ESSAYS UPON Several Subjects IN LAW, Sciz.


EDINBURGH: Printed by R. FLEMING and COMPANY, and sold at Mr. James M'Euen's Shop, MDCCXXXII. Price Two Shillings.

THE following little Pieces, Fruits of some Leisure Hours, are ex­posed with the same Indifference they were conceived. If they prove useful, the End is gain'd: If not, there's no great Harm done. No Man will grudge the Author the Satisfaction of a laudable Attempt: He shall grudge no Man the Pri­vilege of Reading or Neglecting, of Approving or Condemning.

Jus Tertii.

WHEN a Man pleads any Point, in which he has no LEGAL INTEREST, i. e. from the gaining of which he can propose to himself no just or reasonable Advantage, he is re­mov'd personali objectione from pleading such Point. For the Law encourages no Man to stand in the Way of his Neighbour, un­less his own Interest be at Stake.

This personal Objection is express'd common­ly by the Name of JUSTERTII. And the Position runs thus, ‘"That it is jus tertii to found upon any Alledgance which does not terminate in the legal Interest of the Proponer, but of a third Party."’ Which comes in plain English to this, ‘"Sir, You are not pleading for your self, but for another"’. And this is the true Touch-stone to discover when the Jus Tertii is well or ill found­ed. If the Proponer can show he has any legal Interest, any just Benefit or Advantage in making [Page 2] the Alledgance, this personal Objection of Jus Tertii can never lie against him.

In the Application of this Doctrine, the greatest Difficulty is in judging, what is a legal Interest; that every accidental or occasional Benefit does not come up to a legal Interest is plain. As to this Matter, all Arguments drawn from possible Con­tingencies are cut off. A legal Interest must be something fix'd; somewhat the Proponer is founded in Law to plead upon, and to be cut out of which, he can subsume upon as an Act of Injustice. This falls to be estimated and judg'd of, by the Situati­on the Proponer is in, from the Nature of his Claim, and Relation to his Party.

For Example, A Nullity of the Execution of a Warning against a Tenant to remove, being object­ed against an Adjudger, whose Adjudication was expired, by another who was not within the Year of him, but both were infeft, the Lords found the Nullity not competent for that second Adjudger to object, unless he were either preferable, or to come in pari passu, and therefore repelled it as jus tertii to him. Fountainhal, Forbes, 30th June 1708. Rule contra Purdie. So far the Matter is clear.

In a Removing against a Tenant, the Defender was not allowed to plead upon the Right of a third Party as preferable to the Pursuer, unless he would subsume upon some Right made to him by the third Party. Erskine, Col. Stuart contra Laird. of Grange. For here the Tenant could not figure the smallest Advantage in pleading upon the Right of the third Party, unless it were, 1mo, A Pos­sibility that the third Party would not turn him out. 2do, That for one Year, at least, he could not, not having given any Warning to the Tenant. [Page 3] Both which being accidental and contingent, the Law respects not, as not coming up to a legal In­terest, or such a reasonable Benefit, which being cut out off, he can subsume that he has met with material Injustice. Which a Tenant can never say, who is remov'd upon a legal Warning by any Person having a colourable Title to the Lands. All his legal Interest is to pay his Rent securely; it belongs not at all to him to object against the Pursuer's Title, providing ex facie it appear to be good; or to dip into the Question, Whether some third Party may not have a better Title.

The like is observ'd by Colvil, December 1582. Countess of Errol contra Tenants, where a Life­rent being competent to a Lady by her Husband who was only Liferenter himself; in an Action of Removing against Tenants at her Instance after her Husband's Decease, this Exception, that her Liferent was extinct by her Husband's Decease, was repelled, as being jus tertii to the Tenants.

Another Example is mentioned by Spotiswood, voce, Escheat and Liferent, 23d March 1630. Murray contra Commissary of Dunkeld. In a spe­cial Declarator of the Commissary of Dunkeld's Escheat pursued by Mr. Patrick Murray, the De­fender propon'd an Alledgance upon the ordinary Back-bond given to the Treasurer by the Donatar, which bore, that he should not use the Gift to the Prejudice of the Rebel's Creditors. This the Re­bel alledged might be propon'd in his own Name, as well as the Creditors, seeing he was interested to see his Creditors rather paid by his own escheat­able Goods, than that the Donatar should meddle therewith, and the Creditors be obliged to have Recourse to his Lands or his Person. The Lords [Page 4] repelled this, as not competent to be proponed in the Rebel's own Name. Here the Rebel had a plain and fix'd Interest; but still he was denied the Benefit of the Alledgance, because it was not a legal Interest, sciz. such an Interest or Benefit he was intitled to by Law. Because a Backbond of the Nature mentioned in the Decision can have no Respect to the Advantage of the Rebel, whose Escheat falls in modum poenae, but respects solely the Creditors; and therefore the Creditors may plead upon it, the Rebel never can.

In a Declarator of Property, the Defender, pre­tending no Right in his own Person, was not suffered to make any Objection against the Pursuer's Title, Stair 18, July 1662, Lord Fraser contra Laird of Philorth. Here the Defender, by making the Al­ledgance and removing the Pursuer, could have no other View, but to retain Possession for some Time longer; which is so far from a legal Interest, that it is plainly injustifiable: In respect it is more rea­sonable to give him the Possession, who has some colourable Title, than to allow it to remain with the Person who has no Pretence at all.

And in a Declarator of the Property of Teinds, tho' the Title of the Process was a Progress exceedingly ill connected, and labouring under many Infirmities; yet the Lords sustain'd the Title, in the same Way, as if the Action had been a Reduction and Impro­bation of Land-Rights; and found it to be suffi­cient against naked Heritors pretending no Right to the Teinds of their Lands; and that it was jus ter­tii for them to object against it. The Defenders yielded, that any presumptive Title might do in a Question of Lands, because no Man can pretend the smallest Interest in or to Lands, but in conse­quence [Page 5] of some Conveyance, some written Docu­ment, which, if he has not, it is indeed jus tertii to object against any presumptive Title in the Per­son of another: But that could never happen in a Question of Teinds, because an Heritor's Right to the Lands, suppose he has none to the Teinds, gives him a sufficient Title and plain Interest to object against any Man's being declared Titular of his Teinds. Which was inforced from these Considera­tions. 1mo, That every Heritor has a Right to have his Teinds declared free, rather than the Pro­perty of any Man; and that because several legal Interests arise to him thereby. 2do, Every Heritor has an Interest, that his Teinds should belong to the Crown, rather than to a Subject; the Exchequer being in use to grant Tacks to Heritors of their Teinds at a very easy Rate; and rather to belong to the Patron, from whom they can acquire at six Years Purchase, than to any other Titular, who can demand nine.

The Question comes precisely here, Whether the Alledgance made for the Defenders, amounted to a legal Interest, such a Benefit as it was unjust to de­prive them of? That it is a legal Interest, the Court was of Opinion, 29th November 1710, Mitchel con­tra Baillie and Shearer, observed by Forbes, where a Charter of Adjudication of the Teinds of certain Lands, with Infeftment thereon, was not found a sufficient Title to oblige the Heritor of the Lands to make Payment of the Teinds, without producing the Adjudication itself, and instructing a Right to them in the Person of him they were adjudged from, albeit no other Right appeared to com­pete.

[Page 6] A Vassal being pursued by a Purchaser of the Superiority, made this Defence, That the Seller's Relict was infeft as conjunct Fiar, and that he the Defender was bound to acknowledge none other for his Superior during her Lifetime; which was sustained Colvil.—May 1583, Laird of Capringtoun contra Laird of Caldwells. This Alledgance was not jus tertii; because Vassals have a legal Interest to keep their Charter-chests shut against every one but their proper Superior.

Having thus given a general Idea of my Sub­ject, the Application thereof will best be seen by In­duction of particular Cases. Which, for Clearness Sake, I shall range under different Heads.


A Debitor, pursued by an Assigney, is founded in an Interest to alledge, that it appears ex facie scripturae, or is otherwise necessarily consistent with his Know­ledge, that there is no Right in the Assigney's Person, because, in this Case, he cannot pay safe­ly. But if ex facie scripturae, by the Production, it appear, that the Assigney's Right is founded, the Debitor cannot be allowed to plead upon any Exception to take away the Assigney's Right, un­less it be so notorious, as necessarily to superinduce a mala fides. Such an Exception is jus tertii as to him, he has no Interest in it; all his Concern is to pay safely, and he pays safely when he pays to the Man who has the Face of a Title, especially interposita authoritate praetoris.

As to the first Branch of the Position, see Durie March 5. 1624, Ramsay contra Mackieson. Here [Page 7] a Debitor being pursued by his Creditor upon a Bond, it was found competent for him to propone this Alledgance, That the Pursuer's Escheat was gifted, and the special Declarator intimated to him the Debitor; which Declarator, though afterwards passed from as to him by the Donatar, was equiva­lent as if the Pursuer had been denuded by an As­signation intimate; and therefore he could not pay bona fide.

As to the second Branch, see Durie, 21. Decem­ber 1621, Hamilton contra Durham; in which this Exception proponed by a Party in whose Hands Arrestment was laid, was repelled, as being jus tertii, sciz. That the Arrester could not demand the Sum to be made furthcoming, in regard he had recovered Payment from the common De­bitor.

James Ballantine took a Bond payable to him­self, and after his Decease to [...] Ballantine his Son; John Ballantine's Name was afterwards filled up in this Bond, though he was born after the Date thereof; and he was found to have good Action as a Substitute against the Debitor, who had no Interest to debate how John's Name came into the Bond, that being jus tertii, seeing there was no other Heir or Child pretending Right. Stair, Dirleton, 5. January 1675. Ballantine con­tra Edgar.

A Debitor objecting against the Donatary of his Creditors Forfeiture, That the Creditor himself was only an Executor, which, being an Office, could not be assigned, far less could be carried away by the Forfeiture, except as to the Executor's own Share; the Lords found this Alledgance jus tertii to the Debitor, and therefore repelled it. Fountain­hall [Page 8] 4th November 1686, Graham contra Lin. There may be some Doubt as to this Decision. The Pursuer here had not even a colourable Title. The Defect appeared ex facie scripturae. It seems incumbent upon a Defender to take Notice of such a Defect, and upon the Judge to sustain it for the Benefit of those who shall really be found to have the jus exigendi.


It is not jus tertii in a Defender to found upon the Right of a third Party, when the Intent is on­ly to make out, that he himself is not liable.

In a Pursuit for liquidating the Avail of a Mar­riage, it being alledged by the Donatary, That it was jus tertii for the apparent Heir to say, that his Father died not in the Fie, as being denuded by an Adjudger who was publickly infeft, unless that Adjudger would appear and defend; the Lords found, That it was not jus tertii, but com­petent to the apparent Heir to found upon it. Fountainhall, 13. February 1707, Lord Rae contra Innes.


When Payment is offered to a Creditor, it is jus ter­tii for him to object, that the Person is not en­titled to make the Offer; because a Creditor is bound to accept of Payment from whatever Hand.

A Party served and retoured Heir to a Defunct, offering to redeem an Adjudger, who alledged, that [Page 9] the Party to whom the Heir was retoured was pre­sumed alive, his Death not being instructed; the Lords found, That the Alledgance was jus tertii to the Adjudger, and sustained Process at the Heir's In­stance upon the Retour produced, in regard there was no nearer Heir quarrelling the same, 27. July 1688, Hay contra Dobbie. The Matter comes here, An Adjudication within the Legal, which was the Case here, being only a Security for Debt, may be extinguished by whoever offers Payment. After Ex­piration of the Legal, when it becomes a Right of Property, the Adjudger is not bound to debate the Relevancy of Objections tending to annul his Right, or open the Legal, unless with a Person connecting a good Title to the Lands.

In the Redemption of a Wadset by an Appri­ser of the Reversion, it was found jus tertii for the Wadsetter to alledge, the Apprising was fallen by Prescription. Fountainhall, 7. November 1704, Ni­col contra Park. Here the Prescription might have been interrupted, and it was not reasonable to oblige the Appriser to enter into this Dispute with a Per­son who had no other Interest but to get Payment. But this Matter is not without some seeming Dif­ficulty; for if a Wadset be considered only as a bare Security for Money, there does not a Reason occur why it should not be extinguishable by any Person whatever offering Payment. If it be consi­dered as a Right of Property in Lands, redeemable only by the Reverser himself, and those deriving Right from him by effectual Conveyances; upon that Supposition the Wadsetter ought to be allow­ed to make every Objection against the Title of the Redeemer; and in my Opinion would be well [Page 10] founded in the Objection of Prescription mentioned in the Case.


It is not jus tertii in an apparent Heir to alledge, That the Pursuer has no jus agendi, though the apparent Heir refuses to acknowledge the passive Titles.

The Reason is, That regularly before the Defen­der is obliged to recur to any Defences, the Pursuer must show, that he is founded in his Action; and unless he make out this Point, the Defender is not obliged to say whether he represents or not, being founded in a legal Interest to keep this Matter pri­vate from every one, save the Defunct's just Credi­tors. Thus then, an apparent Heir, without invol­ving himself in the passive Titles, may propone every Objection against the Pursuer's Claim, that arises ex facie scripturae, or that he can otherwise instant­ly verify. Objections indeed that require a Proof, stand upon another Footing: Not that it is jus ter­tii in the Defender to propone them; the Reason why the apparent Heir, after proponing such Objec­tions, is not suffered to deny the passive Titles, is al­lenarly the Hardship upon the Creditor, in obliging him to sustain a long Proof, which cannot possibly be of any Benefit to him, so long as the Defender has in it his Power to deny the passive Titles.


In a Competition betwixt two Rights to the same Subject, whereof the one, under which my Com­petitor claims, is in it self preferable, it is jus tertii for me to object, That his Progress is not well connected; which is only competent to one having a more compleat Progress to the same Right or Interest.

For Example, A has an absolute good Progress to the Infeftment X. B has but a lame Progress to the Infeftment Y. Yet B is preferred, Y being supposed the preferable Infeftment. And the Rea­son is, It is just to give B who has at least a dou­bious Title, a Preference to A who can have no Pretence, as long as the Infeftment Y is in the Field. The respective Interests produced are ranked accord­ing to their legal Preference. And the Persons claim­ing upon these Interests, if they have any Appea­rance of a connected Title, take their Places ac­cordingly. This being premised, it is obvious, That A can have no legal Interest to impugn B's Progress: For tho' it should be found, That C has Right to the Infeftment Y and not B, that does not benefit A, he can propose to himself no Ad­vantage by gaining the Point; because in that Case, the Judge would prefer C, and not A.

The Right of a Feu Vassal being apprised from him, and the Apprising again dispon'd to another, the Superior's Heir raised Reduction and Improba­tion against the Disponee, and obtained Certifica­tion against the principal Sasine on the original Char­ter [Page 12] and against the Grounds and Warrants of the Apprising. Notwithstanding of which, it was found jus tertii in the Pursuer, to quarrel the Want of these Writs; in respect that, as Heir to the Gan­ter of the original Feu Charter, he was liable to warrant it. Fountainhall, 1 February 1712. Earl of Forfar contra Gilhaigie: Observed also by Mr. Forbes, as of 31. January 1712. For the original Feu Charter, which was produced, being plainly preferable to the Pursuer's Claim of Property, since he was debarred thereby, it was the same Thing to him, who was Vassal; in that Question he could have no legal Interest.

In two mutual Declarators, touching the Right of a Salmond Fishing, the one produced a Charter from his Majesty, with a well connected Progress, down to the Time of the Competition; the other pro­duced a Right from a Subject of a much older Date, but not well connected, for many of the in­terveening Years; in so much that his Progress, so much of it as was well connected, did not go so far back as his Competitor's. Yet it was found, That the Person deriving Right from his Majesty had no Interest, to object the Want of Mid-couples to the other: And that it was jus tertii, and incom­petent for him to object and obtrude that Defect, unless he derived Right from the same Author, or any succeeding in his Right. Fountainhall, 3. De­cember 1701. Forbes of Watertoun contra Udney.

In a Competition anent the Property of Lands, betwixt a less preferable Interest, and an Adjudica­tion of the preferable Interest, it was found jus ter­tii, in the Party compeating upon the less preferable Interest, to alledge, that the Adjudication was sa­tisfied [Page 13] and paid, by Intromissions within the Legal, Forbes, 19. June 1713. Murray contra M'lellan.


In a Competition, I am not allowed to found upon the Interest of a third Party, as preferable to that of my Antagonist.

The Proof of the immediately foregoing Position is equally applicable to this.

John Murray served himself Heir in general to Alexander Maxwel his Grandfather, and upon that Title did compeat with Neilson of Chaple, who had Adjudications in his Person, led originally against the said Alexander Maxwel, conveyed by the Cre­ditor to Elisabeth Maxwel, and from her to the said Neilson of Chaple. It was contended for John Mur­ray, That Elisabeth Maxwel the intermediate Au­thor had disponed these Apprisings to her Husband Gilbert M'Cartney; and that therefore Neilson's Right was null, as granted a non habente potesta­tem. The Lords found it jus tertii, for John Mur­ray, to found upon the Right of Gilbert M'Cartney, unless he derived Right from him. This was found anno 1727. in the Competition Neilson of Chaple and Lanerick of Ladylands, with John Murray. Here the Objection against Neilson, viz. That his Author was denuded, and consequently that he could have no Right, was in it self good: But then his Competitor was not allowed to found upon it, because he could shew no legal Interest therein. For what if Neilson's Right should be found null? That would signifie to M'Cartney indeed, if he pleased to [Page 14] appear, but nothing to Murray, who was at any Rate excluded by the Adjudications, whoever had Right to them.


But as Law allows me to use every Argument tend­ing to annull or cut down the Title upon which my Competitor founds, when the Consequence is to prefer my own Title, it is not Jus Tertii to found upon the Interest of a Third Party, when it tends to prove, not that the Third Party is preferable, which would be Jus Tertii, but that I my self am preferable by the Nullity of my Competitor's Right.

X is infeft in Lands. He gives a Disposition con­taining Procuratory to A, who assigns, first to B, and then to C; but C. is first infeft. Betwixt the Dates of these two Infeftments, X grants a Second Disposition to D, who obtains himself infeft prior to B, but posterior to C. Upon the Supposition, That a personal Conveyance denudes of a personal Right, quaeritur, How is this Matter to be extricated? B is preferred to C upon the Footing of this Brocard, A being supposed entirely denuded by his first Assig­nation in Favours of B. C is preferred to D, as first infeft, and D to B, for the same Reason. And thus the Matter becomes plainly inextricable, unless D be allowed to plead that C's Infeftment is null, as flowing a non habente potestatem, his Author A being ab ante denuded in Favours of B. The Dif­ficulty in this Cass is, That it is jus tertii for D. to plead upon B's Assignation. The Answer is, That this very Example must show it not to be jus tertii; Since the Consequence would plainly be to make the [Page 15] Affair inextricable, which is a downright Absurdi­ty. To take a general View of the Matter, it appears without Controversy, that D is the Man who is first legally infeft, and who has first denuded the common Author X. Now if this be the plain Mat­ter of Fact, I can see no good Reason why D should not be allowed to found upon it. It is a Rule in our Law, that alii per alium acquiritur obligatio; the Principle upon which this is founded will equally support another Rule, that alii per alium acquiritur exceptio. And when we consider the Nature of this Objection of jus tertii, the Difficulty will evanish; according to the Definition, it arises from pleading a Point, wherein the Party has no Interest, and the gaining of which cannot profit him. The direct contrary is the Case here, for if C's Infeftment be found null, D comes in of Course.

To explain this Matter further, let us take a View of a Decision observed by Forbes 18th Dec. 1708. Colonel Erskine contra Sir George Hamilton; in which a Person having a real Right in Lands, was allowed to object against a competing Adjudi­cation, that it was null, as being led upon a Bond payed by the Debitor; albeit he who quarrelled the Adjudication, derived no Right from the Person a­gainst whom it was led.

This Decision is obviously well founded; and yet therein we see a Party allowed, to found upon the Deed of a third Person with whom he does not con­nect, viz. the Payment made to his Competitor by the common Debitor. And he is allowed to do so, for this precise Reason, that thereby he comes to establish a Preference to himself. Now I can see no Difference betwixt this Decision and the Case in Hand. In both a Party is allowed to found upon [Page 16] the Deed of a third Person with whom he has no Connection; and in both he has equally a legal Be­nefit in so doing. In a Word, there is nothing more common in Law than to see People founding upon the Deeds of third Parties; such Alledgances cast up in a thousand Shapes every Day: If they can shew no legal Interest in so doing, it is jus tertii they are debarred personali objectione: If they can show a legal Interest, they ought to be heard. This is also fortified by the Doctrine contained in Position II. for if a Defender can found upon the Right of a third Party, in order to obtain absolvitor, for the fame Reason may a Competitor found upon the Right of a third Party to obtain Preference.

Another Case is related by Lord Stair 22d July 1668. Johnston contra Arnold, to this Purpose; In a Competition betwixt two Apprisings, whereupon Infeftment had followed, both led before the Act bringing in Apprisers pari passu; The first Appriser was also first infeft: But it was objected against the Infeftment by the second Appriser, that it was null, being in Name of an Assigney to the Apprising, who did not appear to have any Right, no Assignation being produced. This the Lords fustained, and did not find it jus tertii to object the Want of the said Assignation.

N.B. The Competition run betwixt the second Appriser and the Heir of the first Appriser, who had also in his Person a Conveyance from the Assigney, in whose Name Infeftment was taken.


Where an Alledgance tends not to make my Party's Title absolute ly null, but only reduceable or annul­lable at the Instance of a third Party, it is jus ter­tii for me to found upon it.

For Example, a Donatar of Ward and Non-en­try pursuing the Vassal for the Non-entry Duties fallen due several Years after elapsing of the Ward; this Gift of Non-entry continues but three Terms after the Ward in Competition with the King or another Donatar, but is still good against the Vas­sal; and therefore it is reckoned jus tertii for him to found upon it. Haddington, 6th July 1611. Dick­son contra Laird Dawick; A Spuilie was sustained, altho' at committing the same the Party injured was at the Horn, it being found jus tertii to the Defen­der, to alledge, that the Action in that Case was competent only to the King and his Donatat. Mait­land, 16th June 1552, Laird Kinfauns contra Laird Craigie. The Reason is, That Denunciation does not ipso facto divest the Rebel of his Moveables; he re­mains still Proprietor until the King pleases to take the Benefit of his Rebellion. And therefore the Decision would probably have gone otherwise, if the Defender could have subsumed upon a general or special De­clarator at the Donatar's Instance. In a Process at a Minister's Instance for his Stipend, it was objected by the Heritors, that he was not duely admitted by a Presentation conform to the Statute 10. Annae re­restoring Patronages; this was found jus tertii to the Heritors, being competent only to the Patron himself. Forbes 18th June 1714, M'Bain contra [Page 18] Laird of Scatwell. In a Reduction of a Sub-tack u­pon this Ground, that by a Clause therein, if the Sub-tacksman failed in paying of his Tack-duty at certain Terms, the Tack should be null; this Nul­lity was only found competent to the Tacksman him­self Setter of the Sub-tack, not to the Master; in Re­spect it was not an absolute Nullity, but in Favours of the Tacksman, if he pleased to lay hold upon it. Durie, 13th Dec. 1626, Earl of Galloway contra M Culloch.

It may be worth Notice, that this Position does not so directly come under the Doctrine of jus tertii. In the Decisions just now mentioned, the Alledgean­ces were repelled, not so much upon the Footing of a jus tertii, that the Proponer had no Interest to make them; but truly because they were by no Means con­clusive, did not infer what they were brought to prove, which above all is plain from the last menti­oned Decision, in which there was not wanting a legal Interest to found the Proponer in his Alledg­ance of Nullity; he failed only in this, That it was not found to be a Nullity: There is a wide Diffe­rence betwixt a null Right, and a Right annullable; a Nullity in a Right may be pled upon by every one who can show an Interest in the Question; the Pow­er of annulling, by no Mortal, but who is vested with the Power.

Beneficium cedendarum actionum.

WHen a Creditor has different Persons or Subjects bound to him for Secu­rity and Payment of his Debt, it naturally arises to be a Question, how far he has it in his Power to exerce his Right arbitrarily, by loading one and freeing another; and when he does so, if there is any Relief competent to the Person or Subject over-burdened. Questions of this Nature may be easily solvable in the simple Cases. But the Connections betwixt Persons and Subjects, Creditors and Debitors, preferable and secondary Securities, cast up so various and intricate, and run out so great a Length, that one is apt to lose himself, if he does not begin at Principles, and go on Step by Step from the more easy to the more intricate Cases.

It appears in the first Place agreeable to Principles of Justice and Humanity, that Creditors having bound to them different Persons or their Effects, should not be allowed ARBITRARILY to load one and exempt others. There are two good Reasons for this, one a priori, the other a posteriori. The [Page 20] one a priori is drawn from this Law of Nature, That every Man is confined in the Way of using his Pro­perty so as to be least hurtful to others. He is allow­ed to prefer himself; but his own Interest being out of the Question, he has no longer Liberty to go on to take any Step in aemulationem vicini, either by direct­ly doing Damage, or by using the Pretext of his Pro­perty arbitrarily to prejudge one for the Benefit of a­nother. To take this in somewhat a different Light, Property was introduced, not that Men should be indulged to use it wantonly, but only in so far as beneficial to themselves. Therefore every Man may use his Property while his private Interest goes along. There his Power is at an End. After that the Law takes it out of his Hands, and directs it so as in the whole to do most Good to others. And when the Matter is brought there, it is plain, that the Law, which is no Respecter of Persons, never acts arbitra­rily, but deals to every one with an equal Hand. The Consideration a posteriori is drawn from the numberless Inconveniencies that might ensue if Cre­ditors were indulged in this arbitrary Proceeding: It would naturally introduce underhand fraudulent Pac­tions betwixt the Creditor, who holds the Ballance, and some one or other of the Debitors, in order to throw the Burden upon others. Every one would endeavour to bribe highest to get himself relieved. And thus Bribery and Corruption would go on to the Destruction of Debitors, whereby their Creditors would have an Opportunity of making unjust Gains by Extortion, which no civilized Country will indulge.

The Roman Law and ours go thus far Hand in Hand, that a Debitor paying, is entitled to demand Assignation from the Creditor against his Fellow Debitor, l. 17. l. 36. Fidejuss. Here the Roman [Page 21] Law stops, at least that of the Pandects, and gives no Action for Relief to one Co-debitor against ano­ther, where the Action is not ceded, l. 39. Fidejuss. This is better ordered in our Law; with us the De­bitor who pays, has directly an Action for a propor­tionable Relief against his Co-debitor without Ne­cessity of Assignation. This is not understood to pro­ceed from any Paction exprest or implied betwixt the correi debendi. It flows directly from the above Principle, sciz. That a Creditor is confined from ex­ercing his Right arbitrarily. He ought to draw a proportional Part from every one of his Debitors, or if for his own Ease he chuses to draw the whole from one, it is incumbent upon him to assign his Debt and Diligence, that the Person making Pay­ment may have a proportional Relief off others; and because it is a Rule, That what ought always to be done, is ever held as done, the Law, to abridge the unnecessary Circuit of an Assignation, gives directly an Action of Relief to the Debitor making Payment against his Fellow Debitors, whether he has an As­signation or not. This seems to have been the Law of the Codex, l. 2. C. de duob. reis, and this is our common Practice at this Day.

Thus the Matter is fix'd upon the most solid and equitable Footing, so far as relates to personal Re­lief amongst Fellow-debitors; It must be acknow­ledged, that our Practice is but in its Infancy as to real Relief, that ought to be competent to the Proprietor or secondary Creditor, out of whose Fund Payment is drawn against the other Funds, upon which the preferable Debt is equally secured. To give the plainest Example, Two Persons conjunctly and severally oblige themselves to pay a Sum, and grant each of them an heritable Bond out of their [Page 22] respective Lands, upon which Infeftment follows. So far the Matter is clear by our Practice, that the Debitor, out of whose Estate the whole Sum is made effectual by virtue of the Infeftment of An­nualrent, has personal Relief off his Fellow-debitor; But why not also real Relief? That is, why should he not be intitled to take up the Creditor's Infeft­ment upon the other Debitor's Lands, in order to be ranked for that Part of the Sum, which he has paid over and above his Proportion? It appears, without Controversy, that there is the same Foun­dation for both. It may possibly be objected, That after the Debt is paid out of one Debitor's Effects, the Bond falls extinguish'd with all its Consequences. But in Answer to this it is urg'd, 1mo, That it is jus tertii for the Debitor himself or his real Creditors to plead upon this, since in all Events no more is intended to be drawn from him than his Proportion of the Debt. 2do & principaliter, At any Rate this might have been done by the Circuit of an Assignation: Now, as is above laid down, the Law supplies this, and grants an implied As­signation. For truly the Action for Relief betwixt Co-debitors, whether personal or real, is no other than an Action upon an implied legal Assignation. The Matter then comes out thus; From each of the Debitors the Creditor has strictly Right to demand Payment of the one Half; if he chuse to poind the Ground of one of the Debitors for the whole, which he may do for his own Conveniency; the Law supposes, that he takes the one Half in Pay­ment of that Debitor's Proportion of the Debt; but as for the other Half, that is not supposed taken in Payment of a Debt, which the other Debitor is ultimately liable in, but as the Price of the legal [Page 23] Assignation; see l. 36. Fidejus. And therefore the Creditor's Infeftment remains still good upon the other Debitor's Lands as to that Half, which may accordingly be taken up in virtue of the legal As­signation, by the Debitor, who has paid the whole. The Benefit of this legal Assignation would be of considerable Effect in Practice. Amongst others it would remove the Pretext that Debitors have to suspend real Diligence, in order to obtain an actual Assignation.

'Tis true, no Traces appear in the Roman Law of this real Relief, otherwise than by the Circuit of an Assignation: With respect to which there is a remarkable Text, l. 5. Pr. de Cens. But neither were they acquainted with the personal Relief, at least by the ancient Law: However, as the Foun­dation of real Relief is plainly laid down in the said l. 5. de Cens. it would be no great Stretch to establish it, even in the Roman Law, by an Ar­gument drawn from the said l. 2. C. de duob. reis.

The Principle being thus fix'd, it will be easy to draw out a Rule for adjusting all the Kinds of real and personal Relief amongst Co-debitors and se­condary Creditors. A Creditor, who has several Persons bound to him in a Debt, is supposed to take Payment equally and proportionally from every one of them. If he chooses to draw more from any one than his Proportion, this is not understood as taken in Payment, but as the Price of an Assigna­tion actual or legal. This intitles the Payer to come in Place of the Creditor as to that Superplus, which accordingly he may draw from the other Debitors. After the very same Manner, when a Catholick Creditor, whose Infeftment reaches over two Tene­ments, draws the whole out of one, the Person [Page 24] overburdened, whether Proprietor, or only a se­condary Creditor, ought to be intitled to act in the Creditor's Name to be refunded of the Superplus over and above his Proportion out of the other Te­nement; whereby Equality is preserved amongst all concerned, and no Person or Subject bears a greater or less Burden than his Situation obliges him to. And thus the Rule comes out, THAT REAL OR PERSONAL RELIEF GOES NO FURTHER THAN TO BE REFUNDED OF WHAT THE SUBJECT OR PER­SON HAS BEEN BURDENED WITH OVER AND ABOVE HIS PROPORTION.

We must now come to Particulars; and for Me­thod's Sake, it may be proper, 1mo, To handle such Cases as fall directly under the Rule. 2do, These Cases, which, by Reason of special Circum­stances, may be ranked under the Head of Excep­tions.


Supposing a preferable Infeftment upon the Tenements A. and B. both pertaining to the common Debi­tor, and a secondary Infeftment upon A. only, the secondary Creditor infeft in the Tenement A. out of which Tenement the Catholick Creditor chuses to draw his whole Debt, is intitled only to a pro­portional Relief out of the Tenement B. tho' there be no other Infeftment upon it, save that belong­ing to the Catholick Creditor.

This is a direct Inference from the Rule above laid down. The Catholick Creditor is supposed fictione juris, to draw proportionally out of the two Tenements; And if in Fact he does otherwise, the [Page 25] Creditor overburdened has Relief indeed, but only so far as he is overburdened. As to a total As­signation against the Tenement B, it appears obvious, that the secondary Creditor upon A, is no better intitled to it than any of the personal Creditors of the common Debitor. If the Fact be, That he has lent more Money upon the Tenement A, than that Portion of it will satisfy, which remains after a pro­portional Allocation of the catholick Right, he has himself to blame. Upon that Supposition, nothing remains to him, but in common with the personal Creditors to attack that Portion of the Tenement B, which remains after the said proportional Allo­cation.

To take this Matter a little more at large, let us examine what must be the Consequences of a Scheme, where it is held, that the secondary Credi­tor upon A is intitled to demand a total Assigna­tion for his Relief against the Tenement B, in case there is no other Burden upon it beside the catho­lick Infeftment. Upon this Scheme it is not seen, that any Creditor can well excuse himself for lend­ing upon the Tenement B, when there is a seconda­ry Creditor upon A, and a catholick Creditor over both; for this would be truly defrauding the secon­dary Creditor of his Security. If it be alledged, 1mo, That the secondary Creditor upon A, when he lent his Money took his Hazard of this, it is an­swered, This is no Excuse to any Party who offici­ously cuts him out of his Hazard, by turning it into a Certainty against him. If it be said, 2do, That the Creditor contracting upon B, was not bound to know of the Creditor upon A, the Answer is, That at any Rate no Creditor is safe to lend upon B, without knowing whether there is a secon­dary [Page 26] Creditor upon A, because in Proportion to the Extent of the other Debt, his Claim upon B. falls to be more or less restricted: Besides, it is enough to qualify mala fides, that a Man chuses to do what he sees may very possibly produce Mischief to others, though the Mischief be not absolutely certain. If it be said, 3tio, That the Creditor up­on B, does no more than any Creditor does, who lends upon heritable Security, knowing his Debitor to have personal Creditors. The Difference is, that the Tenement B, (upon the present Supposition) is understood to be a Security to the Creditor upon A, by his Right to demand Assignation preferable to all other Creditors; which Security the Creditor up­on B in Part cuts him out of. Now personal Cre­ditors have no Security upon their Debitors Lands; they may effect it by Diligence; but so may they the Money come in its Place. From all which it appears, that if it be a lawful Commerce for a Creditor to lend upon B, while there is another secondary Cre­ditor upon A, and a catholick Creditor over both, which cannot be disputed, it must follow, that the Creditor upon A, has but a proportional Relief off the Tenement B, even when there is no Burden up­on B, save that of the catholick Creditor's.

What is said here with Respect to a Creditor lend­ing upon B, may be applied with equal Force to a Purchaser of the Subject.


Hence in the proportional Relief betwixt the secon­dary Creditors, the Creditor upon B, though poste­rior, is in no worse Situation than the Creditor up­on A, though prior.


It is laid down in the Proposition, that the secon­dary Creditor upon A, is entitled only to a propor­tional Relief out of the Tenement B. Now this he can demand of Right, and can by no Alteration of Circumstances be cut out off. But at the same Time there is nothing to bar the catholick Creditor from assigning in totum, if he pleases, so long as no se­condary Creditor appears upon the Tenement B; The granting of an Assignation in such Circumstan­ces, not being a Matter of Justice or Equity, in which one is tied down, but of pure Favour, the very Conception of which supposes the Action to be voluntary or arbitrary.

'Tis very true, that in this Situation the catho­lick preferable Creditor has it in his Power to fa­vour either the secondary Creditor upon A, or the personal Creditors who have not attached either of the Subjects. If he deny an Assignation, all that remains for the secondary Creditor upon A, after adjusting the proportional Relief, is to adjudge the Tenement B, pari passu with the personal Creditors, which will entitle him to a Share of what remains of the Tenement B unexhausted, after the propor­tional Relief. If on the other Hand, the catholick Creditor vouchafe to grant Assignation, the perso­nal Creditors have no Access, unless the two Tene­ments do more than satisfy both the real Debts. This indeed is an arbitrary proceeding; but at the same Time not such as the Law has any Caveat against; because, as above laid down, in Matters of Favour every one must act arbitrarily. The perso­nal Creditors having no Nexus upon the Tenement [Page 28] B, having not so much as the Pretence of lending their Money upon the Faith of it, are founded in no Title to oppose a total Assignation. The catholick Creditor is not so much as bound to know, that there are any personal Creditors, and has no Cou­nection or Concern with them. When therefore in these Circumstances the catholick Creditor chuses to favour the secondary Creditor upon A, by granting him a total Assignation; this is not cutting down, or hurting one Creditor in favours of another, since the personal Creditors have no Nexus upon the Te­nement B; 'tis at most but disappointing them of a Hope, which may be lucrum cessans, but is by no Means damnum datum. 'Tis another Case if the personal Creditors have by Diligence attached the Tenement B. 'Tis thought that even a bare Citation in an Adjudication is a sufficient Nexus upon the Tenement B, to enforce a proportional Relief be­twixt them and the secondary real Creditor upon A. For after Citation, it is no longer a Matter of Favour, but of Justice and Equity.

Yet after all, if there's any Appearance, that a total Assignation is the Result of a Contrivance betwixt the two real Creditors, to disappoint the personal Creditors, 'tis left to be considered, if, up­on that Supposition, the Assignation might not be cut down upon the Head of Collusion: And there would be the more Ground for this, if such As­signation were granted after nottour Bankruptcy, which indeed would be very suspicious.


Supposing still a catholick Creditor over the Tene­ments A and B, the same proportional real Re­lief will he competent betwixt the secondary Cre­ditor upon A, and a Purchaser of the Tenement B, & e contra.

For there being no greater Connection betwixt the catholick and secondary Creditor, than betwixt the catholick Creditor and the Purchaser, there ap­pears nothing in the Variation of Circumstances to disturb the proportional Allocation of the catholick Debt, which brings it to the common Case. If it be objected, That the Purchaser upon the Obliga­tion of Remuneration is entitled to a total Assigna­tion, since the catholick Debt is drawn out of his Funds; whereas, when it is taken out of the Tene­ment A. it is drawn out of Funds that belong to the common Debitor, which does not entitle the secondary Creditor to Remuneration; the Answer is, That neither is the Purchaser here entitled to Remu­neration. The catholick Creditor is not bound in any Sense to acknowledge the Purchaser. When he draws his Payment out of the Tenement B, though now no longer in his Debitor's Person, he is doing no more but explicating his own Right; and there­fore there is no Connection, no negotium gestum in­ter eos to infer any such Remuneration. If it be urged, 2do, That the Purchaser in this Case being intitled to Relief off the common Debitor upon his Warrandice; it is answered, That the secondary Creditor upon A, when he is cut out by the ca­tholick [Page 30] Creditor, has as well founded a Title for Relief.


If the Purchaser of the Tenement B, retain suf­ficient in his Hand to satisfy the catholick Debt, in that Case if the catholick Creditor draws Payment out of A, the secondary Creditor upon that Subject is founded in an Action against the Purchaser for a proportional Relief. And what is over and above in the Purchaser's Hands, remains to be affected by the Diligence of all the Creditors, personal and real. If he chuse to draw his Payment from the Purcha­ser, the personal Creditors are not entitled to a Re­lief out of the Tenement A; see what is laid down in Schol. Prop. I.


From the whole taken together, it appears to be the same whether the Subjects belong to the same, or different Proprietors; and whether the Persons claiming Relief be secondary Creditors or Pur­chasers.


The above Doctrine will hold equally in all Sorts of Diligence, Infeftments of Annualrent, Adjudica­tions, Inhibitions, or Arrestments.


If the Catholick Creditor lend a second Sum to the com­mon Debitor upon the Subject A, before the Ex­istence of any Debt upon B; in this Case the pro­portional Allocation will not obtain. He is at Liberty to draw his preferable Sum out of the Tenement B, in order to make his second Debt ef­fectual upon the Tenement A.

This follows from the first Principle. For the proportional Allocation obtains only when his own Interest is out of the Question. And it cannot be said that he acts arbitrarily, in drawing his pre­ferable Debt out of B, when he has the reasonable View of saving his other Debt upon A. Nor is any one prejudg'd thereby, since it is easy to know from the Records what Debts are upon the Tene­ment A. Before a Creditor is in safety to lend u­pon B, it is requisite at any Rate to know what Burdens are upon A, preferable to the Catholick Infeftment. And it is not a great additional Trouble to search forward to the present Time. Add to this as a Matter without Dispute, that the Catho­lick Creditor rebus integris may renounce either of his Securities to the Debitor, and by the same Rea­son therefore may he lend.


The same will obtatin where the Catholick Cre­ditor purchases in the secondary Creditor's Debt upon A, or conveys his own Debt to the secondary Creditor; 'tis true, the personal Creditors may here [Page 32] come to be disappointed; but this is not inconsistent; see Schol. Prop. I.


But where there is already a secondary Creditor upon the Tenement A, if the Catholick Creditor chuse to lend a second Sum upon B. In this Case the proportional Relief will obtain, tho' directed a­gainst himself.

Because, otherwise, he would be in mala fide to lend to the common Debitor, since it tends to cut out the Creditor upon A, who had Reason to trust to a proportional Relief; and were this otherwise, no Creditor, who sees a Catholick Infeftment over two Tenements, would be in Safety to lend his Money upon either.


Supposing a Catholick Infeftment upon two Tenements, and a secondary upon each, if the Catholick Cre­ditor purchase in either of the secondary Infeft­ments, he is liable to the proportional Relief. The same will obtain, if either of the secondary Credi­tors purchase in the Catholick Infeftment.

This is a Consequence of Prop. IV.


The Catholick Creditor, while there is no other In­cumbrance upon the two Tenements, may renounce his Right upon either of them to the Debitor him­self, or in Favours of another Creditor lending his Money. But after the Existence of the se­condary Debt upon A, he cannot renounce his Right upon the Tenement B; if he does, it can only be in so far as relates to himself.

This is plain from Prop. 4th and 5th. It will be proper here to obviate a Scruple that arises with Respect to this Proposition. Let us put the Argu­ment in the Mouth of a personal Creditor, who may urge it as a hard Case, the Tenement B, lying open for him to adjudge, whereby he would have the Benefit of a proportional Allocation, if the Law should cut him out, by suffering the Catholick Cre­ditor to renounce in Favours of the secondary Cre­ditor upon A. The same, says he, indeed happens, if the Catholick Creditor purchases in the secondary Debt upon A, or assigns his Right to that secon­dary Creditor; but this must be allowed for the Sake of Commerce, that Creditors be not debarr'd from taking Money for their Claims. In Answer to this, it is allowed, that if the Renunciation can be proven the Result of a Contrivance to disappoint the personal Creditors, I know not if this might not be understood as collusive, and which must always be understood, if the Renunciation be after notour Bankruptcy; but otherwise Renunciation may be as necessary for Commerce as either of the other two Cases. For put the Case, the secondary Creditor [Page 34] upon A refuses to trust his Money any longer in the common Debitor's Hands, unless he get an ad­ditional Security upon B, or a Renunciation from the Catholick Creditor, if the last be chosen, as more easily expedited, 'tis obvious the personal Creditors have nothing to complain of. See what is further said Schol. Prop. 1st.

These four last Propositions are plainly in Prin­ciples; but there may be some Dispute in the Exe­cution. For they suppose, that before the Catho­lick Creditor can renounce the Tenement A, or lend upon it, or purchase in a Debt already contracted, he must search the Registers, least there be a Debt already contracted upon B; if he lends or purchases in, no Question it is cum priculo. As for renoun­cing, he may do it safely; but the Creditor, in whose Favours the Renunciation is made, is by no Means in Safety to rely upon it without knowing what Burdens are upon the other Tenements sub­jected to the Catholick Infeftment. Another In­convenience is, That there's no absolute Certainty of coming to the Knowledge what Renunciations have been granted. For if even the Declaration of the Catholick Creditor should be thought a sufficient Security, tho' that is not always easy to be obtain­ed, yet frequently the Debt stands in the Person of a singular or universal Successor. To remedy these Inconveniencies, it might be proper by an Act of Sederunt to appoint, 1mo, Secondary Creditors, when they contract, to intimate their Rights to the Catholick Creditor; under this Certification, That otherwise the Catholick Creditor shall be at Li­berty to contract, acquire or renounce, as if such secondary Debt were not existing. 2do, To ap­point Renunciations to be registred, which will give [Page 35] absolute Security to contract upon Tenements where­upon there is already a preferable Catholick Infeft­ment. We will see from Decisions to be mention­ed hereafter, how far this is understood to be neces­sary; and how far already fix'd.

To conclude this Head, it often happens to be doubtful after what Manner this proportional Allo­cation of the preferable Creditor's Right is to be ex­tricated, by Reason of the peculiar Nature thereof, or of the Rights of the secondary Creditors. To give an Instance.

Let us suppose three Adjudgers, sciz. a Catho­lick Adjudger of both Tenements; 2do, An Ad­judger coming in pari passu upon the Tenement A. 3tio, An Adjudger without Year and Day upon the Tenement B. The Difficulty in this Case is, That the Catholick Adjudger is not simply preferable to the other two Adjudgers, as in the ordinary Cases. But it may be reduced to the simplest Case thus. Let the Tenement A be supposed divided betwixt the two Adjudgers in Proportion to their respective Debts. This because they come in pari passu. Lay aside altogether that Proportion of the Tenement A, which befalls the Creditor who comes in pari passu with the Catholick Adjudger upon that Tenement. This pays his Debt pro tanto; and as for the Re­mainder, it comes in as a secondary Debt upon that Proportion of the Tenement A, which falls to the Share of the Catholick Creditor. The Case then reduced to its simplest Terms stands thus. A Ca­tholick Right over a certain Proportion of the Te­nement A, which we shall call D, and also over the whole Tenement B. A secondary Right over B, sciz. the Adjudication without Year and Day; a secondary Right over D, sciz. the Remainder of [Page 36] the other Adjudger's Claim, over and above what his Share of the Tenement A comes to: And when the Question is reduced to these Terms, the Rules for the proportional Allocation are easily appli­cable.

Let each of the Debts be 6, and each of the Te­nements worth 6. In the first Place, lay aside 3, as a praecipuum to the second Adjudger upon A. This being done, we have a catholick Creditor over the Tenement D = 3, and of the Tenement B = 6. Out of these two Tenements, he ought to draw his Sum proportionally; that is 2 out of D and 4 out of B. (2 being to 4 as 3 to 6) after which there remains 2 to the Creditor upon B, 1 to the Creditor upon A. So upon the whole, the catholick Adjudger draws his 6, the Adjudger coming in pari passu with him upon the Tenement A draws 4, and the other Ad­judger upon B. only 2.

Let us vary this Case a little, and suppose all the three adjudges within Year and Day, and let the Numbers be the same, save only, that the Adjudger upon B, is only 3. Here striking out the second and third Adjudgers Claims, so far as they come in pari passu with the catholick Adjudger, there will remain two Subjects, 3 which remains of A, 4 which remains of B, over which the catholick Adjudger is preferable, and out which he is to draw his Debt 6 proportionally. Which is 2 4/7 out of 3, and 3 3/7 out of 4. So that the catholick Ad­judger draws his whole 6. The Adjudger upon A draws 3 [...]/7 the Adjudger upon B 2 4/7.

Let us now suppose the Legals to be expired, and see what Alteration that makes. Here the Ad­judications, that before were Rights in Security, li­mited to the Payment of the Debt secured, become [Page 37] now Rights of Property. Thus then in the first of the two Cases, the catholick Adjudger now no longer restricted to his Claim of 6; in the Division of the Property with the other Adjudgers, claims the Half of the Tenement A, and the whole Te­nement B. And in the other Case, he draws the Half of the Tenement A, and 4/6 of the Tene­ment B.

To give another Instance, where the Application of this Rule may seem to be attended with some Difficulty. The Case is; after an Inhibition, the Debitor grants a personal Bond to one, and alienates a Parcel of Land to another; the Inhibiter attacks the Purchaser, Is he bound to assign in totum? The Difficulty is, That here there appears no Place for a proportional Allocation, there not being two Funds, out of which the Debt secured by Inhi­bition may be drawn. The Answer is, That the personal Bond granted after Inhibition must be con­sidered as one Fund, at least so much of it as comes to be made effectual against the bankrupt Estate by Adjudication, and the Lands disponed as another. And therefore, that tho' the Inhibiter may assign in totum, yet the Assigny cannot use it, but propor­tionally against the personal Creditor adjudging. But if the Assignation to the Purchaser is supposed prior in Date, to the Adjudication upon the per­sonal Bond, there the Assignation may be used in totum, per Corrol. Prop. IV. Simular to this is Di­ligence by Horning against a Bankrupt, which is made use of to found a Reduction, upon the Act 1621. In this Case the Creditor reducing is bound to assign his Debt and Diligence, but then the As­signy cannot extend it against other Alienations, made prior to the Assignation, otherwise than pro­portionally; [Page 38] but as to Alienations made after, he may extend it in totum.

Let us now touch some of the Exceptions, where this proportional Relief is denied, upon special Cir­cumstances.

It will be remembred, as laid down in the Be­ginning of this Essay, That the proportional Allo­cation and Relief obtains, when several Persons or several Subjects are bound equally to the same Creditor; the Inequality of the Obligation will, in all Cases, disturb this Rule. As for Example, where one Person or Thing is bound principally, an other only in subsidium.

As to Cases of this Kind, take the following Rule.


When two Persons or Subjects are bound unequally, the one principally, the other in subsidium, the proportional Allocation cannot obtain. But the subsidiary Obligant is intitled to a total Assigna­tion against the Principal, and has a total Re­lief.

This naturally follows from the Doctrine above laid down; for if an Equality of Obligation infer a proportional Assignation or Relief, an Inequality of Obligation must infer a disproportional Assigna­tion or Relief: And thus it is founded in the ge­neral Principle, that Cautioners, who have renounced the Benefit of Discussion, have yet the Benefit Cedendarum actionum.

And, First, Of the strict Cautionry Oblige­ment, the Intendment of which is, that the Cau­tioner shall pay, if the Principal be insolvent, and [Page 39] which therefore infers the Benefit of Discussion; here it is obvious, that there is no proportional Re­liet betwixt the Principal and Cautioner. After the principal Debitor is discussed, the Creditor at­tacking the Cautioner, is bound to assign his Debt and Diligence, that the Cautioner may make the best of them. Abstracting from the Principles above laid down, this is otherwise plain from the follow­ing Consideration, that as the principal Debitor is liable ultimately for the Debt, the Diligence ought to be kept up, in order to attack any future Funds accruing to him. And since the Creditor is out of the Question, by the Cautioner's making Payment, the Diligence ought to stand in the Cautioner's Per­son. The Obligation to assign being thus founded in the Nature of the Cautionry Contract, it follows, that the Creditor may not with-hold it upon a Pre­text, as if no Man were bound to assign against him­self. For 'tis obvious the principal Debitor is not sufficiently discust, so long as the Creditor retains to himself Securities for his separate Debt, upon Subjects belonging to the principal Debitor. It makes no Objection what was found, l. 2. C. Fide­juss. because, at the Time of this Law, Fidejussores had not the beneficium ordinis aut discussionis, be­ing introduced afterwards by Justinian, see Nov. 4. C. 1.

In this Matter a Question may arise, relating indeed principally to the Nature of an Inhibition. Let us suppose a Man lends Money upon a personal Bond and inhibits the Debitor; thereafter he lends another Sum to him secured by Infeftment. Last of all the Debitor grants a Bond of Corroboration of the personal Debt with a Cautioner. When the Cautioner pays, without Controversy he has a Right [Page 40] to the Inhibition. Upon this the Question arises, Whether the Inhibition assign'd to the Cautioner does strike against the Creditor's heritable Bond? Which resolves into a Dispute anent the Nature of an Inhibition, whether it be real, that is, directed to the Debt, and intended to guard it, or only per­sonal, directed to the Creditor; that is, in other Words, whether Inhibition be a Prohibition to the Debitor to alienate in Prejudice of the Debt, or in Pre­judice of the Creditor? I incline to the last. Upon which Supposition, the Inhibition, when assign'd, will not be available to the Cautioner, since it does not strike against Alienations made to the Creditor himself. 'Tis a different Case, if the Cautionry Obligement was prior to the contracting of the heritable Debt; of which hereafter.

Let us, in the next Place, suppose a Cautioner, who has renounced the Benefit of Discussion by binding himself conjunctly and severally with the Principal. And here, tho' the Cautioner is directly, yet not equally bound with the Principal. There­fore, by Prop. VII. as he has a total Relief, he ought to have a total Assignation. But if once we establish the Obligation upon the Creditor to assign, it will follow by Prop. V. That he cannot there­after contract with the principal Debitor directly or indirectly, to disappoint the Cautioner's Relief. But there appears nothing to oblige the Creditor to assign against himself, to defeat any Right of his own, that was prior to the Accession of the Cau­tioner. For since, in this Case, the Cautioner has not the Benefit of Discussion, he has nothing to found his Claim of Assignation upon, but the ge­neral Laws above laid down; and therefore this Case falls to be regulated by Prop. IV.

[Page 41] Possibly it may not be thought an useless Piece of Curiosity to see this made out from other Prin­ciples. In all Cases it carries strong Conviction, when it is found, that different Principles coincide in the same Conclusions. The Principle of Law that leads me to this Point is as follows, That when different Persons are bound to one another in mutual and reciprocal Obligements to a certain End, in every Thing they do with Relation to the Contract, they are bound to have in View the Sup­port and Accomplishment thereof. In other Words, the Law considers Persons, so bound together, as in a Society, with Relation to their common Af­fair. And it is a Rule in Society, that every Member ought to act for the common Behoof. Thus a Purchaser of Land buying in a collateral Right, cannot pursue a Warrandice against the Seller upon the Footing of Eviction; but must re­strict his Claim to the Money he paid for the col­lateral Right, which is supposing it to have been bought in with a View to the common Interest. Thus a Wadsetter buying in a preferable Title to the Estate, is understood to do it for the joint Be­hoof of himself and Reverser; and therefore cannot plead upon it against Redemption of the Lands. The same will be found to obtain betwixt a Cre­ditor and a Cautioner who has renounced the Be­nefit of Discussion. For as to the proper Cautioner, his Benefit of Discussion, as above set forth, affords him more ample Security than he has by this Prin­ciple. To come to Particulars. If the Creditor adjudge, inhibit, or take any other additional Se­curity, he is understood as carrying on a commune negotium, for the Behoof of himself and Cautioners. Which infers, that he ought to communicate such [Page 42] additional Security to the Cautioner performing his Part by paying the Debt. In which View it must be considered, when any additional Security is granted to a Creditor, as it is a Security for the Debt itself, of consequence it must be a common Security, to all who are concerned as Cautioners, to see the Debt paid. All this proceeds from what is commonly called the bona fides contractus. And thus it is made out from the Nature of the Con­tract itself, that the Creditor is bound to assign his Debt and Diligence to the Cautioner upon Pay­ment. It is a natural Consequence from this, that if the Creditor discharge any additional Secu­rity, it operates Relief pro tanto to the Cautioner. Which being fix'd Law with us, is a Confirmation of this Doctrine. For it obviously supposes, that the Cautioner has an antecedent Right to demand Assignation, without which it would be nothing to the Cautioner, whether the Creditor discharge the additional Security or not. From the same Prin­ciple it follows, that a Creditor in a personal Bond with Cautioners, using Inhibition against the De­bitor, and thereafter lending Money to the Debi­tor upon heritable Security, is bound notwithstand­ing to assign his Inhibition to the Cautioner upon Payment, tho' against himself, because the Inhibi­tion is a common Security for the Debt, both to Principal and Cautioner; which Security the Cau­tioner cannot be defrauded of by any After-deed of the Creditors. And if a Creditor cannot discharge any additional Security directly, neither will he be allowed to do it indirectly by the Circuit of lending Money to the Debitor. It follows, 2do, That if the Creditor cannot safely lend to the Debitor after [Page 43] the Date of the additional Security, as little can he purchase in.

But now let us suppose the heritable Bond prior to the Accession of the Cautioner. And let us also suppose it Law, that Inhibition does strike against posterior Alienations to the Inhibiter himself. In this Case there is nothing in this Principle at least, why the Creditor should be obliged to assign at all, far less to assign against himself. For tho' upon this Principle the Creditor is bound to assign to the Cautioner, who has renounced the Benefit of Dis­cussion, whatever additional Securities were ob­tained after the Date of the cautionry Engagement, the same will not hold with Respect to anterior Se­curities, because these cannot be regulated by the Laws of Society, being before the Society ex­isted.

Another EXCEPTION we shall give is of three different Sort of Creditors upon the same Subject 1mo, An Annualrenter or Annuitant. 2do, A Life­rent Infeftment of Locality. 3tio, An Adjudger. One would readily think of reducing this to the common Case by considering the Liferent Infeft­ment as one Subject, the Adjudication of the Property as another, and the Annualrenter or Annuitant, as a preferable Infeftment over both. But when the Na­ture of an Annualrent, or Annuity is considered, this will be found a wrong Conception of the Mat­ter. An Annualrenter or Annuitant ought first to draw his Payment out of the Fruits; and it is but by a subsidiary Right that he is entitled to claim the Property itself. This is obvious from the Acti­on of poinding the Ground, the Stile of which carries the Poinder only to affect the Property, fail­ing Moveables upon the Ground. In this View the [Page 44] Rents stand as principal Debitor, the Ground on­ly as Cautioner. From this Consideration the Life­rent Infeftment by Locality ought to be intirely bur­dened with the Annuity or Annualrent. There is no Place therefore for a proportional Allocation, and consequently no Foundation for Relief.

But what if the Annualrenter or Annuitant suf­fer the Localist to uplift the whole Rents, trusting to his subsidiary Action against the Property. This plainly would be acting arbitrarily, by giving a par­tial Preference to the Localist: And therefore the Adjudger in this Case would be entitled, not only to a proportional, but to a total Relief against the Localist. And further, If these preferable Creditors ly out, and refuse to intromet, I see no Reason why the Adjudger may not be entitled to uplift the Rents in their Name.

N.B. Here it is taken for granted, That as a Lo­calist is a liferent Proprietor, she can have on poind­ing of the Ground for any Inlacks of the Rents, more than an absolute Proprietor can; and so these Inlacks are not a real Burden upon the Ground as the Inlacks of an Aunuity are. All the Remedy she has is to adjudge the Fie upon her Warrandice, which will bring her in pari passu with other Ad­judgers upon personal Rights. Let us now suppose, that she has adjudged upon her Warrandice; but this will make no Difference, it will not bring on a proportional Allocation. The Annuity, or Annu­alrent continues still a Burden upon the Locality; and all the Alteration is, that the Localist, upon her Warrandice, comes in among the other Adjud­gers.

[Page 45] 2do, What if the Annuitant, or Annualrenter, actually assign to the Localist? If this was done subsequent to the Date of the Adjudication, it will avail nothing, see Proposition V. unless perhaps it be allowed the Force of an Adjudication, to bring in the Localist pari passu, as if she had adjud­ged upon her Warrandice. There is even a Scruple if this Assignation should be sustained, though of a Date prior to the Adjudication; because it tends to cut out the personal Creditors, who rest secure to ad­judge quandocunque as long as no other Adjudica­tion stands in their Way. But this Scruple is al­ready obviated Schol. 1. Prop. I.

3tio, If the Annuity and Locality be vested in the same Person before the Existence of any other Right upon the Estate, the Possession my be attributed to either to save both. This is clear from Prop IV. And though the Matter should be reckoned doubt­ful as to a Renunciation, which can never be a ne­cessary Deed when granted to a Localist, who has not Power like a Creditor to uplift, there can be no Dubiety when the Localist purchases the Annuity, & e contra; because there is no Reason such Com­merce should be discountenanced.

This is all to be understood of an Annuity and Locality concurring for the same Years: But if there be prior Annuities due before the Commencement of the Liferent Right, these cannot be said to be a natural Burden upon every Year's Fruits falling due to the Liferenter, as the yearly Annuities are; and therefore the Creditors cannot force the Annuitant to draw them out of the Rents. As little can they be reckoned a proper Burden upon the Fie consider­ed exclusive of the Liferent; but they ought rather to be considered as a catholick Burden, and the [Page 46] Liferent and Fie as two separate Estates subject to them; and therefore to be drawn proportionally out of each, i. e. upon a Sale they are to be paid out of the first End of the Price, the Remainder there­of to go to the Localist in Liferent, and the Adjud­gers in Fie.

Another EXCEPTION is as follows. Let us suppose the Locality the preferable Right. 2do. The Infeftment of Annualrent or Annuity. 3tio, The Adjudger. At the same Time let us suppose, That the Liferenter consents to the posterior Annualrent­right; by Virtue of this Consent the Annualren­ter will be preferable. Has the Localist in this Case a total, or only a proportional Relief against the Adjudger? The Answer is, She has a total Relief; because the Consent here is private betwixt the Annualrenter and Localist, and can operate no­thing in Favours of the Adjudger. Besides, there is implied in the Consent an Obligation upon the Annualrenter to keep the Localist indemnis, so far as consistent with his own Interest: Therefore what the Annualrenter uplifts in this Case is understood as in Name of the Localist, and he takes the Rent not as in Payment of his own Claim, but as Money re­ceived from the Localist for the Purchase of his Right; which therefore he is obliged to assign so far as he receives. Thus the Paction is not extended to be a direct Preference to the Annualrenter, but inter­preted to be only an Obligation upon the Localist to communicate her Rents to him, or, which is the same, to allow him to uplift in her Name. And so it was found. Home, 17. February 1727, Competition Lady Ludquhairn with her Husband's Creditors. But what if such Consent were absolutely conceiv'd, [Page 47] would not this bring it to the former Case, as if the Annualrenter were simply preferable?

To compleat this Essay, it will be proper to look into the Decisions of our Court of Session, and to examine how far they have followed or varied from the Principles here laid down. They are as follow,

An Annualrent being payable out of two Tenements which came afterwards into the Hands of different singular Successors; it was found, That the Annual­renter might uplift the whole out of any one of the Tenements, assigning against the other for Relief. Stair 26th June 1662, Adamson contra Lord Balme­rino. This is an Example of the first Proposition.

A Cautioner upon Payment craving Assignation against his Co-cautioner, the Lords found the Cre­ditor not obliged to assign, the Cautioner being suf­ficiently secured in Law by his Action for Relief. Newbyth, Stair 10th July 1666, Home contra Craw­furd. In this Case tho' hard to deny Assignation, yet the Dispute perhaps was of little Importance, since the Relief that was competent might be as effectual.

In a Competition an Adjudger subjected to an In­hibition offering to purge by Payment of the Debt; the Creditor was found obliged to assign his Inhibi­tion, but not in so far as it might be prejudicial to other Debts in his Person. Stair 19th July 1672, Chiesly contra Hay. The like, Stair 11th February 1676, Bruce contra Mitchel. These Decisions are defective in so far as they do not mention, whether the Inhibiters secondary Debt was of a Date prior or posterior to the Adjudication. If prior, the Decisi­ons are founded in Prop. III. If posterior the Relief ought to be proportional per Prop. IV.

A Creditor being preferable over two Tenements and a secondary Creditor having a Right only over one [Page 48] of them, in that Situation the preferable Creditor for a separate Debt adjudg'd both Tenements; it was found, That the Catholick Creditor was not obliged to dispone to the secondary Creditor in Prejudice of his Adjudication existing before the Date of the Pro­cess. Stair 6th Nov. 1678, Miln contra Hay. By this Decision and some others to be mentioned here­after, it seems to be established, that the Catholick Creditor is in Safety to lend upon the Tenement B, before he be interpelled by Process at the Instance of the secondary Creditor upon A. It will undoubt­edly be allowed, that if he is interpelled by Inti­mation, as is above proposed, the Effect would be the same. By these Decisions then we may reckon it as established, that Intimation is necessary to interpel the catholick Creditor, without which he may safe­ly lend upon the Tenement B, though in Prejudice of the secondary Creditor upon A; and this in some Measure supersedes the Necessity of making an Act of Sederunt to that Effect.

It may further be remarked upon this Decision, That if the Bond upon which Adjudication past, was prior in Date to the Notification of the secon­dary Creditor's Infeftment, upon that Supposition the catholick Creditor was not at all bound to assign, Argum. Prop. III. because though he might be in mala fide to lend upon B, after he knew of ano­ther Debt upon A; yet not to adjudge upon a pri­or Debt, that being necessitatis not voluntatis.

Similar is the Case observed by Fountainhall, 3d January 1696, Scotland contra Bairdner, where in a Competition betwixt a Liferentrix, who only had her Liferent upliftable out of the half of the Subject, and a Creditor whose Infeftment affected [Page 49] the whole, and was prior to that of the Liferentrix, and who had also an Adjudication, but posterior to the Liferent Right; she craving, that he might be decerned to assign her as to one half, in regard the other was sufficient to pay him his Annualrent: The Lords thought, that if he acquired any such Adjudication less preferable post litem motam, he might be reputed in mala fide to make Use of such Right to impede his assigning to the Liferentrix; but if he had got it before, then there was no Law hindring him to do the same, and to cover it by his better Right; and so the Lords refused to decern him to assign the Liferentrix against the other half, in Prejudice of his Adjudication. Here again the Necessity of Intimation is enforced.

An Assignation to some Goods by a Bankrupt to his Creditor in Security and Payment, being reduced upon the Act 1696 by another Creditor, and the Re­ducer at the same Time arresting in the Assigney's Hands, and pursuing a Forthcoming; the Assigney was contented to make the Goods forthcoming, but craved Assignation from the Pursuer to his cumula­tive Security by Adjudication, in so far as he should pay, that so he might operate his Relief out of the common Debitor's Effects pro tanto; The Lords found this relevant, and ordained the Pursuer to as­sign, but with this express Quality, That the Pur­suer should be preferred quoad his Debt, and the Assigney should not compete with him for the same. Fountainhall, Forbes 19. December 1705, Reid con­tra Man. This Decision is certainly well founded. There can be no Pretence for obliging a catholick Creditor, who gets Payment only of a Part of his catholick Debt, to assign in Proportion to that Pay­ment, which may tend in some Measure to restrict [Page 50] his Claim for the Remainder. 'Tis fair in such a Case, if he assign at any Rate.

A Creditor by Bond, wherein three Persons were bound as Co-principals, being the first Arre­ster of a Subject, belonging to one of his Debitors, was not found obliged to assign his Bond to the o­ther Arresters, for recovering of the other two Co-principals the Superplus paid to him, out of the com­mon Debitor's Effects, more than his third Share, altho' Relief of two Thirds was competent to the common Debitor himself against these Co-princi­pals. For this Reason, That the Creditors post­poned might affect the said Relief by Diligences. Forbes 24. February 1708. Kennedy contra Vans and Crawford. This Decision is one of very few that are not easie to be adjusted to Principles, running contrary to the primary Law of a proportional Al­location. It appears obvious, That the ratio deci­dendi, which may possibly be the Observer's, is by no Means conclusive. For if Assignation is never to be granted, where the Creditor craving Assignation has otherwise Action competent against the Person or Subject; it will follow, that Assignations should never be granted in any Case. At that Rate, in the known Case of a catholick Right over two Tene­ments belonging to the same common Debitor, and a secondary Right over one of them; the secondary Creditor could not seek Assignation a­gainst the other Tenement, because he might affect it by Diligence. And it is remarkable, That the Decisions, as handed down to us, run so cross to one another, that sometimes it has been sustained as a good Reason for denying Assignation, that the Subject designed to be affected, in vertue of the As­signation, did not belong to the common Debitor; [Page 51] and consequently was not otherwise to be come at, but thro' Aid of the Assignation. See below, Forbes 29. June 1714. Ker contra Creditors of Harden. But now, what if another Creditor of the common De­bitor's has ab ante affected this Relief? The An­swer is, That it will signifie nothing. For, let us make a Supposition, which is exceeding rational, That the catholick Creditor had drawn his Payment equally from the three Co-obligants; upon that Sup­position, as there would be no Foundation for Re­lief, the Creditor who had affected it could draw nothing. It can make no Difference, that the ca­tholick Creditor chuses to draw his Whole from one. The very Design of an Assignation, is to remedy this Inequality; and to put all Things upon the same Footing, as if he had drawn equally and pro­portionally, which every catholick Creditor is sup­posed to do, when the Question is anent Relief, com­petent to secondary Creditors among themselves.

A Party having two Infeftments of Annualrent, one prior and another posterior to the Infeftment of another Creditor, whose Infeftment was only of a Part of the Lands, he, who had the first and third, being infeft in the whole, and taking up his Annual­rent out of that Part only, wherein the other stood infeft, whereby that other was disappointed; and therefore craved in a Process, to be assigned to a Proportion, &c. The Lords found, That where a posterior Creditor pays a prior out of his own Mo­ney, he has a Title to demand Assignation; but if he leaves him to get his Payment out of the Debi­tors Means, the catholick Creditor is not obliged to assign but with a Quality and Reservation, that it shall not prejudice his other Debts and Rights, tho' posterior to the Party's Right, who craves the As­signation. [Page 52] Fountainhall, Forbes 21. December 1710, Pitcairn contra Halliday. This is directly opposite to Proposition IV. unless it be said, that there is here no Appearance, that the catholick Creditor was ac­quainted with the interjected Creditor's Debt. If this be understood, as the ratio decidendi, it tends to fortifie the Doctrine above laid down, anent the the Necessity of Intimation.

Brigadier Preston, Purchaser of the Estate of Val­leyfield at a publick Roup, offered to the Lords a Scheme for drawing the Price, wherein it appeared, that he had Right to some Debts, preferable over the whole Estate, and to others preferable over particu­lar Parcels: And pretending to exhaust the rema­nent Price of the separate Parcels, affected by his ca­tholick Debts, in order to bring in the other Debts purchased in by him, preferable, as said is, upon particular Parcels. This was opposed by Colonel Erskine, who alledged, that the catholick Debts, preferable upon the whole Estate, ought to be taken out of the whole Head of the Price, whereby the Price of every particular Parcel of the Estate would be diminished proportionally; and he, the Colonel, of Consequence, would draw some Share of the re­manent Price; whereas, by the Brigadier's Scheme, he was intirely excluded. The Lords found, the Brigadier might exhaust the Price of any Part of the Estate, by his sovereign Rights affecting the whole; and that he might make the best Use he could of his Rights, providing the same were not acquired, or made use of in emulationem of the Colonel. Bruce. 22. February 1715. Brigadier Preston contra Colo­nel Erskine. Here the Fact is not distinctly laid down, whether the Purchases made by the Brigadier, of his secondary Rights, were prior or posterior to [Page 53] the Existence of those belonging to the Colonel. If prior, the Decision is agreeable to the Corrollary of Prop. III. otherwise if posterior; unless it be put up­on the Footing, that Colonel Erskine gave no Inti­mation to the Brigadier of the Existence of his Rights. And the Provision at the Close of the In­terlocutor shews plain enough the Opinion of the Court, as to this Matter: For after such Intima­tion, any secondary Rights purchased in by the Brigadier, who was catholick Creditor, must un­doubtedly be deemed, to be acquired and made use of in emulationem of the Colonel.

A Creditor ranked in the second Place did after the Ranking purchase in the preferable Debt, and having these two Rights in his Person, he became Purchaser of the Estate at a publick Sale, and gave Bond for the Price payable to his Creditors as they were ranked. The preferable Debt purchas'd in by him, as said is, did not only reach over the Lands purchas'd by him at the publick Roup, but also over a separate Subject belonging to another. The Fact was, That the Price of the Lands sold publick­ly was but sufficient to answer the preferable Right; and therefore the Purchaser, willing to bring his se­condary Claim within the Price, craved Payment of his preferable Right intirely out of the separate Sub­ject; which the Lords refused, and found, That the said Debt, being in the Person of the Purchaser of the Lands upon which it was ranked primo loco, which Purchaser granted Bond for Payment of the Price to the Creditors as ranked, the said Debt be­came eo ipso extinguished confusione, and could not revive to be a Charge upon the separate Subject. 13th June, 1729. Competition betwixt Mr. Henry Ramsay and the Bank of SCOTLAND. In this Case [Page 54] it is clearly laid down, that after Intimation, by Process, of a secondary Right, the proportional Re­lief will obtain, tho' the preferable and any other secondary Right should come into the same Person. When the Matter is brought here, it will follow, that any legal Intimation is sufficient. For it would be ridiculous to impose the Necessity of raising a Process, when there is nothing else in view but to in­timate a Fact to the Defender. Thus then we may hold it as an established Point in our Practice, that the Catholick-creditor may renounce his Right upon the Tenement A, lend a second Debt upon that Tenement, or purchase in a Debt upon it at any Time without being oblig'd to search the Re­gisters, until actual Intimation be made to him of a secondary Right upon the Tenement B.

Robert Scot serv'd Heir in general, and confirm'd Executor qua nearest of Kin to Sir William Scot of Harden, conveyed all Subjects heritable and moveable that he had Right to by these Titles to Ker of Chatto. Some of Sir William's real Credi­tors infeft in his Land Estate having also affected by Diligence their Debitors other Effects, conveyed, as said is, to Ker of Chatto, were in a Competition preferred to the Disponee; Ker thus excluded by the preferable Creditors, demanded Assignation to their Debts and Diligence in order to affect the real Estate. It was answered for the Creditors, That no Person is intitled to demand Assignation, unless a­gainst his own Debitors Effects. The Lords found, That in so far as Sir William Scot's Creditors are either paid out of his Estate, or out of his other Effects, they are not bound to assign their Debts and Diligences in Favours of Chatto, Forbes 29. June 1714, Scot contra Ker. That this Decision is re­concileable [Page 55] with the Principles above laid down, I see not, unless we take a separate Circumstance into Consideration, tho' not at all laid hold upon by the Collector. Sir William Scot had tailied his Land Estate with strict prohibitory and irritant clauses. Now tho' this could not save the Estate from his own Debts, yet it may infer a very natu­ral Presumption, That Sir William intended his separate Funds should go in the first Place for Pay­ment of his Debts. If this be well founded, the Decision is extreamly justifiable; for the separate Funds to which Robert Scot succeeded upon his Confirmation and general Service, have been consi­dered as the principal Debitor, and the tailied E­state as Cautioner only; and therefore in this View, it had been wrong done by the Creditors to assign against the tailied Estate, had they been ever so willing.

In the Year 1685, M'Guffoc of Rusco, Heri­tor of the Lands of Borgue, granted an heritable Bond for the Sum of 2000 lib. out of the said Lands in Favours of Irving of Logan, whereupon the Creditor was infeft the same Year. Thereafter the said Rusco granted a Disposition of the Lands of Borgue in Favours of his second Son David Blair, reserving a Faculty to alter; but which Faculty he afterwards renounced in his Son's Contract of Marriage. M'Guffoc of Rusco be­ing overcharged with Debt, in the 1727 his E­state was brought to a Sale; and the said Irving of Logan, who had adjudged all his Debitor's Lands for the above mentioned Debt of 2000 lib. was ranked as a preferable Creditor: And upon his drawing Payment, it was demanded by the [Page 56] other Creditors, that he should assign them to his Infeftment upon the Lands of Borgue, according to the general Rule in these Cases, that who has a preferable Infeftment in two different Subjects for the same Debt, if he chuse to draw his whole Claim out of one, is obliged to assign to the Cre­ditors postponed, to afford them a proportional Relief out of the other Subject. This was opposed by the Relict and Children of Borgue, upon this medium, That by Rusco's Disposition to his second Son, and After-consent in that Son's Contract of Marriage, he became bound to warrant the said Lands; the Consequence whereof is, that had Irving of Logan drawn his whole Sum out of their Lands, they must have been intitled to de­mand Assignation against Rusco bound to them in Warrandice, just as much as a Creditor who takes Payment from a Cautioner is obliged to as­sign him against the principal Debitor. Answer'd, Rusco was never bound to warrand his Son David and his Heirs against Logan's Debt. The Dis­position was under a reserv'd Faculty, to con­tract Debt, alter and dispose of the Estate, &c. and consequently the Debt already contracted, could be no Contravention of the Warrandice; and supposing the Son had paid the Debt, he could never have distressed his Father for the same; and consequently an Assignation would have been fruitless and ineffectual. Nor does the Father's After-consent in his Son's Contract of Marriage, which implied a Renunciation of his Faculty any way alter the Case: For by no In­terpretation can this be drawn to import an Obli­gation upon the Father to warrand or relieve his [Page 57] Son of the foresaid Debt. The Lords refused the Assig­nation. January 1729. Competition betwixt the Cre­ditors of Rusco and the Relict and Children of Blair of Borgue. This Decision runs directly counter to the Principle of a proportional Allocation. There may occur some Difficulty in adjusting the real Relief in this Case; which will be solv'd by comparing this Case with that abovementioned of a Catholick Ad­judger of two Tenements; Another Adjudger with­in Year and Day upon the Tenement A; a third without Year and Day upon the Tenement B. Here the Lands of Borgue stand for the Tenement B, and David Blair Proprietor thereof for the Ad­judger without Year and Day.

Mrs. Dalgleish, Creditor to Earl of Roseberry, ar­rested the Rents of his Estate in the Tenants Hands, as also a personal Bond of his in the Hands of Mr. John Alves the Debitor. Thereafter the same Rents were arrested by Blair another Creditor, who by Decreet of Furthcoming was preferred secundo loco on that Subject. Last of all the common Debitor granted Assignation of Mr. John Alves's Bond for onerous Causes to Archibald Robertson Merchant in Edin­burgh. This Assignation obliged the Debitor in the Bond to raise a Multiply-poinding, wherein the Arrester was preferred to the Assigney. This gave Occasion to Robertson the Assigney, whose Subject was thus carried away by the Arrester, to demand an Assignation to the Arrester's Debt and Diligence, in order to operate his Relief out of the other Sub­ject affected thereby, sciz. the Rents of the Estate in the Tenants Hands. Against that Demand Blair, the second Arrester of that Subject, appeared for his Interest. It was pled for him, That the common [Page 58] Debitor could not put the Arrester in a worse Situa­tion by granting Assignation to Robertson; And therefore that he is intitled to a total Assignation, as if the Assignation had not been granted. It was answered, That the common Debitor remained Fiar of the Bond just as much after Blair's Arrest­ment as before, the Arrestment not affecting the Bond; and therefore his Assignation to Robertson was valid and effectual in Law; and did infer an Obligation upon the Catholick-creditor, chusing to draw his Payment out of a Fund that now no longer belonged to his Debitor, to assign for a total Relief; which Obligation was infer'd from the Principles of Remuneration. To this it was replied by the second Arrester, That the Bond, being affected by the preferable Arrestment, was made litigious; and therefore was still to be considered as remaining in the Person of the common Debitor. The Lords found, that Mistress Dalgleish was not obliged to assign to the Assigney Robertson in Prejudice of Blair's Arrestment. 12th June 1730. Competition be­twixt Robertson and Blair. This is directly oppo­site to Prop. II. But it is to be observ'd, that here Robertson was insisting for a total Assignation. Possibly had he restricted his Claim to a proportio­nal Assignation, he would have had a more favou­rable Hearing.

George Gordon lent 1000 Merks upon Bond con­junctly and severally to Kincaid and Suttie, Kin­caid got the Money, and gave Suttie a Bond of Relief. Upon this Bond, after the Term of Pay­ment, Diligence was done by Horning and Inhibi­tion. Thereafter Kincaid, Suttie and Johnston con­junctly and severally granted Bond of Corroboration, containing a Clause obliging the other two to relieve [Page 59] Johnston as their Cautioner. Johnston after this, and after Existence of the Inhibition, lent Kincaid, the common Debitor, 100 lib. Sterl. by an heritable Bond. Last of all the said Johnston paid the Debt wherein he was Cautioner, and took from George Gordon the Creditor, Assignation to the Debt and Diligence, and insisted against Suttie for Relief. In this Process the Question occur'd, Whether John­ston was bound to assign the Inhibition to Suttie u­pon Payment? Johnston pled, That the Inhibition strikeing against his heritable Bond, the Law did not oblige him to assign against himself. Suttie con­tended, That this Rule holds not betwixt Cautio­ners who seeking Relief off one another, are bound in strict Law from the Nature of the Contract to assign. The Lords found no Necessity upon John­ston to assign the Inhibition. 12th November 1730. Johnston contra Suttie. To examine this Case by the Laws above laid down, we shall in the first Place take up the Question, as if George Gordon the Creditor in the Bond with Inhibition, had also been the Lender of the posterior heritable Bond, and as Johnston were not in the Field. In this Case, ac­cording to the plainest Principles, Suttie paying the Debt, would be intitled to demand Assignation to the Inhibition, tho' exclusive of the heritable Bond. See Page 40. 'Tis another Question, how far the Inhibition would in this Case be serviceable when assigned; but this comes not in in a Case like the present, where the heritable Bond was granted to a­nother than the Inhibiter. Continuing still the Sup­position, That Gordon was Creditor in both Bonds, let us draw a little nearer to the present Case by taking in the Consideration of the Bond of Corro­boration, wherein Johnston acceded as Cautioner. [Page 60] Here Johnston paying the Debt, would have Right to demand Assignation to the Inhibition. And when he is seeking Relief off Suttie, 'tis as evident he must transfer the Debt and Diligence to him, in order to operate his Relief against the principal Debitor. For if he acts as Creditor, the Thing is apparent; if as Cautioner upon the Clause in the Bond of Corro­boration, it will come to the same: For if a Cre­ditor be bound to assign upon Payment, multo ma­gis a Co-cautioner who has a Bond of Relief. To come close to the Case in Hand, if Gordon was bound to assign to Suttie even against himself, tho' he had been Lender of the heritable Bond, he cannot put him in a worse Situation by choosing to take his Debt from Johnston. And Johnston, who comes in Gordon's Place by the Assignation, cannot be in a better Situation than Gordon himself would be, had he been the Lender of the heritable Bond. To take this Matter in the nearest View, Gordon's Inhibition became an additional Security for the Debt, for the Benefit of himself and all the Cautioners. Therefore whichever Cautioner was burdened with the Debt had a Right to the Inhibition in order to operate his Relief against the principal Debitor; and there­upon was intitled to reduce every Deed posterior to the Inhibition in whose-ever Favours granted.

Vinco Vincentem.

IN the Essay upon the Beneficium ceden­dendarum actionum, we have endea­voured to lay down, after what Man­ner Creditors catholick and secondary are to draw their Payment from the several Persons, and out of the several Subjects bur­dened with their Debts. The Design of this Essay is to lay down some Rules for extricating the Pre­ferences of Creditors and Disponees competing upon the same Subject. In the first Essay the Que­stion is, Having given the Order of Preference, to determine the Method of drawing Payment out of the different Funds, and from the different Per­sons 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 ac­cording to the Extent of their Claims. After dis­cussing which, the Competition among Disponees, &c. fall in, whose Claims, upon the Subject contravert­ed, are from their Nature unlimited, and totally exclusive of others.

[Page 62] In the Preferences that arise simply from Priority of Time, there can arise no Dubiety among com­peting 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 poste­rior in Time, shall sometimes exclude and be pre­ferred 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 pre­ferable 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, inter­preting the Consent as a virtual Assignation. Or, 2do, As giving it only a Preference, so as to in­title 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 under­stood as a virtual Assignation, there can be no Col­lision betwixt the first and last Creditor, the Rule [Page 63] prior tempore potior jure will be sufficient to extri­cate 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 ac­cording 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 Pre­ference 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 ad­justing Preferences among Creditors, who have personal Challenges or partial Grounds of Pre­ference against one another. To clear the Mat­ter 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 [Page 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 An­swer 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 ob­tain 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 unpre­occupied 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 de­termine, 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 ne­cessary [Page 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 re­strict 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 con­sented 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 Ar­gument to restrict C's Right. And truly the Ar­gument is conclusive. Were C allowed to cut out A of his whole Claim, without suffering any Re­striction upon Account of B's Claim, it would fol­low, 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 [Page 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 con­sidered, 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 ter­minating 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 up­on 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 Adjudica­tions, &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 Dili­gences, without respecting the partial Grounds of Preference any one may have against another. By [Page 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 Cre­ditor, in Virtue of partial Grounds of Preference, the Operation must go thus. Strike out the Credi­tor against whom the partial Ground of Preference is directed; what remains of the Fund unpre-occu­pied 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 Inhi­bition or Consent virtually operate against B, tho' in­tended 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 Chal­lenge be considered as operating a direct Preference, or only a personal Claim, or Ground of Reducti­on. 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 Ob­servation supersedes intirely the Necessity as to this Point of disputing, whether an Inhibition give a direct Preference, or be only a Ground of Reducti­on? Which possibly may be a Question not easi­ly determined from the Nature of that Diligence.

Let us illustrate this Doctrine by another Ex­ample. The first we shall give is out of the Ro­man [Page 68] Law. The species facti is this; a Person bor­rows Money and for Security gives a Hypotheck, which the Creditor neglects to registrate. Thereaf­ter 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 con­ventional 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 Hypo­theck need not be registred;) the registred Hypo­theck 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 Hy­potheck 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 Prefe­rence, or such like, which is the Case of Adjudica­tions within Year and Day. As for Example, we shall suppose A to be an Adjudger infeft, B an An­nualrenter, [Page 69] C a second Adjudger pari passu with the first. In this Case, it is plain, all the second Adjud­ger has to depend upon is what remains of the Fund after satisfying the Annualrenter, and that Remain­der 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 Annual­renter, or even were the last Adjudger, but within Year and Day. Whence it follows, That C the se­cond 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 ac­cordingly he draws that Half as if A the first Ajud­ger 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 Com­petition 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 grant­ed, That the Act of Parliament bringing in Ajud­gers 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 Fa­vour was surely not designed. All intended by the [Page 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 Competiti­on with a second, but gives no Privilege to a second Adjudger in Competition with third Parties.

Having laid down the Rule and Method for de­termining the Preferences among compeating Credi­tors, 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 Inhibiti­on, 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 Ad­judgers pari passu each of them draws 1. Next as to the partial Grounds of Preference, B the Adjud­ger Inhibiter cutting out C by Virtue of his In­hibition, 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.

[Page 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 pre­ferred; but against this unjust Sentence there is no Appeal entred. C is also preferred to B; but up­on an Appeal B obtains Redress. In this Case it is demanded, how the Preferences are to be adjust­ed? 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 Assig­nation 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. Du­rie, 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 extricat­ed? 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 [Page 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 ano­ther 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 in­consistent that two Diligences can be mutually pre­ferable 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 regu­lates the whole Competition, sciz. the Priority of At­tachment, 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 Ar­restment is supposed only to be a personal Prohibi­tion to the Debitor, and consequently no Nexus re­alis. No Wonder then, that two inconsistent Sup­positions in the same Competition should bring on an inextricable Circle. To evade this, if it be al­ledged, That an Arrestment is preferable interveen­ing 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 [Page 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 pre­tended. 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 Prohibi­tion, upon which Supposition, both Assigney and Ad­judger must be preferable to it. That the last Sup­position is the Truth of the Matter, will appear, 1mo. From the Nature and Stile of the Diligence. 2do. From this indisputable Position, That Arrest­ment stops not a posterior Poinding. 3tio. From what is above laid down, that a posterior Adjudica­tion 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 hap­pen 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 Chal­lenge 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 [Page 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 Supposi­tion, the first Annualrenter will draw the Whole, notwithstanding that the last Annualrenter is prefe­rable 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 pre­ocupied 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 Disposi­tion.

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 Bene­fit thereby. It will readily occur, That among Disponees, this Bar of jus tertii generally excludes the personal Challenge totally, the Fund being sup­posed already preoccupied by some third Right, a­gainst which the Challenge lies not: Among Cre­ditors it is generally otherwise: For the third Right, against which the Challenge lies not, being limited, [Page 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 Ex­amples 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 a­bove Rules to the Case of compeating Disponees.

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


Let us suppose, 1mo. A Death-bed Deed com­pleated, but reducible by the Heir. 2do. A second Death-bed Deed, of the same Subject, consented to by the Heir.

The first Deed cuts out the second; the second cuts out the Heir; and the Heir again cuts out the first.

To clear this Case, it must be premised, as a Thing taken for granted, that the Heir's Consent here operates not a Conveyance of his Privilege, but barely a Renunciation thereof, with respect to the Right consented to. If it did operate a Convey­ance, there could be no Difficulty in the Question, because upon that Supposition, the Reduction would be competent to the second Disponee, as well as to the Heir himself. Taking the Consent then as ope­rating only a Renunciation, the Decision must come out in Favours of the first Disponee. He stands first in the Order of Time; and as for the personal Challenge, competent to the Heir against him, the Challenge is barred by the jus tertii; the interveen­ing Disposition consented to rendring it fruitless to [Page 76] the Heir, to insist upon his Privilege. And thus it happens, that a Consent or other Deed, designed in Favours of one, may yet accrue solely to the Benefit of another.


1mo. A base Infeftment of Ward Lands. 2do. A publick Infeftment of the same, confirmed by the Superior, which excludes Recognition. 3tio. The Superior upon his Privilege of Recognition.

This Case is plainly of the same Nature with the former. It is jus tertii for the Superior to plead upon his Recognition, because he can have no Bene­fit thereby; unless this Consideration be brought in to difference the Cases, drawn from the Nature of Holdings, viz. that a Superior has an Interest to choose his own Vassal; which may be alledged, as suffi­cient to found him in his Challenge against the base Infeftment; altho' he have no further Inrerest in the Question, but that he be Vassal whom he has cho­sen, and whose Right he has consented to. This Dispute I shall leave in medio, as a little foreign to the Subject in Hand.

It must here be taken along, That Recognition is understood only as a personal Privilege competent to the Superior. Were it in ipso jure Nullity, the Decision at any Rate would go otherwise: Upon that Supposition the second Disponee publickly infeft, might found upon it per Pos. VI. jus tertii.


1mo. A base Infeftment. 2do. A publick Infeft­ment. 3tio. The Superior in Right of Ward.

[Page 77] In this Case, the publick Infeftment is good a­gainst the Ward, as holding of the Superior him­self; and therefore it is plainly jus tertii for the Su­perior, to insist against the base Infeftment, in so far as he is excluded from the Benefit of the Ward, by the publick Infeftment: And therefore the base Infeftment will come out preferable.


1mo. A base Infeftment. 2do. Terce or Courte­sy. 3tio. The Superior by Ward or Recognition.

In this Case also, it is plain, that in so far as the Superior is excluded, by the Terce or Courtesy, in so far will the base Infeftment have the Benefit thereof.


1mo. An Adjudication with a Charge against the Superior. 2do. Voluntary Disposition with Infeft­ment reducible, as being granted in cursu diligen­tiae of the first Adjudger. 3tio. Adjudger within Year and Day of the first.

In this Case, the Disposition excludes the second Adjudication, and is excluded by the first, in so far as the first would draw were the Disposition not in the Field: And so it will come out, that the first Ad­judger will have the Half of the Fund, providing his Debt amount so high, and the Disponee will en­joy the Remainder.


1mo. A Charge of Horning. 2do. An Assigna­tion of a Bond to a Creditor, reducible by the Char­ger, [Page 78] on the Act 1621. 3tio. Arrestment thereafter laid on by a third Creditor, in Hands of the Debi­tor in the Bond.

Here the Assignation will stand good against Re­duction; in respect that it is jus tertii, for the Charger to found upon it, being at any Rate exclud­ed by the Arrestment.


1mo. An Adjudger with a Charge against the Superior. 2do. An Adjudger infeft without Year and Day. 3tio. An Infeftment upon a voluntary Disposition, which Disposition is of a Date prior to the Citation in the Adjudications.

In this Case, the Adjudger infeft is preferable.


1mo. A personal onerous Bond. 2do. An Infeft­ment upon a posterior gratuitous Disposition, grant­ed in the Circumstances of Bankruptcy. 3tio. An Infeftment upon an Adjudication for an onerous Debt, contracted after the gratuitous Disposition; with which Adjudication the first onerous Creditor adjudging does not come in pari passu.

Here the gratuitous Disposition comes out pre­ferable.

We shall conclude with some Decisions, that have past upon this Subject.

An Infeftment of Annualrent, being after the first Apprising, and before the second, all three were brought in pari passu, being within Year and Day, the Statute being new and dubious. Stair 6. Fe­bruary [Page 79] 1673. Brown contra Nichols. This Case is handled above.

The next Decision I shall mention, is the Com­petition amongst the Creditors of Langtoun, 20. January 1709. This being a curious Case, and pretty stifly debated, I shall give it at full Length, as observed by a very eminent Hand.

Langtoun's Affairs having gone into Disorder, in the Beginning of the Year 1690; about the Time of his Retiring, he grants many heritable Bonds of Corroboration, whereupon Infeftments followed, be­fore any Adjudications could be expede; and there were also many Inhibitions, some older, some later, before the granting of several of these Bonds of Cor­roboration; and the Creditors did all generally ad­judge, within Year and Day. The Debts and Di­ligences did far exceed the Debitor's Estate: Whereupon a Competition of Creditors arising, se­veral Questions did occur, which had never former­ly been determined, especially in the Ranking of simple, and inhibiting Adjudgers, and Annualren­ters; which Questions were pled and determined, without Names of Parties, but upon the Nature of their several Rights and Diligences.

For the Annualrenters it was alledged, That their Infeftments of Annualrent, being prior to all the Adjudgers, they were preferable, and their Annual­rents payable in the first Place, before an Adjudger could draw any Share of the Rents.

And for the Inhibiters, that the Sums in their Inhibitions must be fully satisfied before the poste­rior Annualrenters could draw any Share.

And for the simple Adjudgers on Debts anterior to the Inhibitions, that the said Inhibitions could not be any ways prejudicial to their Debts, but [Page 78] [...] [Page 79] [...] [Page 80] that they, as Co-adjudgers with the Inhibiters, ought to draw the same Share, as if no Inhibition had been used.

These several Propositions were all severally founded upon known Principles of Law, in case of Competition betwixt any two of the three con­tending Parties, but not reconcileable to one ano­ther in the Competition of simple and adjudging Inhibiters and Annualrenters, which was the Case that lay before the Lords to be decided.

The Lords after many Hearings in presentia, and very mature Deliberation and Reasoning amongst themselves, did, at last, come to establish certain Rules for determining the present Question, and the like that might occur in other Processes of Ranking, which of late had fallen to be more fre­quent, and the Decisions more accurate, in Re­gard of the late Acts of Parliament, anent the Sale of Bankrupts Estates.

The Rules established by the Lords were these. First, That an Inhibiter-adjudger did not simply reduce posterior Annualrenters, but only in as far as these Annualrenters were prejudicial to the Inhi­biter; And found, That Inhibiters would draw such a Share of the Rents, or in case of Sale of the Property of the Estate, as would have belonged to them, if no posterior voluntary Rights had been granted; And found, That anterior Creditors ad­judging within Year and Day of the Inhibiter, could not be prejudged by the Inhibition, but that ante­rior Creditors adjudging would draw the same Share of the common Debitor's Estate, as if there had been no Inhibition used.

By this Decision the Inhibiter did not obtain full Payment of the Sums in the Inhibition before [Page 81] the Annualrenter could draw any Share, nor did the Annualrenter lose all, but a Part only; nor was the Annualrenter allowed to recur upon Ad­judgers for anterior Debts for making up that Share, which the Inhibiter reduced and cut off. As for Example, suppose the Case, That the Sub­ject affected is worth 12000 Merks, and that there are three Adjudgers pari passu for 5000 Merks each, and one Annualrenter effeiring to 6000 Merks, and that one of the Adjudgers is also an Inhibiter before contracting the Annualrenter's Debt; the Division falls thus. The three Adjudgers for equal Sums, do first divide the 12000 Merks in equal Parts, whereof each draws 4000 Merks, and there­by lose each 1000 Merks; the Annualrenter being a common Burden on the Subject affected, and pre­ferable to all the Adjudications, claims 2000 Merks from each of the three Adjudgers, as a Stock effeir­ing to his Annualrent; but the inhibiting Adjudger strikes off his Claim, by virtue of his Diligence of Inhibition; but the posterior Adjudgers having no Defence, the Annualrenter draws 2000 Merks from each of them, whereby the inhibiting Adjudger gets his full third Share with the Co-adjudgers, but loses 1000 Merks of his whole Sum, and the An­nualrenter loses 2000 Merks, and gets 4000 Merks, and the Co-adjudgers get each 2000 Merks of the remaining 4000 Merks.

According to this Rule, the Lords did uniformly determine in all subsequent Rankings and Sales for several Years; And the Rules are found practicable in all the Variety of Cases that did occur in the several Processes of Sale, which have been very fre­quent since that Time. But thereafter in the Case of [...]arridden, there happened a special Circumstance, [Page 82] which had not been pled when the Rule was esta­blished, and some Alteration had also happened on the Bench since that Decision; whereupon the whole Foundation of that Rule and Decision was called in Question, and often debated in presentia, and several Bills; And after a Review and full Conside­ration of the Case, the Lords did proceed upon the same Foundation, and strengthned the former Rule.

Carridden's Case occurred in the Competition of the Creditors of Cockburnspath, a Part of Ni­colson's Estate; and he being an Inhibiter, and also an Adjudger within Year and Day, the Lords found his Adjudication null; But he insisted as In­hibiter for reducing the Right of several Debts after his Inhibition, whereon Adjudication had been led within Year and Day of other Adjudgers on Debts anterior, alledging, That he could not be wholly excluded, while these Adjudgers on posterior Debts were admitted to a Share of the Price; for he could still adjudge, whereby his Adjudication would be drawn back to his Inhibition, and always be preferable to such Adjudgers, whose Debts were posterior to his Diligence.

To which it was answered, That his Adjudica­tion could afford him no Share, because setting aside all the posterior Creditors, the Diligences on ante­rior Debts were far beyond the Value of the Sub­ject of the Competition; And seeing his Inhibition could not prejudge these anterior Debts nor Dili­gences, it afforded no Prejudice to him that poste­rior Creditors by their Diligence came in pari passu, to get a Share with anterior Creditors; because, tho' these posterior Debts had never been contract­ed, Carridden was utterly excluded, and his Inhi­bition [Page 83] was only a prohibitory Diligence; where­upon he could not reduce posterior Debts simply, but in so far as they were prejudicial to his Debt; and his After-adjudication could not state him in the Case of these posterior Annualrenters, so as to make the Benefit of their Annualrents accresce to him.

Upon the several Debates in that Case, the Lords at last, by their Interlocutor 15th February 1698, found, That an Inhibiter cannot be prejudged by posterior Debts, nor anterior Creditors prejudged by an Inhibiter; And found, That the contracting of Debts after an Inhibition could not be profitable to an Inhibiter, nor does their Diligence accresce to him, and that therefore Carriden could draw no Share of the Price of Cockburnspath.

According to these Rules, all the Rankings have ever proceeded uniformly without any Contra­diction. But of late in the Competition of the Cre­ditors of Langtoun, that Rule was again called in Question; And upon a Petition, several Times moved by the Inhibiters, a Hearing allowed in presentia, in which it was alledged, That the Rule above set down could not consist with the true Ef­fect of an Inhibition, which was not only a prohi­bitory, but a preparatory Diligence, and that an Adjudication coming after, whether within Year and Day of other Adjudgers or not, was always to be drawn back to the Date of the Inhibition, so as to re­move all posterior Annualrents or other Diligences on posteriorDebts, and these being removed, the Inhibiter fell to come in to get the full Payment of the Debts in his Inhibition, at least to the Extent of the vo­luntary Rights; and then the Annualrenter, being preferable by the Nature of his Right and Security, [Page 84] came in the next Place to get the full Payment pre­ferable to posterior Co-adjudgers. As for Example, In the Case formerly stated of a Subject to the Value of 12000 Merks, and three Adjudgers for 5000 Merks each, and an Annualrenter effeiring to 6000 Merks; the Annualrenter, as preferable, draws first his Share, sciz. 6000 Merks, which is set aside; so the remaining 6000 Merks being divided in three, each Adjudger gets 2000 Merks; But the inhibiting Adjudger recurs upon the Annual­renter by virtue of his Diligence, from whom he draws 3000 Merks more to make up his 5000 Merks; then the Annualrenter, by the Nature of his Right being preferable to the Co-adjudgers, re­curs on them, from whom he draws the said 3000 Merks; so remains only to the Co-adjudgers 1000 Merks.

For inforcing this, the Inhibiter insisted upon the Nature of the Diligence, alledging, That the Ad­judger's Diligence reach'd nothing but the Rever­sion over and above the Annualrent, which was preferable upon every Part of the Subject adjudged; and therefore the Inhibiter getting his full Share by virtue of his Adjudication and Inhibition, the An­nualrent lay upon the Shares of the Co-adjudgers; and it often happens, that an Inhibiter gets a bet­ter Share, by Reason of posterior voluntary Rights, than he would have had without them. As for Example, Suppose that in place of a Right of An­nualrent, a posterior Creditor had obtained either a proper Wadset, or a redeemable Right of a Part of the Debitor's Estate, and being thereupon in­feft was preferable to the posterior Adjudgers, in that Case the Inhibiter would have an equal Share with the Co-adjudgers, if within Year and Day; [Page 85] and what were wanting would be made up to him by affecting the Wadset or Right of Property made after his Inhibition, wherein the Co-adjudgers would have no Share nor Interest, and by that Means the full Sum in the Inhibition would be made up, and he in a much better Condition than he would have been, if no posterior Right had been granted. And suppose again, That this Inhibiter had not ad­judged within Year and Day, he would indeed have had no Share in the Reversion or Superplus with prior Adjudgers, but his Diligence would have been drawn back to procure to him full Payment of the Sums in his Inhibition, at least so far as the Value of the posterior voluntary Right did extend to; And there is no Reason that the Case of an Inhibiter should be worse where there is a posterior Annual­rent, than it would be if no proper Wadset or par­tial Right had been granted.

To all which it was answered, That the Rules above laid down are most just and equitable, and nothing material objected.

The fundamental Rules are, 1mo, That an In­hibiter cannot be prejudged by posterior Debts. 2do, That an anterior Creditor can no ways be pre­judged by an Inhibition; whereas by what's now pled, an Inhibition would strike more effectually a­gainst the prior Creditor than the posterior Annual­renter; For tho' the Inhibiter recurs upon the An­nualenter as posterior, the Annualrenter recurrs a­gain upon the Adjudgers whose Debts were con­tracted prior to the Inhibition, by which Means the Annualrenter loses nothing, tho' the Inhibition ought only to strike against posterior voluntary Deeds, and the Adjudger on prior Debts is at the whole Loss, albeit it be a most certain Principle, [Page 86] that an Inhibition has no imaginable Effect against anterior Debts, and Diligences following thereupon: So that there must certainly be a Fallacy in that Reasoning, and there is no Manner of Mystery, or the least Difficulty in finding where the Fallacy lies, viz. an Inhibition is no Ground Reduction of po­sterior Debts simply to anull them, but only in so far as they are prejudicial to the Debt in the Inhi­bition, that is to say, in so far as the Inhibiter falls to draw a less Share of the Estate or Rents thereof, than he would have obtained if no posterior vo­luntary Deed had been done: And an Inhibition is merely a prohibitory Diligence for removing the Prejudice of posterior Deeds, but does not give any positive Right, nor state the Inhibiter Adjudger in Place of the Annualrenter, so as to draw a Share by Virtue of the Right of Annualrent as the In­hibiter must acknowledge by his own Argument; for if the Inhibiter came in Place of the Annual­renter, that is to say, if the Right of Annualrent did accresce to the Inhibiter, then the Inhibiter getting Payment in the Right of the Annualrent would extinguish the Annualrent, and consequently the Annualrenter could never recur upon the Co­adjudgers. So that the Scheme offered by the Inhi­biters is inconsistent with Law and Reason in every Circumstance; For the Inhibiter can never have what was competent to the Annualrenter, but by coming in his Place, and causing the Annualrent to accresce, which were a Notion absurd and incon­sistent. And what's urged, that an Inhibition is not only a prohibitory but a preparatory Diligence, is a new invented Notion never heard of in any former Case, and without any Foundation in Law.

[Page 87] And, whereas it is alledged, That in the Case of a proper Wadset, or a partial Right of Pro­perty after Inhibition and before the Adjudications, the Inhibiter strikes out the posterior Wadsetter or Purchaser, and comes in his Place; from which 'tis inferred, 1mo, That an Inhibiter may have Advantage by posterior voluntary Deeds. 2do, What must be acknowledged to be in the Case of a proper Wadset or an irredeemable Right of Proper­ty, ought also to hold in the Case betwixt the com­peting Annualrenter and Inhibiter,

It is answered, That in the Case proposed, an Inhibiter may have an accidental Advantage in the Competition with other Creditors by posterior vo­luntary Deeds; For the Inhibiter would not only have a Share with the Co-adjudgers in the Reversion of the Debitor's other Estate, but further would af­fect the Lands irredeemably disponed or wadset af­ter his Inhibition, but cannot have the like Benefit in the Case of an Annualrenter, and it often happens, that by a Competition a greater Benefit arises to some Creditors than would do, if some of the Par­ties competing were out of the Field; because in a Competition of many Creditors, there must be ge­neral Rules and Foundations in Law with Regard to the Rights and Interests of the several Credi­tors competing, which alter, if the Rights of some of these Creditors be drawn out of the Field. As for Example, In the Competition betwixt an Inhi­bition and a posterior voluntary Right without the Concourse of other Creditors, the Inhibition is al-always preferable; but in the Competition of many other Creditors, the Inhibition may happen to be totally excluded, and posterior Rights get a Share.

[Page 88] To apply this to the Case proposed, a proper Wadsetter, or a Right of Property of a Part of the Debitor's Estate, does wholly separate and set a­part the Wadset Right or the Property from the Debitor's Estate in Competition with posterior Ad­judgers, whereby they are intirely excluded from that Wadset or Right of Property; but quoad the Inhibiter, the Wadset or Right of Property is null, and therefore the inhibiting Adjudger removing the voluntary Right by his Inhibition comes to receive the Benefit of the voluntary Right so far as is wanting to him by his Diligence in Competition with Co-adjudgers or other Creditors: Whereof the Reason is plain, because such voluntary Rights do in the first Place wholly exclude Adjudgers not In­hibiters, and then the Competition falls singly be­twixt Inhibiters and posterior Purchasers; and in the Competition of these two, the Inhibiter is ever preferred; but that makes nothing to the Advantage of what is now urged to be a Rule in the Competi­tion of simple and inhibiting Adjudgers and An­nualrenters. For,

1mo, The posterior Wadsetter or Purchaser so excluded does not recur upon the posterior Ad­judgers, but only suffers the Loss as having rested upon voluntary Rights without Diligence; and so the Rule above set down, That prior Creditors are not prejudged by the Inhibition, stands still good, whereas in the present Debate it is alledged, That as the Inhibiter recurrs upon the Annualrenter; so the Annualrenter also recurrs upon Adjudgers and anterior Debts.

2do, There is a manifest Disparity betwixt the Case of an Annualrenter and a proper Wadsetter or Purchaser of a Part of the Debitor's Estate by an [Page 89] irredeemable Right; for the last two do intirely di­vide and separate the Wadset or irredeemable Right from the Remainder of the Debitor's Estate, and thereby does wholly withdraw his Purchase from the posterior Adjudgers; whereas an Annualrent Right resembles a Servitude, and is a Burden con­sisting with the Property, and affecting every Part thereof; and therefore the posterior Adjudgers carry the Property so affected: And when these Adjudgers divide the Property or the Rents, the Annualrent which lies as a Burden is equally proportioned a­mongst the Adjudgers according to their Dividend: But that Proportion of the Annualrent which falls upon the Share of the inhibiting Adjudger is struck off, whereby he gets the same Share that would have fallen to him if there had been no Annualrent, and because the said Share of the Annualrent is cut off by the Diligence of an Inhibition, the Annual­renter is at a Loss, and cannot recur upon the Ad­judgers who did not inhibit, because the Inhibition can no more prejudge anterior Creditors than po­sterior Deeds can prejudge the Inhibiter. As for Example, In the Case above stated of a Competiti­on for a Stock of 12000 Merks, the three Ad­judgers pari passu for 5000 Merks each get only 4000 Merks, and the Annualrenter effeiring to 6000 Merks, gets 2000 Merks from each of the two Adjudgers who did not inhibit, but draws no­thing from the Inhibiter, as being after his Diligence. And suppose again, That the Inhibiter were not pari passu with the other two Adjudgers, but Year and Day after them, these two Adjudgers would first draw their full 10000 Merks out of the common Stock, whereby there would remain 2000 Merks to the Annualrenter, and then the Annualrenter would [Page 90] draw his other 4000 Merks from the two first Ad­judgers which would make up his whole Annualrent, but the Inhibiter who was not within Year and Day would reduce the Annualrent in so far as ex­tended to the 2000 Merks more than fell to the first two Adjudgers, because tho' the first two Ad­judgers were preferable as to their 10000 Merks, and in so far as the Annualrenter draw from them, the Inhibiter was not prejudged, yet as to the Superplus of 2000 Merks, the Competition falling betwixt the Inhibiter and a posterior Annualren­ter, the Inhibiter is intirely preferred. But sup­pose again, That there were three Adjudgers pari passu still for 5000 Merks, and an Inhibiter Ad­judger, Year and Day after, for the like Sum, and an Annualrenter as formerly; in that Case, the three Adjudgers on anterior Debts would each draw 4000 Merks, and the Annualrenter would draw 2000 Merks from each of them, and so ob­tain full Payment, and the Inhibiter Adjudger not within Year and Day would get nothing, albeit the posterior Annualrenter gets all, as was found in the forecited Case of Carridden, because the Inhibiter is not prejudged by the Annualrenter who can never compete if the Question were betwixt them two; but the whole Stock being affected and exhausted by preferable Adjudications for anterior Debts, the Inhibiter is thereby effectually excluded by his own Negligence and the Diligence of the other Creditors, and is noways prejudged by the Annualrenter who by his Preference to the Co-adjudgers gets his full Annualrent, which the Inhibiter ought not to envy, and can not quarrel the Annualrenter's Advantage, not being in Defraud and Prejudice of him. And thus it happens, that in the Competition of many [Page 91] Creditors, the Division being made according to Foundations and Principles of Law, a voluntary Right obtains Preference and Payment, when an anterior Inhibiter is wholly excluded, not by the An­nualenter, but by other competing Creditors; and it is a mistaken Notion of the Import of an Inhibi­tion, to imagine, that an Inhibition gives any posi­tive Right, or that the Inhibiter is prejudged as long as he gets not his full Payment preferrable to posterior Annualrents; for the Effect of his Dili­gence is only that he do not get less than if these Annualrents had not been granted, or that in Com­petition with voluntary Rights alone, and without the Intervention of other competing Creditors, the Inhibiter is always preferred to the voluntary Right; But where other Creditors come in pari passu, or are preferable to the Inhibiter, and postponed to the Annualrenter, every Creditor draws his Share ac­cording to the Nature of his Right and Diligence.

The Lords found, That in the Competition of simple and inhibiting Adjudgers and Annualrenters, the inhibiting Adjudger could only reduce the posterior Annualrent, in so far as he was thereby prejudged; and that he could not claim full Payment of the Sums in his Inhibition before the Annualrenter could draw any Share in the said Competition, but could only draw such a Share of the Annualrents or Price as he would have drawn, if there had been no posterior Annualrent or voluntary Right.

The Estate of Tofts being sold at a publick Roup, and the Decreet of Ranking remitted to an Ac­comptant, to draw out a Scheme of the Division of the Price amongst the Creditors, an Objection was [Page 92] started against the Scheme, to understand which, the following Fact is necessary to be known. 1mo, Susanna Belshes had an inhibition in the 1672, and Adjudication upon the same Ground of Debt in 1685. 2do, Kippenross had an Inhibition in the 1673, with an heritable Bond of Corrobora­tion and Infeftment in the 1679, which Infeftment was struck at by Susanna Belshes her Inhibition. 3tio, A Set of Annualrenters, some prior, some po­sterior to Kippenross, but all of them struck at by his Inhibition. 4to, A Sett of Adjudgers in the 1685, coming in pari passu with Susanna Belshes her Adjudication, struck at by neither of the Inhi­bitions To reduce this Case to its simplest Terms, and to throw off extraneous Circumstances, Kippen­ross's Inhibition, and the Effect thereof was first considered; which striking only against the posterior Annualrenters, the Case was taken up, as if these Annualrenters were not in the Field: And at the same Time, the Inhibition itself was laid aside, it having thus got its full Effect, by throwing out of the Field every Right it struck against. This being premis'd, the Case reduc'd to its simplest Terms came out thus. 1mo, An Infeftment of Annual­rent, soiz. Kippenross's. 2do, Posterior Adjudgers coming in pari passu; of which Adjudgers, one, soiz. Susanna Belshes, has an Inhibition that strikes against the Infeftment of Annualrent.

The Question is, How are these Creditors to draw their Proportions? The Annualrenter is rank­ed primo loco; and the Inhibiter, without doubt, draws from him whatever she could draw, were he not in the Field. So far the Matter is clear. But now the Dispute comes, Can the Annualrenter re­cur against the other Adjudgers against whom the [Page 93] Inhibition strikes not for any Share of what was drawn from him by the Inhibition? The Scheme says No; the Objector says Yes.

To go to the Foundation of this Matter, it must be carefully attended to, that an Inhibition is in it­self no real Right, gives no Preference in the Sub­ject, not being directed against the Land but against the competing Creditors, such of them as it strikes against. In a Word, being but a personal Prohibi­tion directed against Creditors, it affords only a personal Challenge, which does not alter or disturb the real Preferences.

For Example, If there be three Annualrenters, A, B, C, following one another in the Order of Time, and ranked accordingly: Let us suppose that C, the last Annualrenter, has an Inhibition striking against A, the first Annualrenter. Let the Estate be 800, and the Value of each of the Annualrent Rights 400: In this Case the Method of drawing can be no other but this. A, the first Annualrenter, is pre­ferred primo loco, and draws his whole Sum, viz. 400. By which his Annualrent-Right falls to be ex­tinguished by Payment. B, the second Annual­renter, draws all that remains, being other 400. And thus so far as concerns the real and direct Pre­ferences, C, the last Annalrenter, is cut off, and draws nothing. But then when we go to consider the Pretences, that one Right or Diligence may have against another, which my Lord Stair terms, Page 649, The partial Reasons of Reduction; we find that C has an Inhibition against A, and there­fore must draw from him whatever he would have drawn by Vertue of his Annualrent-Right, had A never existed, which is no less than his 400. And thus the ultimate Division comes out. B gets 400, [Page 94] C gets 400, and A gets nothing. Now in this Case the Objector must say, that A recurs against B for what was drawn from him by the Inhibiter, which lands in giving C 400, A 400, and B nothing. And he comes at this Conclusion by con­ceiving C, by Virtue of his Inhibition, preferable in the first Place, A in the second Place, and B in the last Place, which is plainly fallacious. 1mo, Be­cause an Inhibition, as said is, gives no real Prefe­rence. 2do, Because it is evident, let A and C ad­just their Preferences, as they best can, that B, the second Annualrenter, against whom the Inhibition strikes not, must possess the second Place. So that if we shall allow C, by Vertue of his Inhibition to take up the first Place naturally due to A, that cannot harm B. A being thus beat out of his Place, cannot dispossess B, but must upon that Sup­position fall back to the last Place. And were this otherwise, great Absurdities would follow. Ac­cording to the Objector's Scheme, as was just now demonstrated, the Estate being 800, and each of the Annualrents 400, C, the Inhibiter, draws his whole Claim, A his whole Claim, and B gets nothing at all. What is this but to say, that the Inhibiti­on excludes B, tho' it has no Cause of Reduction against it, and preserves A, tho' it is against A on­ly that it strikes.

There is another Case which tends much to illu­strate this Doctrine. Let us suppose a Liferentrix who, having the preferable Right upon the Estate, consents to the Preference of another Creditor, which Wives are frequently led to do. Let us suppose, at the same Time, a third Creditor who has an Infeftment of Annualrent interjected betwixt the Liferent-Right and the Right consented to. 'Tis plain that the [Page 95] Consent here alters nothing of the real Preferences. The Liferentrix falls to be ranked primo loco, the o­ther Creditor secundo loco, and the Right consented to ultimo loco. And in that Order they must draw their respective Proportions, and the Estate of Con­sequence be disburdened. The Right indeed rank­ed in the last Place, by Vertue of the Consent, must draw from the Liferentrix whatever it would have drawn, had the Liferentrix not been in the Field. But sure this could never intitle the Liferentrix to recur against the Annualrent ranked in the second Place, whose Right the Consent harms not. As to him, the Consent is res inter alios, which can nei­ther hurt him or do him Service. The Foundation of Law is precisely the same in the Case of Inhibiti­on. The Effect of which is restricted against the Creditors which it strikes at; and in no Case can either harm or benefit others.

All this is to clear the Method of making out Schemes in Rankings, which has been continually practised and followed ever since the Viscount of Stair's Time, who was the first that fixed this Rule, viz. That the real Rights must first be ranked according to their Preference; and having drawn their Sums accordingly, the Estate falls to be dis­burdened of them, and they extinguished by Pay­ment. In the next Place must be considered the partial Pretensions or Reasons of Reduction that any of the Creditors may have against others. As to such the Rule is,—‘"That whatever is drawn from a preferable Creditor upon any personal Consideration, intitles him not to recur against any other preferable Creditor posterior to him, a­gainst whom the personal Consideration militates not."’ See, Stair Page 649 at the Foot.

[Page 96] To apply all to the Case in dispute, which is that of an Annualrenter, and two posterior Ad­judgers, one of which has an Inhibition striking a­gainst the Annualrenter; my Lord Stair in the a­bove cited Place, has well fixed that the Annual­rent-Right must be ranked first, and the Adjudica­tions in the second Place pari passu. Then he con­siders the Effect of the Inhibiter's personal Claim against the Annualrenter, but allows not the An­nualrenter at all to recur against the other Adjudger for what was drawn from him by the Inhibition, which were landing in the above Absurdity, no less than allowing the Annualrenter, when he is beat out of his own Place, to take up the second Place, and dispossess thereby the Adjudger, whose Place by Right it is, whereby the Inhibition would come to strike against the Adjudger, and not against the An­nualrenter, in express Contradiction to the Intend­ment of the Diligence, which the Law says, in this Case, strikes only against the Annualrenter and not against the Adjudger. Now here the Objector would have the inhibiting Adjudger to be ranked in the first Place, and thereby to take up the Place of the Annualrenter, because the Inhibition strikes a­gainst him. He would have the Annualrenter struck out of his own Place, to take up the second Place possessed by the Adjudger, and he would send the second Adjudger thus unjustly dispossest, to seek his Redress off the first Adjudger, in the best Man­ner he can, which is evidently contrary to the Nature of the Thing, and the Conception of these Diligences.

To sum up all, when Kippenross pleads upon his Inhibition, no doubt it must have its Effect, and thereby must be struck out all the posterior Infeft­ments [Page 97] of Annualrent. In the next Place, when he pleads upon his Infeftment, he has a Title to be ranked for his whole Sum, he is accordingly rank­ed and draws his whole Sum; and thus his Infeft­ment has also its full Effect. There is indeed a personal Claim upon him by Vertue of an Inhibiti­on, which takes from him some Share of his Draught: But this personal Claim, the other real Creditors have no Concern with; as to them 'tis plainly res inter alios they cannot be lesed thereby. The In­hibition militates against Kippenross's Annualrent, not against the posterior Adjudgers: They cannot be in a better or worse Situation, than if that Inhibi­tion were not in the Field; and therefore whatever Susanna Belshes her Inhibition draws from Kippen­ross, this cannot burden the Adjudgers, or put them in any Situation by which they shall draw one Farthing less than if the Inhibition never had exist­ed.

The Lords found, That Kippenross's Infeftment being once ranked, so as to draw his Share in Com­petition with the other real Creditors; that he could not recur against the posterior real Creditors for any Part of what was drawn from him by Susanna Belshes her Inhibition,—Feb. 1730. Campbell contra Drummond.

In a reclaiming Petition, the Objector against the Scheme endeavoured to turn his Argument into another Shape, he pled according to the Rule laid down by Lord Stair, Page 649, § 28. ‘"That the Adjudgers are to be accounted as joint Pro­prietars, and the Infeftments of Annualrenters as Servitudes on the Property."’ Whence he drew this Consequence, That as it is the Property of an Annualrent-right to affect every Part of the Ground [Page 98] in solidum, in which unaquaequa gleba servit, there­fore it was in Kippenross's Power to draw his whole Sum out of the simple Adjudger's Part; and he behoved so to do, because he was barred by the In­hibition from any Demand upon the inhibiting Ad­judger. But the Answer was obvious to the Lords. 1mo, That this Argument went upon a Fallacy; supposing each Adjudger to be possessed of a different Tenement, without any Connexion or Relation to one another, and the Annualrent a Burden upon both: Whereas the Subject was but one, and the Adjudgers had each of them a Right over the whole pro indiviso. Attending to this, the Objectors Argument falls to the Ground, because, before there could be any Access to make a Partition of the Land itself, or the Price coming in its Place, be­twixt the two Adjudgers; all the Burdens upon the joint Property must have been considered and paid off, so as to leave the Remainder clear to be divid­ed equally betwixt the Adjudgers. 2do, Esto the Scheme should be framed in this Way which the Objectors seems to point at, sciz. first to divide the common Subject betwixt the two Adjudgers, joint Proprietars: To be sure the next Thing to be done was to divide the common Burdens also; by which Means, no more but the one Half of the An­nualrent would fall to be a Burden upon the simple Adjudger. 'Tis true, this could not limit the Annualrenter's Right who might notwithstanding draw his whole Sum from the simple Adjudger. But then the simple Adjudger, who had not only paid his own Share of the Annualrent-right, but also that Share which by the Division was laid up­on his Co-adjudger, would without Controversy be intitled to Recourse against the Co-adjudger, as [Page 99] having paid a Debt which he, the Co-adjudger, was ultimately liable in. And this brings it back precisely where it was before, by the other Method of Calculation. And indeed it would be absurd, that two Schemes both right, occasioned only by taking up the Matter in different Lights, should terminate in different Conclusions. Upon which Considerations the Lords refused the Bill without Answers.

Observations upon Prescription.

AS Man is not formed complete in him­self, but an indigent Being, standing in Need of daily Supplies from without; The Deity has bestowed the Earth up­on 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 Affecti­on 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 Va­lue, 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 [Page 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 found­ed that Connection betwixt Men and Things, which we call commonly by the Name of PROPERTY, and whereby Nature prompts a Man to be diffe­rently 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 Af­fairs. Providence foresaw Appropriation necessary, and it fitted us with Affections and Faculties lead­ing 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 ab­stract Laws, relating to whatever Species of Beings, being nothing else but the Regulations their Na­tures and Constitution prompt and direct them to govern themselves by.

PROPERTY being thus founded in the Law of Na­ture, there are MEANS of acquiring and losing it, founded also in the same Law. OCCUPA­TION is the primary MEAN of acquiring Pro­perty, and DERELI [...]TION of losing it. When we relinquish our Property by any express positive Act of the Will, no Body questions the Effect. [Page 102] But it has not been so clearly understood, that the same Effect may be wrought negatively by Ne­glect, Desertion or Disuse. Most Writers agree that Prescription is a Creature only of positive Statute, not at all founded in the Law of Na­ture; thus Grotius, Jur. Bell. L. 2. C. 4. thus Puffendorf, L. 4. C. 12. But let us examine hu­mane 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 evani­shes. He loses intirely the Consciousness of Property. Thus the Matter lies over for many Years. My Positi­on 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 Ship­wreck, 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 Re­spect to the Person himself who once had the Af­fection of Property, much more with Respect to his Heirs, who never were in Possession, and possibly [Page 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 indif­ferently 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 ima­gine 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 Inheri­tance, which has been now in the same Family, if you will, for several Centuries. At last the for­mer 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 revisit­ing 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 con­sider seriously this Case, and consult his own Heart about it, he will find this Claim to be against Na­ture and Reason. The Demand has no other Foun­dation but a quondam Property, long ago deserted, and given over for lost. 'Tis directed against a [Page 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 Propri­etor 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 suspici­ous 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 Pre­tensions 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 agree­able to humane Nature, that a Man indulge his Af­fection 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 ne­ver 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 Na­ture 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 [Page 105] his Security in the Thing, and Affection to it, till at length both become extreme. The Laws of Na­ture ought to protect every Possessor in reasonable Se­curity 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 Pos­sessor from the very Beginning is allowed to con­sume 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 there­fore are given to the Possessor, who has a Title such as to convince the Judges, that he was in bona fi­de to consider himself as Proprietor. And as from the Nature of the Thing, Titles to Property are ex­tremely 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 Pos­sessor has lost his Affection, and all Thought of Re­covery. For is not all this answering the true De­sign 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? [Page 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 Ap­propriation 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 notwith­standing 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 de­prive 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 PO­SITIVE, whereby is gained a Power over the Pro­perty 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, [Page 107] and such like, which in benefiting ourselves inter­feir 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 Per­son shall keep Silence a hundred Year, confine him­self to a Place, or to a certain Method of Action, there is nothing in Nature to oblige him to con­tinue 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 Fa­culties, such as Faculties to burden, to alter or in­novate, 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 in­volved in the very Idea of a Faculty, to be exerced quandocunque at the arbitrary Pleasure of the Pos­sessor, 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 Obli­gations for Money, or other Prestation, Forbear­ance [Page 108] to act upon these, implies Neglect and Dere­liction. 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 gene­rally comprehended under the Expression of res merae facultatis, though very different in their Natures and carefully to be distinguished. As for the posi­tive Prescription, all Rights may be acquired there­by 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 Prescrip­tion gives any Man Power over the Effects or Per­son of another. But the negative Prescription may well subsist alone, and work its whole Effect with­out 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 ne­cessary. The proper Subjects therefore of the posi­tive 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.

[Page 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 pre­mise, 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 So­ciety, than that private Property be fix'd and ascer­tained. 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 be­ing generally laid over upon the Prospect, that by Length of Time, the proper Means of Discovery shall be evanish'd, or the real Exceptions compe­tent against them be forgot. Taking then Prescrip­tion in all these different Views, it is so far from be­ing odious, that perhaps there never was a Constitu­tion better founded, whether it be considered in the View of Equity or Expediency. The Expedi­ency is apparent. The Equity is clearly shown above, since the indulging of old forgotten Claims comes truly to this, Making the Claimant locuple­tior 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 after­wards, 'tis established in Practice, that many [Page 110] Things fall under Prescription, which have no Sort of Warrant from the Acts of Parliament.

Tho' Prescription be founded in the Law of Na­ture, 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, ex­cept 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 Pre­scription, since the Effect would be to make the Subject caduciary, to go to the Fisk or first Occu­pier, 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 nega­tive 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 [Page 11] Practice, there's an End of the Question. If not, the following Considerations may not be quite im­pertinent. 1mo, If bona fides is essential to the Na­ture 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 Bot­tom, 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 Pre­sumption 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 ha­beat. Nam si forte servus vel procurator, cui emen­dam 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 [Page 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 Pre­scription 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, particu­larly 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 ap­pears to me in a very strong Light. However, if it [Page 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 Autho­rity. 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 ne­cessary 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. Bo­na 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 Obliga­tion, as private Property is more favourable than Confiscation. This explains the Decision, Fountain­hall, 7th December 1703, Napier contra Campbell, where it was found, That after the 40 Years Pre­scription [Page 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 Dis­use. 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 strong­ly 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 le­gal 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 Prescrip­tion is, A legal Extinction of the Creditor's Interest, by [Page 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 Prescrip­tion, 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 Ce­dent, but interrupted quoad the Assigny by Mino­rity. Has the Assigny thereafter intimating a good Title? R. D. The Debt was funditus extinguish­ed 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 [Page 116] to whom the Prescription was interrupted, by Mi­nority 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 Oblige­ments. Here we must distinguish betwixt an addi­tional 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 Self­subsistence, by whatever Means the principal Obli­gation 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 Pre­scription; 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 Pre­scription is not of the Nature of a Presumption, in­ferring, that the Debt is extinguished, by Payment or otherwise, which some hold: For in the above Ex­ample, Fraser contra Mackenzie, if the Adjudication were presum'd extinguished, by Payment or Intromis­sion, in the first Disponer's Person; this would ne­cessarily affect the second Disponee, because an Ad­judication extinguished, by Payment in one Assigny's Person cannot subsist in the Person of any other. There is a second Argument to evince this: Pre­scription 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 Prescrip­tion is not a Presumption at all, whether juris & de [Page 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 Pre­scription 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 Pre­scription, above laid down, that all Burdens, esta­blished against Persons or Things, prescribe non u­tendo, such as Obligations, mutual Contracts, In­feftments of Annualrents, Wadsets, Servitudes, Dis­positions, Adjudications, &c. All of which in­clude 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 She­riff. 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 Pre­scription. 24. December 1728. Presbytery of Perth [Page 118] contra the Magistrates of Perth. 3tio. Acts and Exertions of native Liberty, which make no Bur­den 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 nega­tive 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 Re­tour irreducible after 20 Years: But abstracting from the positive Prescription, the righteous Heir may serve quandocunque; no Mortal can be found­ed in an Interest to make Opposition. 4to. Powers and Faculties of the Nature, to be exerced quandocunque: Such as Faculties to dis­pone, 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 present­ly, 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 ob­vious, That this does only relate to the positive Prescription. There is good Reason, that Rever­sions incorporated or registred should be good against the positive Prescription; and the same Reason will infer, that latent Reversions ought not: But no [Page 119] good Reason can be given, if latent Reversions pre­scribe 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 nega­tive 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 Pre­scription. Fountainhall 15. January 1697. Turn­bul 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 trans­forming 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 indivi­sible; to oblige the one Party to perform, while the other is free, would be intirely to change its Na­ture, by transforming it into a simple Obligation, which Prescription cannot do, being made to de­stroy, not to establish Obligations. Thus in a Con­tract 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 [Page 120] mutual Cause; because if he pursue upon the Con­tract, he must take it as it stands. But then the Prescription has this Effect, that the other Party can­not 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 nei­ther 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 can­not be put upon the Footing of a Faculty, to be ex­erced 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. Last­ly, Tho' jus sanguinis prescribes not, which might be reckoned of the same Nature with this in Que­stion, that holds only, where it is jus tertii for any Mortal to make the Objection; no Person ha­ving 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 [Page 121] already free, by the negative Prescription; if a Right of Property, the present Possessor is safe, by the po­sitive 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 perso­nal 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 Prescrip­tion 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 Diffi­culty, 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 Reduc­tion prescribes non utendo: If the other, the Sub­ject remained in haereditate jacente; and there could be no Necessity of a Reduction. If now the Dis­position upon Death-bed was of Lands, the same Distinction must be taken along; for upon Supposi­tion 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 Pro­perty [Page 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 endea­vour to draw our Conclusions from well founded Principles. To begin, we ought nicely to distin­guish amongst four Things. 1mo, The Contract, or other legal Deed which is the Cause, and where­by the Right is established. 2do, The Writing, which is the Evidence. 3tio, The Right it self e­stablished. 4to, The Consequences of the Right. For Example, in a Loan of Money, the Fact of De­livery of the Sum lent to the Debitor with his Con­sent to repay is the Cause. The BOnd is the Evi­dence. There is a Right of Credit established; the Consequences are, 1mo, A Power to oblige the De­bitor 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 Pre­scription. And as for the Consequences of the Right, if the Right itself remain firm and unsha­ken, its Consequences are a Shadow that must ever attend the Substance. If the Right itself fall, 'tis bootless to talk whether the Consequences be pre­scribed, 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 [Page 123] Payment fell due, but within forty Years of the se­cond Term. Quaeritur, Whether the remaining Half that fell due the second Term, can yet be ex­acted? The Answer is, That it cannot, because the Right itself, the jus crediti is cut off by Pre­scription; 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 Acti­on was first competent thereupon, the Law from this infers, that he has derelinquished his Right, which brings him to the same Situation as it ne­ver 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 pos­sibly some of them not a single Month. Thus the Matter was determined in the Roman Law, and up­on the same Principles. See L. 26. C. de Usur. The Words are, Eos, qui principali actione per exceptio­nem triginta, vel quadraginta annorum, sive perso­nali, sive hypothecaria ceciderunt [jubemus] non posse super usuris, vel fructibus praeteriti temporis ali­quam movere quaestionem, dicendo ex iisdem tempo­ribus eas velle sibi persolvi, quae non ad triginta, vel quadraginta praeteritos annos referuntur, asseren­do 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 Credi­tor take Document upon his Right, the Right it­self is safe from Prescription with all its Consequen­ces; which is insinuated in the first Act anent Pre­scription, and cleared by Practice. Thus negative [Page 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 Fe­bruary 1714, Earl of Marchmount contra Home. Thus in an Infeftment of Annualrent reaching two Tenements, Diligence done against the one, or Pay­ment made by the Debitor, saves Prescription as to both, which was found, though the Annualrent was constitute upon the two Tenements by two diffe­rent Sasines. Stair, Gosford, 22d June 1671, Lord Balmerino contra Hamilton. The like in a Thir­lage of omnia grana crescentia established by Writ, where it was found, That the Defender having grind­ed 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 Conse­quences; 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 Inter­ruption not only as to the principal Sum itself, but as to all preceeding Annualrents; because the Right is thereby supported, which supports all its Consequen­ces. And so it was determined, Stair 22. July 1671, Blair contra Blair. This Decision indeed was thereafter altered, 7th February 1672 inter eosdem, [Page 125] and the quite contrary found. Upon this reason­ing, that though Payment either of the Principal or Annualrent, does interrupt Prescription of a Bond as to the principal Sum; yet the Annualrent be­ing 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 consider­ed as a distinct principal Obligation, not depending upon, or consequential to the Right whereby the principal Sum is established; whereas it is as di­rect 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 car­ry us. The Obligation for Annualrent is a di­stinct principal Obligation; therefore it is not in­terrupted 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 Ne­gligence, 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 in­dependent Obligation, it must have a separate Pre­scription from that of the principal Sum, whereby the principal Sum may be prescribed while the by­gone [Page 126] Annualrents remain due; and Prescription of the principal Sum may be interrupted without interrupt­ing 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; Prescrip­tion of the one must cut off the other, and Inter­ruption 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 Tene­ment, is just as distinct a Prestation from the Pay­ment 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 ma­ny Years after her Husband's Decease, without de­manding her Annuity; in an Action at her Re­presentative'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 Hus­band's Decease, the RIGHT of Liferent, and the Pursuer's Claim thereupon, was prescribed. Forbes 6th July 1711, Steuart contra the Children of Cum­ing 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 Obligati­on, [Page 127] and run a different Course of Prescription.—Ju­ly 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 exor­dio talis obligationis, sed ab initio cujusque anni, vel mensis, vel alterius singularis temporis computa­ri 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 diffe­rent Times, in different Deeds, which is plainly a wrong Conception of the Matter. All these diffe­rent 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 Perfor­mance. For Example, An Obligation to pay ten Pound is one simple Obligation, though it may be implemented by distinct Performances of partial Pay­ments. '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 Per­formance [Page 128] does no more infer different or distinct Obligations, than the Obligation to build a House, which must necessarily take up Time in the Perfor­mance, or any Right of Servitude, such as com­mon Pasturage, all of which are performed succes­sively 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 Pre­scription, 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 An­swer 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 Prescrip­tion 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 Annual­rent, from which Right these Claims flow, are [Page 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 ante­cedent 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 bear­ing Annualrent is one, or a Right of Pasturage, or to oblige a Person ad factum prestandum, which re­quires 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 re­newed 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 [Page 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 infi­nitum.

To fortify this, let us apply to the natural No­tions 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 Ne­glect, 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 Pre­scription, 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 [Page 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 & in­dividuum, 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 & indivi­duum, as Vicarage. 2do, Parsonage-Teind is ap­parently 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 ex­clude 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 Par­sonage-Teinds be a jus unicum & individuum, Pre­scription 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 suf­fer [Page 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 nega­tive 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 pre­scribes 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 [Page 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 Pro­prietor 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, with­out 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 Ob­jection against the Scheme, which cuts off the By­gones 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 Ne­glect 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 pre­ceeding the Date thereof. Now this will scarce be allowed, the contrary is the received Scheme, sciz. [Page 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 Presta­tions preceeding 40 Years, does not at all arise from Prescription, but from a quite different Founda­tion. 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 Feu­duty 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 ex­pedient, 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 Pur­suer 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 Pre­scription of Merchant Accompts, &c. none of which truly are of the Nature of the proper Pre­scription. They found not a personal Objection against the Pursuer upon the Medium of Neglect or Dereliction. They are nothing else but a Presump­tion introduc'd by Law, that the Debt is satisfied, [Page 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 preceed­ing 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 by­gone Teinds, being founded in publick Law pre­scribes not except as to Bygones before forty Years. Thus in our Law, Teinds are subject to the posi­tive, 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 Re­lation 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 ex­tra 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 com­mercio. 'Tis true, they continue still burdened with a competent Provision to Ministers: So far as that [Page 136] Burden goes, they are still extra commercium, and consequently not prescriptable. But as for the In­terest 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 exstrin­sick 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 & indivi­duum, 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 en­deavoured to be made out above. And truly after all, since a Right to Teinds is acquirable by Pre­scription, which supposes it a jus unicum & indi­viduum, it appears a fair Consequence, that it should be lost the same Way.

As to the negative Prescription of Viccarage­teinds, there is a remarkable Decision observed by [Page 137] Fountainhall, 24. July 1678, Laird of Grant con­tra 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 Pres­tonhaugh and his Parishioners. And as to Roots, it was then lately decided between Gib in Sut­ties-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, belong­ing to the Canons of old, should not pay Vic­carige, because free forty Years back, and past all Memory, unless he would prove Payment either out of thir, or any other the Canons Por­tions 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 Foot­ing [Page 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 Con­stitution of a Right, but to the ultimate Conclusi­on 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. Foun­tainhall, Forbes, 14th March 1707, Laird New­mains contra Laird of Bimerside.

As to Exceptions which are reckon'd perpetual ac­cording 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 per­petual; thus the Exception of Payment can never prescribe, because it is a Liberation. But Com­pensation 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 [Page 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 afford­ing Ground of Defence only, and which the Re­ceiver 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 Ex­ception, 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 Competi­tion betwixt two Assignies to an Adjudication, the second Assigny was allowed to propone Pre­scription 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; provid­ing 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' [Page 140] the King alone can constitute Fairs; it being a pos­sible 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-fish­ing 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 ac­ceded 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 Prescrip­tion. 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 favou­rable Situation as if his Author had been also a bona fide Possessor, and consequently ought reaso­nably 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 Prescrip­tion, 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 Parlia­ment 1617, which mentions Sasines upon Retours, Charters and Precepts of Clare-constat, but no [Page 141] Word of Hasp and Staple; so that Acts of Parlia­ment 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 ei­ther 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 pos­sess the whole Space of forty Years, never being re­newed in his Successors, who all of them continued to possess as apparent Heirs, was no sufficient Title [Page 142] for Prescription. Stair, ibid. Fountainhall 25th June 1680. Earl of Queensberry contra Earl of Anandale: But it appears to be without Contro­versy, 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 Usu­capion in this Case may proceed: His Words are, Plerique putaverunt si haeres sim & putem rem ali­quam ex haereditate esse, quae non sit: Posse me usu­capere. Upon his Side are ranged, l. 4. eod. And Julian. l. 33. § 1. de usurp. & usucap.

On the other Hand, the famous Papinian de­clares himself expresly, That there can be no such Thing as an Usucapion pro haerede, l. 11. divers. temporal. prescript. Cum haeres in jus omne de­functi succedit, ignoratione sua defuncti vitia non excludit: Veluti cum sciens alienum illum, illo, vel precario possedit. Quamvis enim precarium haere­dem ignorantem non teneat, nec interdicto recte con­veniatur; tamen usucapere non poterit, quod defunctus non potuit. Idem juris est cum de longa possessione quaeritur: Neque enim recte defendetur, cum ex­ordium 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 [Page 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 alie­num 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 con­stitutio similiter & in usucapionibus observari consti­tuit, 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 Distincti­ons 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 [Page 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 above­cited, 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 de­functi 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 compre­hend; An Heir indeed is thus far the same Per­son 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 per­sonal Quality or Property, good or bad. If the Defunct has committed a Crime, the Heir is not the [Page 145] same Person in any Sense to be liable as the Crimi­nal. If the Defunct was a Tutor, the Heir repre­sents 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 cer­tain; 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 Prescrip­tion against a Right, which is compatible and con­sistent with the Right upon which the Prescriber founds. Therefore a Right of a Wadset, or of a Feu acquired by Prescription, does no more ex­clude 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 usu­capio 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 [Page 146] this Title stands, with Respect to the Debts and Deeds of the Defunct. As to these it must be al­lowed, that it is far from being an absolute ex­clusive Title. An Heir qua such is liable to, and burdened with all the Debts and Deeds of the Per­son 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 with­out any Foundation. If the Defunct's Possession was as Colonus or Commoditarius, the Action loca­ti 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 pro­mised 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 [Page 147] excludes that Security, that bona fides, which is absolutely necessary in every Acquisition by Pre­scription. It must be obvious then, that this Di­stinction 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 hae­rede 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 hae­red. & § 12. Institut. Usucap. relate all of them sole­ly 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 Que­stion plainly relates to the first Branch of the Di­stinction. The Words are, Hoc amplius, si justam causam habuerit existimandi, se haeredem vel bo­norum possessorem Domino extitisse fundum pro hae­rede 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. Ple­rique putaverunt, si haeres sim & putem rem aliquam ex haereditate esse, quae non sit: posse me usucapere. This Text 'tis obvious can have little Weight ei­ther Way. It carries little more than an Insinu­ation, 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 Hei­neccius ad Pandectas T. pro haered. who under­stands [Page 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 Explanati­on does not much satisry me. Pomponius is there speaking in general, and 'tis hard therefore to sup­pose 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 Usu­capio pro haerede, so far as it relates to the Compe­tition among Heirs, is established in our Law by Act 1617, Cap 13. and a Time fixed much shor­ter than the ordinary Course of Prescription: For it statutes, That no Retour shall be reduceable af­ter 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 Bro­thor was found to have good Interest to reduce a se­cond Brother's Retour, 11th January 1673, Lamb contra Anderson. This Observation does not ap­pear to have any Foundation in the Act, which [Page 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 main­ly 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 Re­tours upon Minority and Lesion, or such like; seeing Minority and Lesion was a Ground of Re­duction before that Act, and needed no new Law."’ As for the Decision Lamb contra An­derson, 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 up­on this, the elder Brother having returned with in the twenty Years, and dying soon after the Lapse thereof, without intenting an actual Reduc­tion of his Brother's Retour, whether the eldest Bro­ther'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 in­to 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 Suc­cessors, having bona fide acquired Rights, as said is, they cannot be prejudged. And in our Law [Page 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 reaso­nable 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 recti­fied this in some Measure by several salutary Laws; among these the Act of Prescription makes the great­est 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 Pre­sents shall nowise be prejudicial to whatsoever Per­sons who have acquired Rights of Lands and Heri­tages before the Date hereof bona fide, from Per­sons 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 extreme­ly 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 re­lates [Page 151] to the Person served, who must now run a Course of twenty, Years Prescription. This Altera­tion 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 Pre­scription. Sir George in the above Citation under­stands this Clause as a Privilege introduced in ge­neral 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 Ob­servation, which in express Terms restricts this De­claration to singular Successors, who had purchased before the Date of this present Act. That Purcha­sers from the Nature of the Thing are not secure against this Reduction, will be clear, 1mo, Because this Reduction is not personal against the Defen­der, 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, ha­ving 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 [Page 152] whose Retours become irreduceable by Prescription. 3tio, Were Purchasers from Heirs absolutely secure a principio against this Reduction, no good Rea­son 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 Rea­son for it. One buys from an Heir, seeing a suf­ficient good Progress for forty or fifty Years by­gone. This gives him tolerable good Security, un­less 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 Prescrip­tion than twenty Years would be hard upon the righteous Heir; a longer would be hard upon Pur­chasers.

Whether the King's annexed Property be extra commercium, so as not to be carried by Prescripti­on, is a Dispute our Lawiers seem not perfectly agreed in. Sir James Steuart in Answer to Dirle­ton'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 Dirle­ton, voce Prescription against the King, who gives this remarkable Reason for it, That the positive Prescription is introduced not so much odio & ne­gligentia 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 [Page 153] runs against the King as well as the Subject, without making any Distinction, § 25. hujus titu­li. 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 in­quieted 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 Decisi­on 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 Pa­rishioners of Kingarth.

In our Practice, the positive Prescription is ex­tended 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 Aber­deen contra Earl of Northesk. Fountainhal 27 June [Page 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. Decem­ber 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 dubi­ous whether the Subject be disponed or not, the for­ty Years Possession has two Effects. 1mo. It ascer­tains the dubious Clause, and infers the Presump­tion, that the Subject in Question was intended to be disponed, and to be comprehended under the ge­neral Clause. 2do. It bestows the Property in Conse­quence of that Title, where the Subject flowed a non Domino. Thus a Charter with a general Clause, cum piscationibus, with forty Years Possession, was [Page 155] sustained as to a Salmond Fishing. Stair 26. Ja­nuary 1665. Heritors of Don contra Town of A­berdeen. 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, Prescrip­tion 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 He­ritors, whose Charters bore the said Muir expresly; but also even those, who only carried the common Clause cum communi pastura, had a Right of Ser­vitude 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 Per­tinent 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 [Page 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 Mur­ray 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 De­fender's Predecessors, in vertue of which, it was al­ledged, the Possession of the Pasturage began, which was not found sufficient to take off the positive Pre­scription. Stair 27. November 1677. Grant con­tra Grant. This Decision gives Rise to the follow­ing Considerations. If the Possession be of a Servi­tude, or such as can come under the Clause of Part and Pertinent, the Presumption is, that the Possessi­on 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 Servi­tude possessed is truly Part and Pertinent of the Lands. If there were, the Defence of Prescription would not be necessary. To overturn such a Pre­sumption 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? Cer­tainly; since he began to possess the Servitude, as a [Page 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 neces­sary, than a new Grant from some third Party. Be­sides 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 Perti­nent, it is obvious, he could not have the least Sha­dow 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 him­self. The Wadsetter possesses forty Years. The Wad­setter's Right is secure by Prescription. Is the Re­verser's Right also secure? I answer, No: Because tho' the Wadsetter's Possession be the Reverser's Pos­session, 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 Pro­prietor, 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.

[Page 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 Con­sent, it is plain, that after the Distance of forty Years, the Possession must be the only Evidence thereof. Other Servitudes, such as paying dry Mul­tures, 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 Suc­cessor are conjoined to make up Prescription, when both possess upon the same Right.

[Page 159] Moveables differ from Lands, in the positive Pre­scription, in this, That forty Years Possession pre­sumes 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 Aber­scherder 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 ano­ther, the Defence, upon the positive Prescription, was sustained, by forty Years Possession, without al­lowing 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 For­bearance. 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 con­tra 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 ge­neral Prescription runs against no Right, till Action be once competent upon it; because from that Pe­riod [Page 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. Foun­tainhall 7. December 1707. Gordon contra Cum­ing.

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. Ja­nuary 1678. Duke of Lauderdale contra Earl of Tweedale. This was sustained to a Party, who was Abroad in his Majesty's Service, during the Usur­pation, 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 Acti­on, as for Example, where a Woman in Decency forbears to pursue her Husband; and therefore du­ring the Time she is clad with a Husband, Prescrip­tion 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 Adjudica­tions upon an Estate, continues to possess upon one of them for upwards of 40 Years, which is after­wards found redeemable. The other Adjudication in the mean Time will not suffer the negative Pre­scription; because he was not negligent in not per­suing upon it, having possessed the whole Estate by [Page 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 Defen­der'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 Par­ties to the Necessity of intenting Processes where they can serve to no Purpose but to stop Prescripti­on 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 Hep­burn. 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 ge­neral, That where a Possessor has many Rights in his Person, all distinct Titles of Possession; Pre­scription cannot run against one of them so long as he keeps Possession. For what can he demand up­on 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 Foot­ing [Page 162] 26th November 1728, Mr. Alexander Frazer contra Hector M Kenzie. The septennial Pre­scription being alledged against a cautionry Oblige­ment, 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 An­swer 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 con­veyed the Subject to his Daughter. The Dispositi­on 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 appa­rent Heir. And the forty Years positive Prescrip­tion in Consequence of the Earl of Dundonald's Dis­position being pled in support thereof; the Prescrip­tion was not found to run, in Respect that no Man can prescrive against himself. Home, 26th January 1726, Marquis of Clydsdale contra Earl of Dun­donald. In this Case there were no termini habiles for Prescription. Prescription necessarily implies two [Page 163] Persons, two opposite Interests; the one in a Course of acquiring either Property or Liberation; the o­ther 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 a­gainst 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 Decisi­on. 1mo, A Man cannot prescribe against himself. 2do, No Benefit in pursuing. 3tio, No Action un­til 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 suffi­cient 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 exact­ly 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 Debi­tor, 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 in­terpel the Debitor for the Space of forty Years, in­fers [Page 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 Inter­pellation of the Debitor within the forty Years is a necessary Step to take off this Presumption. What­ever 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 Re­gistration ought to be deemed sufficient to interrupt the negative Prescription.


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