Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo .

Captain Hamilton Blair
v.
The Feuars of Kerseland

Date: 10 December 1754

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[Kaimes, No. 70; Fac. Col. No. 118.]

In this case the Lords found, after a full hearing of two days of the lawyers, and a third day's hearing of one another, that the positive prescription did not run against minors; dissent. President and Kaimes, Woodhall and Shualton.

The President said that he had been very much perplexed about this question since he first began to study law; that Justinian, and the interpreters of the Roman law who have written since his time, have made a confusion betwixt usucapion and prescription that is inextricable. By Justinian's constitution, a thing was usucapt in ten or twenty years, tit. Cod. De Transformando Usucapione, yet the action rei vindicalio was not lost to the former proprietor but by the prescription of thirty years. The same confusion, he said, was in our law betwixt the positive and negative prescription, which are confounded in the Act 1617, and by our authors who treat of them: That what determined his judgment in the matter was the decision, 24th December 1728, Presbytery of Perth against Magistrates of Perth, Dict. tit. Prescription, p. 98, where it was found that the action rei vindicatio is not cut off by the negative prescription of forty years, if another has not acquired the property by possession on a good title: That this decision showed him that the foundation of our prescription was not the negligence of the proprietor, in which case it might be interrupted by minority, but some other foundation, which he thought, in the case of the positive prescription, was, that a man who had possessed forty years upon charter and sasine had anterior rights, which were destroyed by fire or any other accident. Now, from a prescription of this kind', founded not upon negligence, but upon such a presumption, there is no reason why minority should be deduced.

Upon this it may be observed, that there is no contradiction betwixt the property being transferred by usucapion in ten or twenty years, and the general rule of personal actions lasting thirty years; because the rei vindicatio must, by the nature of the thing, be an exception to that rule, since it can last no longer than the right of property in which it is founded. The case is different with respect to the hypothecary action, which, by the Roman law, lasts after the debt is prescribed; L. 2, Cod. de Evictione Pignoris; vide Decis. Frisic. Zach. Huber. Observat. 28: but the reason is also different: That it is indeed better, when, as in our law, the right of property and the right of action prescribe in the same time; and it would be introducing a kind of dissonance and absurdity to make the prescription of the action to be interrupted by minority, and yet not the prescription of the thing; so that a man may have lost his estate by prescription, and yet not have lost the right of action for recovering of that estate: That all that was decided in the case of The Town of Perth is, that the præscriptio longissimi temporis does not take place with us, and that nothing can be acquired by possession, according to the law of Scotland, without a just title; that is, in other words, that we have no prescription of rights of property except usucapion; so that nobody can lose his right of property except somebody else acquire it. And this decision was according to good principles; for while I retain my right of property, it is impossible that the action rei vindicatio can ever prescribe; or, vice versa, the property being lost, the action must also be lost. It does not therefore follow, from this decision, that our prescription is not founded on negligence, but that we have no prescription at all of this kind. Supposing that positive prescription were to be founded upon the presumption mentioned, yet it would not follow that this presumption ought to take place against minors: our positive prescription would still be an adjectio dominii by continuance of possession. Now, why should that possession run against minors, or why should not they be saved against prescription of their lands as well as of their obligations?