Whether a woman under coverture is to be considered as non valens agere. - The effect where there is a medium impedimentum to bar pursuit.
Brown v. Hepburn
Date: 5 February 1680 Case No. No 382.
Prescription found not to run during the liferenter's possession against a fiar, from whose right a liferent was reserved.
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In anno 1611 Hamilton of Barefoot wadset the lands of Easter-Monkrig, to Brown of Colstoun, with the burden of the liferent of Agnes Machan, which wadset contained a clause irritant, “That upon not payment of the sum within a year thereafter, the reversion should expire;” whereupon declarator of expiration followed. This Colstoun having right to this wadset, pursues this Barefoot for exhibition of the writs and evidents of the wadset lands; who alleged absolvitor, because the wadset right was prescribed. It was replied, 1mo, That Agnes Machan's liferent being reserved, who lived till the year 1645, the wadsetter non valebat agere, during that time, and it is not 40 years since. 2do, The pursuer interrupted by a process in anno 1668 against Barefoot. The defender duplied to the first, non relevat, that Machan's liferent was reserved, for though that excluded actions of mails and duties, it hindered not declarators. And as to the interruption by action, non relevat, unless it had been renewed every seven year, conform to the 10th act Par. 1669. It was triplied for the pursuer, That he opponed the act, which relates only to interruptions made after the act, as it is clear by the first part of the act, bearing, ‘That all interruptions, as to rights of lands, by citation, shall thereafter be executed by a messenger at arms;’ and though the posterior clause, that all interruptions by citation, whether in real or personal rights, be renewed every seven year, it doth not repeat the words ‘in time coming,’ yet it is the general rule of law, that all respect the time to come, unless they particularly express the time past; and if this were sustained to take away old interruptions, as to which the most cautious men imagine no necessity of innovation, it would at one blow cut off all interruptions before this act of Parliament.
The Lords found the prescription run not during the life of the liferenter, and found the interruption valid before the act of Parliament, though not renewed, and that the said act did relate to posterior interruptions.
Fol. Dic. v. 2. p. 125. Stair, v. 2. p. 752.*** Fountainhall reports this ease:
The Lords found the prescription did not run during the liferentrix's lifetime, the wadsetter being then non valens agere, though he might raise a declarator, &c. and found the interruptions, appointed by the act of Parliament in 1669, is only of bargains, and writs made after the date of the said act, and not for rights before, which seems irregular; for laws can only be said to be drawn backwards when a deed in time coming cannot save the prejudice.
