ESSAYS UPON Several Subjects IN LAW,
Sciz.
JUS TERTII,
BENEFICIUM CEDENDARUM ACTIONUM,
VINCO VINCENTEM,
PRESCRIPTION.
EDINBURGH:
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Jus Tertii.
W HEN 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 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, 1
mo,
A Possibility that the third Party would not turn him out. 2
do,
That for one Year, at least, he could not, not having given any Warning to the Tenant. 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 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 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. 1
mo,
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. 2
do,
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.
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.
POSITION I.
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 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
4
th 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.
POSITION II.
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.
POSITION III.
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 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 founded in the Objection of Prescription mentioned in the Case.
POSITION IV.
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.
POSITION V.
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 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 and paid, by Intromissions within the Legal,
Forbes,
19.
June
1713.
Murray
contra
M'lellan.
POSITION VI.
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 appear, but nothing to
Murray,
who was at any Rate excluded by the Adjudications, whoever had Right to them.
POSITION VII.
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 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 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.
POSITION VIII.
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 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.
W Hen 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 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
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 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, 1
mo,
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. 2
do & 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 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 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, 1
mo,
To handle such Cases as fall directly under the Rule. 2
do,
These Cases, which, by Reason of special Circumstances, may be ranked under the Head of Exceptions.
PROPOSITION I.
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 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, 1
mo,
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, 2
do,
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 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, 3
tio,
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.
CORROLLARY.
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.
SCHOLIUM.
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
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.
PROPOSITION II.
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, 2
do,
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 Creditor, has as well founded a Title for Relief.
CORROLLARY.
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.
SCHOLIUM 1.
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.
SCHOLIUM 2.
The above Doctrine will hold equally in all Sorts of Diligence, Infeftments of Annualrent, Adjudications, Inhibitions, or Arrestments.
PROPOSITION III.
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.
SCHOLIUM.
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 come to be disappointed; but this is not inconsistent; see
Schol. Prop.
I.
PROPOSITION IV.
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.
PROPOSITION V.
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.
PROPOSITION VI.
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 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.
1
st.
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, 1
mo,
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. 2
do,
To appoint Renunciations to be registred, which will give 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; 2
do,
An Adjudger coming in
pari passu
upon the Tenement
A.
3
tio,
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 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 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; 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.
PROPOSITION VII.
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 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 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.
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 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, 2
do,
That if the Creditor cannot safely lend to the Debitor after 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 1
mo,
An Annualrenter or Annuitant. 2
do,
A Liferent Infeftment of Locality. 3
tio,
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 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.
2
do,
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.
3
tio,
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 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. 2
do.
The Infeftment of Annualrent or Annuity. 3
tio,
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, 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 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,
3
d 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 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 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; 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.
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 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 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 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 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 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 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
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. 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.
I N 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.
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. 1
mo,
As giving the Right consented to, all the Benefit of the Consenter's Diligence; that is, interpreting the Consent as a
virtual Assignation.
Or, 2
do,
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
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
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 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 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 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
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,
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 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.
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, 1
mo,
An Assignation intimate. 2
do,
An Arrestment interveening betwixt the Assignation and Intimation. 3
tio,
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,
2
d 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 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, 1
mo,
There is no Ground in Law to infer such a Collusion with Respect to a formal Right, solemnly executed before Witnesses, granted for an onerous Cause. 2
do.
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, 1
mo.
From the Nature and Stile of the Diligence. 2
do.
From this indisputable Position, That Arrestment stops not a posterior Poinding. 3
tio.
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 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, 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.
EXAMPLE I.
Let us suppose, 1
mo.
A Death-bed Deed compleated, but reducible by the Heir. 2
do.
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 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.
EXAMPLE II.
1
mo.
A base Infeftment of Ward Lands. 2
do.
A publick Infeftment of the same, confirmed by the Superior, which excludes Recognition. 3
tio.
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.
EXAMPLE III.
1
mo.
A base Infeftment. 2
do.
A publick Infeftment. 3
tio.
The Superior in Right of Ward.
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.
EXAMPLE IV.
1
mo.
A base Infeftment. 2
do.
Terce or Courtesy. 3
tio.
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.
EXAMPLE V.
1
mo.
An Adjudication with a Charge against the Superior. 2
do.
Voluntary Disposition with Infeftment reducible, as being granted
in cursu diligentiae
of the first Adjudger. 3
tio.
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.
EXAMPLE VI.
1
mo.
A Charge of Horning. 2
do.
An Assignation of a Bond to a Creditor, reducible by the Charger, on the Act 1621. 3
tio.
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.
EXAMPLE VII.
1
mo.
An Adjudger with a Charge against the Superior. 2
do.
An Adjudger infeft without Year and Day. 3
tio.
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.
EXAMPLE VIII.
1
mo.
A personal onerous Bond. 2
do.
An Infeftment upon a posterior gratuitous Disposition, granted in the Circumstances of Bankruptcy. 3
tio.
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
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
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 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, 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 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, 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; 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, 1
mo,
That an Inhibiter cannot be prejudged by posterior Debts. 2
do,
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, 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.
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, 1
mo,
That an Inhibiter may have Advantage by posterior voluntary Deeds. 2
do,
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.
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,
1
mo,
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.
2
do,
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 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 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 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 started against the Scheme, to understand which, the following Fact is necessary to be known. 1
mo, Susanna Belshes
had an inhibition in the 1672, and Adjudication upon the same Ground of Debt in 1685. 2
do, 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. 3
tio,
A Set of Annualrenters, some prior, some posterior to
Kippenross,
but all of them struck at by his Inhibition. 4
to,
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. 1
mo,
An Infeftment of Annualrent,
soiz. Kippenross
's. 2
do,
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 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,
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. 1
mo,
Because an Inhibition, as said is, gives no
real
Preference. 2
do,
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
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.
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 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
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. 1
mo,
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. 2
do, 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 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.
A S 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 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. 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 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 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 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? 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. 2
do,
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, 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 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.
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 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 Practice, there's an End of the Question. If not, the following Considerations may not be quite impertinent. 1
mo,
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. 2
do,
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 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. 3
tio,
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?
4
to, 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 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 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
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 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
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. 1
mo.
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.
2
do.
Rights of Property suffer not the negative Prescription. 24.
December
1728. Presbytery of
Perth
contra
the Magistrates of
Perth.
3
tio.
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. 4
to.
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 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 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 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 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. 1
mo,
The Contract, or other legal Deed which is the
Cause,
and whereby the Right is established. 2
do,
The Writing, which is the
Evidence.
3
tio,
The
Right
it self established. 4
to,
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, 1
mo,
A Power to oblige the Debitor to repay the Sum
quandocunque.
2
do,
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 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 Prescription is saved as to the whole, the Creditor doing Diligence against any one of the Principals or Cautioners.
Stair, Dirleton,
18
th December
1667,
Nicolson
contra Laird of
Philorth. Forbes
23
d 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,
22
d 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, 7
th February
1672
inter eosdem,
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, 2
do,
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 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, 1
mo,
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
6
th 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, 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 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 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. 2
do,
If such a Pension be not allowed to be one Right, it 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. 1
mo,
That the
Right
itself falling by Prescription, it must fall with all its
Accessories
and
Consequences.
2
do,
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 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. 2
do,
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 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, 1
mo,
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 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. 2
do,
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.
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, 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 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
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 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 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' 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,
13
th 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 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,
28
th November,
and 25
th 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
10
th 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,
15
th 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 for Prescription.
Stair,
ibid.
Fountainhall
25
th 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
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 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 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 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 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 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,
11
th
January 1673, Lamb
contra
Anderson. This Observation does not appear to have any Foundation in the Act, which 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
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 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, 1
mo,
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.
2
do,
This is plainly the Opinion of the Legislature in the above-cited Clause, protecting the Purchasers only from those whose Retours become irreduceable by Prescription. 3
tio,
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 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
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. 1
mo.
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. 2
do.
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 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 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 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.
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.
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,
1
mo.
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 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.
2
do.
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.
3
tio,
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,
5
th July
1665.
Macky
contra
Stuart.
4
to,
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 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.
28
th February
1666. Earl of
Lauderdale
contra Viscount of
Oxenfoord.
25
th January
1678. Duke
Lauderdale
contra Earl of
Tweedale.
17
th January
1672.
Young
contra
Thomson.
5
th 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 26
th 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,
16
th February
1711,
Bourbon
contra
Montgomery.
5
to,
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,
26
th January
1726, Marquis of
Clydsdale
contra Earl of
Dundonald.
In this Case there were no
termini habiles
for Prescription. Prescription necessarily implies two 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. 1
mo,
A Man cannot prescribe against himself. 2
do,
No Benefit in pursuing. 3
tio,
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 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.
FINIS.