What Title requisite in the Positive Prescription.
Subject_3 SECT. XV.
Effect of the Positive Prescription. - Title of Prescription in Moveables.
Wilson v. Helen Innes of Auchlincart
Date: 2 February 1705 Case No. No 181.
The Lords sustained the defence of prescription of an apprising, notwithstanding the personal action upon the grounds of the comprising was not prescribed.
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Wilson of Finreach having right by progress to an apprising against the lands of Auchlincart, led in the year 1636, pursues a reduction and improbation against the heiress of Auchlincart.
The defender alleged; She was not bound to produce her writs, because the apprising, the title of the pursuer's process, was prescribed, being led in the year 1636.
It was answered; Diligence was done on the bond which was the ground of that apprising, whereupon the Lords have found that the prescription is interrupted; and it is certain that diligence against a cautioner interrupts prescription against the principal and cautioner; much more in this case when diligence is done against the defender's predecessor in the lands libelled.
It was replied; There is a great difference betwixt prescription in real and in personal actions; a document taken upon the debts interrupts prescription in personal actions as to all the obligants and their heirs; but, in real actions, if no prosecution be used for 40 years, and the lands affected be possessed by virtue of other real rights and titles by that space, without, interruption, all actions for prosecuting such real rights are prescribed, otherwise singular successors and purchasers could never be secured; and the like has been found in the case of an inhibition, 1st February 1684, Brown of Colstoun contra Hepburn of Berford, Div. 15. h. t.
“The Lords sustained the defence of prescription of the apprising, notwithstanding the personal action upon the grounds of the apprising was not prescribed.”
It was further alleged; Prescription was interrupted by a former reduction: and improbation in the year 1662, which was not only raised and executed, but called, and a debate and interlocutor in that process.
It was answered; 1mo, That process was cast; and the Lords found, No process, in respect the pursuer was not infeft. 2do, The process was not renewed every seven years, conform to the act of Parliament 1685. 3tio, Prescription since that interruption.
It was replied; 1mo, Though the Lords found no process without infeftment, yet the interpellation was sufficient to interrupt, and the process could have been carried on by expeding an infeftment. 2do, The acts 1669 and 1685, reqniring interruptions to be renewed, relate only to the case of citations; but where processes are further prosecuted to compearance and judicial acts, it is not necessary to renew the diligence. 3tio, Minority since that process.
“The Lords found the process did sufficiently interrupt, without necessity to be renewed.”
