Page:EB1911 - Volume 22.djvu/311

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
297
PRESENT

que estate lies at common law by reason of continuous and immemorial enjoyment by the claimant, a person seised in fee, and all those whose estate he had (toux ceux que estate il ad). The Prescription Act fixes a definite period and does away with the necessity which existed at common law of prescribing in the name of the person seised in fee. Prescription in a man and his ancestors is not of ordinary occurrence in practice. Corporations, however, occasionally claim by a prescription analogous to this, viz. in the corporation and its predecessors. Such claims by either a person or a corporation are not within the Prescription Act, which applies only where there are dominant and servient tenements. By 32 Hen. VIII. c. 2 (1540) no person can make any prescription by the seisin or possession of his ancestor unless such seisen or possession had been within threescore years next before such prescription made. (5) A prescription cannot lie for a thing which cannot be granted, as it rests upon the presumption of a lost grant. Thus a lord of a manor cannot prescribe to raise a tax or toll upon strangers, for such a claim could never have been good by any grant.

Prescription and Custom.-Prescription must be carefully distinguished from custom. Prescription, as has been said, is either in a que estate or in a man and his ancestors-that is to say, it is a personal claim; custom is purely local-that is to say, it is a usage obtaining the force of law within a particular district. In the time of Littleton the difference between prescription and custom was not fully recognized (see Littleton's Tenures, § 170), but the law as it exists at present had become established by the time of Sir Edward Coke. A custom must be certain, reasonable and exercised as of right. Like prescription at common law, it must have existed from time immemorial, On this ground a custom 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, L.R., 7 Q.B., 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, igor such a right is not connected with the enjoyment of land. On the other hand, profits fi 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 prescription varies in the different states. An easement or profit a prendre is acquired by twenty years' enjoyment in most states, following the English common law rule. In Louisiana the period varies according to the subject from three to thi1'ty years, and property other than incorporeal hereditaments may be claimed by prescription as in Roman law (see Kent's Comm. iii. 442). International Law uses the term “prescription " in its wider or Roman sense. “ The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other” (Wheaton, Int. Law, § 165). Historic instances of rights which were at one time claimed and exercised by prescription 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 (eg. Grotius), on the ground that they were defective both in jzistus 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. (J. W.) Scotland.-In the law of Scotland “ prescription" is a term of wider meaning than in England, being used as including both prescription 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. Prescription in Scots law may be regarded (1) as a mode of acquiring rights-the positive prescription; (2) as a mode of extinguishing rights-the negative prescription; (3) as a mode of limiting 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 interpretation of the language of the act of 1617, c. 12) than a logically accurate one. It is, moreover, strictly confined to heritable rights, having no application in the case of movable property. But, though the distinction has been complained of by the highest authority as tending to create embarrassment 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 introduced by the act of 1617, c. 12. After setting forth in the preamble the inconvenience resulting from the loss»of titles and the danger of forgery after the means of improbation are lost by the lapse of time, it enacts that whatever heritages the lieges, their predecessors or authors have possessed b themselves or others in their names peaceably, in virtue of infeftments for the space of forty years, continually and together, from the date of their said infeftments, and without any lawful interruption during the said space, they shall not be disturbed therein, provided they produce a written title on which their possession has proceeded. Such written title must be either a charter and sasine preceding the forty years, or, when no charter is extant, instruments of sasine proceeding upon retours or precepts of ctare 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 servitude's, tacks, public rights of way, &c., where no charter could be supposed to exist. The act of 1617 was so well framed that it continued to regulate the prescription of land rights till 1874. By the Conveyancing Act of that year (37 & 38 Viet. c. 94, § 34) the period of prescription was shortened from forty years to twenty. It was provided that possessions for twenty years upon “ an ex facie valid irredeemable title recorded in the appropriate register of sasines ” should in future give the same right as forty years' possessions upon charter and sasine under the earlier law. The 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 sasine and a declaratory of expiry of the legal is insufficient to give an unchallengeable right, an adjudication not being an “ ex facie irredeemable title " (Hinton v. Connel's Trustees, 1883, IO Rett1e's Reports, p. 1110). It is further specially provided by the act of 1874 that the twenty years' prescription is not to apply to servitude's, 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 (“ continually and together, ” as the act of 1617 has it), and uninterrupted. (b) The prescription runs de momento in momentum. (e) 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 of 146O, c. 28, and substantially re-enacted by the act of 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-mentioned 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 extinguishes in toto the right to demand performance of an obligation after forty years, the years bein reckoned from the day on which fulhlment of the obligation can be first demanded. The lapse of this period of time creates a conclusive presumption-one incapable of being redargu d-that the debt or obligation has been paid or fulfilled. But it eh-lust be kept in view that the negative prescription does not per se-without the operation of the positive-establish a right to heritable property (Erskine, Inst. b. iii. tit. 7, § 8). As regards the character of the prescription, 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 interruption 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 valens agere. 3. Shorter Prescriptions.-There are certain short prescriptions recognized by Scots law-corresponding to the limitations of English law-which operate not as extinguishing rights but as excluding the ordinary means of proving them. The following require to be noticed. (a) Vicennial prescription protecting a person who has been served as heir for twenty years against action by any other person claiming to be heir. (b) Decennial prescription requiring all actions by minors against their tutors and curators, and vice versa, to be prosecuted within ten years from the expiration of the guardianship. (C) Septennial prescription providing that no person bind himself, under certain exceptions, for and with another, conjunctly and severally, in any bond or contract for sums of money shall be bound for more than seven years after the date of the obligation. There are also other shorter prescriptions limiting rights of action in different matters as the sexennial, quinquennial and triennial.


PRESENT, an adjective, adverb and substantive meaning that which is at hand or before one in place or in time. Also another substantive meaning a gift, and a. verb meaning to bring into the presence of, to offer, to deliver. The verb is pronounced present; the others present. The first group is due to the Latin praesens, the present participle of praeesse, to be before one or at hand; from this participle was formed the verb praesentare, to bring before one, exhibit, show. The sense of “ gift ” is due to