Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 An adjudication being led against two distinct subjects, but no infeftment taken; so that it remained a personal right, and possession maintained only upon one, - the right to the other found to be cut off by the Negative Prescription.

William Robertson
v.
Janet Robertson

Date: 2 August 1770

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, V. p. 105; Dictionary, 10,694.]

Monboddo. The only argument for the pursuer is from the decision in 1671, Balmerino. I think that decision erroneous, and that the Court did not make a proper distinction between the debt and the jus hypothecæ.

Coalston. I doubt as to all the points. Do not think that the negative prescription has run. In a question with the debtor, possession as to part, by adjudication, will interrupt as to the whole. There is no pretence for the positive prescription: the possession of the author, before the date of the disponee's right, can never come in computo.

Pitfour. I have ill-will to quit with the decision of Balmerino, because of old acquaintance. I do not regard the authority of a decision of yesterday, further than as I am led to it by my respect to the judges who pronounce it. But an old decision is of more weight: it has the acquiescence of the nation, otherwise there would be nothing but a jus vagum et incertum. The case of Balmerino does not apply. Here I go upon the negative prescription. A disposition, irredeemable, without infeftment, cannot save from the negative prescription. In a right of property there is no unity, as in a right of annual-rent.

Kaimes. I have no idea that old Thomas's possession can come in computo. So, positive prescription is out of the question.

Auchinleck. It is extraordinary that this pursuer, who has lain by for 40 years, should be allowed to come in upon the adjudication, and take a second crop of it. Possession of one part upon a right of security will save as to the whole. But here there is a right of property, if it is any thing. Here one tenement kept. The reserver did not object; which he might have done had possession been taken of both tenements. When one does not follow out his right, the reverser is safe. An adjudger has only a personal right till infeftment is expede: here no infeftment even at this date. There is nothing to hinder the other party from taking infeftment.

Monboddo. I considered the decision of Balmerino as a single decision. It would be extraordinary if the creditor, by possessing one part, should, at the distance of forty years, or even of an hundred years, have recourse upon the rest. Take the adjudication as you will, prescription is run. If an adjudication is a right of property, the negative prescription will not apply, but the positive will. Thomas Robertson was in the course of acquiring by the positive prescription. The disponee from him may plead the prescription begun in his person. Upon the supposal that the adjudication is a right in security, the negative prescription will take place. The mora ought also to be considered.

President. I would be sorry to shake any principle already established. An adjudication may, in its consequences be a right in security, but in its nature it is a sale. Suppose two dispositions:—no infeftment on the one—neither possession nor infeftment on the other; I consider this last as derelinquished after forty years. I doubt as to positive prescription, when Thomas Robertson's possession is pleaded, for he is the common author. I doubt also as to the mora.

On the 2d August 1770, “the Lords assoilyied the defender;” adhering to Lord Stonefield's interlocutor.

Act. R. Blair. Alt. J. M'Claurin.

Diss. Coalston. No vote.