Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Jacobina Clark
v.
Earl of Home

Date: 18 November 1746

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[Kilk., No. 16, Adjudication; Falconer, No. 161.)

The Lords found, (Dissent. Tinwald et Drummore,) That the negative prescription here took place with respect to the apprising, and the debt that was the foundation of it, in so far as there was no possession, and therefore assoilyied the defender.* As there had been infeftment on this apprising, and the legal expired, Elchies was of opinion, that the positive prescription by Lord Home and his authors excluded Jacobina; for he thought that, at the

* This judgment reversed in the House of Lords.

time this apprising was laid, and long after, down to the year 1672, or thereabouts, an apprising gave the right of property; and if, after the expiry of the legal, the appriser did not renounce the apprising, he was judged to lose his right of credit for ever, and to take land for his money: (The contrary found, December 7, 1631, Scarlett against Paterson.) Therefore, Jacobina Clark, having now no debt, and the property of the lands being lost by the positive prescription, has no claim at all. He was likewise of opinion, that the property of lands might be lost by the negative prescription, provided the possessor had any habile title to the lands; and for this he quoted a decision in 1782, Town of Perth against Hospital, where this indeed was not found, but supposed to be law; and he said it would be very unjust if it were otherwise, for, suppose a charter forged 100 or 150 years, so that it is impossible to detect the forgery, and suppose likewise that the proprietors have possessed all that time, without entering or making up their titles, so that they have no title of possession subsequent to the forged charter,—would it not be extremely hard, in such a case, that the negative prescription should not take place.