1686.
February3, and
4. and
1687.
July. Case No. No 24.
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In a question, whether base infeftments, long since prescribed, so that the debt could not be exacted, might, nevertheless, concur with others which were not prescribed, to make the lands recognosce; the Lords found, that, notwithstanding the prescription, they might concur, the last ground being within 40 years; for they found, that the debt might be extinct as to the effect of execution, and yet not as to the casualty of recognition, for contra non valentem agere non currit præscriptio; but so it is, that the feudal delinquency of recognition is not incurred till the major part of the barony be alienated by base infeftments. Now, supposing the last base infeftment to be within 40 years, and every one of the grounds and steps, which make up the recognition, being supposed to be within 40 years of each other, the action could not exist till the half, and a little more, were alienated, and so could not begin to prescribe till then, since actioni nondum natæ non præscribitur.
A similar decision is reported by Forbes, 25th July 1712, Moncrieff against Heirs of Ballo, No 168. p. 10932, voce Prescription.
The Lords sustained all base infeftments after the 12th of April 1654, (the date of the Usurper's ordinance about ward-lands) as lawful, and not to be the ground of recognition, unless the vassal continued after the King's restoration without demanding confirmation.
Fol. Dic. v. 2. p. 314. 315. Harcarse.
*** This case is No 63. p. 6485., voce Implied Discharge and Renunciation.
