect the continuity of its accounts. In Barker \, Kippen^ 
the Court refused to decide whether the continuity of an 
account is destroyed if part of it be incurred to a firm, and 
part to a partner continuing the business of the firm, though it 
was held that the circumstances of the case showed the 
account to be continuous. But the assumption of a bond fide 
partner makes a wholly new persona ; and the formation of a 
new firm calls into being a new contract, and different parties 
to the contract.® 

1 Inst., 3. 7. 17. ^ Broughtmi v. WesUm, 1826, 4 S. 

2 1670, M. 11, 086. 601. 

8 1709, M. 4981. 8 nr .1. tt ^ , m 

* Comm. I. 349. ^ ,0^^ ^'\, -^-.„ 
» 1741, M. 11, 104. «e«. 1868, 6 M. 1052. 

• 1819, Hume, 481. » 1841, 3 D. 965. 



'Party.' The pursuer, as we have seen {supra p. 121), must, after 

the expiry of the three years, pi;ove the constitution and sub- 
sistence of the debt sued upon by writ or oath of * his party/ 
The term 'party' is to be interpreted strictly, though the 
letters of a factor acknowledging the existence of a debt 
were held to be constructively writ of party.^ In Bertram v. 
Stewart's Trustees^ the oath of the manager of the alleged 
debtor was held to be inadmissible on the ground that, 
though the manager had been called in the action, he was 
not properly a defender and ' party.' It is quite incompe- 
tent for a tradesman to prove resting-owing of a prescribed 
account by the oath of the housekeeper (and near relation) 
of the party for whom the furnishings had been ordered.^ 
It is doubtful whether a prescribed debt may be established 
against the owners of a ship by the oath of the ship's 
husband, who can indisputably bind his owners for furnish- 
ings to a vessel. But if the ship's husband be himself one 
of the owners and defenders, his oath is admissible.* The 
oath of a wife, where she is praeposita, is equivalent to the 
oath of her husband, because she is eadem persona with him.^ 
But Lord Young has expressed the opinion that, while the 
constitution of a debt incurred by a wife after her marriage 
may be referred to and proved by her oath, resting-owing must 
be referred to the oath of her husband.® The oath of a partner 
will bind the company of which he is a partner, provided the 
Court be satisfied that the constitution of the debt as a com- 
pany debt has been established. * One party may bind the 
* company for business done in the line of that company 

1 Smith V. Falconer, 1831, 9 S. 1831, 9 S. 540, p. Lord Gillies. 

'^'■l874. 2 R. 255. ^ ^^"7^ * ^"^ ^- ^'^y^'^^' ^«^ 

^ Gilmour v. StuourVa Representa- ' ' 

lives, 1797, M. 12, 042. « Mitchells v. MouUrys, 1882, 10 

* Duncan v. Forbes, 1829, 7 S. 821 ; R. 378. 

■-' ' "Jiv >■  ^r~i ',i'-» ■■-^^■■■— »np*"^^w»»"«"w^i«iBi 


' without the knowledge of the other partners'; and where a 
partner on reference to oath deponed that the debt had been 
contracted by the other partner in the company for his own 
special business, it was held that this, taken together with 
his admission of non-payment, must establish the constitution 
and resting-owing of the debt against the company, unless 
it could be proved that the pursuers were aware that there 
had been a private arrangement between him and his partner 
to prevent his being liable.^ But where a company has been 
dissolved, the oath of a partner, who had been sequestrated 
and discharged, is not admissible to prove a debt against the 
company ,2 nor will the oath of a partner's representatives 
be suflBcient statutory proof of the constitution and subsis- 
tence of the debt of a dissolved company.^ The oath of 
one of several joint owners will not bind the rest.* The 
oath of the debtor's representative is, of course, equivalent 
to the oath of the debtor ; but where the heir of a deceased 
debtor brought a process of ranking and sale against his father's 
estate, and claims were lodged by creditors, all of which were 
prescribed at the time of lodging, and some at the death of the 
debtor, a reference to the oath of the debtor's heir was held 
incompetent, because, inter aliay it was really a question between 
creditors, and the heir was therefore not the * party.' ^ Where 
a reference has been made to the oath of two parties jointly, it 
is incompetent to sustain it as a reference to the oath of one of 

The writ of the defender, whereby the debt may be estab- writ of 
lished, need not be a duly authenticated document. A mere 
jotting, holograph of the debtor, if manifestly admitting the 
debt, has been sustained as sufficient. ^ Nor is it necessary 

1 Neill ds Co, V. Hophirk, 1860, 12 * Duncan v. Fcn-hea, 1831, 9 S. 640. 

D. 618. « Litae v. Graham, 1826, 4 S. 429. 

^ NeiU <k Co, V. Campbell^ 1849, * Bertram v. StewarVa Trustees, 

11 D. 979. 1874, 2 E. 255. 

^ Nisdefs Trustees, v. Morriso/iVs ^ See Donaldson v. Murray, 1766, 

Trustees, 1829, 7 S. 307. M. 11, 110. 


that the constitution or existence of a debt should be expressly 
admitted. If they can be reasonably inferred from the writ, 
that will be held to prove the pursuer's case. Where the letter 
of a factor admitted that there was an old claim of the pursuer 
against the defender, his employer, which it would be agreeable 
to the defender to have settled, the Court, holding this letter to 
be constructively writ of party, found that, judging by the 
tenour of the whole correspondence, it established the constitu- 
tion and subsistence of the debt.^ But a letter from a country 
agent employing an Edinburgh agent was held not to prove 
the constitution of a debt due to the latter by the clients of the 
former, in the absence of authority, either general or special, 
from the clients to the country agent.^ Again, where the 
defender had in a letter denied liability in these terms : ' I do 

* not hold myself liable, and decline to recognise any claim by 

* you against me,' constitution having been proved by unequi- 
vocal writ of party, this was held to prove the resting-owing 
of the debt.^ In Stevenson v. Kyle,^ the defender admitted in a 
holograph letter the existence of *an account.* The pursuer 
averred, the defender denied, that this was the account sued 
for, and the defender pleaded triennial prescription. It was 
held competent to call for the production of letters from the 
pursuer to which the defender's were in answer, in order to 
show what was the account therein referred to — certainly a 
very liberal interpretation of the Act. In Fiske v. JValpole,^ a 
letter from defender to pursuer, speaking of *my debt,' was 
held to be so unequivocal an acknowledgment of his obliga- 
tion as to dispense with the necessity of proving the tenour of 
a letter of the pursuer's to which the defender's was in answer. 
On the other hand, a plaintive letter from the defender, which 
might be construed into an acknowledgment of the debt sued 

1 Smith V. FaZcontr, 1831, 9 S. ^ Macandrew v. Hunter, 1851, 13 
474. D. 1111. 

2 WaZlace v. M'Kissock, 1829, 7 S. -* 1849, 11 D. 1086. 
542. « 1860, 22 D. 1488. 


for, but made no express reference to it, was held not to con- 
stitute writ in the statutory sense.^ 

Mr. Erskine says that a book of accounts regularly kept by Account 
the debtor, in which he has * charged himself with the par- writ of 


' ticular debt in question, will fix that debt effectually upon 
' him.' But though an entry in the debtor's books may sufiS- 
ciently establish the constitution of an obligation against him- 
self, the regularity \\rith which his books are kept forms so 
important an element in the proof which they can afford of 
resting-owing that the proposition must be received with great 
caution. It has indeed been decided that the books of a cor- 
poration are to be regarded as unum quid, and are construc- 
tively writ of party ; so much so, that the absence of an entry 
of the discharge of a debt is sufficient to satisfy the require- 
ments of the statute as regards proof of resting- owing.^ But 
where a law-agent sued the creditors upon a sequestrated 
estate for payment for work done on the employment of the 
trustee, and where the constitution of the debt was proved by 
an entry in the trustee's books, the absence of an entry of pay- 
ment of the debt was held not to establish resting-owing.* It 
is to be noted, too, that an entry in a debtor's books whereby it 
is sought to establish a debt must unequivocally apply to the 
specific debt in question, and must afford distinct evidence 
that that debt was constituted.* Writ of the pursuer, though 
recovered out of defender's hands, is not to be taken as writ of 
the defender.^ 

With regard to the date of the defender's writ by which it Date of 


is sought to prove resting-owing, Mr. Bell opines that, * if the 
' writing is dated within the three years, itas not held enough 
* that it shows the debt to have been in existence during the 

1 Mitchells v. MouUrys, 1882, 10 » Ellis y. White, 1849, 11 D. 1347. 
R. 378. 4 Nisbet's Trustees v. Monison^s 

2 Leslie v. Magistrates of Br&chin, Trustees, 1829, 7 S. 307. 

16 Nov. 1808, F. C. ; Buchanan v. ^ MacPherson v. Williamson^ 1865, 

Magistrates 0/ Dunfermline, 1828, 7 3 M. 727.* Cf. Campbell v. Grant, 
S. 35. 1843, 5 D. 756. 


* three years, since the presumption of payment still remains ; 

* it would seem to be requisite that the writing should be 

* intended to constitute the debt as on a new footing, to serve 
' as a voucher to the creditor for his debt/ ^ In Smith v. 
Falconer ^ and in Macandrew v. Hunter,^ there was little difiS- 
culty, for there the date of the documents which were held to 
establish resting-owing was so close to the date of the raising 
of the action as to leave no room for the question whether 
payment might not have been made in the interval. In 
Stevenson v. Kyle,'^ however, a year intervened between the 
constructive acknowledgment and the raising of the action; 
and in order to get rid of the difficulty as to the possible 
presumption of payment having been made during these 
twelve months, Lord Ivory laid great stress on the fact that 
both dates occurred after the expiration of the statutory 
period, that thus the defender's letter constituted a voucher 
for the debt, and that there was no evidence of its discharge. 
But there is nothing of this distinction in the statute, and 
perhaps the better opinion is that the character of a writ and 
not its date is the proper test of its sufficiency to prove con- 
stitution and resting-owing. At all events, in Thonias v. 
Stiven,^ the plea of prescription was repelled expressly on the 
ground that there was a written admission by the debtor of 
the subsistence of the debt, though that admission was granted 
within three years ; just as in Davidson v. Ray,^ letters of the 
debtor, dated within the three years and not special as to the 
particular account or amount thereof, had been held to elide 
the plea of prescription by proving constitution and resting- 
owing. The character of the writ, then, and not its date, being 
of capital importance, and considerable latitude being allowed 
in its construction, the debtor who desires to plead the trien- 
nial prescription with success will do well to follow Lord 

1 Comm. I. 349. * 1849, 11 D. 1086. 

2 1831, 9 S. 474. e 1868, 6 M. 777. 

3 1851, 13 D. 1111. « 1806, Hume, 460. 



FuUerton's advice/ and not write at all but maintain an 
absolute silence. 

When no writ of the defender is produced, the proof of Oath of 
constitution and resting-owing depends entirely on his oath ; 
or if the constitution only of the debt be established by writ, 
the resting-owing must be referred to his oath ; and where a 
pursuer has acquiesced in an interlocutor of the sheriff sus- 
taining the defender's plea of prescription, and holding the 
defender's oath thereafter negative of the debt sued for, he 
cannot be heard to maintain in the Court of Session that pre- 
scription is inapplicable.^ We have seen that the defender is 
not bound to allege payment to clear himself. It is for the 
pursuer to establish the fact of non-payment by his party's 
oath; not for the defender to prove that the debt has been 
discharged. Hence, where there was not enough in a defender's 
deposition to show whether a qualification of his admission of 
the debt was intrinsic or extrinsic (see infra p. 144), and where 
it was impossible, owing to his death to re-examine the de- 
fender, the pursuer was found to have failed to instruct his 
case.^ But there need not be any explicit admission of non- 
payment on the part of the defender to establish resting- 
owing; nor will his bare statement denying constitution or 
subsistence necessarily end the matter. The pursuer is en- to be con- 

stiniGcl bv 

titled to interrogate him with a view to testing his assertions ; Court. 
and it is for the Court to decide quid juratum est If his 
answers to the pursuer's interrogations are such as to infer 
non-payment, though it be not expressly admitted, the Court 
will hold his oath affirmative of the reference. The natural 
consequence of this discretion has been the exhibition of 
two distinct and conflicting tendencies ; one, to accept a bare 
statement of nihil memini or nihil nxm on the part of the 
defender as at once conclusive against the claim of the 

^ Macandrew v. Hunter, 1851, 306. 
13 D. 1111. 5 Cooper v. Marshall, 1877; 5 R. 

2 Macchnald v. Burden, 1829, 7 S. 258. 



pursuer ; ^ the other, to demand something much more explicit 
than an expression of belief that the debt has been paid, and 
to require the production of the grounds on which that belief 
is based.2 The inclination towards this less stringent view 
has indeed been carried so far that the provision of the 
statute seems to be lost sight of. In Cooper v. Hamilton,^ 
the defender deponed that he believed the debt had been 
paid, and based his belief on his factor's books, to which 
reference was allowed, and which showed that the debt 
Documents had never been paid. It was held that the defender's oath 
ported into had established resting-owing ; in other words, that any 
document appealed to for corroboration by the defender in 
his oath must be taken to be imported into his disposition. 
Had the defender not referred to his factor's books as the 
ground of his belief, or persisted in refusing to adduce any 
such ground at all, resting-owing could not have been proved. 
So it was held that the books of a firm referred to by the 
son of one party in an oath on reference amounting to nihil 
novif may be examined by the Court in order to understand 
the precise nature of the oath.* A party having deponed 
in an oath on reference that a statement in an article of his 
condescendence was true, that statement was held to have 
been thereby imported into his oath, though it was observed 
that in order to make documents part of an oath on reference, 
the defender must be examined specifically on the matters 
therein contained.* Nay, if a party refer to documents as con- 
firming his oath, not only may they be produced and held to 
be imported into his oath, but the inference he draws from 
them may be overruled.*^ But the mere production by a de- 
ponent in a reference to oath, on the call of the other party, of 

1 Fyfe V. Miller, 1837, 15 S. 1188, * Berry's Bepresentativea y, Wight, 
p. Lord Mackenzie. 1822, 1 S. 402. 

2 Campbell v. JoUy, 1824, 3 S. 25, « Jackson v. Cochrane, 1873, 11 
p. Lord Craigie. M. 475. 

8 1824, 2 S. 609 ; aff. 1826, 2. W. « Hunter v. G^ddes, 1835, 13 S. 

and S. 59. 369. 


documents, and his deposition that they all had relation to the 

matter referred, and were genuine, was held not to import 

these documents into the oath so as to form part of it. ^ 

' No oath with respect to which a previous decision has been interpreta- 
tion of oath. 

* pronounced can be treated as a precedent to rule a future case, 

* though no doubt if there be any principles deducible from the 
' decision these may be of authority/ ^ In as much as the inter- 
pretation of every oath on reference necessarily depends upon 
its own terms and upon the special circumstance of the casiB, 
it is no easy matter to lay down any general rules of con- 
struction. In the class of cases where the defender depones, 
not that he paid the debt himself, but that he gave money to 
some one else to pay it for him, the import of the oath seems 
to depend upon the question whether it belongs to the character 
of the person to whom the money is alleged to have been given 
to make such payment. Thus in Mette v. Dalyell? which was 
settled by a compromise, Lord Balgray expressed a doubt 
whether, when the debtor had selected a common carrier as his 
mandatory, and deponed to being afterwards told by that manda- 
tory that he had transmitted the money to the creditor, such a 
deposition must not be taken as establishing resting-owing ; 
and in Goodcdl v. Hay NewtoUy^ which was also compromised, 
an opinion was indicated that, in respect the defender did not 
allege that he had personally paid the debt, he must be held 
liable for it : a very sweeping proposition. More satisfactory 
perhaps, and certainly less extreme, is the decision in CricfUon 
v. Campbell,^ where the defender having deponed that he had 
paid the money to a relative to discharge the claim sued for, 
but that he had never seen a discharge or been told that the 
debt was paid, this deposition was held to be afl&rmative of 
resting-owing.. But if the discharge of such obligation be 

1 Gordon v. Pratt, 1860, 22 D. 1830, 8 S. 387. 

2 Fufe V. Car/roe, 1841, 4 D. 152, 
p. Lord-President Boyle. << 1857, 19 D. 661. 

1825, noted 8 S. 387. 


properly the function of the mandatory {e.g, if the mandatory 
be the debtor's wife, praeposita negotiis, or be the debtor's 
factor) ^ the oath of the debtor that he has given his mandatory 
money to pay will clear him. Where the debtor deponed that 
he had paid the debt to the pursuer's traveller, resting-owing was 
held proved because the only payment alleged was to one whose 
discharge was not binding on the creditor.^ 
'Intrinsic' But the commonest case is where, on reference to his oath, 

And * flx- 

trinsic ' the defender admits the constitution of the debt but qualifies 
^^ ^ ^' his admission by the adjection of certain statements, e,g, that 
the debt has since been paid or otherwise discharged. The 
Court has then to determine whether this adjected qualification 
is intrinsic or extrinsic ; whether it is * inherent in the act and 
* matter in question,' ^ and probative, or whether the fact it 
alleges requires further proof pro ut de jure. The simplest 
instance of an intrinsic qualification is the assertion of payment. 
W. K sued A. M*K. for repayment of a loan of £300. In the 
cash-book of the defender's father (whose managing clerk de- 
fender was) appeared an entry in the defender's writing, ' to 
A. M'K. p. W. N. £300.' On reference to oath, the defender 
deponed to receipt of that sum from the pursuer, but added 
that it had been repaid. It was held that the constitution of 
the debt had been proved not by writ, but by oath of the de- 
fender, and that the quality of payment adjected was intrinsic.^ 
The simplest case of an extrinsic qualification is where the 
debt is admitted, but the defender depones that the sum sued 
for is not that agreed upon. This qualification is not accepted 
upon the mere statement of the defender, but has to be proved 
in the ordinary way.^ 
Cowbrough The practical application of the distinction between intrinsic 
son. and extrinsic qualification is often a matter of great delicacy. 

'^'Mackayy. Ure, 1849, 11 D. 982. « j^if^ y, j^nes, 1860, 23 D. 30; 

2 Smith V. Ivory, 1807, Hume, 462. Napier v. Smithy 1838, 1 D. 245 ; 

3 Dirleton's Doubts, p. 132. TumhUl v. Borthtoick, 1830, 8 S. 
* Newlands v. M'Kinlay, 1885, 735. 

13 R. 353. 


The judgment of Lord Deas, however, in Cowhrough v. Robertson}- 
has done for this branch of the subject what the judgment of 
Lord Justice-Clerk Hope in Alcock v. Easson ^ did for the great 
principle of the statute. In Cowbrough the defender, on refer- 
ence to his oath, admitted the constitution of the debt in 
question, but swore that it had been subsequently discharged 
by the pursuer accepting certain unpaid accounts of his in lieu 
of payment. The pursuer maintained that what a debtor 
depones to as having been stipulated, or as having taken place 
after the admitted constitution of the debt, is always extrinsic, 
unless the qualification amounts to a payment of the debt in 
money. The Court, on the contrary, held that the quality of 
the defender's oath was intrinsic and negative of resting-owing ; 
and Lord Deas laid down the following propositions : — 

1. If the oath bear that some other mode of satisfaction or stipulation 
extinction than payment in money was stipulated or bargained contract as 

to cxtinc 

for at the contraction of the debt, that other mode, if the debtor tion. 
swears it was acted upon, will be a competent and intrinsic 
quality of the oath. 

2. If the debtor depones to an express subsequent agree- Subsequent 

o npVA Ayvk AT)^ 

ment to hold the debt satisfied or extinguished by some other as to ex- 
specific mode than payment in money, that other mode will be 
a competent and intrinsic quality of the oath. 

Thus, in Wilson v. Wilson^ an action for repayment of an 
advance of money, the defender deponed on reference that he 
had received the money, but that he had repaid it with flour. 
There being no deposition that it was part of the original 
transaction that the debt should be so extinguished, or that the 
creditor afterwards agreed to such extinction, the quality of 
the oath was found to be extrinsic, and the oath held to be 
afl&rmative of the reference. In Thomson v. Duncan^ the 
defender on oath admitted the constitution of the debt sued for, 
but deponed (a) that when the sum was lent he made an agree- 

1 1879, 6 R. 1301. 8 ig7i^ 9 m. 920. 

a 1842, 5 D. 366. * 1855, 17 D. 1081. 


ment with the pursuer that it should be repaid in the board 
and lodging of the pursuer's son, and that part of the debt had 
been so discharged ; (^) he deponed also that, some years later, 
he and the lender agreed that the remainder of the debt should 
be discharged by the lender boarding with him, and that it had 
been so discharged. It was held as to the first portion of the 
deposition that the qualification was intrinsic, being part of 
the original bargain (Lord Justice-Clerk Hope dissenting on the 
ground that only ' loose conversations ' had been deponed to), 
but that the second portion was extrinsic, some judges, it is 
true, putting it on the ground that it was posterior to the 
original bargain, but Lord Wood explicitly disclaiming that 
ground. But an allegation of payment by the debtor to a third 
party on behalf of the pursuer is extrinsic ; and where the 
defender admitted the constitution of an obligation, but deponed 
that, iTvter alia, he had paid a sum for the creditor on a decree 
of forthcoming, which was not produced, his oath was held to 
be affirmative of the reference, unless the decree should be pro- 
duced.^ In Law V. Johnston ^ it was laid down that an explicit 
ex post facto agreement to hold a debt of the kind now in 
question discharged or extinguished for any reason whatsoever 
is intrinsic of the oath ; so that Lord Neaves's observation in 
Gow*s Executors v. Sim,^ that nothing in general can be intrinsic 
which is not contemporaneous with the constitution of the 
debt must probably be taken under considerable reservations. 
But, in any case, it must appear from the oath that there has 
been a positive agreement of the sort between the parties ; and 
where it was admitted that certain balances remained unpaid, 
but added that they had been extinguished by an agreement to 
allow counter-claims, and where it appeared that there had 
been merely an understanding on the defender's part that 
it had been so agreed, the defender was found liable for 

1 Blair v. Balfour, 1748, M. 13, ^ 1343^ q d, 2OI. 

217. » 1866, 4. M. 678. 


the balance claimed, though his counter-claims were re- 

3. An express subsequent agreement to forgive the debt in Subsequent 

. , agreement 

whole or in part, deponed to by the debtor, will in like manner to forgive 
be intrinsic, and receive effect accordingly, because so far as 
thus deponed to the debt cannot be said to be as resting-owing. 

4. But an oath that the debt has been compensated is usually Compensa- 
held extrinsic, because compensation, if not sworn to have been 
agreed to and sanctioned by the creditor, usually involves 
matter of law, and though the deponent may establish any 
relevant matter of fact by his own oath, he cannot thereby 
establish matter of law. 

In Hepburn v Hepburn^ it was regarded as a settled point 
that claims of compensation in an oath of reference are ex- 
trinsic, unless the mutual claims of parties have been applied 
to each other by some regular settlement or action of the 
parties. ' Compensation can never be intrinsic,' said Lord 
Neaves ^ ; and that proposition, subject to the above qualifica- 
tion, had been expressly re-asserted from the bench in Mitchell 
V. Ferrier^ On the same principle, where a writer sued for 
payment of a prescribed account, and the deposition of the 
defender established the employment of the pursuer, the oath 
of the defender that he did not think that he was indebted to 
the pursuer for his account, was found to be, not a statement 
of fact, but an expression of opinion on a point of law ; and 
therefore to be affirmative of the reference.^ In an action on a 
prescribed account, the defender's sole plea was compensation 
on a prescribed account due to him by the pursuer. It was 
held that the onus lay on the defender of proving his counter- 
account by the writ or oath of the pursuer.^ 

To cases where the fact of constitution is only admitted Qualifica- 
tion of con- 

1 Hunter v. Lord Kinnaird'a * 1842, 6 D. 169. stitution. 
Trustees, 1830, 9 S. 154. « Qrard v. WishaH, 1845, 7 D. 274. 

2 1806, Hume, 417. ^ MiUer v. Baird, 1819, Hume, p. 
8 Qmo'a Executors v. Sim, 1866, 4 480. 

M. 578. 


under qualification, the Court has applied very much the 
same tests as those just indicated. If the defender depones 
on oath or avers on record that the goods were indeed furnished, 
but on the credit of a third party, and not of himself, the con- 
stitution of the debt is held not to be proved.^ Where the 
defender in a reference to his oath admitted that he had received 
the money from the pursuer, but added that nothing was said 
about repayment, this deposition was held affirmative of con- 
stitution and resting-owing.2 But where in an action for re- 
payment of money advanced on loan, the defender deponed on 
oath that she had got the money as a free gift, such an oath 
was held to be as sufficient an answer to such a libel as a denial 
of the contract of sale to a claim for the price of goods sold.' 
Where the trustees of a solicitor raised an action for payment 
of an account said to be due to the solicitor, and the defender 
deponed on oath that he had only employed the solicitor on 
condition of the latter claiming no fee, unless the action 
for the purpose of which he was employed should be suc- 
cessful, the Court held that the defender's oath had proved a 
different contract from that libelled on, and was therefore sub- 
versive of the claim.* Where a first-mate demanded payment 
of his wages, and the master of the vessel upon oath adjected 
to his admission of employment, the qualification that he had 
engaged the pursuer as second-mate, the quality of the oath was 
found intrinsic.^ But where, in answer to a seaman's claim for 
wages, the master qualified his oath by an allegation of un- 
dutiful service, the quality was held to be extrinsic; the 
master's remedy for undutiful service lying in a separate action.^ 
Where the defender deponed on oath that there was such a 
bargain as that libelled, but that it was agi*eed that it should 

^ Meyer avid Mortimer v. Lennard, * Knox v. M'Caul, 1861, 24 D. 16. 

1851, UD. 99. - „ ^ ^ ,^e, 1.C ,n 

2/^1 n ' i.^ toe J npra T Podeii V. Oovau, 1751, M. 13, 

* Gay lor v. Crtghton, 1854, 27 S, J. „^^ > • » » 

35. ^"^• 

8 Stewart v. Walpole, 1804, Hume, « Workman v. Young, 1699, M. 13, 

416. 234. 



be reduced to writing, and that before the writings were per- 
fected he had resiled, the quality of his oath was found in- 
trinsic;^ and the decision was the same where a defender 
admitted receiving money from the pursuer, but added that the 
money was in payment of a debt due by the pursuer to him, 
and that he had made no promise of repayment.^ In answer 
to a claim for payment for goods furnished, the defender de- 
poned that he had received the goods in consequence of an 
agreement to teach the pursuer the violin and to paint certain 
portraits ; and this qualification was found to be intrinsic.^ So 
where a pursuer claimed payment of the price of certain wines 
supplied to the defender, and the defender qualified his ac- 
knowledgment of the bargain by adding that he had refused to 
accept the wines because they were bad, the quality of the oath 
was held to be intrinsic.^ 

A judicial admission by a defender of the constitution and Judicial 


resting-owing of the debt sued for will supersede the necessity in Ueu of 
of proof by oath. Wherever a defender admits on record what, 
if admitted on oath, wiuld have sufficed to elide prescription, 
it would be mere * supererogation, and indeed worse than super- 
' erogation, to have recourse to a reference to oath. A party 
' cannot be heard to say that he has a right to be allowed an 
* opportunity of emitting a deposition contradictory of his 
' deliberate judicial admissions ; and if he is merely to depone 
' consistently with them, his deposition would leave matters 
' just where they are.' ^ It is taken for granted that the oath 
will coincide with the admission, and what is extrinsic or in- 
trinsic of an oath on reference will also be held extrinsic or in- 
trinsic of a statement made on record. Thus against a claim 
for furnishings on the defender's employment * as per account,' 
the defender alleged a specific contract for furnishings with the 

1 Campbdl v. Douglas, 1676, M. 13, 206. 
13, 203. * Trotter v. Clark, 1687, M. 13, 

3 Aitken v. FirUay, 1702, M. 13, 204. 
205. 5 RUchie v. Little, 1836, 14 S. 216 

8 Lauder v. M'Gibbon, 1727, M. (p. Lord GUlies). 


pursuer's author at a fixed price, which the pursuer had failed 
to fulfiL This was held not to be an admission of the consti- 
tution of the debt, so that both constitution and resting-owing 
remained to be proved by the defender's oath.^ On the other 
hand, the necessity for reference to a defender's oath was obvi- 
ated by a statement in the defences that the account sued for 
was not resting-owing, * being entirely extinguished by counter- 
' claims ; ' ^ and ' compensation,' as we have seen, ' never can be 
' intrinsic' ^ Where the triennial prescription was pleaded 
against a claim for payment of a surgeon's account, but the 
constitution and non-payment of the debt were admitted on 
record, the Court repelled the plea.* The case of Maule v. 
Sommers ^ stands on a somewhat different footing, for there, in 
the original action for payment of a tavern bill, the defender 
put forward no plea of prescription, though he averred his belief 
that he had settled all claims, and agreed that if the pursuer 
could show that anything remained unpaid he would cheerfully 
pay it, and it was not until he sought to suspend a charge fol- 
lowing upon a decree passed in absence that he pleaded the 
statute. The Court then held that he was barred from pleading 
the triennial prescription at that stage, * in respect of the terms 
' of the defences lodged by him.' 
Euie that But the principle that judicial admissions are to be accepted 
admission in lieu of oath must be applied with great caution ; otherwise 
oath^may^ 9, defender will practically be debarred from pleading any 
too^aT;^ alternative defence. 

In Anderson v. Hally ^ the pursuer claimed six years' wages. 
The defender (1) denied that there had been any contract of 
service, and (2) pleaded triennial prescription as to a portion of 
the sum claimed. The Lord Ordinary sustained the plea of 

1 Morison v. Robertson's Executors, M. 578, p. Lord Neaves. 

1863, 1 M. 822. * Bryson v. Aytoun, 1825, 4 S. 

2 MUchell V. Ferrier, 1842, 5 D. 182. See Broughton v. Weston, 1826, 
169. See Gordon v. Innes, 1826, 4 S. 4 S. 601. 

585. 5 1822, 1 S. 475. 

3 Oow's Executors v. Sim, 1866, 4 « 1847, 9 D. 1222. 


prescription, and referred to the defender's oath (which 
negatived the constitution of the debt), though the pursuer 
had maintained that the defender's denial of the contract 
barred him from pleading the statute, because it amounted 
to an admission of non-payment. No doubt in that case 
the Court found it unnecessary to determine that point, 
because the pursuer had not reclaimed against the Lord 
Ordinary's interlocutor sustaining the plea of prescription. But 
the previous case of Clyne v. Snody ^ had supplied a striking 
example of the lengths to which the Court was prepared to go, 
and is worth noting as the best conceivable illustration of 
how not to deal with the plea of prescription. The Court, it 
is submitted, went wrong on every point where error was 
possible. Clyne, S.S.C., sued Snody, S.S.C., for payment of 
certain accounts for law-agency. Snody pleaded: — (1.) Pre- 
scription. (2.) An alleged understanding that he, Snody, was 
not to be liable, unless he recovered the amount from his 
clients. The Lord Ordinary began the series of mistakes by 
finding no evidence produced of the alleged understanding, 
and by decerning against Snody without pronouncing any 
special judgment upon the plea of prescription, which, if sus- 
tained, might have rendered any enquiry into the allegation 
superfluous. The Inner House, upon a reclaiming note, found 
no evidence of the understanding, but remitted to hear parties 
on the defence of prescription, which, of course, should have 
been dealt with at the very beginning of the case. The 
Lord Ordinary next repelled the plea of prescription, and the 
Inner House adhered upon these extraordinary grounds : (1.) 
That the accounts of the 'pursuer, coupled with certain letters 
of the defender, afforded proof scripto of the pursuer's em- 
ployment : a direct violation of the terms of the statute ; and, 
(2.) That there was no allegation of payment on the part of 
the defender. 

It is not, perhaps, surprising that the Court should have 

1 1830, 8 S. 566, 1004. 


jfd the taken alarm at the tendency to carry the principle that a judi- 
thrown cial admission is equivalent to the defender's deposition, to an 
dSubtonit. extent which threatened to render the statute practically 
inoperative. In Alcock v. EasBon} Lord Justice-Clerk Hope 
pointed out that the denial of the debt, the absence of which 
had been founded on as tantamount to a statutory admission 
of non-payment, is necessarily contained in the statutory 
defence. The course of pleading in Scotland requires not only 
that all defences should be put upon record at the outset of 
the case as pleas, but that the whole statements in support 
of each of them should be made at once; and the risk of 
this is that defences which are peremptory and general may 
not be disposed of first as they ought to be, before details of 
the facts applicable to a different view of the case, and intended 
to meet a different ground of judgment, are considered. * To 
' begin with applying to the statements hmc inde in the 
' pleadings all the ordinary rules and presumptions and infer- 
' ences as to the legal obligations of parties, and as to the con- 
' stitution and subsistence of debts, and then by the aid of these 
' (whether collected from pleadings or proof seems equally in- 
' competent) to hold that the statute does not apply, is revers- 
' ing the whole order of procedure/ In the same strain in 
Baridey v. Kirkwood ^ (a case of a prescribed bill : see infra 
p. 162), where an admission on record of partial payment was 
founded on as constructively a statutory admission of the sub- 
sistence of the debt. Lord FuUerton very pertinently asked. 
How does such an admission prove resting-owing of the 
balance ? and while granting the proposition that a party can- 
not be allowed to maintain that he means to contradict on oath 
that which he avers on record, laid down that a judicial admis- 
sion, to be equivalent to defender's oath, must be * express and 
' unequivocal.' Jfo mere inferences or presumptions from the 
defender's failing or declining to aver or deny something which 
the pursuer maintains he was bound to aver or deny, will be 

1 1842, 5 D. 356, 366. ^ X845, 7 D. 595. 


sufficient. It must be an admission which, if made upon oath, 
would have proved the defender's case. In this action, indeed, 
Lord Jeffrey threw grave doubt upon the view that the 
necessity of writ or oath may be superseded at all by the tenor 
of admissions. He granted that in the Outer House he had 
held them to be scripta of the party, but added that he 
thought that was not a sound view. In Cullen v. Smeal ^ Lord 
Justice-Clerk Hope recurred to these doubts, and expressly 
refused to decide, as being outside the scope of that case, 
whether judicial admissions are to be taken as writ or oath of 
party, or whether, if the defender requires it, the matter must 
not be put to his oath. 

1 1853, 15 D. 868. 




(Ersk., Inst, 3. 7. 20) 

Act 1669, The Statute 1669, c. 9, establishes a quinquennial prescription 
ments. of arrestments, whether these proceed on decrees, registered 
obligations, or depending actions. Where the arrestment 
follows upon a decree, or registered bond, the prescription runs 
from the date of the arrestment. Where it is grounded on a 
depending action, the five years do not begin to run till the 
date of the decree constituting the debt.^ The course of pre- 
scription may be interrupted by action taken upon the arrest- 
ment. Thus a process of multiplepoinding brought in 
consequence of an arrestment will preserve that arrestment 
from prescribing,^ even though the arrester's interest be not 
produced in the process;^ and an execution of a citation 
(given on the last day of the five years) not lodged till two 
years after the beginning of an action of forthcoming was 
held in the circumstances sufficient evidence that the citation 
had been regularly given so as to interrupt prescription.* But 
a suspension is not a sufficient interruption.^ 
i?iid2 By 1 and 2 Vict. c. 114 the period of prescription suffered 

^ Crawford v. Simpson, 1732, M. ^ Macmath v. Campbell , 1802, M. 

11, 049 ; Paterson v. Cowan, 1826, 4 11, 051. 

S. 482. * Cameron v. M'Ewen, 1830, 8 S. 


2 Oraham v. M*Farlane, 30 May * Paterson v. Cowan, 1826, 4 S. 

1811, F. C. 482. 


by arrestments is reduced to three years, and it is pro- 
vided that, where arrestments proceed upon future or con- 
tingent debts, the three years are to be counted as running from 
the time when the debt becomes due, or the condition is 
purified. Otherwise the law remains unchanged. A creditor 
arrested on decree a fund vested in his debtor, and within 
the three years the debtor obtained cessio. The creditor 
appeared in that process, but did not found on his arrestment, 
and, in fact, did nothing which he might not have done if he 
had not arrested. It was held that the arrestments were pre- 
scribed, not having been pursued or insisted in within three 

(Ersk. Imi, 3. 7. 20.) (Bell. Prin. % 634.) 

The same Act provides, * that ministers' stipends and Act 1669, 

c 9 

* multures not pursued for within five years after the same are 
' due, and likeways mails and duties of tenants not being pur- 
' sued within five years after the tenant shall remove from 
'' the lands for which the mails and duties are craved, shall 
' prescribe in all time coming, except the saids ministers' 
' stipends, mails and duties shall be offered to be proven to be 
' due and resting-owing by the defenders their oaths, or by a 
' special writ under their hands, acknowledging what is resting- 
' owing/ 

As regards stipends, the Act applies even when the charge Stipends. 
was vacant during the time for which the stipend was payable.^ 
It did not, however, apply to the right of a patron to recover 
from the other heritors their proportion of what he had 
expended upon ann and other pious objects.^ 

1 Jamewa v. Sharp, 1887, 14 R. 063. 
643. ^Oraham v. PcUe, 1799, M. 11, 

^ Qloug V. Macintosh, 1753, M. 11, 063. 


Rents. As regards mails and duties, Mr, Erskine says^ that the 

prescription was introduced by reason of the rusticity of horvli 
fide tenants, and that its application must be confined exclu- 
sively to their case. Thus, where a fiar had possessed upon a 
tack from the liferenter, and upon the death of the latter con- 
tinued in possession of the lands, it was held that the Act did 
not apply to arrears of rent due by him to the liferenter, and 
sued for more than five years after they became due.^ This 
principle was also carried out in a case where a tack of mails 
and duties was held to fall outside the Act, on the ground that 
the tacksman was not a tenant in natural possession by 
labouring the ground.* A tack of a whole estate, however, 
was found subject to the prescription,* and the Court has even 
held the Statute applicable to an obligation to relieve of rent 
and to make an annual prestation.^ 

The Act is. equally applicable whether the tenant's lease 
be written or verbal, and whether the subjects be urban or 
rural.® It only applies where the tenant has removed (even, 
indeed, where he has run away),^ and so was held inapplicable 
where a tenant remaining in possession was sued by the former 
proprietor for arrears due five years before the estate had been 
sold.® The prescription may be pleaded by a cautioner for the 
tenant as well as by the tenant himself.® There is no room 
for its operation where a landlord has raised a process of 
sequestration against his tenant, and an account between them 
has been docqueted, and thus become equivalent to an acknow- 
ledgment of the arrears being due.^^ But where sequestration 
and arrestment had been only in security, before the term of 

1 Inst. 3, 7. 20. « B(yyt8 v. Henderson, 1823, 2 S. 

^Murray v. Trotter, 1709, M. 11, 169. 

^^- 7 M'Intosh V. BaUlie, 1753, Elch. 

^ Nisbet V. Baihie, 1729, M. 11, Prescr 35 

^Fairkolm v. Livingatone, 1725, ^ Strahom v. Cunningham, 1739, 

M. 11,058. M. 11,059. 

6 Daea v. Scmtgod, 1710, M. 11, » Dw/v. Inn^s, 1771, M. 11, 059. 

056. i» Hogg v. L(nv, 1826, 4 S. 708. 


payment of rent had arrived, the plea of interruption of pre- 
scription was repelled.^ A landlord indebted to his tenant 
may not plead prescribed arrears of rent against his tenant's 
claim for payment of the debt. 2 On the other hand, where a 
tenant retained rents in his hands by way of security for a 
claim for ameliorations made by him, and where, having been 
found entitled to a sum for ameliorations subject to compensa- 
tion for arrears of rent due by him, he pleaded that the rents 
were prescribed and could not set off against him in compensa- 
tion, his plea of prescription was repelled.^ The judicial 
statement of a claim for arrears of rent by way of compensa- 
tion against a claim by the tenant will exclude the prescription.* 
Payment of interest made after the prescription has run, and 
instructed by the defender's writ, will prove resting-owing. 
But payments not admitted on record or proved by the 
diefenders writ, will prove nothing;^ and partial payments 
made within the five years found no interruption of prescrip- 
tion, as tending rather to fortify the presumption that all 
bygones are cleared.® 

Upon reference to oath, as has been already explained, Reference 
there is no obligation on the defender to instruct payment. 
Where a tenant deponed that he had not paid a sum claimed 
by his landlord as balance of a year's rent, but that the land- 
lord had sequestrated and paid himself, it was held that the 
deposition did not prove resting-owing; and that as the land- 
lord had not laid the process of sequestration before the 
deponent and examined him upon it, and thus made it part of 
his oath, the deponent's statement could not be contradicted 
by showing from the process of sequestration that the sum in 
question was unpaid.*^ 

1 Cochrane v. Ferguson, 1831, 9 S. 26. 

501. ^ Dickson on Evidence, I. § 482. 

2 M'Intosh V. Baillie, 1753, M. 2, (474). 

680. ^Niahet v. Baikie, 1729, M. 11, 

» Nicolson V. M'Alister, 1832, 10 S. 059. 

759. "^ ffeddUe v. Baikie, 1847, 9 D. 

* Macdonald v. Jackson, 1826, 5 S. 1254. 



(Ersk. 3. 7. 20.) 
(Bell, Prin,, § 593.) 
(Bell, Comm, i. 347.) 

Act 1669, The Act 1669, c. 9, farther provides, 'that all bargains 

c 9 

' concerning moveables or sums of money, provable by wit- 
* nesses, shall only be provable by writ or oath of party if the 
' same be not pursued within five years after the making of 
' the bargain.' 
Moveables. This enactment applies to sale, hiring, loan, deposit, and 
pledge of moveables. It embraces transactions as to single 
articles which do not come within the category of merchants' 
accounts; though in view of the decision in Gohbi v. Zaz- 
zaroni} it is difficult to distinguish between cases that fall 
within this statute, and those that fall within the Act 1579, 
c. 83. The 1669 Act, at all events, is applicable to the sale of 
a cow,2 to a bargain about victual,^ and to the sale of a flock of 
sheep.* But it does not apply to transactions between a 
commission agent and his principal,^ nor to a consignment of 
goods in security for an advance.® Moreover, the operation of 
the prescription is strictly confined to bargains where the 
pursuer has to prove the contract by parole; and bargains 
constituted by writing are not affected by it.^ 
Writ or From the wording of the Act it has been questioned whether 

party. the Subsistence, as well as the constitution, of the obligation 
has to be proved by the defender's writ or oath. But the 
Court has decided that the Act must be applied in the same 

1 1859, 21 D. 801. ^ M'Kinlay v. M'Kirday, 1851, 

^NoUes V. Armstrong, 11 June ^^P:}^.. 
1813 F C M*Farlane v. Brown, 1827, 6 S. 

3 White V. Spence, 1683, M. 1 1, 065. 7 '^j^h o/Southesk v. Simpson, 1683, 

* EwaH V. Murray, 1730, M, 11, M. 12, 326 ; Hunter v. Thomson, 
067. 1843, 6 D. 1285. 


way as the Act 1579, c. 83.^ What has been said, therefore, 
with regard to a reference to defender's oath or proof by 
defender's writ in treating of the triennial prescription {supra 
p. 136), is equally applicable here. It need only be added that 
in Kennard v. Wright^ where the quinquennial prescription 
was successfully pleaded, it was held that a letter from the 
defender to his agent saying, ' I have to inform you that I paid 

* the money to the party who had ordered [the article in ques- 

* tion] for me,' was held not to prove the constitution of the 
alleged contract, and Lord Justice-Clerk Inglis expressed the 
opinion that, after resorting to proof by writ, it was not com- 
petent for the pursuer to resort to other pieces of evidence, 
such as statements culled from the record, and from the defen- 
der's deposition as a haver, so as to spell out a kind of talis 
qualis prohatio. 


The Act 1669, c. 9, also provides 'that all actions proceed- Act 1669, 

* ing upon warnings, spuilzies, ejections, arrestments, or for 
' ministers' stipends and others foresaids, shall prescryve 
' within ten years, except the said actions be wakened every 

* five years ; but prejudice always of any of the saids actions, 
' which by former Acts of Parliament are appointed to pre- 
' scryve in a shorter time.* 

But for this enactment, actions upon claims affected by the Actions 
short prescriptions would have subsisted for forty years ; and hfg°^ ^c™" 
thus the intention of the law in establishing the short prescrip- 
tions would have been in great measure defeated. The provision 
of the statute was at first taken to mean that it was sufficient if 
the first wakening of such an action took place within ten 
years, and if the wakening were renewed every five years after- 
wards.^ But the Act 1685, c. 14, declares that all such actions 

^ Campbell y, GriersonjlSiS, 10 D. * Countess of Wemyss, 1684, M. 

361. 11, 321. 

2 1865, 3 M. 946. 


are to prescribe if the first wakening be not raised within five 
years after the action, which was to be used as an interruption, 
first began to sleep.^ A depending action is said to sleep when 
no new step is taken in it for a year together.^ The meaning 
of the saving clause Mr. Erskine confesses himself unable to 
comprehend, on the ground that there are no former statutes 
limiting the duration of actions to a shorter time. It is only 
the right to bring an action which previous enactments affect. 


Minority. The Statute winds up with the express declaration that 
' prescription shall not run in any of the cases foresaid against 
* minors during the years of their minority.' 


37 and 38 The Act 37 and 38 Vict. c. 94, § 42, provides that inhibi- 
§ 42.' ^' ' tions shall ' prescribe on the lapse of five years from the date 
' on which such inhibitions shall respectively take effect.' 
But an inhibition may be kept alive for another five years by 
recording it again, or by recording a memorandum in the 
register of inhibitions before the expiry of the five years ; and 
may be similarly renewed before the expiration of every subse- 
quent period of five years. 

1 See Graham v. M'Farlane, 30th May, 1811, F. C. 

2 Ersk., Inst,, 3. 7. 27. 



(Ersk. 3. 7. 29.) (Thomson on Bills, 457.) 

(More apud Staib, ii. cccxxii.) (Bell, Prin., §§ 594-599.) 

(Bell, Comm, i. 418. ) (Dickson on Evidence, §§ 433-471 [424-463.]) 

The Statute 12 George iii. c. 72, § 37 (made perpetual by 23 i2Geoi^e 
George iii. c. 18, § 65), enacts that 'no bill of exchange and 23 
' Inland Bill or promissory-note executed after 15th day ofc. 18. 
' May 1772, shall be of force or eflfectual to produce any 

* diligence or action in that part of Great Britain called 
' Scotland, unless such diligence shall be raised and executed, 
' or action commenced thereon within the space of six years 

* from and after the terms at which the sums in the said 
' bills or notes became exigible.' By § 39 it is, however, 
provided * that no notes, commonly called bank-notes or 
' post-bills, issued or to be issued by any bank or banking 

* company, and which contain an obligation of payment to the 

* bearer, and are circulated as money, shall be comprehended 
' under the foresaid limitation or prescription; and that it 

* shall or may be lawful and competent, at any time after the 
' expiration of the said six years, in either of the cases before 
' mentioned, to prove the debts contained in the said bills and 

* promissory-notes, and that the same are resting and owing by 

* the oaths or writs of the debtor.' 

The prescription runs from the date at which the debt Terminus 
becomes exigible; that is to say (1) from the last day of grace 
in a bill payable on a named day, or so many days or months 

of debt. 


after date ; ^ (2) from the date of the bill, in a bill payable on 
demajid,2 and in a bill payable at sight, which is now equivalent 
to a bill payable on demand ; ^ and (3) from the last day of the 
second or third or fourth month, as the case may be, after the 
demand for payment has been made, in bills payable two or 
three or four months after notice.* 

Effect of The defence introduced by the statute, in the case of bills, 

* is substantially identical in principle with that introduced by 

the Act 1579, c. 83, with regard to 'merchants' accounts,' etc.^ 

The passing of the years of prescription upon a bill has the 

Bill de- effect of destroying it as a document of debt,® and after the six 

stroved fts 

document years the bill proves nothing/ * During the six years the bill 
' proves itself, and the burden of disproving value or of proving 

* payment lies on the debtor, and is, of course, limited to the 
' writ or oath of the holder. After the lapse of six years, the 
' burden of proving *' the debt contained in the bill," and " that 

* " it is resting-owing," is laid upon the holder of the bill, and 

* that, too, is limited to the writ or oath of his adversary/ ^ 
The pursuer must prove the debt, both in its constitution and 
its subsistence, as an unpaid debt between the parties at the 
date of the action ; and must prove it by writ or oath of the 
defender.^ Even where, after the six years, the defender 
departs from the plea of prescription by concurring in a proof 
'j^o ut de jure, that does not alter the rule as to the onus pro- 
handi, which remains upon the party founding on the bill.^® 
A bill which has suffered prescription is not sufficient voucher 
of a claim in a sequestration to entitle the claimant to vote in 
the election of a trustee, even though the debt be that founded 

1 Douglas, Heron di Co, v. Ch-ant's ' M'NeU v. Blair, 1825, 3 S. 459. 

Trustees, 1793, M. 4602. s BarrOey v. Kirhwood, 1845, 7 D. 

2 Stephenson v. Stephen&on^s True- ggg 
tees, 1807, M. Bill App., 20. 

8 45 and 46 Vict. c. 61, § 10. ' ^'>^^ ^- ^^^«^' 1^43, 5 D. 723 ; 

4 Brodddius v. Grischotti, 1887, ^^^^ ^- Howden, 1843, 5 D. 507. 

14 R. 536. 10 Simpson v. Stewart, 1875, 2 R. 

« Noble V. Scott, 1843, 5 D. 723. 673 ; Kent's Trustees v. Ker, 1883, 

« Denovanv (7a»nw, 1845, 7 D. 378. 11 R. 108. 


on by the concurring petitioner in the sequestration.^ So the 
indorsation of a bill or note on which prescription has run is 
worth nothing, and can convey nothing, though an indorsation 
during the currency of the prescriptive period carries the debt 
as well as the document.^ A charge upon a decree obtained in 
absence upon a prescribed bill will be suspended without 
caution or consignation.* 

It has been thought that the writ or oath of the debtor 
rears up a bill for a second course of six years, and so it was 
decided in Fergusson v. Bethune} A remark of Lord Justice- 
Clerk Moncreiff in the case of Storeys v, Faxton^ also seems to 
lend countenance to this view. But in 1823, the Court (p. Lord 
Pitmilly) declared emphatically against it,® and the decision 
in Drummond v. Lees*^ appears to leave no doubt that the 
defender's writ or oath does not raise up the bill, but esta- 
blishes a debt only affected by the long negative prescription. 

While 'a prescribed bill can never be sufficient to found But debt 
diligence,® nor afford in itself a sufficient ground of action,^ the in bill may 
debt contained in the bill may be sued for, and hence the *^^^ ^^' 
setting forth of the bill in the summons is permitted. ' I 
' do not found on the bill as a document of debt, but I 
' merely point to it as demonstrative or illustrative of the 
' question put to the defender, that question being, Do you 
' owe the debt expressed in that bill ? ' ^® Nay, the bill 
may be used as an adminicle of proof. While there must 
be evidence sufficient to prove resting-owing of the sum in- and the biu 
dependently of the bill itself, the bill maybe produced andaSd!^"^ 
read along with the other writs in order to show that such a 

1 Lochhart v. MiteheU, 1849, 11 D. « M'Indoe v. Frame, 1824, 3 S. 296. 
1341. See Niahet v. Nicoll, 1856, 7 iggO, 7 R. 462. 

18 D. 1042. ^ Armstrong v. Johnstone^ 16th 

2 Kerr's Trustees v. Ker, 1883, 11 May 1804, F. C, ; M. 11, 140. 

R, 108. » ScoU V. Brovm, 1828, 7 S. 192; 

8 Bell, Comm, i. p. 411 (314). Stirling v. Lang, 1830, 8 S. 638. 

* 7th March 1811, F. C. ^^ Laidlaw v. HamUton, 1826, 4 S. 

^ 1878, 6 R. 293, 300. 644 (p. Lord-Preaident Hope). 


writ had existed.^ 'The instrument itself is not annihilated/ says 
Lord Justice-Clerk Boyle. * When the term of prescription has 
' run, the presumption is that the ex fade obligant is free, and 
' if the holder of the bill avers the contrary, he must prove 
' resting-owing by writ or oath of the debtor. In doing so, 
' however, he may produce the bill and use it as an adminicle 

* of evidence.* ^ In a claim to be ranked in a sequestration, the 
creditor produced a letter from the bankrupt, dated more than 
six years before, acknowledging receipt of the principal sum, 
and enclosing a promissory-note of even date for that amount. 
While the letter was held to be sufficient evidence of the debt, 
Lord-President Inglis added an expression of opinion to the 
effect that 'although, the note being prescribed, the creditor 
' cannot now found upon it as a document of debt, he may do 
' so by way of evidence to prove the constitution of the debt, 

* and the reference to the promissory-note, instead of in any 
' degree derogating from the character of the letter, only tends 
' to confirm the existence of the obligation. Moreover, the 
' production of the note by the creditor shows that it was never 
' retired, and removes the slightest suspicion of the debt having 

* been paid.' ^ Thus the Court has held an action not incom- 
petent though a prescribed bill was libelled on inter alia, Lord 
Craigie distinguishing the case where an action is brought on 
the bill alone, when the rights established by the Act in the 
defender are to be followed out (the case of Stirling v. Lang) * 
from the case where the party wishes not to confine himself 
to the bill and libels on the circumstances, using the bill as 
an adminicle of proof ;^ and in an action for the price of a 
horse for which a bill had been given more than six years prior 

1 Storeys v. Paxton, 1878, 6 R. ting forth- the transaction for which 

293 (p. Lord Ormidale). the bill was granted, coupled with 

^ Christie v. Henderson, 183.3, 1 1 production of the bill unretired was 

S. 744. held to afford satisfying evidence 

-^ Nishet y. NeiVa Trustee, 1869, that the debt was still unpaid. 

7 M. 1097. See, too, Campbell v. * 1830, 8 S. 638. 

Campbell, 1793, M. 1648, where a ^ ClarhsotCs Trustees v. Oibsoriy 8th 

settled account with a docquet set- June 1820, F. C. 


to the raising of the action, it was held that though the bill 
was related in the summons, the action was founded on the 
contract, and therefore the sexennial prescription did not 
apply.^ The inference to which these cases seem to point is, 
that whether the pursuer sue upon the bill or upon the debt 
contained in the bill, he will do well to refer to the bill in his 
summons ; and this deduction is borne out by what happened 
in the recent case of Milne*s Trustees v. OrmistorCs Trustees? 
There the pursuers raised an action for repayment of a debt. 
But it was clear from the condescendence and pleas-in-law 
that their case was one of holders of a promissory-note (which 
the defenders alleged was prescribed) seeking to recover a 
balance of the contents of the note as onerous holders for value. 
When, therefore, the defenders pleaded that the grounds of 
action were not competently stated,^ the Lord Ordinary 
(Stormonth Darling) allowed the pursuers to amend their 
summons, in terms of the Court of Session Act 1868, § 29, by 
inserting in the summons a reference to the note. In the 
Inner House, Lord Justice-Clerk Kingsburgh and Lord Trayner 
held that the summons was now in the form applicable to 
a suit upon a bill or promissory-note, and must be dealt with 
-as such. They therefore decided in favour of the pursuers 
on the ground that the note had been preserved from prescrip- 
tion. Lord Young, on the other hand, held that the note was 
prescribed ; but that the action being laid upon the debt, and 
the constitution and nonpayment of that debt being admitted, 
the pursuers must prevail. ' I am not prepared to hold,' said 
his Lordship, ' that the pursuers are prejudiced because they 
' accepted the invitation of the Lord Ordinary to amend their 
' summons. That is not an amendment at all.' Lord Euther- 
furd Clark, while disposed to think that the note might still 
be sued on as a document of debt, concurred with Lord Young 

1 Hunter v. Thom8on, 1843, 5 D. see infra, pp. 166-7. 

1285. 8 See 13 and 14 Vict., c. 36, 

2 1893, 30 S. L. R. 552 ; 20 R. 523 ; Schedule A, No. 1. 


in finding that the action was laid upon the debt, that the debt 
was admitted, and therefore that the defenders were bound to 
pay. ' I do not think I am precluded,' added his Lordship, 
' from giving decree on account of the amendment of the 

* summons. The original grounds of action remain, and are 
' not in my opinion affected by the amendment/ 

The sexennial prescription does not operate upon the claim 

of one who has signed an accommodation bill for another against 

that other; ^ nor upon any claim of relief, z,g. that of the acceptor 

against the drawer ;2 the exclusion of such claims from the 

scope of the statute resting on the principle that such actions 

are founded on the debt and not on the bill. 

Is prescrip- The terms of the statute are that ' no bill of exchange shall 

by actioB^*^ * be of foroc or effectual to produce any diligence in Scotland 

in'the Tix^ * ujiless such diligence shall be raised and executed, or action 

years? ' commenced thereon within the space of six years' from the 

term at which the sums in the said bills become exigible. It 

will be observed that here is no word of 'interruption,' no 

syllable as to 'preserving the bill from prescription.' The 

plain meaning of the enactment undoubtedly seems to be that 

*. the promissory-note loses its virtue and force by too long 

* keeping after the lapse of six years, and is thereafter not to 
' have any force or efifect unless diligence upon it has been 

* raised and executed or action commenced upon it within the 
'six years; ''but 'that if action is commenced or diligence 
' used within the six years, the expiry of these six years shall 
' not interfere with the action so commenced or diligence so 
' used. The action or diligence is alive and you may pro- 
' ceed with it ' (p. Lord Young).^ There is, however, a long 
train of decisions to the efifect that where an action has been 
commenced or diligence done upon a bill within six years of 
its maturity, such action or diligence altogether excludes the 

1 Jolly V. M'Nisilly 1829, 7 S. 666. ' MilTie'a Trustees v. Ormiston's 

« Ralston v. Lamond, 1792, M. Trustees, 1893, 30 S. L. R. 562 ; 20 R. 
1533. * 523. 


prescription, and keeps the bill alive as a document of debt 
and as a ground of other actions raised after the expiry of the 
sexennium. In Milne's Trustees ^ Lord Eutherfurd Clark also 
expressed grave doubts whether that view of the law was 
right, and thought the question might be taken up by the 
Court upon a fitting occasion. But Lord Justice-Clerk Kings- 
burgh and Lord Trayner held that the question was no longer 
an open one, having been decided ' in a considerable number 

* of cases, varying almost as considerably in the peculiarity of 
' their circumstances/ and accordingly found that the statutory 
defence must be repelled, since an action had been admittedly 
commenced and decree taken upon the bill in question within 
the six years. 

If at some future date the Court reopens the matter, and The deci- 


pronounces in favour of a strict interpretation of the plain yes. 
words of the statute, its decision will differ from the judgment 
of Lord Justice-Clerk Hope in Gullen v. Smeal^ referred to 
by Lord Young, in respect that it will be directly contrary to 
many unequivocal decisions and expressions of opinion, while 
Lord Justice-Clerk Hope was at great pains to show that the 
view he so clearly expounded was in no sense opposed to the 
authority of previous cases. Thus in M'Lachlan v. Henderson^ 
it was held that diligence saved a bill from prescription ' so 
' as to make it capable of being the foundation of an action 
' raised after the six years;' in Dervovan v. Cairns^ Lord 
FuUerton said, *Here action has been raised within the six 
' years, which the Act says is sufficient to interrupt prescrip- 
' tion;' and in Boy v. Campbell,^ Lord- President Boyle held 
the plea of prescription to be inapplicable, because * we have a 

* judgment on the bill within the six years, and this action 

* might have been brought at any time within the forty years/ 
In Paxton v. F&rster^ yjiAicml procedure directed within the six 

» 1893, 30 S. L. R. 652 ; 20 R. 523. * 1845, 7 D. 378. 
2 1853, 15 D. 868, supra, p. « 1850, 12 D. 1028. 

» 1831, 9 S. 753. • 1842, 4 D 1515. 


years against two persons who were both next of kin and heirs- 
portioners of a deceased granter of a bill was held to prevent 
prescription in favour of other persons who, though heirs-por- 
tioners, were not next of kin of the deceased ; though there it 
is to be noted that ' the proceedings at the meeting after the 
* funeral * (whereby the heritable and moveable estates of the 
deceased were massed together) were also taken into account. 
The principle, however, that decree taken against one co- 
obligant within the sexennium precludes the other co-obli- 
gants from pleading the prescription after the sexennium, could 
not be more clearly asserted than it is in Gordon v. Bogle} 

The production of a promissory-note in a multiplepoinding 
as a ground of claim has been held tantamount to action,^ and 
such a production in a maltiplepoinding raised for distributing 
the effects of one member of a copartnery will bar one who turns 
out after the six years to be another member of the copartnery 
from pleading prescription.^ The production of a bill with re- 
gistered protests in a process of ranking and sale within the six 
years is equally eflScacious to preclude prescription,* and so is the 
statutory production of a bill in a sequestration, though the 
sequestration be afterwards recalled.^ Where, in the course of a 
trust for creditors a debt due on a bill had been acknowledged, 
by being narrated in the trust-deed, and generally recognised in 
the correspondence of the truster, the minutes of the creditors, 
and the deed of conveyance to the truster's heir, the plea of 
prescription was held to be barred as against a demand for 
payment of the debt.® The entering of a debtor into a special 
submission as to the bill in question also bars prescription.^ 
From the analogy of the vicennial prescription,® Mr. Bell 

1 1784, M. 11, 127. See also i»/t7ne'« son, 1784, M. 11, 127. 

Trustees, 1893, 20 R. 523. ® Graw/orcPs Trustees v. Haig, 1827, 

2 Lindsay v. Earl of BticJian, 1854, 5 S. 705. 

16 D. 600. « EUlesv. Rohertsan, 1833, 11 S. 397. 

s National Bank v. Hope, 1837, 16 ' Vans v. Mui^ray, 14th June 1816, 

S. 177. F. C. 

4 Douglas, Heron tb Co. v. Richard- » Wright v. WrigJU, 1717, M. 11, 268. 

MP •  i^vv't "7 u> wiJM.i< J jjHwi jiBHUHiij« w ' m ijoit-^uau 'a>u4Jt.Ln*Hi ^ m^t KM'n/n-^n^umm^ummmmfmtmmmifHKg^tffmKfi 


infers that a suspension of a threatened charge would not 
suffice to interrupt prescription. But the production of a 
bill in a process of suspension, and its being founded on in 
compensation, have been held equivalent to such judicial action 
as will interrupt.^ A charge given upon a bill, but not followed 
up by further diligence within the six years, was found suffi- 
cient to interrupt prescription, and keep the bill alive so as to 
be a foundation of new diligence after the six years.^ 

But nothing short of diligence done or action raised upon a There must 
bill — nothing short, that is to say, of the preferring of a claim OTactSln^to 
in a process in which legal effect can be given to it^ — willp^gj^^p- 
suffice to exclude the operation of the prescription. The*^°°* 
summons must be completely and formally executed before, 
action can be held as commenced,* and it must libel the bill 
specially.^ No mere admission of the debt within the six 
years will keep the bill alive. The mere protesting a bill 
and registering the protest will not constitute an interruption,^ 
any more than the consenting of creditors to a private trust- 
deed granted by the debtor for their behoof,^ or the entering of 
the debtor into a general submission of his debts,^ or the emit- 
ting by the creditor of an affidavit affirming the verity of the 
debt in a private composition contract.^® Even where, in a 
private trust, the creditor transmitted a statement of his claim 
on a bill to the agents of a debtor, prescription was held not 
to have been interrupted.^^ Where a party obtained a decree 
in absence against a minor as heir of his father on a bill over- 
due more than six years, and deponed to the verity of the debt 
in a process of sale of the minor's estate, which he purchased, 

^ R088 V. Robertson, 1855, 17 D. v. Douglas, 1795, M. 11, 133. 

1144. « Eaaton v. Binshaw, 1873, 1 R. 23. 

2 Fraser v. Urquhart, 1831, 9 S. ^ Scott v. Brovm, 1828, 7 S. 192. 

723. « Blair v. Horn, 1858, 21 D. 45. 

8 National Bank v. Hope, 1837, 16 » Garden v. Rigg, 1743, Kilk. Pre- 

S. 177, p. Lord Glenlee. scr. 11. 

* Baillie v. Doig, 1790, M. 11, 286. ^» Watson v. Auchincloss, 1822, 1 S. 

• Douglas, Heron & Go, v. Richard- 371. 

son, 1784, M. 11, 127. See Arhuthnot ^^ Ewing v. Gumine, 1835, 14 S. 1. 


retaining the amount of the bill out of the price, it was held 
that, when called on by the trustee on the sequestrated estate 
of the minor (now major), he was bound to repeat, and that 
prescription was not obviated though the minor's curators had 
taken credit for the sum so retained.^ Where, within the six 
years, the creditor's agent notified claims, including one on a 
bill, to the agent for the trust on the debtor's estate in Scot- 
land, and where, in addition, a process had been raised in the 
King's Bench which it was alleged saved those claims from 
the statute of limitations, the bill was neverthless held to have 
sufifered prescription.^ Where the drawer of a bill which was 
duly accepted discounted it at the bank, and on its becoming 
due retired it and took a special receipt to that effect on the 
back of the bill, the receipt was held not to prevent the bill 
suffering prescription.^ The taking out of ^ifugae warrant against 
the debtor on a bill will probably not interrupt the sexennial 
prescription, nor will the fact that during the six years, and 
long after it, the debtor has been an outlaw.* 
Debtor's Where the operation of the prescription is not excluded, 
the constitution and the resting-owing of the debt contained 
in the bill must be proved by the writ or the oath of the 
debtor. A writ acknowledging the subsistence of the debt 
gi'anted within the six years is valueless as a proof of resting- 
owing,^ unless it founds a distinct and separate obligation.* 
That is the main principle with regard to the date of the writ- 
ing by which prescription is sought to be elided (though in the 
case of Lindsay v. Moj^at ^ the Court gave effect to a writ of the 
debtor dated on the last day of the prescriptive term). Thus, 
in a proof of the debt in an action on a prescribed bill, the 
pursuers relied, inter alia, upon a trust-deed and a letter of 

1 M'NicolY. M'Niell, 1821, 1 S. 166. ^ Buchan v. Barclay, 1787, M. 11, 

2 Hurvter v. Duff, 1831, 9 S. 703 ; 128. 

1832, 6 W. & S. 206. , ^^^^^ ^ ^^^^ ^^^ ^ ^j 

^3^5«cjanan v. Ma^mdd, 1840, ^3^ . ^,^^\^j^ ^^ \ady Saltoun, 

4 Brodie v. Sheddan, 20th Feb. 1821, ^^^' ^ ^* ^^^' 
F. C. ^ 1797, M. 11, 137. 


the alleged debtor, both dated within the sexennium. It was 
held that the pursuer had failed in his statutory proof, inas- 
much as these writings did not amount to a reconstitution of 
the debt, and did not substitute a new obligation for an old 
one, but left the debt standing upon the old document.^ 

All proof, moreover, antecedent to or contemporary with the 
bill must be independent of it, and not innovated or extin- 
guished by the bill.^ On the other hand, letters of the debtor 
after the six years, admitting the constitution of the debt, are 
sufficient proof of the constitution,^ and where the granter of a 
promiissory-note marked payments of interest upon the back of 
it seven years after its date, and made entries of similar pay- 
ments in the cash-book he kept as factor for the creditor's 
trustees, these writings were held to have established the debt.* 
Such markings, however, within the six years prove nothing, 
for during that period the bill neither stands in need of, nor 
can be strengthened by, any such acknowledgments;^ and 
mere entries in a debtor's pass-books of money received, such 
pass-books being of quite a different nature from ordinary 
account-books, and never having been out of the debtor's 
possession, have been held insufficient to establish constitution 
and resting-owing.® 

The writing need not be probative, nor need it disclose the 
specific value given for the bill,^ but it must be distinctly and 
specifically applicable to the debt in question,® though the 
writ will be relevant, even though not expressly referring to 
the debt, if in the circumstances it is capable of being con- 
strued as referring to it.® In Horshurgh \. Bethune^^ the writ 

^ Bank of Scotland v. Taylor's • Storeys v. Paxton, 1878, 6 E. 

Trustees, 1859, 21 D. 1004. 293. 
2 Blake v. Turner, 1860, 23 D. 15. ^ M'Gregor v. M'Oregor, 1860, 22 

* Macdonald v. Crawford, 1834, D. 1264. 

12 S. 533. 8 Bank of Scotland v. Taylor's 

* Drummond v. Lees, 1880, 7 K. Trustees, 1859, 21 D. 1004. 

452. » fVood V. Howden, 1843, 6 D. 

' AUan V. Ormiston, 1817, Hiinie, 507. 
477. *» 13th Feb. 1811 F. C. 


of the debtor's factor in the factory books was held not equiva- 
lent to writ of the debtor, and it was observed from the bench 
that 'all markings made beyond the six years, not by the 
* debtor himself, but by another person, even the factor of the 
' debtor, and far less the creditor himself, are of no avail in 
' stopping prescription.' Biit more recent decisions gravely 
impugn the authority of this case. Entries of payments in 
the debtor's books made by his clerk have been construed as 
the debtor's own writ ; ^ a receipt by a creditor found in his 
debtor's repositories has been held, under the circumstances, to 
be writ of the debtor ; 2 and in a proof of the resting-owing of 
a debt in a prescribed bill, where the creditor produced a 
letter written to him by one of the two acceptors, bearing to 
be an answer to a letter from the creditor to the other 
acceptor, it was held competent to read the creditor's letter in 
explanation of the debtor's.^ Letters written by the factor or 
agent of a trust-estate, and markings by him of payments of 
interest on the back of a bill after the years of prescription, 
were held to establish the debt in the bill against the trustees.^ 
During the currency of the prescriptive period the debtor in a 
bill died, and his sister was appointed executrix. Before the 
expiry of the period, her agent made payments to account of 
interest and capital. After the lapse of the sexennium, her 
agent wrote to the creditor in the bill acknowledging the 
balance of debt due. In the circumstances, the writ of the 
agent was held to be binding on his constituent.^ 

It makes no difference, in proving a debt by the debtor's 
writ or oath, whether value was received for the bill by the 
defender himself or by his friend.® It is enough if value have 

^ Bloick V. Shamffs Creditors, 1823, ^ CampbeU v. Ballantyne, 1839, 1 

2 S. 118. D. 1061. 

2 Wood V. Howden, 1843, 5 D. « M'Qregor v. M'Gregor, 1860, 22 
507. D. 1264. 

3 Rennie v. Urquhart, 1880, 7 R. « M'Neil v. Blair, 1825, 3 S. 319, 
1030. p. Lord PitmUly. 


been received by one of the obligants on the bill.^ But where After six 

years a bill 

there are several co-obhgants, a written acknowledgment of no longer 
the debt by some of their number (whether within the sexen- 
nium or not) will not be binding against the rest of the 
acceptors;^ and the oath of one co-obligant admitting con- 
stitution and resting-owing, will- prove the debt only against 
himself and not against the others."^ When the six years are 
out the bill ceases to be unum quid, and no longer possesses 
the characteristics of a bill. The oath of trustees under a 
trust-deed of settlement of a deceased granter of a bill will be 
sufficient, if affirmative, to prove resting-owing of the debt 
contained in the bill ; but if their oath be negative of resting- 
owing, Lord AUoway thought that reference to the oath of the 
heir when he came of age would not be precluded by the 
previous reference.* 

In dealing with the debtor's oath, we observe once more Debtor's 
the two conflicting tendencies: one to abide by the strict 
letter of the statute, and to assoilzie a defender though he can- 
not specify the precise time or mode of payment,^ the other 
to hold that a defender is not entitled to get off with a mere 
nihil novi^ and to forget that the question is, not whether 
the defender has paid the debt, but, whether the pursuer has 
proved constitution and subsistence in the statutory manner. 
As examples of the latter tendency, we may note Black v. 
Blacky^ where a joint-acceptor of a prescribed bill deponed on 
oath that he had not paid it, but had been told by the co- 
acceptor that he had paid it. This deposition was held affirma- 
tive of resting-owing, because the debtor had assigned only one 
reason for thinking the debt paid, and that reason not a suffi- 

* Boyd V. Fraser, 1853, 15 D. 342. ^ Murray v. Laurie' tt Ti-usteeSy 

See Laidlaw v. HamiUon, 1826, 4 S. 1827, 5 S. 484. 

<)44; Wilson v. Strang, 1830, 8 S. 5 /»y/e5 v. (7ar/rac, 1841, 4 D. 152. 

'^ AUan V. Orrmatm, 1817, Hume, ' ^^^^''^ v. SUwart, 1823, 2 S. 

477. *83- 

'•' HousUm V. YuUly 1822, 1 S. 449. ^ 1338, I6 S. 1220. 


cient one. Again, in Pavl v, Allison,^ Lord Medwyn laid down 
that after the debtor has proved the constitution of the debt, it 
is not enough for him to say, I know that it was paid. Lord 
Meadowbank, however, threw grave doubts on this view; 
and without venturing wholly to reject Lord Moncreiffs dic- 
tum that * when in a reference to oath the party admits the 
* constitution of the debt, the pursuer is not bound to take 
' from him that the debt has been paid, but is entitled to have 
' the facts sifted,' we may hold that the decision in Stirling 
V, ffendei'son,^ where the debtor's heir and representative de- 
poning that he did not know whether his ancestor had paid 
the debt or not, his oath was held not to prove resting-owing, 
— or a decision such as that in Robertson v. Thomson,^ where 
the debtor's deposition that he had paid the balance of a 
prescribed bill sued for to the eldest son of a family, of 
which the mother and younger children stood in right of 
the bill, or to someone sent by him, without taking a receipt, 
seeing the authority of the payee, or accounting for it to the 
true creditor, was held to be negative of resting-owing — is 
much more in harmony with the provisions of the statute. 

Judicial With regard to the place of judicial admissions in a proof as 
' equivalent to writ or oath of party, we need only refer again 
to the judgments of Lord FuUerton and Lord Jefirey in 
Darnley v. Kirkioood,^ and to the remarks of Lord Justice- 
Clerk Hope in Noble v. ^Sco^^,^. where it is laid down that the 
admission founded on, whether called the writ of party or not, 
must be clear and distinct, and that a statement made to 
show payment must not be taken as an admission that the debt 
is due. 

Extrinsic The quality of the debtor's oath has been held to be ex- 
trinsic, and the oath, therefore, affirmative of resting-owing, 
where the defender deponed that the debt had been ex- 

1 1841, 3 D. 874. M845, 7 D. 595 ; supra, p. 152. 

2 11th March 1817, F. C. 

3 1830, 8 S. 810. ^ 1843, 5 D, 723. 



tinguished by certain transactions in land ; ^ where he deponed 
that the debt had been extinguished by a bond which he had 
subsequently granted, and which made no mention of prior 
claims or of the note in question; 2 and where the defender 
denied resting-owing on the ground that he had assigned his 
goods to creditors according to the law of England ; — where, 
in fact, his oath only amounted to the expression of his 
opinion that the clearing of all his debts had resulted from 
a separate transaction.^ Where the debtor on reference ad- 
mitted the constitution of the debt, but alleged that after pay- 
ing interest for some years and then offering repayment of the 
principal, the pursuer told him he did not want it, and that he 
was to keep it for his own use, the oath was held affirmative 
of resting-owing, apparently on the somewhat dubious ground 
that an ex post facto arrangement for discharging the debtor 
otherwise than by payment is necessarily extrinsic to the 
debtor's oath.* Compensation is almost always extrinsic^ 
(despite the decision of a majority of the Court in Fraser v. 
Fi^aser,^) and the quality was also found extrinsic where the 
defender averred that the pursuer had acceded to a composi- 
tion contract.^ Similarly, in Robertson v. Clarkson^ where a 
party, sued on a prescribed bill, granted in payment of a 
quantity of wine, offered to depone that the wine had turned 
out unfit for use, and that the seller had admitted this, and 
had promised not to exact the price, it was held that this de- 
position was extrinsic, being equivalent to an allegation of 
compensation. In a case in which the onerosity of a bill was 
referred by the defender to the pursuer's oath, the pursuer de- 
poned that the consideration for which the bill had been granted 

^ 5'<etmr<v.Jf?o6er««on,1852,15D.12. ^ Macdonald v. Crawf<yrd, 1834, 

2 Williamsony, Peacock, 11th Dec. 12 S. 533. 

1810, F. C. « 27th June 1809, F. C. 

' Stevenson v. Stevenson, 1838, 16 ^ Broivn v. M'Iniyre, 1828, 6 S. 

S. 1088. 1022. 

* Balfour v. Simpson, 1873, 11 M. » 1784, M. 13, 244. Cf. TroUer v. 

604. Clark, supra, p. 149. 


was in part payment of a debt, and in part payment of a sum 
which the acceptor had promised him if he would take back to 
live with him his wife from whom he had been divorced, and 
in payment of the expenses in connection with the action of 
divorce. The oath was held to be negative of onerosity 
(except as regards the direct debt), on the ground that the 
alleged consideration being extrinsic, and the acceptor being in 
no wise liable for the expenses of the divorce, there was no 
Intrinsic On the Other hand, where, in a like reference, the pursuer 
quaity. deponed that the bill was handed tp him by the drawer in 
order to get it negotiated, but that, he having failed in this, 
the drawer desired him to keep it, as he was due him money, 
and where the pursuer farther deponed that he had previously 
lent the drawer £60, which was still unpaid, the Court held 
that this adjection to his deposition was not extrinsic, and that 
his oath was affirmative of onerosity.^ Where the acceptor of 
a bill, who was sued for payment after the six years, qualified 
his admission of the acceptance on record by the statement 
that he had accepted the bill only upon the understanding that 
his obligation should be extinguished upon such and such con- 
ditions, which conditions had been purified, the qualification 
was found intrinsic, and the oath negative of the reference.^ 
In like manner, the quality was held intrinsic, and the pur- 
suer's case not proved, where the debtor deponed that he had 
accepted certain bills sued on, but had given them by mistake 
for receipts for money advanced to him on account of a son of 
the drawer, to whom he had remitted goods ; * where the sus- 
pender of a charge admitted that he had granted a promissory- 
note which had prescribed, and that he had not paid it, but 
added that the creditor had expressly stated to him, and that 

1 Graham v. Kennedy, 1860, 22 D. ^ Qallcmay v. Moffat, 1846, 7 D. 
560. 1088. 

2 Gordon v. Pratt, 1860, 22 D. « Agnew v. Macrae, 1782, M. 13, 
903. 219. 


he (the suspender) understood, that it was not to constitute a 
debt against him ; ^ and where the granter of a promissory- 
note deponed that he had signed it, had given it to a third 
party with a view to his discounting it, and with the money 
retiring another bill of the grantor's, and did not know that it 
had been discounted.^ 

§ 40 of the Act of 1772, c. 72, enacts that ' the years of the Minority. 

* minority of the creditors in such notes or bills shall not be 

* computed in the said six years.' Where owing to the 
minority of the creditor's representative prescription did not 
run, it was held that nothing else, such as regular payment of 
rent subsequent to the date of the bill, or absence of corre- 
spondence, raised a presumption of payment.^ The exception 
of minority is available to all the indorsees, but it is only the 
minority of an actual creditor on the bill that can be pleaded. 
Thus the minority of the beneficiaries under a trust cannot be 
pleaded by the trustees who are the true creditors on a bill.* 

1 Baird v. L%itie% TrusUes, 1827, 10 D. 340. 

5 S. 820. 3 Patrick v. WaU, 1859, 21 D. 637. 

2 Drummond v. Crichton, 1848, ^ M'Neil v. Blair, 1823, 2 S. 174. 





(Er8K.,3. 7. 22.24.) 
(Bell, Comm. i. .374.) 

(Bell, Prin., §§ 600-604.) 

(More apud Staik, Note P., l pp. cxv.-cxviii.) 

Act 1695, 
c. 5. 

The Act 1695, c. 5, entituled *Act anent Principals and 

* Cautioners,' provides that * considering the great hurt and 
' prejudice that hath befallen many persons and families, and 

* oft-times to their utter ruin and undoing, by men's facility to 
' engage as cautioners for others, who afterwards failing have 
' left a growing burden on their cautioners without relief; there- 

* fore, and for remedy thereof, his Majesty, with advice foresaid, 
' statutes and ordains that no man binding and engaging for 

* hereafter, for and with another, conjunctly and severally, in 

* any bonds or contracts for sums of money, shall be bound for 

* the said sums for longer than seven years after the date of 
' the bond, but that from and after the said seven years, the 
' said cautioner shall be eo ipso free of his caution : and that 
' whoever is bound for another, either as express cautioner or 

* as principal, or as co-principal, shall be understood to be a 
' cautioner to have the benefit of this Act : providing that he 
' have either clause of relief in the bond, or a bond of relief 
' apart, intimate personally to the creditor at his receiving of 

* the bond, without prejudice always to the true principals 
' being found in the whole contents of the bond or contract : 
' as also of the said cautioners being still bound, conform to 
' the terms of the bond, within the said seven years, as before 
' the making of this Act : as, also, providing that what legal 


* diligence, by Inhibition, Homing, Arrestment, Adjudication, 

* or any other way, shall be done within the seven years, by 
' creditors against their cautioners for what fell due in that 
' time, shall stand good, and have its course and effect after the 
' expiry of the seven years, as if this Act had not been made/ 

The effect of this enactment is to operate a total extinction obligation 
of the cautioner's obligation after the expiry of the seven years, guished 
and a new obligation is absohitely necessary after that period ye^f^^ 
to impose any liability upon the cautioner. In 1874 a heri- 
table securities company borrowed a sum from the pursuer, 
and certain of its shareholders became cautioners for the 
principal and interest. In 1884 the agent of the company 
wrote to the lenders asking for a reduction of the rate of 
interest in the loan, stating : ' the loan is farther secured by 

* the personal obligation for its repayment given at the date 

* of the advance by the shareholders mentioned in the bond/ 
It appeared that this letter was not written on any special 
instructions, but was brought before the board (on which were 
some of the above mentioned shareholders) in ordinary course, 
and that no one concerned had had the 1695 Act in view. 
The company went into liquidation in 1888, and the lenders 
sought to obtain repayment from the persons mentioned in the 
bond. It was held that their obligation qeased absolutely in 
1881, and that the letter of 1884 did not constitute a new 
obligation.^ After the lapse of the seven years a cautioner paid 
the principal sum to the creditor, and next day demanded 
repetition on the ground that he had paid through mistaking 
the time, and had not really been liable. The defender pleaded 
that the debt was due jwre naturali. But the Court ordered 
repetition, on the ground that payment had been made sine 
causd, and that after the seven years there was no obligation 
natural or civil upon the cautioner ; ^ as strong a case as could 
be imagined. The Act, then, unlike most of the statutes " 

1 Stocks V. M'Lagan, 1890, 17 R. 1122. 
* Carrick v. Garae, 1778, M. 2931. 


establishing the shorter prescriptions, does not merely deal 
with the mode of proving, 4Dr the legal means of enforcing an 
obligation. It directly afifects the quality of the contract, and 
entitles the party to say, after seven years, I am free.^ The 
only thing that can deprive a cautioner of the benefit of the 
statute is diligence done,* or action raised^ (Mr. Bell says 
decree obtained)* against the cautioner within seven years; 
and the diligence will not cover more than the principal and 
seven years' interest. Mere citation will apparently not suffice 
to bar the plea of the limitation ; nor will payment of interest 
by a cautioner after the seven years have run have any effect 
to continue his obligation,* 
What is a With regard to what constitutes a cautionary obligation 

cautionary .^ o 

obligation ? affected by the statute, it has long been held that the clause 
beginning ' whoever is bound for another ' is not to be inter- 
preted as a restriction of the liberty expressly conferred upon 
* the said cautioner* * binding for and with another,* after 
seven years, in the preceding clause, imposing upon him the 


necessity of showing a clause of relief, or a separate bond of 
relief, as a condition of his reaping the benefit of the enact- 
ment ; but that the proviso as to the clause or bond of relief 
applies only to one bound as principal or co-principal. This 
interpretation was distinctly asserted by the Court of Session 
in Douglas, Heron & Co, v. Riddick,^ and emphatically supported 
by the House of Lords in Yuille v. Scott? Where certain 
shareholders of a company bound themselves as individuals, 
' and by way of corroborative guarantee,* for the repayment of 
a sum of money borrowed by the company, they were held to 
be cautioners, and therefore entitled to the benefit of the Act ; ® 

^ Alexander v. Badenach, 1843, 6 D. may be barred personcdi exceptione 

322. from pleading the limitation. See 

^ Reid\. Maxwell 1 1780, M. 11,043. M'Kerchar v. Anderson, 1 7th June 

^ Clark V. Stuart, 1779, M. 11,043. 1893, Scots Law Times, vol. i. p. 93. 

* Prin. § 603 ; Sttuirt v. HiU, 1712, « 1792, M. 11, 032. 

M. 11, 039. ' 5 W. & S. 436. 

5 Yuille V. ScoU, 1827, 6 S. 137 ; ^ Stocks v. Madagan, 1890, 17 E. 

1831, 5 W. & S. 436. But a cautioner 1122. 


and where a party was bound as * cautioner, surety, and full 
'^ debtor with and for', the principal in a bond for payment of 
a sum of money the Act was held to apply.^ But the Act was 
found not applicable to a bond in which two persons were 
bound as co-obligants with no clause of relief or back bond, 
though one was known to be only a cautioner,^ nor to a letter 
written by a party on the same day as a bond for £2000 was 
granted, in which the writer, proceeding on a narrative of the 
granting of the bond, * guaranteed ' payment of the sum con- 
tained in the bond to the lenders.^ In the latter case Lord 
Chancellor Cottenham drew a distinction between 'caution' 
which means an undertaking that others shall perform what 
they have contracted to do, and 'guarantee' as used in the 
defender's letter, in a sense amounting to a distinct contract 
to pay the sum due. 

Where there is a separate bond of relief the requirement of intimation 
the Act as to intimation is strictly enforced. For that personal relief, 
intimation mere private knowledge on the part of the creditor 
will not be admitted as a substitute.* The intimation need not 
perhaps be notarial or judicial, but it must be distinctly proved 
by writing, and parole proof is inadmissible. Three obligants 
were jointly and severally bound in a bond. The creditor's 
agent (not acting herein, however, in that capacity) framed 
lettera of relief by the true principal debtor to each of his co- 
obligants. In the absence of proof scripto that these letters of 
relief had been intimated to the creditor, the Act was held not 
to apply .^ But where a creditor with his own hand wrote and 
signed as a witness a bond of relief granted by one co-obligant 
on a bond to the other of even date with the original bond, this 
was held equivalent to the statutory intimation.* 

1 Monteith v. PcUtison, 1841, 4 D. * Belly, Herdman, 1727, M. 11, 039. 
1 Al 

2 Smith V. OgUvtes, 1821, 1 S. 152 ; .^^ * 
1825, 1 W. & S. 315. "^* 

3 Wilson V. Tail, 1836, 15 S. 221 ; « M'Rankin v. Schaw, 1714, M. 
1840, 1 Rob. App. 137. 11, 034. 


Certain There are, however, certain kinds of cautionary obligations 

cautionary " 

obligations which are not affected by the statute. Of these the most 

not affected _ 

by the Act. important are those in which the term of payment for which 
caution is given is postponed beyond seven years from the 
date of the bond, or in which its arrival depends upon a con- 
dition not purified within seven years. That the statute really 
applies to all cautionary obligations without restriction, is, 
indeed, a highly plausible interpretation of its terms; but 
within fifteen years of the passing of the statute it was re- 
jected in favour of the stricter construction which holds that 
only those obligations are extinguished by the limitation 
which are prestable within the septennium. In Balvaird v. 
WcLtson^ it was decided that a cautionary obligation for an 
annual payment does not fall* within the statute, for so long as 
the payment is punctually made, no diligence can be done 
against the cautioner, and every year a new obligation arises. 
The same result was arrived at in Borthrmck v. Grawfurd? 
the case of a bond payable after the death of the creditor's 
wife who survived the seven years, and in Millers v. Short? 
where the principal was not to be paid till a fixed term, viz. 
eight years after the date of the bond. These cases were care- 
MoUeson v. fuUy reviewed in Molleson v. Hutchison,^ where a bond for 
Hutchison. bQj.j.Q^ed money, dated in November 1881, bound the borrower 
to repay the principal at Whitsunday 1882, and contained an 
obligation by the borrower, and by certain other persons as 
cautioners, to pay at said term the interest then due, and 
interest half-yearly thereafter till repayment of the principal 
Interest was duly paid till Martinmas 1890; and the action 
was brought for interest due subsequent to that date against 
one of the cautioners, who pleaded the statute. There was no 
difference of opinion among the judges that if the defender's 
cautionary obligation had been for principal as well as for 
interest, the Act would have applied ; but the obligation being 

1 1709, M. 11, 005. 8 1762, M. 11, 027. 

2 1715, M. 11, 008. , * 1892, 19 R. 581. 


merely for payment of interest, the pursuer contended that the 
case was ruled by Balvaird} and was therefore to be taken as 
outside the scope of the statute. A majority of seven judges 
held that as the interest sued for was not due till after seven 
years from the date of the bond, the cautionary obligation was 
not affected by the limitation ; while the minority came to an 
opposite conclusion on the ground that the pursuer might have 
enforced payment of the principal with interest at any time 
within the septenniumy Lord Trayner distinguishing the case from 
Balvaird, but at the same time indicating a disposition to dis- 
regard the cases,, if need be, and to return to the plain language 
of the statute. On this latter point Lord McLaren expressed him- 
self emphatically in the opposite sense, holding that the series of 
cases beginning with Balvaird 'have passed into the common law, 
' and are as much a part of the law of guarantee, or cautionary 
' obligation, as the statute itself/ On the whole case, the same 
judge, with reference to the view of the minority of the Court, 
held it to be no answer against the pursuer's contention to say 
that in a state of facts which has not occurred the obligation 
might have been made the subject of a demand within the 
statutory period ; ' while Lord-President Eobertson said, inter 
alia ; ' The principle expressly laid down by the Court in Bal- 
vaird, that every year nata erat nova obligatio supplies a rule 
which applies equally to this case as to that. The subsequent 
cases of Borthwick ^ & Millers ^ directly follow and confirm 
the rule thus established . . . The case of Balvaird seems to 
me completely to cover the present question, the only differ- 
ence being that the liability there was to pay an annual sum 
in name of annuity, and here it is to pay an annual sum in 
name of interest. There as here there was a liability to pay 
such annual sum within the septennium as well as beyond it. 
. . . What has been regarded as the criterion in the question 
whether the statute applies, is, I think, the liability of the 
cautioner and not the liability of the principal debtor/ 

1 1709, M. 11, 005. 2 1715^ m. 11, 008. ^ 1762, M. II, 027. 




It is upon the same principle that the benefit of the limitation 
is withheld from cautioners adfdctum praestandum} or for the 
discharge of an oflSce,^ or und^r a marriage contract,* or in a 
composition contract,* or in a confirmation,^ or in any sort of 
judicial proceeding, e.g., a suspension.® Nor does the Act apply 
to cases where the debt is not liquid ; ^ nor to engagements to 
pay, or see paid, a sum already lent ; I nor to caution in a bond 
of relief ,* or of corroboration,^^ or in a bill ; ^^ nor to a letter of 
credit, and probably not to a cash credit bond,i^ though that is 
certainly a cautionary obligation ;i* nor to an action of relief by 
one creditor against another.^* 

The Act contains no exception infavour of minors, the years 
of whose minority are consequently not to be deducted.^^ 

Act 1669, 
c. 10. 


The Act 1669, c. 10, provides 'that all citations that shall be 
' made use of for interruptions, whether in real or personal 
' rights, be renewed every seven years ; otherways to prescribe ; 
' except the parties be minors ; in which case this Act is not to 
' be extended against them during the years of their minority.' 
This enactment applies to citations used as interruptions of all 
prescriptions, whether long or short.^® 

^ Kincaid^s Creditors v. Farquhar, 
1741, Elch. Cautioner, 11. 

2 Bremner v. Campbell, 1839, 1 D. 
618 ; 1842, 1 BeU App. 280. 

3 Stewart v. Campbell, 1726, M. 
11, 010. 

* Cuthbertson v. Lyon, 1823, 2 S. 

« QaUie v. Ross, 1836, 14 S. 647. 

« M*KMay v. mmng, 1781, M. 

7 Anderson v. Wood, 1821, 1 S. 31. 

^ Howison y, Howison, 1784, M. 
11, 030; Caves v. Spence-, 1742, M. 

» Bruce v. Stein, 1793, M. 11, 033. 

10 Scot V. Rutherford, 1715, M. 

" Sharp V. Harvey, 24th June 1808, 
M. App. Bill 22. 

1^ Alexander V, Badenach, 1843, 6 D. 

1* Mackenzie v. Macartney, 1831, 
5 W. & S. 604. 

" Forbes v. Dunbar, 1726, M. 
11, 014. 

1*^ Stewart v. Douglas of Cavers, 
1712, M. 11, 151. 

1* Camerons v. MaJcdonald, 1761, M. 
11, 331. Ersk. Inst, 3. 7, 43. 

r «« T— — 11 ^11 w - v^^v^i^vmpw^ mf» f^^^m^pniv^aw>vv4*awv<^>va 



(Stair, 2. 12. 34. Ersk. Inst. 3. 7. 25,) 
(Bell, Frin., § 635.) 

The Act 1696, c. 9, entitled * Act of Prescription anent Tutors Act 1696, 

c 9 

* and Curators accompts/ provides ' that all actions of compt ' * 
' and reckoning, competent to pupils and minors, against theii* 

' tutors and curators, for making their accompts, not pursued 

* and insisted in within the space of ten years after the majority 
' of the said pupils and minors, or after their death, they dying 
' in their minority, shall after that time prescribe for ever ; and 

* the saids tutors and curators, and their successors, shall be as 
' fully exonerate and liberate, as if the saids pupils and minors, 
' after their majority had fully and amply discharged the same ; 

* And declares that the contrary action at the instance of 

* tutors and curators against their pupils and minors, shall 
' prescribe in the same manner within ten years : declaring 

* always that this prescription shall not run against minors.' 

The presumption afforded by the lapse of ten years is the Extin- 
prescriptive praesumvtio juris et de jure which cannot be re- right of 


dargued. It may be pleaded by a curator who has neglected to 
make up inventories, and even by one who, after the years of 
prescription has given an extra judicial consent to afford infor- 
mation respecting the affairs of the curatory.^ 

* Oowana v. Oswald, 1831, 10 S. M. 10, 996 ; Cunningham v. C'ura- 
144. See also itf^crccrv. Irvine, 1736, tcyra, 1727, M. 16, 338. 




(Ersk., 3. 7. 33, 34.) 
Church- The maxim decennalis et trienncUis possessio non tenetur docere de 

man's title ^.-,,, , i.^' » >• « 

presumed titulo has been adopted into our system from the canon law out 
session!** of favour to Churchmen, * because their rights are more exposed 

* to accidents than those of other men, through the frequent 

* change of incumbents/ ^ Its eflfect is to make thirteen years' 
possession sufficient to support a churchman's right to any sub- 
ject as part of his benefice, though he should produce no title 
in writing to it. The churchman's title is presumed from his 
possession ; and he is entitled, in virtue of such possession, to 
appear, not only in a possessory, but also in a declaratory 
action. When a minister's right under the brocard has been 
judicially declared, a title of property is thereby constituted 
equivalent in its operation to a proper written title ; but when 
not so fortified, being purely presumptive, it is liable to be 
elided by contrary proof. So that if the churchman's title be 
recovered, and it thence appear that he has possessed to a 
greater extent than the title warranted him, his right will be 
restricted within the bounds of the title so recovered.^ The 
whole question was very fully and instructively discussed in 
Cochrane v. Smith^ from the judgments in which the principles 
just set forth are mainly derived. In that case it was also 
decided that the right founded by the dec. et trienn. possessio is 
not only presumptive, but also temporary and dependent upon 
the continuance of possession ; ' that as it springs into life by 

^ Ersk. 3. 7. 33. blane, 1676, M. 7950 ; BepreserUativea 

a Oreig v. Duke of Queensberry, 21 of Rule, 1708, M. 11, 002. 

Nov. 1809, F. C. ; Biahop of Dun- ^ 1869, 22 D. 252. 



' possession, it dies when all possession has ceased. It was in- 
' troduced to secure and defend possession, not to vindicate a 
' right to a subject, the possession of which has been abandoned ' 
(p. Lord Wood). Hence a minister claiming as part of his bene- 
fice a subject which had been undoubtedly possessed as such 
for more than thirteen years, about thirty years prior to the 
raising of the action, but which had subsequently been pos- 
sessed by other parties claiming right upon a different title, 
can take no benefit from the rule. Incumbents are entitled to 
plead upon the possession of their predecessors in office. 

It has been held that a precentor, not being an ecclesiastic, 
is not entitled to the benefit of the rule.i 

1 TraUl V. Dangerfield, 1870, 8 M. 579. 




§ 1. CRIMES 

On this subject it is unnecessary to do more than quote the 

words of Hume. 

' In the close of all, the question may naturally be asked 
respecting the prosecutor's title, public or private, — Does it 
endure for ever, or is it, like most matters of civil claim, liable to 
be extinguished by length of time ? Certainly such a defence is 
not good, if the offender, by absconding is himself the cause why 
the trial is not earlier ; and if the prosecutor, by taking sentence 
of fugitation, has done all in his power to bring him to justice. 
In such circumstances William Dods was accordingly tried and 
condemned to die, on 2d October 1663, for the murder of 
Andrew Hardie, committed on 20th November 1640. But 
there is much to say on the side of the accused in the opposite 
case, where he has remained all along, for a series of many years, 
within the kingdom, accessible to justice, and has never been 
challenged, or called in question, for the matter now laid to his 
charge. The little benefit of an example in such circumstances ; 
the natural decay of resentment, public and private, in the course 
of time ; the anxiety endured by the culprit for so many years ; 
the difficulty of establishing the whole circumstances of the fact; 
the possible, nay the probable loss of the pannel's evidence in 
exculpation ; the obvious unfairness of the prosecutor's own 
conduct in delaying so long: All these considerations, plead 
powerfully in support of that equitable rule of the Eoman law — 
recommended also by the general practice of nations in modern 
times — which gives the accused his quietus at the end of twenty 
years. Though not established in our older practice, this humane 
defence was accordingly, on mature deliberation, sustained in bar 
of trial, in the case of Callum Macgregor, who was indicted at 
the Lord- Advocate's instance, in Spring 1773, for a murder com- 
mitted in December 1747 — no warrant having been executed 
(although one had been taken out), nor precognition taken, nor 
libel raised against him all the while, though within the king- 




' dom, and not absconding. The judgment was duly guarded : 

* " In respect it does not appear that any sentence of fugitation 
' '* passed against the pannel, sustains the defence, and dismiss the 

* " indictment." We may conclude, that, if relevant against a 
' charge of murder, that crime of which the memory lasts the 

* longest, this defence will be no less effectual in the case of the 

* less atrocious offences.' ^ 


(Bell, Frin,^ § 2024.) 

(More ajpud Stair^ i., p. cclxxi.) 

A vicennial prescription of retours was introduced by the Act 1617, 
Act 1617, c. 13, which runs as follows: — 

* Forasmuch as by Act of Parliament, made by his Majesty*s 
most noble progenitour, King James the Fourth, of worthy 
memory, upon the 13th day of June 1494, it was statute and 
ordained, that all summonds of errour, or inordinate processe, be 
pursued within the space of three years after the determination 
of the inqueist, or service, the party being of lawful age, and 
within the realm, otherwise to prescribe, as in the said Act 
and statnte at more length^ is contained : And because the true 
meaning and intention of the said Act was, that our Soveraigne 
Lord's lieges, being upon the said inquest and service, should not 
lye under the paine and danger of errour, after the space of three 
years, and no wayes to hurt or prejudge the righteous heir and 
nearest of kin, who, by the law of God and man, was to succeed 
in the right of blood and succession to their predecessours, and 
to their lands and heritages, jure sanguinis^ — Therefore, our said 
Soveraigne Lord, with advice and consent of the Estates foresaid, 
statutes and ordains, that the said act of Parliament shall no 
wayes hurt nor prejudge the nearest of kin to seek reduction of 
the saids retours and service, to be passed and expede in time 
coming, and that within the space of twerUy years, immediately 
following the date of the saids retours and services; and if the saids 
summonds of reduction be not intented, executed, and pursued, 
before the expiring of the saids twenty years, that the said action 
of reduction of the said retour and service, shall prescrive in the 
selfe, and no party to be heard thereafter to pursue the same re- 
duction : And also declares, that hereafter it shall no wayes be 
lawful to pursue the persons of inquest for tvilful errour, except 

' Hume's Commentaries on the Law of Scotland respecting Crimea, vol. ii. 
p. 136. 


* they be pursued therefor within tlie space of three years next 
' after the date of the said retour and service : It is always 
' declared, that these presents shall no wayes be prejudicial to 
^ whatsoever persons who have acquired rights of lands and heritages 

* before the date hereof, hand fide, from persons already retoured 
' thereto, in any time bygone ; but the saids persons, who have 
' bond fide acquired, to brook their rights according to the law then 
' standing/ 

The prescription thus instituted applies to retours of heirs 
of provision as well as of heirs jure sanguinis,^ and aflfects 
extract decrees of service, the modern equivalent of retours. 
It does not interfere with the common law right of an heir at 
any time to quarrel his own retour on the ground of minority 
or lesion,^ but operates only on erroneous services where a 
remoter agnate has been retoured heir, to the prejudice of a 
nearer in line. 
Relation It has occasioned some difficulty to determine the question 
statute to how this Statute is to be reconciled with that immediately 
'°' * preceding it, viz. 1617, c. 12, the principle of which is, as we 
have seen, that there is no answer to a claim of property 
(apart from a competition of titles with the claimant), except 
the production of a statutory title clothed with possession for 
the prescriptive period.^ If a retour alone can be reared up 
into a valid title to the party served, what becomes of the 
maxim nulla sasina, nulla terra 1 (For the. view that the 
retour must be fortified by possession, though not altogether 
without support,^ is almost certainly erroneous.) ^ And what, 
too, it may be asked, of the other maxim, jus sanguinis num- 
quam praescribitur ? The puzzle seems to be solved by Lord 
Chancellor Cottenham's lucid exposition of the IsLYfinJ^eUsonv, 
Cochrane' s RepreseTvtatives? The Lord Chancellor there pointed 
out that the vicennial prescription is that of a retour of a person 

* Campbell v. Campbell, 1848, 10 * Incorporation of Wrights v. Hut- 

D. 461. chieson, 1794, Bell's Folio Cases, p. 7. 

^Grayv. Fotheringham, 1700, M, * Bell, Prin., § 2024; Bankton, 

10, 987. 3. 5. 97. 

'i WaUacey.EarlofEgUnton,lSS5, 6 1837, 16 S. 365; 1840. 1 Rob. 

13 S. 664. App. 82. 


as the proper heir, and that the Act only provides that a person 
served as heir shall not be disturbed in bis right as heir after 
twenty years, by any action brought by another person claim- 
ing ordy to he the time heir, ' But the heir may be disturbed 

* by any person who comes in with a stronger title than that 
' of mere heirship, . . . The statute provides that, quoad the 
' heirship, the service and retour of one party qud heir, shall 

* not be disputed by another party who merely comes in qud 
' heir.' As Lord Meadowbank pointed out in the Bargany 
case,^ * the positive prescription does not operate against the 
' title to pursue of the claimant, but only in establishing the 
' title of property of the person in possession ; nor does the 
' validity of the one imply the invalidity of the other ; jus 
' sanguinis cannot be abandoned or lost Twn utendo ; the vicen- 
' nial prescription only renders the verdict of propinquity in a 
' retour a res judicata* The object of the statute is, in short, 
' to secure the service from all challenge on the ground of 
' error, from whatever source that error, qud error, arose.' ^ 
The prescription would probably not exclude a relevant and 
specific charge of fraud, ' though it might and must exclude all 
' other reasons of reduction/ ^ But it will not free one re- 
toured as heir from the obligation to denude in favour of a 
nearer heir who subsequently comes into existence.^ 

A retour ex fojcie invalid is, of course, worthless, and cannot 
be made valid by the mere lapse of time.^ It was also laid 
down in the Bargany case, that the privilege of pleading the 
statute is purely personal to the heir retoured, and does not 
descend to his nearest heir; so that after the death of the 
retoured heir, the true heir may vindicate his right at any 
time.® But in Neilson v. Gochrane's Bepresentatives,^ and in 

1 FuUarton v. DaJtrympUy 1798, 1 M. 5279. 

W. & S. Appendix 11. p. 7. ^ FidlarUm v. Hamilton, 1825, 1 

2 Shedden v. Patrick, 1852, 14 D. W. k S. 410. 
721, p. Lord FuUerton. « Ibid, 

« Ibid. ' 1837, 15 S. 365 ; 1840, 1 Rob. 

^ Machinnon v. Macdonald, 1765, App. 82. 


Campbell v. Campbell,^ it was held and assumed throughout, 
that the prescription could be pleaded by singular successors ; 
and this view was affirmed in Bocca v. Catto's Trustees?' 
Years of Contrary to the general rule, it has been held that the 

minority ^ ^ , 

excepted, statute implies an exception of the years of minority, though 
it does not expressly make any such exception.' This decision 
may perhaps be justified by the language of the statute of 
1494 (repeated in the preamble to 1617, c. 13), to the eflfect 
that the party alleging hurt to himself by the retour, and 
pursuing a summons of error, must bring his action within 
three years, * being of lawful age and within the realm/ 
37 and 38 The Act 37 and 38 Vict. c. 94, § 9, provides for the vesting 
§ 13. ^* ' i^i heirs of a personal right to estates in land without service 
or other procedure, and in § 13 the same statute goes on to 
declare that, * the right of any person to an estate in land by 
' succession as heir, acquired after the commencement of this 

* Act, may, at any time within twenty years of his infef tment 
' as heir and his entering into possession of such estate, but 
^ not thereafter, be challenged by any one who would have 

* been entitled to challenge the decree of service of such person 
' had he expede a service according to the practice existing 
' prior to this Act ; and, in the absence of evidence to the con- 
' trary, the date of his infef tment shall, for the purpose of this 
' limitation, be assumed to be the date of entering into posses- 
' sion ; and such challenge may be made by an action to 
' negative or set aside the alleged right of succession, or to 
' reduce any title expede in virtue of such alleged right.' But 
by § 14, nothing in the Act is to prejudice or affect previously 
existing remedies of a person having lawful title and interest 
to prevent another from taking possession as heir, or to 
remove him, the interim possession being regulated as a 
question apart from title. 

1 1848, 10 D. 461. » Gray v. Fotheringham, 1700, M. 

2 1876, 4 R. 70. 10, 987 



(Ersk, rwsf., 3. 7. 26.) 

(Bell, Prin,, §§ 590-592.) 

(Bell, Govfum, i. 346.) 

(Dickson on Evidence §§ 421-432 [412-423].) 

(More, wpud Stair i. cclxx.) 

The Act 1669, c. 9, 'Statutes and ordains, that holograph Act 1669» 
' missive letters, and holograph bonds, and subscriptions in 
' compt-books without witnesses, not being pursued for with- 
' in twenty years, shall prescrive in all time thereafter, except 
' the pursuer offer to prove, by the defender's oath, the verity 
' of the saids holograph bonds and letters and subscriptions in 
' the compt-books/ 

A holograph writing founded on after the lapse of twenty Holograph 
years can prove no fact tending to establish an obligation, and good for 
is to be considered in every respect as good for nothing unless after^"^ 
supported as the law directs. Such was the decision in the yeSs!^ 

Bank of Scotland v. ,^ which settled the law as to the 

effect of the provision of the statute ; and the small number 
of cases corroborating it is due to the fact that this view of the 
enactment has been rarely, if ever, called in question. The 
principle was reaffirmed in Mowat v. BanJcs,^ where holograph 
letters acknowledging a debt were held in common with ' all 
' holograph obligations whether more or less formal ' to fall 
under the prescription. In order, then, to be struck at by the 
statute as evidence of an obligation, the holograph writing 
need not be a formal document. When the twenty years have 
elapsed, the ornts is thrown on the pursuer of proving the 
verity of the bond or deed by writ or oath of the defender, and 
by verity is understood the genuineness of the whole document 
and not merely of the subscription. When the verity of the 
deed has been established in the statutory manner, the pursuer 
is not bound to prove resting-owing by the defender's writ or 

1 1747, 5 Br. Sup. 748. 2 i^q^ ig jy 1Q93 



oath ; on the .contrary, the holograph writing, once raised up, 
will be kept in force till it is extinguished by the long negative 
prescription or discharged, and the onvs is transferred to the 
shoulders of the defender, who will have to prove the extinction 
of the obligation established by his oath.^ Any statement 
made by the defender on oath as to resting-owing is extrinsic 
to the reference.^ The prescription runs from the date of the 
document, even though the obligation it contains be future or 
contingent,' and does not affect documents used to instruct 
a defence. 
The pre- The raising of an action upon the writing within twenty 
exc&ded years will preserve its probative character and exclude the 
or^dSi-^" operation of the statute, even though the document be not 
^°^®' produced in Court during the process.* So probably will a 
plea of compensation founded on the debt within the twenty 
years.*^ Diligence done upon the document will have the same 
effect; merely registering the document, however, will not 
suffice, nor will a suspension by the debtor of a threatened 
charge.^ It has never been decided whether payment of 
interest or the like rd interventus following upon the bond or 
deed will preserve it beyond the twenty years. There is no 
express authority in the statute for holding that it will. But 
Mr. More expresses an opinion in the affirmative^ and supports 
it by many powerful arguments. 

If the original obligant have died, the oath of his heir will 
be sufficient to establish the document.® But it must be an 
oath of knowledge, not of mere belief ; though where an heir 
could not swear positively to the fact, but deponed that he 
could not have a doubt on the point, the Court held that the 

1 Earl of Leven v. Amot, 1715, 8vo Ca. 380. 

M. 10, 991 ; Muir v. CunningTiamy '' Dickson, § 425 (416). 

1695, 4 Br. Sup. 269. « Wright v. Wright, 1717, M. 11, 

2 Grant v. Anderson, 1705, M. 13, 268. 

235. ^ Apud Stair i. cclxxi. 

8 Home V. DonaZdaon, VJ*JZ, M. * Brown v. Crawford, 1741, M 

10, 992. 9417; Walhingahaw v. Knappemy^ 

* Simpson v. Brown, 1791, Bell's 1337, Elch. Prescr. 15. 


proof demanded by the statute had been supplied.^ The 
prescription is a privilege of party, and must be pleaded ; so 
that where the authenticity of certain holograph writings had 
gone to issue, and a proof 'pro ut de jure had been led, it was 
held that the defender could not afterwards plead the statute.^ 

The Act expressly declares that the prescription * shall not Minority. 
' run against minors during the years of their minority/ 

Neither the clause in the Act 1669, c. 9 (which comes 
before the clause introducing the vicennial prescription), re- 
garding the prescription of actions, nor the Act 1685, c. 14, 
applies to an action raised on a holograph writing.^ 

1 Dalziel v. Lord Lindores, 1784, 2 jfTyse v. Wyse, 1847, 9 D. 1405. 

M. 10, 994. 8 Stein v. Sands, 1825, 4 S. 105. 




(Dickson on Evidence, §§ 529-542 [523-537].) 
(Story, Conflict of Lawg, §§ 576-583.) 
(GuTHRiB a^md Sayigkt, Note B, p. 267.) 

Prescrip- It is Well upon SO Controverted a topic to start with the 
heritage, indisputable proposition that prescription of heritable property 
must be regulated by the lex rei sitae — the law of the country 
where the heritable property is situated. 

Upon attempting to advance farther, however, we are at once 
plunged into a sea of conflicting views. It is impossible, here, 
to do full justice to the arguments of the opposing schools. 
We can merely indicate what seem to us the conclusive 
considerations adduced by Dickson and Story. 
Pi-escrip- 1- The first-class of prescriptions is that which affects merely 
ing^^e * ^^® creditor's remedy, by limiting his action to a certain period 
remedy. Qf time, or by imposing on him, after that period has expired, 
a specified and restricted mode of proof. To this class belong 
e.g. the triennial and sexennial prescriptions. These, according 
to Story, belong ad litis ordinationem and not ad litis decisionem. 
The case of Don v. Lippmann ^ settled once for all with regard 
to such prescriptions that their application is governed by the 
law. neither of the locus contractus, nor of the locus solutionis, 
nor yet by the law of the debtor's domicile, but by the law of 
the forum in which redress is sought. So where the acceptor 
of a bill drawn and accepted in France was sued upon it in the 
Scotch courts, it was held that the sexennial prescription 

1 1837, 2 S. and WL, 682, 723, 728 ; reversing C. of S., 1836, 14 S. 241. 



applied, and that what in France would have sufficed to inter- 
rupt the French prescription of bills had no eflfect to bar the 
prescription, not being a valid interruption according to the 
law of Scotland. Lord Brougham, in his exposition of the law, 
referred to the cases of the British Linen Company v. Drum- 
mond^ and Williams v. Jones ^ as having been decided in 
accordance with that principle, and pointed out that the con- 
tention that statutory limitations of the mode of proof are of 
the essence of the contract implies that a breach of the under- 
taking is in contemplation of the parties, than which nothing 
could be more contradictory to good faith. 

There is much to be said for Mr. Guthrie's contention ' that 
previously to that decision the Scotch courts went upon the 
principle that the law of the debtor's natural and permanent 
forum — i.e. the law of his domicile during the whole currency of 
the term of the limitation, and not the law of the forum in 
which the action happens to be brought, must regulate the 
application of prescription. But the authority of Don seems to 
be an insuperable obstacle in the way of any attempt to 
revert to the old rule, and it has been followed in subsequent 

2. The second-class of prescriptions is that in which not Prescnp- 
only is the right of action extinguished or restricted, but the guishing 
claim or title itself -ipso facto perishes and becomes a nullity 
after the lapse of the prescribed period ^ — e.g, the long negative 
prescription. With regard to this class there has been no 
such clear exposition of the law. But Mr. Story® and Mr. 
Burge^ agree in thinking the correct rule to be that if a 
party has resided in the locus contractus for such a time as by 
the law of that place would suffice to extinguish the obliga- 

1 1830, 10 Bam. and Cress. 903 ; pany, 1839, 1 D. 936 ; Robertson v. 

1 Ross L. C. (Com.) 841. Burdekin, 1843, 6 D. 17; Strathem 

* 1811, 13 East. 4.39. v. Masterman, 1850, 12 D. 1087. 
« Aprid Savigny, p. 269. See the ^ Story, § 682. 

cases there quoted. ^ Ibid, 

* Farrar v. Leith Banking Com- "^ 3 Comm. 883. 


tion, his removal to another country where no such prescription 
exists will not revive the obligation. This view was taken 
by the Supreme Court of the United States in Shelby v. Guy ; ^ 
it was not contradicted by Lord Brougham in Don? and it 
was hinted at by Lord Chief-Justice Tindal in Huher v. 
Steiner,^ On the other hand, if a party, after making a con- 
tract in country A, removes to country B, and there resides for 
a period long enough to extinguish the obligation according 
to the law of country B, if it had been the locus contracttts, but 
not long enough to extinguish the obligation according to the 
law of country A, the party will still be liable if pursued in 
country A, the locus contractus^ so long as according to its laws 
the debt is still subsisting.* ' It is impossible/ remarked Lord 
GiflFord in the House of Lords, * that by a person's removal to 

* Eussia or any other country where a different law prevails from 
' that of Scotland, he can discharge himself from [his] debts ; 


* but he must, if he returns to that country, be liable to be 
' sued, leaving it open to him to avail himself of any defence 

* which the law of Scotland enables him to set up against 
' these demands.' 

Preacrip- 3, In the third-class of prescriptions — viz., where the limita- 
Sighito the tion enters into the contract, and is to be read as part of it — 
contract ^^ ^^ septennial limitation of cautionary obligations, the 
rule is very simple. The limitation will be given effect to 
when a Scotch cautionary obligation is sued upon in another 
country. When a cautionary obligation entered into in another 
country is sued upon in Scotland, no such limitation is implied 
in the contract, and none will be enforced.^ 

I 11 Wheat. 361, 371, 372. * Richardsonv, Lady Haddington^ 

« 1837. 2 S. and M«L. 682. !^t 'T'l ""■ '^Z ' ^^ t^ 

406. Cf. Sm%th V. Buchanan^ 1800, 

8 1835, 2 Bing. New Ca. 202. Cf. 1 East. 6. 

Wat8<m V. Renton, 1792, M. 4582 ; » Alexander v. Badenach, 1843, 

Bell's 8vo Ca. 92 (p. Lord-President 6 D. 322 ; Scott v. TuiUe, 1831, 5 

CampbeU). W. and S. 436. 


Absence abroad, 

will not found plea of rum valens agere, 102. 
will not bar triennial prescription, 126. 

Acceptors, Joint, of a Bill, 

application of prescription to case of, 172, 173. 

Accession of Possession, 

in case of singular successors, 44. 
in case of heirs, 45. 

Accommodation Bill, 

debtor in, liable, whoever has received value, 172. 

but his claim of relief not affected by sexennial prescription, 166. 


prescription of (see Triennial Prescription), 127. 

Acknowledgement of Debt by Debtor, 

interrupts negative prescription, 109 seq. 

bars triennial prescription, 120. 

bars sexennial prescription, 168. 

effect of when made to wrong creditor, 112. 


interrupts positive prescription, 107. 

or its equivalent, interrupts negative prescription, 108. 

bars septennial limitation, 180. 

bars sexennial prescription, 166 seq. 

bars triennial prescription, 118 seg[, 

bars vicennial prescription, 194. 

Action, right of, 

distinguished from right of property, 82. 

and lost by negative prescription, 2, 79, 82 seq. 

distinguished from claim which founds it, 197. 




for debts not founded on written obligations, 116. 
of removing, ih, 

spuilzie, etc., 115. 
quinquennial prescription of certain, 159. 


a mere right in security, 21. 

until followed by declarator of expiry of the legal, 20. 

clothed with forty years' possession from expiry of the legal, 

a good prescriptive title, 21. 
not a good prescriptive title if forty years run only from 

infeftment and the expiry has not been declared, 22, 
not an ex facie irredeemable title in terms of Conveyancing 

Act, 1874, 23. 
cannot be quarrelled on extrinsic grounds after forty years, 17. 
effect of partial interruption of possession upon, 113. 

Abjudication and Implement, 

right to raise action of, lost by negative prescription, 85. 


possession of, profits proprietor, 40. 

Admission, Judicial, 

how far equivalent to writ or oath of party, 149 seq., 174. 

Adversity of Interest, 

necessarily involved in hegative prescription, 102. 

but not in positive prescription, 100. 

nor in prescriptive consolidation, 59. 

but essential to prescription in cases of double title, 50 seq. 

Age. (See Minority.) 


accounts of (see Triennial Prescription), 128, 130, 131. 

country and Edinburgh, 134, 138. 

disbursements by, 131. 

writ of, how far equivalent to writ of party, 138, 172. 

Agere, (See Non valens agere.) 

Alimentary Debt, 

when susceptible of triennial prescription, 126. 
each term's, whether an independent obligation, ih. 



Annexation Act, 10, 15. 

Annnal-Bents, Annuities, etc., 

do not prescribe through failure to enforce them for forty 

years, 92. 
though their arrears do, id. 
drawn from one of several tenements under the security 

interrupt long prescription, 113. 
quinquennial prescription once found applicable to arrears of, 


Annus deliberandi, 

not to be discounted in triennial prescription, 126. 


heir in, may connect his possession with that of ancestor, 45. 
unless ancestor's title be a bare sasine, ib. 
years of possession on, counted when heir has made up title, 46. 
possession on, abolished by Conveyancing Act, 1874, id. 


of aliment, 126. 

of annual-rents, etc., 92. 

of feu-duties and casualties, ib, 

of house-maills, 126. 

of rents, 156. 

of servants' wages, 127. 

of stipends, 155. 

AxTeBtmentBJurisdictionis fundandae causa, 

prescribed debt will found, 117. 


prescription of (see Quinquennial Prescription), 154. 

Article, Last, 

of an account, triennial prescription runs from, 132. 

Ascription of Possession, 55. 

Assignation of Deb , 

even when intimated, does not interrupt prescription, 109. 

Augmentation of Stipend, 

nature of warrandice against, 98. 



personal, 102, 121, 150, 180. (See Action, Diligence.) 

Baigains conceming Moveables (see Quinquennial Prescrip- 
tion), prescription of, 158. 

Barony, burgh of. (See Burgh.) 

Barony Titles, 

effect of possession upon, 25, 28, 41. 

Base Bights, 

extinguished by positive prescription (see Consolidation), 59. 
to regalia,^ 29. 


claim for aliment of^ arising ex debito naturali not liable to 
triennial prescription, 126. 


minority of, not to be deducted, 103. 
rights of, lost by negative prescription, 89. 


prescription of (see Sexennlax Prescription), 161-177. 


right of, 31, 68. 

Blood. (See Jus sanguinis.) 


debts due for, prescription of, 126. 

Bona Fides, 

no element in positive prescription, 12. 


heritable, not affected by earlier statutes of prescription, 2. 
but struck at by second part of Act 1617, c. 12 (see Negative 

Prescription), 6. 
may be extinguished by failure to demand interest, 92. 


prescription of, 127. 

Books of Debtor, 

how far writ of party, 139, 171. 

INDEX 203 

Bounding Charter or Titles, 

no land can be acquired by possession beyond limits of, 34. 
but salmon fishings, 35. 
and servitudes may, 73. 


real, lost by Negative Prescription (g,v. See also Rever- 
sions), 6. 
obligation to create lost by negative prescription, 89. 

Burgage Tenure, 

prescriptive title in, 15, 17. 

abolished by Conveyancing Act, 1874, 19. 

Burgh of Barony, 

possession as determining rights of inhabitants of, 30 seq^, 
certain rights of, lost by negative prescription, 88. 
claim to servitude by, 68. 

Burgh Royal, 

prescriptive title in magistrates of, 15. 
possession as determining rights of, 30 se(i. 
certain rights of, lost by negative prescription, 88. 
may acquire servitudes by prescriptive possession, 68. 

Oalling of Summons, 

necessary to interruption by action, 108. 

need not be prior to close of forty years, if execution be, \b, 


common, allegation of payment through, 143. 

Oash Advances, 

triennial prescription in relation to, 129, 131. 


feudal, right to exact not lost by disuse for forty years, 86, 
90, 91. 

Cautionary Obligations, 

limitation of (see Septennial Limitation), 178-184. 


may plead quinquennial prescription as well as the tenant his 
principal, 156. 



sufficient to preserve a bill from prescription, 169. 
general, insufficient to interrupt negative prescription, 109. 
homing not followed by, insufficient to interrupt negative 

prescription, Vb. 
threatened, whether suspension of, sufficient to interrupt or 

bar prescription, 109, 169, 194. 


followed by sasine, prescriptive title for singular successors, 14 
broad interpretation of the word, id. 
whether heir bound to produce if extant, 16. 


to burghs, 30 seq^, 

may be lost by neglect, 88. 

Ohurch. (See Patronage.) 

OhurchmaiL (See Dscennalis et Triennalis Possessio.) 


interrupts positive prescription, 107. 
and negative prescription, 108. 
but is no bar to triennial, 121. 
nor to sexennial prescription, 169. 
nor to the septennial limitation, 180. 


septennial prescription of, 184. 


distinguished from action which it founds, 197. 
production of, in multiplepoinding, ranking and sale, seques- 
tration, etc., interrupts or bars prescription, 108, 119 seq,, 
in cognition and sale does not bar triennial prescription, 121, 

dare Constat Precept of, 

sasine proceeding on, prescriptive title for heirs, 16. 
does not import a new investiture, 92. 


advocate^ fees of, 128. 

to a submission, fees of, ib, 

writer's, fees of, ib. 

writ of, how far writ of party, 172. 

INDEX 205 

Ooal (See Mines and Minerals.) 

Oognition and Sale, 
process of, 121. 

Oommission Charges, 

prescription as affecting, 131. 

Oommon Subject, 

exclusive use of, 70. 


title to acting as bounding charter, 34. 


not sufficient to interrupt prescription, 109. 


bound by oath of partner, 136, 137. 
but not when dissolved, 137. 

not bound after dissolution by oath of partner's representa- 
tives, ih, 

Oompensation, Plea of, 

almost always extrinsic to oath, 147, 175. 
right to plead lost by negative prescription, 93. 

Oonjunction of Possession, 
by sing^ar successors, 44. 
by hei^s, 45. 


obligation to, lost by negative prescription, 89. 


does not operate ipsojwe, 58. 
prescriptive, a misnomer, 57. 
for it only amounts to straightforward application of positive 

prescription, whereby a certain title is rendered exclusive 

by lapse of time, plus possession, 57-60. 
implies no adversity of title, 59. 

Constitution of Debt. (See Triennial and Sexennial Pre 

Continuity of Account, 

what coDstitutes, 132-135. 

identity of creditor an indispensable element in, 135. 

effect of debtor's death on, 134. 


ontinuity of Possession (see also Intbrruption), 36, 38, 67. 
in decennalis et triennaiis possession 186. 

Contractor, Fees of, 

as parliamentary witness, 130. 


Negative Prescription {q,v,) applicable to all sorts of, 2, 79 seq. 

Contracts, Foreign, 

effect of prescription on, 196-198. 

Co-obligants in a Bill, 

application of prescription to case of, 172, 173. 

Corporation, Books of, 

equivalent to writ of party, 139. 


claim of one against another not affected by triennial pre- 
scription, 129. 


vicennial prescription of, 188. 


positive prescription runs against, 5, 9. 

negative prescription runs against, 79. 

title of, to teinds singular and secondary, 64. 

Crown Charters, 

as interpreted by possession, 28. 

Curators, Accounts of, 

decennial prescription of, 186. 

Currency of Account (see Continuity), 123 seq, 132, 136. 

Currency of Prescriptive Period (see Interruption), 38, 107. 


right to levy, acquired by possession on charter, 30. 

modified by usage, ib. 

lost by negative prescription, 88. 

Day of Grace, 

sexennial prescription runs from last, 161. 

Death of Debtor, 

its effect upon currency of an account, 134, 135. 

does not interrupt course of triennial prescription, 124, 126. 

INDEX 207 


prescription in certain causes of (see Triennial Prescrip- 
tion), 116. 

Debt contained in a Bill, 

may be sued for after years of Prescription, 163. 

Decennalis et triennalis possessio, 

adopted from canon law, 186. 

establishes a presumption which may be redargued, ib, 

but founds a right of property, ib, 

which, however, is dependent on continuance of possession, ib. 

applies only in the case of ecclesiastics, 187. 

Decennial Prescription of Tutors' and Curators' Accounts, 185. 
extinguishes pupils' and minors' right of action against tutors 

and curators and vice versa, ib, 
runs from date of minor attaining majority, ib, 
does not run against minors, ib. 

Decree of Approbation, 

does not qualify prior final decree of locality, 65. 
but qualifies any subsequent decree, 94. 

Decree of Locality, final, 

good title in minister to stipend, 65. 

and even to overpayments of stipend, ib, 

qualified by prior decree of approbation, ib, 

terminus a quo of prescription in a question between heritors, 95. 

Decree of Locality, interim^ 

makes distress complete in a question of warrandice against 
augmentation of stipend, 98. 

Decree of Valuation by High Court, 
not lost by dereliction, 94. 

Decree of Valuation by Sub-commissioners, 
whether liable to prescription, 93, 94. 

Decree of Sale of Teinds, 

whether liable to prescription, 93. 

Defences, Peremptory, 

risk][that they may not be disposed of first of all, 152. 


negative prescription founded on presumption of, 79, 119. 

Designation to Glebe, 

a good title for prescription, 66. 


Destination in Fee Simple, 

not altered or repudiated by heir making up title as heir of 
of Hue, 52 seg. 

Destination, Tailzied. (See Double Title, Entail.) 


interrupts negative prescription, 109. 

unless informal, %h 

its effect in excluding sexennial prescription, 166 zeq, 

excludes septennial limitation, 180. 

excludes vicennial prescription, 194. 

Disbursements by Law Agents, 131. 

Discharge of Obligation, 

operated by Negative Prescription (g'.».)> ^^' 

Disponee. (See Singular Successor.) 


equivalent to 'charter ' as a prescriptive title, 14. 

Dominant Tenement, 

essential in Servitudes (g, v.), 67. 

Dominium directum. (See Consolidation, Superior, Supe- 

Dominium Utile. (See Consolidation, Superior, Superiority.) 

Dominus uerus, 

one who claims as, entitled to deduct years of minority, 104, 

character of, distinguished from a, jus obligationis, ib. 

Double Title, 

prescription in cases of, 47-60. 

means existence of two distinct investitures in one person, 47. 

where an adversity of interest between the two titles, positive 

and negative prescription co-operate, 47-51. 
no prescription where no adversity, 51-53. 
doctrine of, expounded by Lord Corehouse, 53-55. 
of ascribing possession in cases of, 55-56. 
prescriptive consolidation in cases of, 57-60. 
doctrine of, applied to leases, 61-63. 


right to levy, lost by negative prescription, 88. 

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INDEX 209 


actions of, triennial prescription of, 115. 

Eliding Prescription, 

two senses of the phrase, 125. 


series of, distinguished from solitary transactions, 128, 158. 
ordinary course of, element in triennial prescription, 129-131. 

Engineer, Fees of, 

as Parliamentary witness, 130. 

Engraver, Fees of, 128. 


right of property under, may be lost by adverse possession of 
another on fee-simple title, 48-51, 85. 

jus crediti under, may be lost by negative prescription, ib. 

jus crediti under, constitutes valentia agendi, 48. 

qualifies, and is not adverse to, investiture of maker, 52, 54. 

cannot be fortified by prescription so as to extinguish fee- 
simple title, 53. 

rights of heirs-substitute of, with regard to deducting years of 
minority, 104. 

obligation to execute, extinguished by negative prescription^ 

of a lease, 62, 63. 


right of vassal to, not lost by negative prescription, 86, 87. 


in suistantialibus of a deed, 106. 


in substantialibiis of a deed, 17, 106. 

Eviction. (See Warrandice. ) 
Evidence. (See Oath, Writ.) 
Ex facie nullity, 17, 20, 84, 106. 

Exception to Plea of Prescription. (See Ex facie Nullity, 
Falsehood, Interruption, Mental Disability, Minority, 




change, Bill of. (See Sexennial Prescription.) 

Execation of Smnmoiui, 108. 

Expiry of Legal. (See Adjudication, Legal.) 

Extra-jndicial Intermption, 

of Positive Prescription, 107. 
of negative prescription, 108. 


Extrinflic and Intrinsic ObjectionB to Prescriptive Title, 9, 11, 12, 
17, 106. 

Extrinsic and Intrinsic Quality of Oath (^. v), 144-149, 174177, 


books of, imported into defender's oath, 142. 

fees of, 128. 

payment through, 144. 

writ of, how far equivalent to writ of party, 136, 138, 172. 


exception of, in Act 1617, c. 12, 6, means forgery, and is a 
valid exception to the plea of prescription, 18, 106, 107. 

Fatnous Person. (See Mental Disability.) 

Fee-simple Titles, 

possessor on one of two, cannot prescribe to the exclusion of 
the other (see Double Title, Entail), 53. 

Fees. (See Clerk, Engineer, Engraver, etc.. Triennial Pre- 
scription, Wages.) 


right of, acquired by possession as part and pertinent, 29, 30. 

Fetters. (See Entail.) 


right to exact, not lost by negative prescription, 41, 86, 90, 91. 
but arrears of, lost by negative prescription, 92. 

Feudal, Feudalised, etc. (See Casualties, Leases, Patronage, 
Superior, Teinds, Title.) 


profited by liferenter's possession, 42-44. 

Fishing. (See Salmon-Fishings.) 

INDEX 211 


whether it founds a plea of ncm vaiens agere, 102. 


right to levy tolls at, lost by negative prescription, 88. 

Foreign Oontracts, 

application of prescription to, 196-198. 


good prescriptive title to, 10, 29. 
possession of, 37, 38. 

Forgery. (See Falsehood.) 


not an intrinsic objection to a prescriptive title, 12, 18. 

Fugae Warrant, 

does not exclude sexennial prescription, 170. 


period of, to be deducted from prescriptive period, 106. 


designation to, a good prescriptive title, 66. 


last day of, termirms a gm in sexennial prescription, 161. 

Haeredibus nominandis, 

effect of destination to, 51. 

Harbour Dues, 

right to exact, acquired upon charter of Eoyal Burgh, 30. 
lost by negative prescription, 88. 

Hasp and Staple, 
sasine by, 17. 


prescriptive title available to, 15-17. 

need not produce warrant for infeftment, 16. 

infeftment of, must be renewed where possession is conjoined, 

apparent, possession of, 45, 46. 
substitute of entail have a 71^ agenda 48 seq. 
which may be lost by negative prescription, 85. 


Heirs — continued. 

substitute of entail, their minority not to be deducted, 105. 
for none is preferable to another, ib, 

of entail in possession, their minority not to be deducted, 103. 
retours of. (See Vicennial Prescription.) 

Heritable Bights, 

not affected by earlier statutes of prescription (see Positive 
Prescription), 2, 3. 


rights of, in a question with the minister, 65, 93. 
in a question with one another, 94. 

Holding. (See Tenure.) 

Holograph Writings, 

prescription of (see Vicennial Prescription), 193. 


oath of, not oath of party, 136. 

House Maills, 

prescription of (see Triennial Prescription), 126. 

Identity of Creditor, 

essential element in continuity of account, 135. 

Immemorial Possession, 

forty years' possession equivalent to, 72. 
operating independently of statute law, 72 seq. 

Indorsation of Prescribed Bill, 
carries nothing, 163. 


obligation to, whether a good prescriptive title, 14. 


an essential of a good prescriptive title, 6, 15. 

now replaced by registration, 19. 

does not itself convert adjudication into a right of property, 

in cases of * prescriptive consolidation,' 57. 
unnecessary or inadmissible in certain rights to which the 

statute has been applied, 61 seq, 
following on grant of teinds, 63. 
or of patronage, 66. 
in dominant lands necessary for prescribing a servitude, 67. 

i^iv I m ii 

INDEX 213 


quinquennial prescription of, 160. 


allegation of, in debtor's oath, extrinsic, 175. 

Instrument of Sasine, 

sine qud non of prescriptive title, 15. 
replaced by registration, 19. 

Instrument, Notarial, 

right to expede, lost by negative prescription, 85. 
registration of, as interruption of positive prescription, 108. 

Interest (See Adversity.) 


an accessory of a bond, 92. 

failure to exact, for forty years extinguishes a bond, ib. 

payment of, interrupts negative prescription, 109. 

payment of, proves resting owing of prescribed arrears of 

rent, 157. 
whether payment of, bars vicennial prescription, 194. 
markings of payments of, on back of bill establish debt, if 
dated after the six years, 171. 

International Law, 

prescription in relation to, 196-198. 


a valid reply to plea of prescription, 38, 107-114. 

entirely cancels what of prescriptive period has already run, 

38, 107. 
of positive prescription,' 107. 
either judicial or extrajudicial, ih. 
of public right of way, must last for forty years, 108. 
of negative prescriptioii, ib, 
either judicial by citation, action, or diligence, when action by 

one creditor available to all, 108, 109. 
or extrajudicial by debtor's acknowledgment, 109-113. 
partial, effect of, 113. 
no such thing, strictly speaking, in shorter prescriptions (see 

Action, Bar, Diligence, Pursuit), 117. 

Intrinsic and Extrinsic, 

objections to a title, 9, 11, 12, 17, 106. 
quality of Oath {q.v,), 144-149, 174-177, 194. 



actions of, triennial prescription of, 115. 


curator neglecting to make up, protected by decennial pre- 
scription, 185. 


heir's renewal of old, does not imply repudiation of title under 

a disposition qualifying it, 52. 
new, held to be such repudiation, 53. 
new, precept of dare constat does not imply, 92. 


declarator of, not a claim of property gud veras dominuSy 104, 


acceptors, or obligants, in a bill, how affected by sexennial 

prescription, 172, 173. 
owners, not bound by oath of one of their number, 137. 
reference to oath of two pieirties, 137. 

Judicial Interruption. (See Interruption.) 

Jus crediti 

of heir of Entail {q,v,) lost by negative prescription, 85. 

Ju8 sanguinis numquam praespribitur, 87, 190, 191. 

Jus spatiandi, 

not known to law of Scotland, 70. 


profited by tenant's possession, 40. 

Law Agent, 

accounts of (see Triennial Prescription), 128, 129-131. 


statute extended to, though incapable of feudalisation, 61. 
application of doctrine of double title to, 62, 63. 


right to, extinguished by negative prescription, 89. 
unless saved by admission of trustee, 109. 

INDEX 21 s 


expiry of, does not vest right of property in creditor without 

declarator, 20. 
but prescription running from date of, is equivalent to 

declarator, 21. 


of defender, when proof of debt, 138, 159, 171. 

of factor or agent, when equivalent to writ of party, 136, 138, 

of pursuer allowed to be produced and read, 138, 172. 
but not to be taken as writ of party, 139. 


possession of, profits fiar, 42-44. 

unless he be liferenter by reservation, 44. 

Locality. (See Decree.) 

Locatio operaruniy 

triennial prescription applicable to, 128. 
Long Prescription. (See Prescription, Negative and Positive.) 

Maills and duties, 

quinquennial prescription of, 155. 
house, triennial prescription of, 126. 

llajority. (See Minority.) 


oath of, not oath of party, 136. 


not affected by triennial prescription, 129, 130. 


of pajrment of interest after the six years, establish debt in a 

bill, 171. 


falls under old prescription of obligations, 2. ^ 

Mennia ordinars, 

triennial prescription of, 126. 


Mental DisabUity, 

whether a valid exception to plea of prescription, 102. 

Merchanta' Acconnta, 

distinguished from mercantile accounts, 127. 
triennial prescription of, ii. 

Mines and Minerals, 

actual and continuous possession of, necessary to found a right 

to them where no express grant, 35, 86. 
hut where there is an express grant, possession of surface 

sufficient, 36, 86. 
right to, cannot be acquired on a title that excludes the 

right, 33. 


rights of as against heritors, 65, 93. 
stipends of, quinquennial prescription of, 155. 


not generally deducted from prescriptive period unless ex- 
pressly excepted, 125, 126. 

expressly excepted in long prescription, 6, 103. 

deduction of, acts merely as suspension of course of prescrip- 
tion, ih, 

a purely personal plea, \h, 

only to be used by the person against whom prescription is 
objected, \b, 

or who professes an immediate right to the subject in dis- 
pute, 104. 

cannot be pleaded by heirs substitute of entail, 105. 

to be deducted in cases involving public right of way, Vb. 

how dealt with by Conveyancing Act, 1874, 106. 

excepted in triennial prescription of spuilzies, etc., 116. 

in quinquennial prescription, 160. 

in sexennial prescription, 177. 

in septennial prescription of citations, 184. 

in decennial prescription, 185. 

(by implication) in vicennial prescription of retours, 192. 

in vicennial prescription of holograph writings, 195. 

■••■  • !■ 

 pail ■-■'•TB^^^^^w^'"^ 

INDEX 217 

Minority — contimied. 

not excepted in triennial prescription of merchants' accounts, 

etc., 126. 
in septennial limitation, 184. 


mere possession of, will found a right of property, 3. 
negative prescription applicable only to, 2, 3. 
quinquennial prescription of bargains concerning, 158. 


production of claim in, as interruption or bar to prescrip- 
tion, 108, 119, 121, 168. 


how far payment of will imply title to thirlage, 70. 


right to, acquired by possession on barony title with fishings, 
29, 37. 

Negative Prescription. (See Prescription.) 
Negotiorum gestio, 

triennial prescription not applicable to, 129. 

Nemo potest mutare causam possessionis suae, 21, 34, 41. 

Net and Coble, 

possession by, 36. 

Non dominus, 

conveyance by, made good by prescription, 10, 11. 


right to bring declarator of, not lost by negative prescription, 

Non habens potestatem, 

grant by, fortified by prescription, 10, 15. 


must be proved by pursuer in statutory manner, 141. 

Non-user. (See Negative Prescription.) 







Hon valena agere, 

a competent answer to plea of negative prescription, 102. 
though purely equitable, ib. 

but no answer to plea of positive prescription, 100, 101. 
except in cases of Double Title {q.v,\ 47 seq. 

Nulla saslna, nulla terra, 3, 190. 

^ Nullities in the prescriptive production. (See Extrinsic and 

^ • Intrinsic.) 

,v Numquam praescribitur in falao, 107. 

V Oath, 

in litem, privilege of, cut off by triennial prescription, 116. 
^ "' of party, reference to, imposed as method of proof in triennial 

prescription, 117, 121, 141. 
\ to be construed by the Court, 141. 

\ two tendencies in construction of, 141, 142. 

when documents imported into, 142. 
^ principles of interpretation of, 143. 

extrinsic and intrinsic quality of, 144-149. 

judicial admission, how far equivalent to, 149-153. 

in quinquennial prescription, 157, 158. 

in sexennial prescription, 162, 173. 

quaUty of, 174-177. 

judicial admission in lieu of, 174. 

in vicennial prescription, 194. 


prescription of, introduced by early statutes, 1, 2. 
extinguished by failure to enforce them for forty years (see 
Negative Prescription), 79 seq. 

Obstruct Public Boad, 

right to, cannot be acquired by use, 73. 

Onerosity of Bill, 

proved by reference to pursuer's oath, 175, 176. 

INDEX 219 


payments of interest on a bond cannot be proved by, 109. 

Parsonage Tithes, 

a separate estate, 86. 

therefore not lost by negative prescription, i6. 


oath of, binding on company, 136. 
but not after its dissolution, 137. 

Parts and Pertinents, 

clause of, effect of possession upon, 25. 

possession on, will prevail against express grant, 25, 26. 

but the subject must be strictly and unmistakably possessed 

as part and pertinent of the lands conveyed, 25. 
conflict between two clauses of, settled by possession, 27« 
bounding charter excludes possession of, 34. 
possession on clause of, must be unequivocal and specific, 35. 


right of, positive prescription extended to, 66. 
whether it must be feudalised, ih, 

what amount of possession necessary to give prescriptive right 
to, 67. 

Pasrment of Debt, 

need not be averred by defender on oath, 122, 141, 152, 157. 
by third party, allegation of, 143. 

Personal bar, 102, 121, 150, 180. 

Pignus praetorium. (See Adjudication). 

Poor's Bates, 

triennial prescription not applicable to, 129. 

Poasessio. (See Decennalis.) 

Onus of Proof ^ 

thrown upon pursuer in various short prescriptions, 117, 141, »' 

157, 158, 162, 193. •\ 

Over-paying Heritor, 
rights of, 94, 95. 

Over-payment of Stipend, 

final decree of locality gives minister good title to, 65. 











\ _ 

'^ Possession, 

' V . affords presumption of property in moveables, 3. 

yof' but in heritage must be referable to title, 24. 

y with which it must consist, 33. 

^ of a subject as Part and Pertinent {g[, v,\ 25. 

as determining a right, 27. 
as interpreting Crown grants, 28. 
barony titles, ih, 
/ base rights to regalia^ 29. 

A and charters to burghs, 30. 

^ on a bounding charter, 34. 

must be full, unequivocal, and specific, 35. 
••V continuous, peaceable, and exclusive, 36. 

^ in violation of law will not instruct right, ib. 

^ term of, formerly forty, now twenty years, 38, 39. 

V for forty years presumed to go back to older title, 38. 

either natural or civil, 40. 
of wadsetter for reverser, \b, 
V of tenant for landlord, ih, 

\^ of vassal for superior, 41. 

of liferenter for fiar, 42. 
> conjunction of, 44. 

3^ on apparency, 44, 45. 

on apparency, abolished, 46. 

ascription of, in cases of double title, 55. 

of teinds, 64. 

of servitudes, must be unequivocal, and is the measure of the 

right, 69. 
immemorial without title, 72 seq, 
conditions of in public right of way (9. v.), 75. 
Precept of sasine, 

production of, beyond forty years dispensed with, 4. 


as establishing a right (see Positive Prescription), 1. 

as extinguishing a right (see Negative Prescription), 1, 197. 

as affecting a remedy (see the several Short Prescriptions), 

as qualifying a contract (see Septennial Limitation), 198. 
almost entirely statutory, 1. 
though there are traces of prescription at common law, 72 ^tq^. 

Prescription, Long. (See Negative and Positive.) 

INDEX 221 

Prescription, Negative, 

means prescription pleaded in terms of the second part of Act 

1617, c. 12, 8. 
relation of, to positive prescription, 8, 81. 
the older statutes also to be taken into account, 79. 
means the total loss of a right through neglect to enforce it, 

but does not apply to heritable rights of property, 80 seq. 
nor to res merae facultatis, 86. 
servitudes not res merae facultatis, 87. 
rights affected by the statute, 89 seq. 

as applied to bonds of annuity and bonds bearing interest, 92, 
as applied to teinds, 93. 
to the rights of heritors inter se, 94. 
to reversions, 95. 
to warrandice, 97. 
runs from date when obligation may be enforced, ih. 

Prescription, Positive, 

means prescription pleaded in terms of feudal clause of Act 

1617, c. 12, 8. 
secures progress of titles, 9. 
or determines extent of estate, ih, 
requires titles clothed with possession, ih, 
but not bona fides J 10. 
title for, in case of singular successors, 14. 
in case of heirs, 15. 
title for, must be ex facie valid, 17. 
the sasine must be registered, 18. 
' falsehood,' ih, 

results of modern legislation, 19. 
as applied to cases of Double Title {q. v,), 47. 
as extended to leases, 61. 
to teinds, 63. 
to patronage, 66. 
to servitudes, 67. 
to thirlage, 70. 
to minor feudal rights, 71 n. 

Prescriptions, Short. (See Decennial, Quinquennial, Septen- 
nial, Sexennial, Triennial, Vicennial Prescription.) 


involved in triennial prescription, 119, 123, 125. 


Printer, Fees of, 128. 

Probatis extremis praesumuntur mediae 37. 

Production, Statutory. (See Title.) 

Promissory Notes, 

prescription of (see Sexennial Prescription), 161-177. 


limitation of. (See the several Short Prescriptions.) 


right of, not lost by negative prescription, 80 seq, 
distinguished from right of action, 49, 82, 


notarial, interruption of positive prescription, 108, 
of a bill no bar to sexennial prescription, 169. 


interruption by, 37, 38. 

Public Place. (See Right of Way.) 

Public Right of Way. (See Right of Way.) 


what constitutes, so as to bar triennial prescription, 118. 
the party must truly be inpdUorio, 119. 

Quinquennial Prescription, 
of arrestments, 154. 
now a triennial prescription, ib. 
of stipends, 155. 
of maills and duties, 156. 
only applicable in the case of bond fide tenants, whether urban 

or rural, ib, 
and where the tenant has removed, i&. 
may be pleaded by cautioner for tenant, ib. 
barred by sequestration, i6, 
unless sequestration be in security, iZ>. 
reference to oath of tenant, 157. 
of bargains concerning moveables, 158. 
not applicable to written contracts, ib, 
reference to party's oath or writ, t5. 
of certain actions, 159. 
does not run against minors, 160. 
of inhibitions, 160. 

INDEX 223 

Banking and Sale, 

production of claim in, as interruption or bar to prescription, 
108, 119, 120, 137, 168. 


right of, ri^ merae facultatis, 87. 

Reference to Oath. (See Oath.) 

prescriptive title to, 29. 


of sasine, necessary in good prescriptive title, 18. 

substituted for infeftment, 19. 

of reversion (see Reversions), 96. 

of protest of bill does not exclude sexennial prescription, 169. 


cautioner's right of, 184. 
over-paying heritor's right of, 94. 
right of, on a bill, 166. 
from public burdens, right of, 87. 


distinguished from right which founds it, 197. 


triennial prescription in actions of, 116. 


oath of debtor's, 137. 

Res merae facultatis, 

not subject to negative prescription, 78, 86 
what are res merae facultatiSf 87. 
servitudes are not, ib, 
nor are certain quasi-public rights, 88. 

Res sua nemini seruit, 68. 


procuratory of, production of, dispensed with after forty 

years, 4. 
and sasine contained in one instrument in burgage tenure, 15. 

Resting owing, proof of. (See Quinquennial, Sexennial, 
Triennial Prescription.) 


profited by possession of wadsetter, 40. 



expressly made subject to negative prescription, 6, 95. 
unless incorporated in the infeftment, or registered, ib. 
need not be engrossed verbatim in sasine, 95. 
limited in point of time, how long they qualify titles in which 

they are engrossed, 96. 
even when registered, extinguished in practice by negative 

prescription, ib. 

Bight, heritable. (See Positive Prescription.) 

immediate, must exist in person pleading minority, 103, 
moveable. (See Negative Prescription.) 
of action distinguished from claim which founds it, 197. 
of property distinguished from right of action, 82 seq. 

Bight of Way, public, 

distinct from servitude of passage, 74. 

independent of statute, ib, 

constitution of, depends not on implied grant, but upon open 

assertion, 75. 
entry and ish, ib, 
at public places, 76. 
definite track, 77. 

must be possessed for whole prescriptive period, 78. 
may be lost by disuse for forty years, 108. 
is not res rnerae facultatis, 87. 
property of solum remains in proprietor, 78. 
minority in questions of, 105. 

Salmon Fishings, 

right to, acquired by possession on Crown charter, cum pis- 

cationihis, 28, 36. 
or on barony title, 25, 28, 41. 
or on base right to salmon fishing or fishings, 29. 
possession of, must generally be by net and coble, 36. 
may be acquired beyond limits of bounding-charter, 35. 


indispensable as title for prescription, 15. 
warrant for, must be produced, ib, 
except in case of heirs, 16. 
must be registered, 18. 

superseded by registration of conveyance or notarial instru- 
ment, 19. 

INDEX 225 


salary of, 129. 

Septennial Limitation, 

of cautionary obligations, 178-184. 

extinguishes cautionary obligation after seven years, 179. 

unless diligence done or action raised against cautioner during 

the seven years, 180. 
relation of two clauses of statute, ih, 
bond of relief must be intimated, 181. 
cautionary obligations where term of payment postponed 

beyond seven years not entitled to benefit of Act, 182. 
years of minority not to be deducted, 184. 

Septennial Prescription, 

of Citations, 184. 

does not run against minors, ih. 


production of claim in, interrupts negative prescription, 108. 
bars quinquennial, 156. 
and sexennial prescription, 168. 

election of trustee in, prescribed debt or bill will not entitle 
creditor to vote in, 117, 162. 

Servants' Fees, 

triennial prescription of, 127. 


positive prescription of, 67-70. 

perhaps truly independent of statute, 73. 

positive, may be acquired by prescriptive possession, 67. 

upon title to dominant tenement, ih, 

extinguished when both tenements come into the same hands, 68. 

as enjoyed by burghs, ih, 

charter of Royal burgh, but not burgh of barony, sufficient 

title for acquiring, ih. 
possession of, must be unequivocal and is the measure of 

the right, 69. 
must be one known to the law of Scotland, 70. 
may be acquired over lands outside limits of bounding-charter, 73. 
is not res Tnerae faadtatisy 87. 
and therefore may be lost by disuse though engrossed in titles 

of both tenements, ih. 


Sexennial Preflcription, 

of bills and promissory notes, 161-177. 

Urmvm& a quo in, 161. 

destroys bill as document of debt, 162. 

though debt may be sued for after the sexennmm^ 163. 

and the bill produced as an adminicle of proof, ib, 

whether barred by action and diligence, 166 seq. 

barred by nothing short of action or diligence, 169. 

writ of debtor dated within sexennium worthless as proof 

unless it founds an independent obligation, 170. 
debtor's writing need not be probative, 171. 
bill ceases to be imum quid after six years, 173. 
debtor's oath, ib. 

effect of oath of one co-obligant as against the others, ib. 
conflicting tendencies in interpreting oath, ib, 
judicial admissions in lieu of oath, 174. 
extrinsic quality of oath, i5. 
intrinsic quality of oath, 176. 
years of minority not counted, 177. 


infeftment in, good title to salmon fishings, 28. 

Ship's Owner, 
oath of, 136. 

Shop-Keeper. (See Merchant's Accounts.) 

Short Prescriptions. (See Decennalis et triennalis possessio, De- 
cennial, Quinquennial, Septennial, Sexennial, Triennial, 
Vicennial Prescription.) 

Single Transaction, 

whether triennial prescription applies to, 128, 129. 

Singular Successor, 

prescriptive title available to, 14 seq. 
conjunction of possession by, 44. 


pay of, 129. 


actions of, triennial prescription of, 115. 


final decree of locality good title to, 65. 

overpayments of, 65, 94. 

augmentation of, nature of warrandice against, 98. 

INDEX 227 


fees of, 128. 


whether decree of valuation of teinds by, lost by dereliction, 93. 


general, does not interrupt negative prescription, 109. 

nor bar sexennial prescription, 169. 

particular, interrupts negative prescription, 109. 

and bars triennial, 119. 

and sexennial prescription, 168. 

Substitute Road, 77. 

Sub-valuation. (See Sub-Commissioners.) 


can only lose his right by vassal possessing for prescriptive 

period on charter from another, 10, 11, 12, 42, 86. 
may prescribe against his vassal, 24. 
profited by vassal's possession, 41. 


of teinds, 11. 

disposition of, may be a good title to dominiuifa viile^ bl seq, 
unless it expressly convey the superiority only, 33. 

fees of, 128. 

Surrender Teinds, 
right to, 65, 87. 


vesting by, 46. 


of threatened charge, probably no interruption of negative 
prescription, 109. 

nor bar of sexennial, 169. 

nor vicennial prescription, 194. 

though production of bill in a process of, bars sexennial pre- 
scription, 169. 

of charge, does not interrupt prescription of arrestments, 154. 

of charge upon prescribed bill, 163. 


what sort of, fall under quinquennial prescription, 156. 

Tantum praescriptum quantum possessum, 69, 77. 



extension of positive prescription to, 63-66. 

whether title to, must be feudalised, 63. 

there must be a title to, 64. 

title of Crown to, singular and secondary, 64. 

title to, clothed with possession, unassailable, 65. 

possession of, may interpret title, ^^. 

possession of, must consist with title, \b, 

decree of sale of, not lost by negative prescription, 93. 

application of negative prescription to, 93-95. 

effect of valuation of, 93. 

right to surrender, 65, 87. 

superiority of, 11. 

Temporalia ad agendum, etc, 93. 
Tempua ex suQpte natura, etc., 17. 


possession of, profits landlord, 40. 

cannot prescribe right of property against landlord on his taLck,ib. 
only bond fide tenant, and one who has removed, can plead 
quinquennial prescription, 156. 


in what sense it may be altered by prescription, 42, 92. 

Terminus a quo, 

in negative prescription, 96, 97. 

in sexennial, 161. 

in triennial, 116, 132 seq. 

in vicennial prescription, 194. 


application of positive prescription to, 70. 


an essential condition of the Positive Prescription {q,v.\ 9. 

must be clothed with possession, 12, 24. 

when so clothed, impregnable, 9. 

statutory, available to singular successors, 14. 

available to heirs, 15. 

must be ex facie valid, 17. 

extrinsic and intrinsic objections to, 17, 106. 

required by Conveyancing Act 1874, 19. 

of adjudger, 20. 

possession must be referable to, 24. 

INDEX 229 

Title — continv^d. 

with clause of parts and pertinents, 25. 

explained by possession, 28. 

right claimed must consist with, 33. 

eflfect of bounding, 34. 

double. (See Double Title.) 

to teinds, 64. 

to stipend, 65. 

to patronage, 66. 

to servitudes, 67. 

to thirlage, 70. 

unnecessary in certain cases of prescription, 72 seq. 

particularly in right of way (q.v.), 74. 


inferring dereliction of right, 88. 
inconsistent with right of way, 76. 


right to levy, acquired by positive prescription, 30. 
lost by negative prescription, 88. 

Tradesmen's accounts, 128. 

Triennial Prescription, 

of arrestments, 154. (See Quinquennial Prescripion.) 

in actions of spuilzie and ejection, 115. 

cuts off privilege of oath m liteniy 116. 

in causes of removing, 116. 

in certain causes of debt, 116-153. 

ties down creditor to proof by writ or oath of his party, 117,121. 

what constitutes pursuit so as to bar, 118 seq. 

rigid interpretation, 117. 

and broad interpretation of Act 1579, c. 83, 120. 

operates on a closed account, 123, 132. 

debtor need not outlive allotted period of general proof, 125. 

what ' eliding ' means, ib. 

runs against minors, 126. 

applies to house maills, 126. 

to men's ordinaries, ib. 

to servants' wages, 127. 

to merchants' accounts, tb, 

and to other the like debts, ib, 

probably applies to claim founded on single transaction, 128. 


Triennial Prescription — continiied. 
debts not affected by^ 129. 

affects only debts incurred in ordinary course of employment, ib, 
account generally taken as a whole, 130. 
though sometimes broken up, ih, 

does not apply to debts founded on written obligation, 132. 
continuity of account a matter of fact, 133. 
death of debtor closes account, 134. 

identity of creditor necessary to continuity of account, 135. 
what * party' means, 136. 
writ of party need not be probative, 137. 
how far account books are writ of party, 139. 
date of writ, ib. 
oath of party, 141. 

need contain no allegation of payment, 122, 141. 
onus thrown on pursuer, 141. 
Court construes oath, ib. 
two tendencies in interpretation of oath, ib, 
documents imported into oath, 142. 
principles of interpretation, 143. 
extrinsic and intrinsic quality of oath, 144. 
compensation, 147. 

qualification of admission of constitution, 147. 
judicial admission accepted in lieu of oath, 149. 
doubts whether it should be so taken, 152. 


misapplication of funds, or non-fulfilment of purposes of, not 

sanctioned by prescription, 33. 
rights under a, lost by negative prescription, 89. 


oath of, may prove resting owing of debt, 173. 

Tutorial Accounts, 

decennial prescription of, 185. 


as interpreting a grant, 31. 

Valentia Agendi, 

consists in a legal not a physical ability, (see Non valens agerb), 

INDEX 231 

Valuation. (See Decree.) 


cannot prescribe against superior on his charter, 33. 
possession of, profits superior, 41. 

yeruB Dominus, 

character of, distinguished from Ajvs ohligationisy 104, 105. 

Vesting by survivance, 46. 


lost by negative prescription, 86 

Vicennial Prescription, 
of crimes, 188. 

of holograph writings, 193-195. 
destroys their probative character, 193. 
and throws on pursuer onus of proving their genuineness by 

writ or oath of defender, ih, 
excluded by action or diligence within the twenty years, 194. 
doubtful if barred by rei interventus, tb. 
does not run against minors, 195. 
of retours, 189-192. 

how reconciled with positive prescription, 190. 
renders the verdict in a retour resjudicatay 191. 
unless the retour be ex facie invalid, or, possibly, fraudulent, ih. 
held not to run against minors, 192. 
how dealt with by Conveyancing Act, 1874, ib. 


possession of, profits reverser, 40. 


triennial prescription of, 127. 
each term's, a separate debt, ib. 


in actions of removing, 116. 


negative prescription of actions of, 97-99. 
runs only from date of distress, 6, 97. 
effect of partial eviction in extinguishing, 97. 
whether there are two sorts of, 98, 


right to dam, 73. 



oath of, whether oath of party, 136. 


of party, statutory proof hy, in triennial prescription, 117, 

need not be probative, 137. 

need not, to prove debt, expressly admit constitution, 138. 
whether factor's writ equivalent to, iJ. 
whether account-books equivalent to, 139. 
must contain clear reference to particular debt, 138. 
need not be dated within three years, 139. 
of pursuer, may be read along with writ of party, 138. 
but is not equivalent to it, 139. 
of party in quinquennial prescription, 157, 159. 
of party in sexennial prescription, 170-172. 
dated within six years proves nothing, unless it founds an 

independent obligation, 170, 171. 
need not be probative, 171. 

but must be specifically applicable to debt in question, \h. 
whether writ of factor equivalent to, 172. 
explained by writ of creditor, ih. 


holograph, vicennial prescription of, 193-195. 

Written Obligations, 

not affected by triennial, 132. 

nor by quinquennial prescription, 158. 

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