What Title requisite in the Positive Prescription.
Subject_3 SECT. XV.
Effect of the Positive Prescription. - Title of Prescription in Moveables.
Forrester v. Feuars of Bothkenner
Date: 22 July 1634 Case No. No 180.
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Margaret Forrester pursued the feuars of Bothkenner, for payment to her of six pecks of oats for every ox-gang of their lands, which was a duty for forest-fee contained in her infeftment. Alleged, Absolvitor, because they were vassals to the King for payment of a feu-duty only pro omni alio onere, and had possessed ades liberas for the space of 48 years, and so could never be burdened with any such duty. Replied, The act of prescription was good to maintain their heritable rights of their lands, if they were quarrelled; but not in this case, wherein the right of their lands is not called in question, but only a duty craved out of the same, which can never be prescribed. The Lords found the exception relevant.
Fol. Dic. v. 2. p. 113. Spottiswood, (De Prescriptione et Usucapione.) p. 238.*** Durie reports this case:
Margaret Forrester, as having right from her father, who, and his predecessors, were infeft in the office of the forrestry of Torwood, and for the fees of the said office, had disponed to them certain quantities of victual, to be paid by the feuars and possessors of the lands of Bothkenner, which were the King's property; for payment of the which duty, she pursues the said feuars, for diverse years by-past; and they compearing, and alleging, that the summons was not relevant, seeing it was never libelled therein, that the pursuer, or her predecessors, were ever in possession of these duties acclaimed; the Lords repelled the exception, and found the summons relevant, albeit no possession was libelled therein, of the duties acclaimed at any time, in the pursuer's predecessor's person; for if the defender should propone a peremptory, to elide the pursuit, whereby the pursuer might be urged to reply upon possession, the Lords found, they would consider it by way of reply, as if it had been libelled. And the defenders alleging, that they were infeft in the lands libelled by the King, and by virtue of their infeftments have been forty years, and past memory of man, in possession of these lands, for payment of a feu-duty of victual to the King's Majesty, there being no other duty contained in the saids rights, either for fee, or for other services to be done for the saids lands; so that they possessing so long without interruption, they ought to be free of this pursuit, seeing the pursuer's right is prescribed, and the act of Parliament anent prescription, anno 1617, makes the same become extinct; and the pursuer replying, That the prescription militates not in this case; for the pursuer's right is not of the defender's land, but of a fee, and certain duty forth thereof, so that they are disparata et non circa idem; for he quarrels not the defender's right of the land, seeing he may bruik his lands, and the pursuer his right of office, and the fees due thereto, and they may subsist together; the Lords found the exception of prescription relevant, and to militate in this same case, against the pursuer's right to elide the same; the defender alleging that he bruiked these forty years by-past, free of any payment, except his feu-duty, and so that he had prescribed liberum tenementum, free of this burden libelled; even as if the pursuer had acclaimed an annualrent out of the saids lands, which the like exception of prescription would in law and reason have excluded; and because thereafter the pursuer replied upon an interruption lawfully done debito tempore, therefore the reply was admitted.
Act. Nicolson & M'Gill.Alt. Stuart & Mowat.Clerk, Hay.
Durie, p. 730.
