Prescription of a writ found not to run from the date of it, but from the term at which it was payable.
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Doctor Arnot having no children, but his sister having two sons, Andrew and David Bruces, he did dispone an annualrent of 200 merks yearly to David the younger son out of his estate, the first terms payment thereof being the first term after the disponer's death; thereafter he did dispone his estate to Andrew Bruce the elder brother. David Bruce was infeft in the annualrent, and now pursues a poinding of the ground against James Bruce heir to Andrew, who alleged absolvitor, 1mo, Because David Bruce the pursuer his right is prescribed, being granted in anno 1626. It was answered, Contra non valentem agere non currit præscriptio, the pursuer's right could have no effect till the Doctor's death.
The Lords repelled the defence in respect of the reply.
The defender further alleged, That the pursuer's right was never a delivered evident, but remained still by the Doctor, and was amongst his papers at his death, when his nephew Andrew was out of the country, and therefore the pursuer ought to prove the delivery thereof. It was answered for the pursuer, That the having of any writ in favours of the haver presumes the delivery, unless the contrary be proven, viz. That the writ was in the custody of the defunct, or depositate, &c. 2do, Though it were acknowledged that the writ remained by the disponer at his death, it doth not annul the right, because though an undelivered writ doth infer that it is incomplete and ineffectual, yet that rule hath many exceptions, as if it contained a clause dispensing with not delivery, as in this case, albeit the writ had not been delivered, yet sasine being given thereupon, the delivery of sasine is sufficient, the sasine being in the public register, especially seeing Doctor Arnot had no children, and these two brothers were the nearest of kin, so that the Doctor having done no positive deed in the contrary, the keeping of the writs imports not a revocation of the gift.
The Lords found that the pursuer needed not prove the delivery, and also found, that though the writs had not been delivered, they were effectual, there being a sasine registrate, but if there had been a positive deed done by the Doctor, alleged in the contrary, they would consider the same.
The defender further alleged, That this annualrent relating to no stock of money, but an irredeemable constitution, behoved to be liable to a proportional part of the public with the lands affected therewith.
Which the Lords sustained. See Writ.
Fol. Dic. v. 2. 123. Stair, v. 2. p. 334.*** Dirleton reports this case:
Doctor Arnot having disponed to one of his nephews, an annualrent out of certain lands belonging to him, and thereafter having disponed to another of his nephews, the elder brother of the annualrenter, the foresaid lands, a poinding of the ground was intented, at the instance of the person who had right to the annualrent: And it was alleged, That the disposition of the annualrent was never delivered by the Doctor, but was beside him the time of his decease, and was viis & modis gotten out of his charter chest, and given to the pursuer: To which it was answered, That the pursuer had the paper in his hands, and it was presumed to be delivered: And, 2do, Though it should be supposed, that the said right was among the Doctor's papers the time of his decease, yet the Doctor having made the said right public by an infeftment, and sasine thereupon, to the pursuer, which was registrate, albeit he might have evacuate the said right by destroying the disposition, yet nevertheless having kept the same by him undestroyed, it ought to be construed in law, that being uncle to the purscer, and having given the said right upon the account of the said relation, he kept the same by him to the pursuer's behoof, unless it could be made appear that the Doctor did any deed to recal and evacuate the said right.
The Lords repelled the defence of not delivery, in respect of the answer.
Reporter Hatton.Clerk Hay.
Dirleton, No 272. p. 132.
