Prescription not elided, because the party, being in his Majesty's service, durst not appear during the usurpation.
This sentence was afterwards altered, see Sir P. Home's and Harcarse's reports of this case, infra.
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Colonel Whitefoord having obtained a gift from the King, of all the fruits of the sub-deanry of Glasgow, preceding the year 1629, did, upon his gift, obtain decreet conform, and thereupon charged the Earl of Kilmarnock for the teinds of his lands belonging to the said benefice. The Earl suspends, and alleges prescription. The charger answered, 1mo, Contra non valentem agere non currit Prsæcriptio, and it is notour, that the charger, during all the time of the troubles and Usurpation, was in his Majesty's service, out of the country, and durst not appear, under the hazard of his life, which was sustained in the case of the Duke of Lauderdale, (supra.) 2do, The charger interrupted by citation at the market-cross against all and sundry, in anno 1669. The suspender replied, That the charger valebat agere, for though it had been true that he run the hazard of his life, if he had personally appeared, yet he might have appeared by a procurator, or by an assignee to his behoof, who could never be excluded upon pretence that the constituent was culpable of crimes; nor is this case any thing like the Duke of Lauderdale's, who was forfeited by the Usurpers, and so non valebat agere ob defectum tituli; but the charger was neither forfeited, condemned, nor accused; and as to the general citation, it is not within 40 years from the year 1628. And though it were, it hath no effect but to procure letters of horning, and cannot make interruption without special citation; for when the King was to interrupt the act of prescription against all his subjects, it could not be done but by special act of sederunt, and warrant for a proclamation at the market-cross, which the Lords declared sufficient for the King; but a general citation of all and sundry at the market-cross, at a private party's instance, cannot interrupt, seeing it passeth of course, and would insecure the lieges.
The Lords sustained the reason of prescription, and repelled the answers that the charger non valebat agere, seeing he was not forfeited.
Fol. Dic. v. 2. p. 124. Stair, v. 2. p. 642.*** Sir P. Home reports this case:
1682. January.—The deceased Walter Whitefoord, Colonel Whitefoord's father, having obtained a gift from the King, in the year 1681, of the teinds, feu-duties, and other rents and emoluments of the sub-deanry of Glasgow, from the year 1586 to the year 1628 inclusive, and he having assigned the gift to the Colonel, his son, who having pursued the Earl of Kilmarnock for ten chalders of victual yearly, the saids years, as the teinds of the lands possessed by him belonging to the sub-deanry; alleged for the defender, that the gift being granted to the pursuer's father in the year 1631, was prescribed, there being no diligence done thereupon for the space of 40 years. Answered, That the pursuer having engaged as a soldier in the King's service in the year 1638, and served the King in the wars, during the late troubles, till the year 1649 that he was taken with Montrose, and ran the hazard of being executed, but with great difficulty was saved, and only banished the kingdom, upon the finding of sufficient caution not to return under the pain of L. 5000 Sterling, and accordingly he went out of the country, and did not return until his Majesty's happy restitution in the year 1660; so that during the time he was banished out of the country, he was non valens agere; and it is a principle in law, that contra non valentem agere non currit Prsæcriptio; and the same point being forformerly debated as to other vassals of the sub-deanry in February 1678, the Lords found, that upon the foresaid reason, the prescription could not run against the pursuer; and upon that same ground, the last Parliament, in a case betwixt the Earl of Airly and Mr John Dempster of Pitliver, made an act in favours of the Earl, that prescription should not run against him during the time that the Earl was serving the King in the late wars, as not being then valens agere. Replied, That non valens agere was not relevant against prescription, unless it were qualified quo modo he became non valens, as that the impediment was insuperable; for albeit that defence was sustained in favours of persons that had been forfeited and imprisoned during the Usurpation, whereby there was an insuperable necessity of silence imposed upon them, the forfeiture having taken off all right that stood in their person, so that they could neither have pursued in their own name, or made any right to others; yet the pursuer was neither forfeited nor imprisoned, so that either he might have pursued the action in his own name, or granted a factory for that effect; or he might have made an assignation to any person for that effect who might have pursued it, so that his being banished out of the country was so much a superable impediment, as that the pursuer was not valens agere; and whatever was done in the process of others of the vassals, was res inter alios acta as to the defender, and cannot prejudge him; and it seems the defence in that process has bren repelled by collusion; for in the same process there being formerly report made to the Lords, there was an express interlocutor in July 1678, where the allegeance of non valens agere was expressly repelled, as appears in the Lord Stair's Book of Decisions, v. 2. p. 642, (supra.)
The Lords found, That the Colonel was not valens agere, in respect of his banishment, and therefore repelled the defence of prescription.
Sir P. Home, MS. v. 1. No 95. p. 141.*** Harcarse reports this case:
1681. January 31.—In a pursuit for teinds at the instance Colonel Whitefoord against Lord Kilmarnock, the defender objected prescription.
Answered for the pursuer; That he was not valens agere, in so far as he was banished the kingdom during life, for adhering to the King's service, and assaulting Dorislaw at the Hague in Holland.
Replied; Though the exception of non valens agere be sustained, as interruption of prescription in the case of forfeiture, where the party could not claim his right, it were a dangerous preparative to sustain such a thing in this case, where process might have been intented in the name of the pursuer himself, though banished, or in name of his factors. And my Lord Airly's case, which is more favourable, required an act of Parliament; and the same point was repelled in the year 1678, (supra.)
The Lords having considered the circumstances that Colonel Whitefoord was then in, during the late troubles, they sustained the interruption of non valens agere.
Thereafter the pursuer contended; That interruption must be sustained in his favours from the year 1638, seeing he was in the King's army in England, and so absens reipublicæ causa; which the Lords repelled, because he might have assigned or pursued, notwithstanding his being in the King's army.
