Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, COLLECTED BY SIR JAMES BURNETT, LORD MONBODDO.

Wemyss
v.
His Majesty's Advocate

Date: 19 December 1766

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This was a question about the interruption of the prescription of a bond due by the Earl of Cromarty, who was forfeited for his accession to the rebellion in 1745.

This bond was not made a claim upon the Earl's forfeiture, in terms of the vesting Act; but afterwards, and as late as this year, 1766, a new subject of the Earl's was surveyed, viz.—The money given for the heritable jurisdiction belonging to the Earl, and a claim for this bond was entered in due time after this second survey. The fact was, that, at the time of the forfeiture, and when the estate was vested in the Crown, the prescription was not run, but it was run before the first survey was made in the year 1749.

The Lords were unanimously of opinion, that till the forfeited estate is surveyed, the creditor not being valens agere, the course of the prescription must stop, as in the case of minority; and that, therefore, in this case the prescription stood still from the time the Earl's estate was vested in the Crown till the survey; that the claimant, by not entering his claim within six months after the first survey, was barred from claiming payment out of the subjects then surveyed; but that, with respect to the subjects not then surveyed, the prescription stood still, so that the whole time, from the estate being vested till the second survey, was to be deduced from the prescription. This appears to me to be a very new decision in point of prescription, as it makes a different prescription for every different subject which the debtor may be possessed of; for here, with respect to the lands there was one prescription, and with respect to the jurisdiction money there was another, and till these subjects were discovered and surveyed, the prescription did not run with respect to them. It was therefore the same case as if there had been two debtors in this bond,—the one possessed of the lands, the other of the jurisdiction. The prescription, with respect to the one debtor possessed of the lands, would run only from the time of the survey of the lands, and the prescription with respect to the other from the time only of the survey of the jurisdiction. Or it is the same case as if there were two co-heiresses of an heritable bond, and the one was minor and the other not; the prescription would run with respect to one of them while it stood still with respect to the other.