Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/730

Rh 706 PRESCRIPTION to erect stalls at statute sessions for hiring servants was held to be bad, because such sessions were introduced by the Statute of Labourers, 23 Edw. III. st. 1 (Simpson v. Wells, Law Reports, 1 Queen s Bench, 214). Some rights may be claimed by custom which cannot be claimed by prescription, e.g., a right of inhabitants to dance on a village green, for such a right is not connected with the enjoyment of land. On the other hand, profits d, prendre can be claimed by prescription but not by custom, unless in two or three exceptional cases, such as rights of copy holders to common in the lord s demesne, or to dig sand within their tenements, rights to estovers in royal forests, and rights of tin-bounders in Cornwall. United States. The law of the United States (except in Louisiana) is based upon that of England, but the period of enjoyment necessary to found a title by pre scription varies in the different States. An easement or profit (t prendre is acquired by twenty years enjoyment in most States, following the English common law rule. In Michigan the term is twenty-five years, Pennsylvania twenty-one years, Connecticut and Vermont fifteen years, South Carolina five years. In Louisiana the period varies according to the subject from three to thirty years, and property other than incorporeal hereditaments may be claimed by prescription as in Roman law (see Kent s Comm., vol. iii. 442). In the case of ancient lights the tendency of the decisions of many of the State courts .seems to have been against the English doctrine, that a prescriptive right to light may be gained by mere enjoy ment not necessarily under a claim of right ( Washburn s Law of Real Property, vol. ii. 318). International law uses the term &quot; prescription &quot; in its wider or Roman sense. &quot; The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other &quot; (Wheaton, Int. Law, 165). Historic instances of rights which were at one time claimed and exercised by pre scription as against other nations are the sovereignty of Venice over the Adriatic and of Great Britain over the Narrow Seas, and the right to the Sound dues long exacted by Denmark. But such claims were rejected by the highest authorities on international law (e.g., Grotius), on the ground that they were defective both in Justus titulus and in de facto possession. There is no special period fixed, as in municipal law, for the acquirement of international rights by lapse of time. In private international law prescription is treated as part of the lex fori or law of procedure. (See LIMITATION.) (j. wf.) Scotland. In the law of Scotland &quot;prescription&quot; is a term of wider meaning than in England, being used as including both pre scription and limitation of English law. In its most general sense it may be described as the effect which the law attaches to the lapse of time, and it involves the idea of possession held by one person adverse to the rights of another. Though having its basis in the common law, its operation was early defined by statute, and it is now in all respects statutory. The most appropriate mode of treat ing the prescription of Scotch law is to regard it (1) as a mode of acquiring rights the positive prescription ; (2) as a mode of extin guishing rights the negative prescription ; (3) as a mode of limit ing rights of action the shorter prescriptions. It must, however, be observed with reference to this division that the distinction between (1) and (2) is rather an accidental (due to a loose inter pretation of the language of the Act 1617, c. 12) than a logically accurate one. It is, moreover, as will immediately be seen, strictly confined to heritable rights, having no application in the case of movable property. But, though the distinction has been com plained of by the highest authority as tending to create embar rassment in the law (see opinion of Lord Chancellor St Leonards in Dougall v. Dundee Harbour Trustees, 1852, 24 Jurist, 385), it is now too well settled to be departed from. 1. Positive Prescription. The positive prescription was intro duced by the Act 1617, c. 12, a statute which has been described by Lord Kames as &quot;the palladium of our land proprietors.&quot; After setting forth in the preamble the inconvenience resulting from the loss oftitles and the clanger of forgery after the means of improba- tion are lost by the lapse of time, it enacts that whatever heritages the lieges, their predecessors or authors, have possessed by them selves or others in their names peaceably, in virtue of infeftments for the space of forty years, continually and together, from the late of their said infeftments, and without any lawful interruption luring the said space, they shall not be disturbed therein, provided they produce a written title on which their possession has pro ceeded. Such written title must be either a charter and sasine preceding the forty years, or, when no charter is extant, instru ments of sasine proceeding upon retours or precepts of dare constat. Though the statute in its literal construction only applied to such heritable subjects as had been conveyed by charter and sasine, it was at an early date interpreted so as to include other heritable rights, as servitudes, tacks, public rights of way, &c., where no charter could be supposed to exist. Thus forty years possession of a road by members of the public is held to establish a right of way. And any member of the public who uses or may have occasion to use the road is considered to have a good title to plead prescrip tion. Thus in the celebrated Glen Tilt case a path through Glen Tilt was established as a right of way in an action at the instance of three gentlemen, one of whom was a residenter in Edinburgh and another in Aberdeen (see Torrie v. Duke of Atholl, 1849, 12 Dun- lop s Reports, 328 ; affirmed in House of Lords, 1852, 1 Macqueen s Reports, 65). This valuable Act of 1617 was so well framed that it continued to regulate the prescription of land rights till the year 1874. By the Conveyancing Act of that year (37 and 38 Viet. c. 94, s. 34) the period of prescription was shortened from forty years to twenty. It was provided that possessions for twenty years upon &quot; an ex facie valid irredeemable title recorded in the appropriate register of sasines&quot; should in future give the same right as forty years possession upon charter and sasine under the earlier law. This Act of 1874 does not, however, apply to all the cases which fell under the Act of 1617. Thus it has been decided that twenty years possession on a charter of adjudication followed by sasino and a declarator of expiry of the legal is insufficient to give an unchallengeable right, an adjudication not being an &quot;ex facie irre deemable title.&quot; (Hinton r. Connel s Trustees, 1883, 10 Rettie s Reports, p. 1110). It is further specially provided by the Act of 1874 that the twenty years prescription is not to apply to servi tudes, rights of way, and public rights generally. The following rules apply to the positive prescription, (a) The possession which is required for it must be peaceable, continuous (&quot;continually and together,&quot; as the Act of 1617 has it), and uninterrupted, (b) The prescription runs de momenta in momentum, (c) The person against whom the prescription runs must be major and sui juris, a rule which, as regards minority, was specially provided for by the Act of 1617, and as regards other cases of incapacity by the application of the principles of the common law. Under the Conveyancing Act, however, it is provided that in all cases where the twenty years prescription applies, the lapse of thirty years is to exclude any plea on the ground of minority or want of capacity. 2. Negative Prescription. This prescription was introduced by the Act 1469, c. 28, and re-enacted with some modification by 1474, c. 55. At first restricted to personal claims of debt, it was gradually extended in practice and ultimately made applicable to heritable bonds and other heritable rights by the above-men tioned Act of 1617. By the Act of 1469 it is declared that the person having interest in an obligation must follow the same within the space of forty years and take document thereupon, otherwise it shall be prescribed. The negative prescription accordingly extin guishes in toto the right to demand performance of an obligation after forty years, the years being reckoned from the day on which fulfilment of the obligation can be first demanded. The lapse of this period of time creates a conclusive presumption one incapable of being redargued that the debt or obligation has been paid or fulfilled. But it must be kept in view that the negative pre scription does not per se without the operation of the positive- establish a right to heritable property (Erskine, Inst., b. iii. tit. 7, 8). Thus, as has been observed, &quot; If A has possessed for a hundred years but was not infeft, any competitor who has neglected his right for that time may completely establish it, if his right was better than A s &quot; (per Lord Corehouse, in Cubbison v. Hyslop, 183, 16 Shaw s Reports, p. 112). So a right of patronage has been held incapable of being lost by the negative prescription ; but, on the other hand, it is settled that servitudes and public rights of way may be so extinguished. As regards the character of the pre scription, it is requisite, in the same way as in the case of the positive, that the years shall have run continuously and without interruption, i.e., without any act done on the part of the creditor which indicates his intention to keep alive the right. Such inter ruption may, for instance, take place by the payment of interest on the debt, or citation of the debtor in an action for the debt, or by a claim being lodged in the debtor s sequestration. In the same way as in the positive, the currency of the negative prescription is suspended by the debtor being minor or non valcns agcre. 3. Shorter Prescriptions. There are certain short prescriptions recognized by Scotch law corresponding to the limitations of