Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION XV.

Interruption of the Negative Prescription.
Subject_3 SECT. I.

What diligence sufficient. - Effect of partial interruption.

Muir of Rowalland
v.
Lawson

Date: 11 February 1673
Case No. No 417.

The execution of a summons, altho' it did not particularly specify the action, found to interrupt prescription. See No 402. p. 11241.

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One of Rowalland's predecessors being infeft in a tenement of land in Tweeddale, which was possessed by the Earl of Morton, and by progress from him is now possessed by Lawson of Kairnmoor and others; this Rowalland's grandfather did, in the year 1630, infeft himself as heir to that predecessor, and raised reduction against the Earl of Morton upon the priority of his right. Now, this Rowalland insists in the reduction, against whom the defenders alleged prescription; and the pursuer having replied upon interruption by his summons of reduction anno 1630 against the Earl of Morton; it was alleged against the executions of the summons, that they were in schedules apart from the summons; and that they did not express the pursuer, but only bore, that the messenger passed at command of the within written letters, raised at the instance of the pursuer within designed, so that the Earl of Morton being then a man of great estate and interest, being treasurer, and the year 1630 being the last of the 13 years granted by act of Parliament for interruption of old rights, there is no doubt but many interruptions have been used against him, so that the executions of any summons of reduction against the Earl of Morton in anno 1638 might be made use of, and unwarrantably applied to this summons, which were neither just nor favourable, the lands having passed for competent prices through many hands, and the pursuer having never insisted since the year 1630, till of late. It was answered for the pursuer, That he oppones the executions in the common and ordinary style, and the possibility of applying of these executions is of no moment; but that these were the executions of this summons is evident; 1st, Because the pursuer's grandsire being then a man of great age, and long before infeft in his estate, did serve himself heir, and infeft himself in these lands in anno 1630, the last year allowed for interruptions, and did raise this summons of reduction, bearing himself to be pursuer, and the Earl of Morton defender in this very cause; and immediately after the date of the summons, there are three executions against the Earl, one at Dalkeith, one at the cross of Edinburgh, another at the pier and shore of Leith, he being then out of the country; and in anno 1632, the pursuer's grandfather did assign the summons of interruption and executions to the pursuer's father; and that he did not insist, imports nothing, seeing he insisted within 40 years; and there is nothing more odious than prescription, or more favourable than interruption thereof, which is frequently sustained, though the process be null, and can have no other effect but interruption.

The Lords sustained the executions to infer interruption, the pursuer deponing that he received the executions from his father, or found them amongst his writs, with the summons, and that he knows them not to belong to any other summons.

Stair, v. 2. p. 170.