Scottish Court of Session Decisions

Subject_1 FRAUD.

Henry Elliot
v.
William Elliot

1749, Nov. 10.
Case No. No. 22.

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In a reduction on the act 1621 of a disposition in 1692 which had since become the title of several purchasers, upon which long possession had followed, some of them possessed more than 40 years upon infeftment, others had possessed as long but had not so early completed their titles, but the negative prescription was interrupted as to the half of the debt by the minority of one of the executors or one of the two assignees of the creditor. Both the debtors pleaded the negative prescription of this reduction, and one of them pleaded the positive prescription. The Justice-Clerk found the half of the debt lost by prescription, and sustained action as to the other, and repelled the defence of the negative prescription pleaded for one of the defenders Sir James Stuart, but sustained the defence on the positive prescription for William Elliot; and on advising a reclaiming bill and answers, we seeming to be of different opinions appointed a hearing in presence, which was well argued, particularly by Lord Advocate against the interlocutor. (Vide my notes on the petition*) and Lord Advocate noticed most of the topics;—and on the hearing the Court observing that the purpose of this process was to oblige a third or fourth purchaser at the distance of 57 years to prove the onerous cause of the disposition to his remote author 1692, they appointed them to be heard on that point, and on the hearing unanimously found the defender not bound to astruct the onerous cause of that disposition.

* See Note of No. 33, voce Prescpiption.