The benefit of interruption of prescription, made by a donator during the usurpation, found to accresce to the true proprietor when restored.
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The Earl of Lauderdale, being infeft in the barony of Musselburgh; which is a part of the abbacy of Dunfermline; and was erected into a temporal lordship, in favour of the Lord Thirlston, thereafter Chancellor, the Lord Lauderdale's grandfather, in anno 1587; before the act of annexation, wherein the erection of Musselburgh, to the Lord Thirlston, is expressly excepted; thereafter, in anno 1592, the Queen was infeft by the King, in liferent, in the abbacy of Dunfermline; with the consent of the Lord Thirlston, as to Musselburgh, and his resignation, to that effect. Shortly after, that same year, the King gave the Queen, an heritable, and irredeemable right, of the whole abbacy of Dunfermline; which was confirmed by a printed act of Parliament. The Queen lived till the year 1618: after which the King was served heir to his mother, in the abbacy of Dunfermline, and infeft therein, being then Prince. The King gave an heritable and irredeemable right, to the Lord Oxenford's authors, of the teinds of Coutsland, as a part of the Lordship of Musselburgh, in anno 1641. And shortly thereafter, his Majesty did renew the Earl of Lauderdale's infeftment, of the Lordship of Musselburgh, with a novodamus; Lauderdale being forefaulted by the usurpers, Swinton got a donative of the lordship of Musselburgh; and, among the rest, of the teinds of Coutsland; and did raise inhibition and reduction of their rights. After the King's restoration, the Earl of Lauderdale obtains his infeftment confirmed in Parliament; with an express exception therein, that it should not be derogated by the act, salvo jure; raises inhibition of the teinds; and pursues action of spuilzie; and also of reduction.—It was alleged for the defender, absolvitor; because he stands infeft in the teinds libelled, by infeftment, granted by the king, before the Earl of Lauderdale's infeftment pursued on; and by virtue of his infeftment, King Charles I. and Queen Anne, his authors, have been in peaceable possession, uninterrupted, since the year of God 1593: and therefore their right is accomplished, and established by prescription.—It was answered, for the pursuer, That the defence ought to be repelled; because, since the death of Queen Anne, who died in anno 1618, till the interruption made by Swinton, by inhibition and reduction, in anno 1656, there are not 40 year's run; and, till the Queen's death, the Earl of Lauderdale's grandfather could not pursue; because he had granted resignation in her favours, for her liferent; et contra non valentem agere non currit prescriptio: so wives provisions, in their contracts of marriage, prescribe not from their date, but from the time of their husband's death; all obligations prescribe only from the term of payment; and infeftments, and obligements of relief, from the distress.—It was answered, for the defender, That this defence stands still relevant; 1st, Because, as to any interruption made by Swinton, it cannot be profitable to the pursuer; because he derives no right from Swinton: And as to the Queen's liferent infeftment, consented to by Thirlston, the Queen never accepted of the same; but of an heritable right from the King that same year; by which heritable right only, she possessed, and did all deeds of property; by entering of vassals, and granting of feus; which a liferenter could not do: Which heritable right, Thirlston could not misken; because, by a special printed act of Parliament, it is confirmed in Parliament, and passed the Great Seal, himself being Chancellor.—It was answered, for the pursuer, That the defence and duply ought to be repelled, in respect of the reply; because the confirmation of the Queen's heritable right in Parliament was, salvo jure; and he was secured by the act salvo jure, in the same Parliament; and that he knew thereof, at the passing of the Great Seal, is but a weak presumption; and such knowledge could not prejudge him; nor was he in any capacity to pursue upon his own right, for attaining possession; seeing the Queen's liferent right, and heritable right, were both compatible; and it was evident, the Queen would exclude him, by his consent, in the liferent right; neither can the Queen's acceptance be questioned, after so long time; seeing the acceptance of the liferent was to her advantage and profit, before the got the fee, and did exclude Thirlston's prior right; which would have undoubtedly reduced the Queen's right; and was excepted in the general act of annexation; and would not fall under the act salvo jure.—It was also severally alleged, that this Earl of Lauderdale's late right was confirmed in Parliament 1661; and all other rights declared void; and that the ratification should have the force of a public law, and not be derogated by the act salvo jure.—It was answered, for the defender, That, in prescriptione longissimi temporis non requiritur tempus utile, sed continuum; in consideration whereof, the time of the said prescription is made so long; and, therefore, captivity, absence reipublicæ causa, want of jurisdiction, or the like, are not respected; 2dly, Thirlston valebat agere; because he might have reduced the Queen's infeftment of fee; or declared his own right of see to be effectual after her death. And, as to the late act of Parliament, albeit it does exclude the act salvo jure; yet that is parte inaudita; and, upon the impetration of a party, suo periculo; but the Parliament have never assumed power to take away the private rights of subjects; except upon another or better right; otherwise no man in Scotland can call any thing his own; but a confirmation in Parliament, with such a clause surreptitiously obtained, shall take away the unquestionable right of any other.—It was answered, for the pursuer, That the Parliament had not encroached upon the just right of any other; but had only restored the pursuer to his grandfather's right; and seeing there is no question, but that right was prior and better than the Queen's, and the defender's, and was in no hazard; but as to the point of prescription, that being a rigorous statute, the Parliament might well excuse the pursuer, for not pursuing the King and Queen; but rather patiently to abide their pleasure, till they were denuded, in favours of private parties.—It was answered, for the defender, That all our private rights, especially of property, are founded upon positive law; and there is none stronger than the right of prescription; and, therefore, if the Parliament can take that away, as to one person, and not generally, they may annul the right of any private person what somever.
The Lords were unwilling to decide in the whole points of the debate; but did, in the first place, consider the right of the parties, without the act of Parliament, in favours of the Queen; or the late act, in favours of the Earl: And, in the point of right, they repelled the defence of prescription; in respect of the duply of Swinton's interruption; which they found to accresce to the pursuer cujus jure utebatur; and found, that before the Queen's death, the prescription could not run, in respect of the Queen's infeftment of liferent, consented to by Thirlston which would exclude him from any action, for attaining possession: And they found, that he was not obliged to use declarator, or reduction, which might be competent in the cases of distress, or the rights of wives, or any other right; which yet do always exclude prescription, till action may be founded thereupon, that may, attain possesion. (See Prescription.)
