IN the Eſſay upon the Beneficium ceden⯑dendarum actionum, we have endea⯑voured to lay down, after what Man⯑ner Creditors catholick and ſecondary are to draw their Payment from the ſeveral Perſons, and out of the ſeveral Subjects bur⯑dened with their Debts. The Deſign of this Eſſay is to lay down ſome Rules for extricating the Pre⯑ferences of Creditors and Diſponees competing upon the ſame Subject. In the firſt Eſſay the Que⯑ſtion is, Having given the Order of Preference, to determine the Method of drawing Payment out of the different Funds, and from the different Per⯑ſons liable in the Debts. In this the Queſtion is, Having given the Fund to determine the abſolute and partial Preferences, and what each Competitor ſhall draw?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

'Tis commonly held, That a Right of Peerage does not ſuffer the negative Preſcription: But of this there may be a Doubt. It cannot be put upon the Footing of a perſonal Quality, ſuch a one as no Perſon has an Intereſt to object Preſcription againſt; becauſe the firſt Peer being removed, the ſecond in order attains the firſt Place. 'Tis true, Peerage is not a Burden upon any Perſon or Thing; but nei⯑ther is Property; and yet by the Law of Nature, it ſuffers the negative Preſcription: Our Law indeed, in favorem, reſtores the former Proprietor to his Right; but that Favour cannot be pled in this Caſe, more than in that of a Creditor: There is no Reaſon for reſtoring one Peer againſt another, more than for reſtoring a Creditor againſt his Debitor. It can⯑not be put upon the Footing of a Faculty, to be ex⯑erced quandocunque. A Right of Peerage is of the Nature to be capable of Neglect and Dereliction, as well as a Right of Property, or of Credit. Laſt⯑ly, Tho' jus ſanguinis preſcribes not, which might be reckoned of the ſame Nature with this in Que⯑ſtion, that holds only, where it is jus tertii for any Mortal to make the Objection; no Perſon ha⯑ving an Intereſt to hinder an Heir to repreſent whomever of his Prdeceſſors. If the Right taken up by the Heir be of the Nature of an Obligation, the quondam Debitor ſuffers nothing, becauſe he is [121] already free, by the negative Preſcription; if a Right of Property, the preſent Poſſeſſor is ſafe, by the po⯑ſitive Preſcription; and if that be not run, the Heir has Acceſs upon a ſeparate medium, to wit, That Property preſcribes not negatively; if it be a perſo⯑nal Faculty, that interfeirs not with others, or if it be of that Nature to be exerced quandocunque there is nothing to hinder the Heir to take it up. Now this applies not to a Right of Peerage, the Preſcrip⯑tion of which third Parties have Intereſt in equally, as where the Preſcription is of Obligations.

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

The negative Preſcription of annual Preſtations is a Subject abſtruſe in itſelf, and not at all clear'd by Writers or Deciſions. To avoid the Labyrinth theſe naturally lead us into, it will be the beſt Way to abſtract from them for the preſent, and endea⯑vour to draw our Concluſions from well founded Principles. To begin, we ought nicely to diſtin⯑guiſh amongſt four Things. 1mo, The Contract, or other legal Deed which is the Cauſe, and where⯑by the Right is eſtabliſhed. 2do, The Writing, which is the Evidence. 3tio, The Right it ſelf e⯑ſtabliſhed. 4to, The Conſequences of the Right. For Example, in a Loan of Money, the Fact of De⯑livery of the Sum lent to the Debitor with his Con⯑ſent to repay is the Cauſe. The BOnd is the Evi⯑dence. There is a Right of Credit eſtabliſhed; the Conſequences are, 1mo, A Power to oblige the De⯑bitor to repay the Sum quandocunque. 2do, A Power to oblige him to pay Annualrent in the mean Time. Of theſe four 'tis the Right itſelf that is the proper Subject of Preſcription. 'Tis obvious, that Conſent or Evidence are not capable of Pre⯑ſcription. And as for the Conſequences of the Right, if the Right itſelf remain firm and unſha⯑ken, its Conſequences are a Shadow that muſt ever attend the Subſtance. If the Right itſelf fall, 'tis bootleſs to talk whether the Conſequences be pre⯑ſcribed, ſince a Shadow cannot exiſt without the Subſtance. Having gained this Point, that the Right itſelf is the proper Subject of Preſcription, let us now put the Caſe of a Sum of Money lent, repayable at two different Terms; the Creditor in⯑ [...]ſts for Payment forty Years after the firſt Term's [123] Payment fell due, but within forty Years of the ſe⯑cond Term. Quaeritur, Whether the remaining Half that fell due the ſecond Term, can yet be ex⯑acted? The Anſwer is, That it cannot, becauſe the Right itſelf, the jus crediti is cut off by Pre⯑ſcription; after which there can be no Purſuit upon the Bond. The Creditor has been negligent for the Space of forty Years, ſince the Time that Acti⯑on was firſt competent thereupon, the Law from this infers, that he has derelinquiſhed his Right, which brings him to the ſame Situation as it ne⯑ver had been granted; the Right itſelf falls with all its Conſequences. Upon the ſame Medium it is, that a Bond bearing Annualrent having lien over forty Years, not only the principal Sum, but all the intermediate Annualrents fall to the Ground, tho' none of them have been due forty Years, and poſ⯑ſibly ſome of them not a ſingle Month. Thus the Matter was determined in the Roman Law, and up⯑on the ſame Principles. See L. 26. C. de Uſur. The Words are, Eos, qui principali actione per exceptio⯑nem triginta, vel quadraginta annorum, ſive perſo⯑nali, ſive hypothecaria ceciderunt [jubemus] non poſſe ſuper uſuris, vel fructibus praeteriti temporis ali⯑quam movere quaeſtionem, dicendo ex iiſdem tempo⯑ribus eas velle ſibi perſolvi, quae non ad triginta, vel quadraginta praeteritos annos referuntur, aſſeren⯑do ſingulis annis earum actiones naſci: principali enim actione non ſubſiſtente, ſatis ſupervacuum eſt ſuper uſuris, vel fructibus adbuc judicem cognoſcere. From the ſame Principle it flows, that if a Credi⯑tor take Document upon his Right, the Right it⯑ſelf is ſafe from Preſcription with all its Conſequen⯑ces; which is inſinuated in the firſt Act anent Pre⯑ſcription, and cleared by Practice. Thus negative [124] Preſcription is ſaved as to the whole, the Creditor doing Diligence againſt any one of the Principals or Cautioners. Stair, Dirleton, 18th December 1667, Nicolſon contra Laird of Philorth. Forbes 23d Fe⯑bruary 1714, Earl of Marchmount contra Home. Thus in an Infeftment of Annualrent reaching two Tenements, Diligence done againſt the one, or Pay⯑ment made by the Debitor, ſaves Preſcription as to both, which was found, though the Annualrent was conſtitute upon the two Tenements by two diffe⯑rent Saſines. Stair, Gosford, 22d June 1671, Lord Balmerino contra Hamilton. The like in a Thir⯑lage of omnia grana creſcentia eſtabliſhed by Writ, where it was found, That the Defender having grind⯑ed a Part of his Corns at the Mill to which he was thi [...]ed, this was ſufficient to ſupport the Aſtriction for the whole; tho' there was a Deſuetude as to ſome Particulars comprehended in the Writ, above the Space of forty Years. Durie, 26. June 1635, Laird of Waughton contra Home. All which tend to ſhew, that there is no ſuch Thing as a diſtinct Preſcription of the Conſequences different from that of the Right itſelf. All tends to this Point, ‘"The Right itſelf falling, it falls with all its Conſe⯑quences; the Right itſelf being ſupported, it is ſupported with all its Conſequences."’ It follows alſo as a plain Conſequence of the ſame Principle, That if a Creditor take Document upon his Bond, by receiving Payment of any Year's Annualrent, or any Part of the principal Sum, this muſt be a good Inter⯑ruption not only as to the principal Sum itſelf, but as to all preceeding Annualrents; becauſe the Right is thereby ſupported, which ſupports all its Conſequen⯑ces. And ſo it was determined, Stair 22. July 1671, Blair contra Blair. This Deciſion indeed was thereafter altered, 7th February 1672 inter eoſdem, [125] and the quite contrary found. Upon this reaſon⯑ing, that though Payment either of the Principal or Annualrent, does interrupt Preſcription of a Bond as to the principal Sum; yet the Annualrent be⯑ing annua praeſtatio, every Year does infer a diſtinct Obligation, and every diſtinct Year's Annualrent does preſcribe by forty Years Silence: So that the Payment of the ſubſequent Annualrent, or a Part of the Principal, does not interrupt the Preſcription of any ſingle bygone Year's Annualrent, if there was no Purſuit upon that Year's Annualrent during the Courſe of Preſcription. I cannot perſuade myſelf that this is juſt Reaſoning. The Error ſeems to lie here, that every Year's Annualrent is conſider⯑ed as a diſtinct principal Obligation, not depending upon, or conſequential to the Right whereby the principal Sum is eſtabliſhed; whereas it is as di⯑rect a Conſequence of the Right of Credit, as the Penalty is, or any other acceſſory Stipulation. To try this reaſoning, let us examine where it will car⯑ry us. The Obligation for Annualrent is a di⯑ſtinct principal Obligation; therefore it is not in⯑terrupted by Document taken upon the Right for the principal Sum. Therefore, 2do, Of neceſſary Conſequence it preſcribes not with the principal Sum, but has its own ſeparate Preſcription. And ſo though a Bond be cut off by a forty Years Ne⯑gligence, all the Annualrents within the forty Years may yet be demanded, expreſly contrary to the above Text of the Civil Law, founded in the moſt ſolid Principles. To ſum up this Diſpute, the whole comes here, if Annualrent be a diſtinct principal in⯑dependent Obligation, it muſt have a ſeparate Pre⯑ſcription from that of the principal Sum, whereby the principal Sum may be preſcribed while the by⯑gone [126] Annualrents remain due; and Preſcription of the principal Sum may be interrupted without interrupt⯑ing the other. If Annualrent be an Acceſſory, a Conſequence depending upon, and flowing from the jus crediti, eſtabliſhed by the Bond and Contract in the Purſuer's Perſon, which it unqueſtionably is, both the above Poſitions muſt be wrong; Preſcrip⯑tion of the one muſt cut off the other, and Inter⯑ruption of the one ſupport the other, equally as in the Caſe of Infeftment of Annualrent eſtabliſhed over two Tenements, or againſt two Debitors; and yet Payment by one Debitor, or out of one Tene⯑ment, is juſt as diſtinct a Preſtation from the Pay⯑ment made by the other Debitor, or out of the other Tenement, as the Preſtation of Annualrent is diſtinct from that of the principal Sum or Penalty.

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

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

To fortify this, let us apply to the natural No⯑tions of Mankind, whether they are not apt to conſider a Right obtained by one Conſent in one Deed, as one? Whether of judging of one's own Ne⯑glect, he does not take it from forbearing to purſue upon the Deed the Contract, without dreaming to diſtinguiſh the particular Preſtations therein?

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

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

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

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

If now the Matter be put upon this Footing, ‘"That by the Law of Nature, all Sorts of Rights fall by the negative Preſcription, and among the reſt Right to Lands and Teinds; and that our Law, when it reſtores Proprietors againſt this Preſcription, does it not totally, but only as to Bygones within 40 Years, and in Time to come."’ The Difficulty is, 1mo, That this is but an arbitrary Scheme. For taking the Thing in this View, it appears more reaſonable, that the Preſcription ſhould be allowed to run with Reſpect to the whole Bygones [133] from the preſent Time. For truly the Neglect and Dereliction would infer ſo much equally, as in the Caſe of a Bond bearing Annualrent, in which the Annualrents within 40 Years fall by Preſcription, as well as the Bond itſelf. And when we take a View of the Reaſon, why Right to Lands falls not by Preſcription, the Objection will appear in a ſtronger Light. A Man by our Law is reſtor'd to his Property, where it is not acquir'd to another by poſitive Preſcription, becauſe the former Pro⯑prietor is in a more favourable Caſe than the Fisk or firſt Occupier: But there is no Reaſon he ſhould be reſtor'd to Bygones, ſeeing Liberation is more favourable than Obligation, eſpecially taking along that Neglect on the one Side, with⯑out bona fides on the other, is ſufficient in the negative Preſcription. If then this Scheme come out to any Thing, it muſt come out thus, That Property in Lands is loſt by the negative Preſcription, as well as other Rights, whereby all its Conſequences and Acceſſories fall of Courſe. But that our Law ob favorem gives back the Property, as by a new Right, unleſs it has been acquir'd to another by Preſcription. 2do, There is another ſtrong Ob⯑jection againſt the Scheme, which cuts off the By⯑gones only preceeding 40 Years. Which is, That as the Law is ſuppoſed to reſtore the Proprietor to the Bygones within 40 Years, becauſe of his Ne⯑glect with Reſpect to theſe of an older Date, It muſt follow, that if he has purged his Neglect by uplifting any Year's Duty within the 40 Years, ſuch a Document taken upon his Right muſt be an Interruption, even as to Bygones, for 40 Years pre⯑ceeding the Date thereof. Now this will ſcarce be allowed, the contrary is the received Scheme, ſciz. [134] That every Year's Preſtation runs a diſtinct Courſe of Preſcription; and therefore, that the uplifting of one Year's Duty will not ſave another.

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

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

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

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

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

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

Of the poſitive Preſcription.

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

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

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

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

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

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

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

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

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

If this hold, and upon a Review, I cannot find but it is ſolid, the Diſtinction above laid down by the Commentators muſt fall to the Ground as with⯑out any Foundation. If the Defunct's Poſſeſſion was as Colonus or Commoditarius, the Action loca⯑ti conducti, or Commodati competent againſt him, muſt be good againſt his Heir for ever, until they fall by the negative Preſcription. 'Tis true the Heir may believe, that the Subject belonged to the Defunct in Property; but then it is not every vague Opinion any how taken up, that will found the bona fides neceſſary for Preſcription. It muſt be a ſolid Belief founded upon good Reaſon. An Heir can never have a ſolid bona fides, as to any Subject deſcending to him from the Defunct. For ought he knows, it may belong to another, no Body has told him otherwiſe; it may be given or pro⯑miſed away; it may be burdened with Debt. The very Title of Heir obliges him to ſubmit to all theſe Chances; which, as above laid down, effectually [147] excludes that Security, that bona fides, which is abſolutely neceſſary in every Acquiſition by Pre⯑ſcription. It muſt be obvious then, that this Di⯑ſtinction betwixt a bona fide and vitious Poſſeſſion, can ſignify nothing at all as to the Queſtion in Hand.

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

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

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

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

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

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

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

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

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

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

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

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

The ſeveral Caſes of non valens agere.

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

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

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

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

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

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

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