Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

Henry Elliot in Flatt,
v.
William Elliot of Kirklands

Date: 10 November 1749
Case No. No. 33.

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In a reduction of a disposition dated 1692, on the act 1621, the question occurred, Whether by the act 1617, the positive prescription can run against minors, or if the exception of minority in that act be only meant from the negative prescription of actions. There were different singular successors in different lands, whose rights depended on that disposition 1692, some of whom had possessed more than 40 years by charters and sasines, others again, though they had possessed as long, yet had not so early completed their titles as to plead the positive prescription. The creditor's debt had also been divided between two successors, either executors or assignees, one of whom was so long under age, that deducting his minority, the 40 years were not run, but the other could not plead minority. Both defenders pleaded the negative prescription, and Lord Justice-Clerk sustained the defence against the person who could not plead minority; but as to the other, he sustained the reply of minority. One of the defenders, William Elliot of Kirklands, pleaded also the positive prescription, and the pursuer replying minority, he sustained the defence and repelled the reply. The pursuer reclaimed, and on answers, the Bench being divided, the cause was heard fully in presence, (vide my Notes on the petition, and the Lord Advocate noticed most of the arguments there.) But the Court observing that the purport of the process was to oblige a third or fourth purchaser, at the distance of 57 years, to prove or astruct the onerous cause of the disposition to their remote ancestor in 1692, they directed the Counsel to argue that point; and on the hearing, unanimously found the defender not bound to astruct the onerous cause of that disposition. (See Notes.)(See Dict. No. 465. p. 11315.)