Gambar halaman
PDF
ePub

entire, voce " Registration;" and by the statute 1669, cap. 10, it is ordained,

That all interruptions, as to the rights of lands be citations, shall in time hereafter be execut by messengers-atarms, and against the defenders personally or at their dwelling-place, and at the paroch churches in the time of divine service, or immediatly after; and in case the parties be forth of the kingdom, at the mercat cross of Edinburgh, and pier and shore of Leith, upon threescore dayes: And that all citations that shall be made use of for interruptions, whether in real or personal rights, be renewed every seven years, otherwayes to prescrive, except the parties be minors; in which case this act is not to be extended against them, during the years of their minority.

This act is explained by the act 1685, cap. 15, which declares,

That all citations used for interruptions preceeding that act, shall prescribe within seven years after the date of this act, if they be not renewed within that time: And further statutes and ordains, That in citations for interruption as to rights of lands and wakenings thereof, copies of the citation shall be affixed on the most patent door of the paroch church, and that over and beside what is required by the said act anent these executions.

Ersk. III. 7. 1. and 38.

DECISIONS.

Earl of Home, 28. July 1758, Mor. 10777.-Duke of Roxburgh, 5. June 1713, ib. 10883.-Magistrates of Lauder, 15. Nov. 1754, ib. 1987.-Maule, 2. Dec. 1817, F. C.Muir, 2. July 1746, Mor. 10820.-Irvine, Nov. 1764, ib. 10830.-Chatto, 25. June 1745, ib. 15657.-Scott, 1. July 1779, ib. 13519.-Crawfurd, 20. Dec. 1822, and 2. June

1826, S. & D.-Neilson, 26. Feb. 1823, ib.-Caitcheon, 22. Jan. 1791, Mor. 10810. E. Marchmont, 28. July 1724, ib. 10797.-Middleton, 22. Dec. 1774, ib. 10944.— Bruce, 6. Dec. 1770, ib 10805.-Smith, &c. June 1752, ib. 10803.-Durham, 24. Nov. 1802, ib. 11220, affirmed on appeal, 5. March 1811.-Zuille, 4. March 1813, F. C.-L. Reay, 25. Nov. 1823, S. & D.-Maxwell, 21. June 1808, Mor. App. No. 8, voce Prescription, affirmed. - Lumsdaine, 13. June 1811, F. C. affirmed. - Routledge, 19. May 1812, and 16. Dec. 1819.-D. Hamilton's Trustees, 18. May 1824, S. & D.-Dalziel, 17. Jan. 1810.-Mearay, 17. Jan. 1811, F. C.

III. VICENNIAL PRESCRIPTION, APPLICABLE TO REDUCTION OF RETOURS AND SUMMONS OF ERROR.

The act 1617, cap. 13, is in the following terms:

For as much as by act of Parliament, made by his Majestie's most noble progenitour King James the Fourth, of worthy memory, upon the 13. day of June 1494, it was statute and ordained, That all summonds of errour or inordinate processe be pursued within the space of three yeares after the determination of the inqueist, or service, the party being of lawful age, and within the realme, otherwise to prescribe, as in the said act and statute at more length is contained: And because the true meaning and intention of the said act was, That our Soveraigne Lord's lieges, being upon the said inqueist and service, should not lye under the paine and danger of errour, after the space of three years, and no wayes to hurt or prejudge the righteous heire, and nearest of kin, who by the law of God and man was to succeed in the right of blood and succession to their predecessours, and to their lands and heritages, jure sanguinis: Therefore our said Soveraigne Lord, with advice and consent of the Estates

foresaids, statutes and ordains, That the said act of Parliament shall no wayes hurt nor prejudge the nearest of kin to seek reduction of the saids retours, and service, to be past and exped in time comming, and that within the space of twenty years, immediatly following the date of the saids retours and services; and if the saids summonds of reduction. be not intented, executed, and pursued, before the expiring of the saids twenty yeares, that the said action of reduction of the said retour and service shall prescrive in the selfe, and no party to be heard thereafter to pursue the same reduction: And als declares, That hereafter it shall no wayes be lawful to pursue the persons of inquiest for wilful errour, except they be pursued therefore within the space of three yeares next after the date of the said retour and service: it is alwayes declared, that these presents shall no wayes be prejudicial to whatsoever persons, who have acquired rights of lands and heritages before the date hereof, bona fide, from persons already retoured thereto in any time bygone; but the saids persons, who have bona fide acquired, to brook their rights according to the law then standing.

See Title "Brieves," Vol. I. p. 176.—Ersk. III. 7. 19.

Drummond, 17. May 1793, Mor. 6936.-Lane, 17. Jan. 1782, ib. 5179.

IV. VICENNIAL PRESCRIPTION OF HOLOGRAPH DEEDS.

To render deeds probative, they must either be prepared in compliance with the statutory forms (explained in the title "Proof" post.), or be wholly written by the party himself. The danger of forgery in the former case being smaller, the provisions of the act 1617, cap. 12, apply to all such writings. But, in regard to holograph documents, the risk of forgery is much greater; therefore, the statute 1669, cap. 9,

"Statutes and ordains, that holograph missive letters, and "holograph bonds, and subscriptions in compt books with❝out witnesses, not being pursued for within twenty years, "shall prescribe in all time thereafter, except the pursuer "offer to prove, by the defender's oath, the verity of the said holograph bonds, and letters and subscriptions in the "compt books."

[ocr errors]

Erskine, III. 7. 26.—Bell, I. 254.

Home, 19. Jan. 1773, Mor. 10992.-Brown, 17. July 1741, ib. 9417.-Dalziel, 19. Nov. 1784, ib. 10994.

V. DECENNIAL PRESCRIPTION OF TUTORY ACCOUNTS.

By the act 1696, cap. 9, it is ordained,

That all actions of count and reckoning, competent to pupils and minors against their tutors and curators, for making their accounts not pursued and insisted in within the space of ten years after the majority of the said pupils and minors, or after their death, they dying in their minority, shall, after that time, prescribe for ever; and the said tutors and curators, and their successors, shall be as fully exonerate and liberate, as if the said pupils and minors, after their majority, had fully and amply discharged the same. And declares, That the contrary action, at the instance of tutors and curators against their pupils and minors, shall prescribe in the same manner within ten years; declaring alway, That this prescription shall not run against minors; as also, That all the foresaid actions already raised, or competent to be raised by either of the said parties hinc inde, shall in like manner prescribe within ten years after the date of this act.

Another decennial prescription was introduced by a clause in the statute 1669, cap. 9, which declares,

That all actions proceeding upon warnings, spuilzies, ejections, arreastments, or for ministers' stipends, and others foresaid, shall prescrive within ten years, except the said actions be wakened every five years; but prejudice alwayes of any of the saids actions, which by former acts of Parliament are appointed to prescrive in a shorter time. And also statutes and ordains, That holograph missive letters, and holograph bonds, and subscriptions in compt-books without witnesses, not being pursued for within twenty years, shall prescrive in all time thereafter; except the pursuer offer to prove, by the defender's oath, the verity of the saids holograph bonds and letters, and subscriptions in the compt-books. It is alwayes hereby declared, That prescriptions shall not run, in any of the cases foresaid, against minors during the years of their minority.

And there is a supplementary statute, 1685, cap. 14, to explain this clause. It is in these words:

Our Sovereign Lord, considering, That at making of the ninth act of the first session of the 2d Parliament of King Charles II. concerning prescriptions, in that part of it relating to actions proceeding upon warnings, spuilzies, ejections, arrestments, or for ministers' stipends, and others foresaid, the cases that existed before that act were not taken into consideration: therefore, his Majesty, with consent of his Estates of Parliament, statutes and ordains, That all such actions proceeding upon any diligence mentioned in that act, already intended either before the said act 1669, or since, shall prescribe within five years after the date of this act, if they be not wakened within that time; and all actions to be raised hereafter upon the foresaid grounds shall prescribe in five years, if they be not wakened within that time. And his Majesty wills and declares the foresaid 9th act to stand in full force as to the rest of the tenor thereof.

Erskine, III. 7. 25.

« SebelumnyaLanjutkan »