Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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term’s rent, fee, or alimony, runs a feparate courfe of
prefcription ; fo that in an aftion for thefe, the claim
•will be reltrided to the arrears incurred within the three
years immediately before the citation : But, in accounts,
prefcription does not begin till the laft article ; for a
lingle article cannot be called an account. A&ions of
removing muft alfo be purfued within three years after
the warning. Redu&ions of erroneous retours, pre-
fcribe, if not purfued within twenty years.
7. Minifters ftipends and multures prefcribe in five
years after they are due ; and arrears of rent, five years
after the tenant’s removing from the lands. As the pre¬
fcription of mails and duties was introduced in favour of
poor tenants, that they might not fuffer by neglefting to
preferve their difcharges, a proprietor of lands fubjeit to
a liferent, who had obtained a leafe of all the liferentcd
lands from the liferenter, is not intitled to plead it, nor
a tacltfman of one’s whole eftate, who had by the leafe
a power of removing tenants. Bargains concerning move¬
ables, or fums of money which are proveable by witneffes,
prefcribe in five years after the bargain. Under thefe
are included fales, locations, and all other confenfual
contrails, to the conflitution of which writing is not ne-
ceffary. But all the above mentioned debts, may. after
the five years, be proved, either by the oath or the wri¬
ting of the debtor ; of which above, § 6. A quinquen¬
nial prefcription is eftablifhed in arreftments, whether on
decrees or depending adtions : The firlt prefc ibe in five
years after ufing the arreftment, and the laft in five
years after fentence is pronounced on the depending
aition.
8. No perfon binding for or with another, either as
cautioner or co-principal, in a bond or contrail for a fum
of money, continues bound after feven years from the
date of the bond, provided he has either a claufe of relief
in the bond, or a feparate bond of relief, intimated to
the credito-, at his receiving the bond But ail diligence
ufed within the feven years againft the cautioner, Hull
ftand good. As this is a public law, intended to pre¬
vent he bad confequences of rafh engagements, its be¬
nefit cannot, before the lapfe of the feven years, be re¬
nounced by the cautioner. As it is correitory, it is
ftriilly interpreted : Thus, bonds bearing a mutual claufe
of relief pro rata, fall not under it: nor bonds of corro¬
boration, nor obligations, where the condition is not pu
rifled, or the term of payment not come within the feven
years; becaufe no diligence can be ufed on thefe. The
ftatute excludes all cautionries for the faithful difcharge
of offices ; thefe not being obligations in a bond or con-
tradl for fums of money. And pra&ice has denied the
benefit of it to all judicial cautioners, as cautioners in a
fufpenfion. Actions of count and reckoning, competent
either to m’nors againft their tutors ,r curators, or vice
verfa, prefcribe in ten years after the majority or death
of the minor
9. Holograph bonds, miffive letters, and books of ac¬
count, not attefted by witnefles, prefcribe in twenty years,
unlefs the creditor fhall thereafter prove the verity of the
fubfeription by the debtor’s oath. It is "therefore fuffi
cient to fave from the effeft of this prefcription, that the
conllitution. of the debt be proved by the party’s oath,
A W. 935
after the twenty years ; whereas in ftipends, merchants
accounts, tic. not only the conftitution, but the fubfif-
- tence of the debt, muft be proved by writing or the debt¬
or’s oath, after the term of prefcription. Some lawyers
extend this prefcription of holograph writings to all obli¬
gations for (ums not exceeding L 100 Scots, which are
not attefted by witnefles ; becaufe though thefe are in
praAice fuftained, yet they ought not to have the fame
duration with deeds attefted by witnefles. Though in
the ftiort preferiptiens of debts, the right of a&ion is for¬
ever loft, if not exercifed within the time limited; yet
where aflion was brought on any of thofe debts, before
the prefcription was run, it fubfifted, like any other right,
for forty years. As this defeated the purpofe of the aAs
eftabliffiing thefe preferiptions, all procefles upon warnings,
fpuilzies, ejections, or arreftmentsy- or for payment of
the debts contained in aft 1669, c. 9. are by the faid adt,
joined with 1685, c. 14. declared to prefcribe in five
years, if not wakened within that time ; fee Tit 30.
to. Certain obligations are loft by the lapfe of lefs than
forty years, without the aid of ftatute, where the nature
of the obligation, and the circumftances of parties, jufti-
fy it: Thus, bills which are not intended for lading fe-
curities, produce no adtion, where the creditor has been
long filent, unlefs the fubfiftence of the debt be proved
by the debtor’s oath ; but the precife time is not fixed
by pradtice. Thus alfo, a receipt for bills granted by a
writer to his employer, not infifted upon for twenty three
years, was found not produdtive of an adtion. The
preferiptions of the reftitution of minors, of the benefit
of inventory, tic, are explained in their proper places.
it. In the pofitive prescription, as eftablifhed by the
adt 1617, the continued pofleflion for forty years, pro¬
ceeding upon a title of property not chargeable with falfe-
hood, fecures the pofleflbr againft all other grounds of
challenge, and fo prefumes bona fides, prafumptions juris
et dejure. In the long negative prefcription, bona fides
in the debtor is not required : The creditor’s negledting
to infift for fo long a time, is conftrued as an abandoning
of his debt, and fo is equivalent to a difcharge. Hence,
though the fubfiftence of the debt fliould be referred
to the debtor’s own oath, after the forty years, he is not
liable.
12. Prefcription runs ds momenta in momentum: The
whole time defined by law muft be compleated. before a
right can be either acquired or loft by it ; fo that inter¬
ruption, made on the laft day of the fortieth year, breaks
its courfe The pofitive prefcription runs againft the
Sovereign himfelf, even as to his annexed property, but
it is generally thought he cannot fuffer by the negative r
He is fecured againft the negligence of his officers, in the
management of pracefles by exprefs ftatute, 1600, c. 14.
The negative, as well as the pofitiye prefcription, runs,
againft the church, though churchmen have but a tempo¬
rary intereft in thtir benefices. But becaufe the rights of
beneficiaries to their ftipends are liable to accidents,
through the frequent change of incumbents, .thirteen
years pofleffion docs, by a rule of the Roman chancery
which we have adopted, found a prefumptive title in the
beneficiary : But this is not properly preicription ; for if’
by titles recovered, perhaps out of the incumbent’s own
bands,.