678 



L A \V". 



Law 



of Scotland. 



Negative. 



Shorter ne- 

 gative pre- 

 scriptions. 

 Prescrip- 

 tion of 

 gpulzie and 

 ejection ; 

 Of servants' 

 fees, mer- 

 chants' ac- 

 counts, &c. 

 Prescrip- 

 tion in 

 questions of 

 erroneous 

 rctours ; 

 Ministers' 

 stipends ; 

 multures ; 

 and arrears 

 of rent 

 Bargains of 

 moveables. 



Limitation 

 of caution- 

 ary obliga- 

 tions. 



Prescrip- 

 tion of ho- 

 lograph 

 writings. 



Successors, 

 singular 

 and univer- 

 sal. 



Succession 

 either by 

 destination 

 or legal. 



Order of 

 succession 

 in heritage. 

 1. Descend- 



3. The negative prescription of obligations by the 

 lapse of forty years, was introduced into our law long 

 before the positive, by 1469, c. 29 1474, c. 5,5. This 

 prescription is now amplified by the foresaid act 1617, 

 which has extended it to all actions competent upon 

 heritable bonds, reversions, and others whatsoever, un- 

 less where the reversions are either incorporated in the 

 body of the wadset right, or registered in the register 

 of reversions. And reversions so incorporated or regis- 

 tered, are not only exempted from the negative pre- 

 scription, but are an effectual bar against any person 

 from pleading the positive. 



4. A shorter negative prescription is introduced by 

 statute in certain rights and debts. Actions of spul- 

 zie, ejection, " and others of that nature," must be pur- 

 sued within three years after the commission of the 

 fact on which the action is founded. Servants' fees, 

 house rents, men's ordinarie^, (i. e. money due for 

 board,) and merchants' and writers' accounts, alimenta- 

 ry debts, and workmen's wages, fall under the like pre- 

 scription as to th" mean of proof by witnesses, i. e. these 

 debts may be proved after the three years either by the 

 writing or oath of the debtor. The right of reducing 

 erroneous retours prescribes in twenty years. Mini- 

 sters' stipends and multures, prescribe in five years af- 

 ter they are due ; and arrears of rent (or mails and 

 duties,) five years after the tenant's removing from the 

 lands. Bargains concerning moveables, or sums of 

 money which are proveable by witnesses, prescribe also 

 in five years after the bargain. But these different debts 

 may also, after the five years, be proved either by the 

 oath or the writing of the debtor. No person binding 

 for or with another, either as cautioner or co-principal 

 in a bond or contract for a sum of money, continues 

 bound after seven years from the date of the bond, 

 provided he has either a clause of relief in the bond, or 

 a separate bond of relief intimated to the creditor at his 

 receiving the bond. But the act declares, that all di- 

 ligence used within the seven years against the cau- 

 tioner shall stand good. And as this is a public law, 

 intended to prevent the bad consequences of rash en- 

 gagements, its benefit cannot before the lapse of seven 

 years be renounced by the cautioner. Holograph bonds, 

 missive letters, and books of account not attested by 

 witnesses, prescribe in twenty years, unless the credi- 

 tor shall thereafter prove the verity of the subscription 

 by the defender's oath. 



TITLE X. Of Succession in Heritable Rights. 



1. Singular successors are those who succeed to a 

 person yet alive, in a special subject, by singular titles ; 

 but succession, in its proper sense, is a method of trans- 

 mitting rights from the dead to the living. Heritable 

 rights descend by succession to the heir properly so 

 called ; moveable rights to the executors, who are some- 

 times said to be heirs in moveables. Succession is ei- 

 ther by special destination, which descends to those 

 named by the proprietor himself; or legal, which de- 

 volves upon the persons whom the law marks out for 

 successors, from a presumption that the proprietor 

 would have named them had he made a destination. 

 The first is hi all cases preferred to the other, as pre- 

 sumption must yield to truth. 



2. In the succession of heritage, the heirs at law are 

 otherwise called heirs-general, heirs whatsoever, or heirs 

 of line ; and they succeed by the right of blood in the 

 following order : First, Descendants, whose preference 

 before ascendants or collaterals is established by the 

 universal consent of nations. The Romans divided the 



succession equally among all the immediate descend- Law 

 ants of the deceased; but we, from our close attention f Scotland. 

 to the feudal plan, prefer sons to daughters, and the S ""~Y~ < *'' 

 eldest son to all the younger. Where there re daugh- 

 ters only, they succeed equally, and are called heirs-por. 

 tioners. Failing immediate descendants, grand-chil- 

 dren succeed ; and, in default of them, great-grand- 

 children ; and so on in infinilum, preferring, as in the 

 former case, males to females, and the eldest male to 

 the younger. 



S. Next after descendants, collaterals succeed ; among g. Collate-' 

 whom the brothers gennan of the deceased have the rals. 

 first place, '. e. brothers both by father and mother ; 

 for the full blood excludes the half blodd. But as, in 

 no case, the legal succession of heritage is, by the law 

 of Scotland, divided into parts, unless where it descends 

 to females ; the immediate younger brother of the de- 

 ceased excludes the rest; according to the rule, heri- 

 tage descends. Where the deceased is himself the young. 

 est, the succession goes to the immediate elder brother, 

 as being the least deviation from this rule. If there 

 are no brothers-german, the sisters-german succeed 

 equally ; then brothers consanguinean equally. Next 

 the father succeeds, though by our ancient usage 

 he was excluded, Cr. 32 1 . 46. after him his bro- 3. Ascend, 

 thers and sisters, according to the rules already ex- ant& 

 plained, then the grandfather; failing him, his bro- 

 thers and sisters, and so upwards, as far back as pro- 

 pinquity can be proved. Though children succeed to No fnrfetm 

 their mother, a mother cannot to her child, nor is there tion by ihe 

 any succession by our law through tli mother of the mother. 

 deceased ; insomuch, that one brother-uterine, i. e. by 4 



the mother only, cannot succeed to another, even in 

 that estate which flowed originally from their own 

 common mother. 



4. In heritage there is a right of representation, by R; gnt of 

 which one succeeds, not from any title in himself, but representa- 

 in the place, and as representing some of his deceased tion in he- 

 ascendants. Thus where one leaves a younger son, and ritage. 

 a grandchild by his eldest; the grandchild, though 

 farther removed in degree from the deceased than his 

 uncle, excludes him as coming in place of his father 

 the eldest son. Hence arises the distinction between 

 succession in capita, where-the division is made into as 

 many equal parts as there are capita or heirs, which is 

 the case of heirs-portioners ; and succession in stirpes, 

 where the remoter heirs draw no more among them 

 than the share belonging to their ascendant, or slirps, 

 whom they represent; an example of which may be 

 found in the case where a man leaves behind him a 

 daughter alive, and two grand-daughters by a daugh- 

 ter deceased. Though the right or succession does 

 in no case fall to the mother of the deceased, nor to his 

 relations by her, yet as children succeed to their mo- 

 ther, therefore in every case where> the mother herself 

 would have succeeded, had she been alive, her children 

 also succeed as representing her. 



4. In the succession of heirs-portioners, indivisible Succession 

 rights, e.g. titles of dignity fall to the eldest sister. A of heirs- 

 single riglit of superiority goes also to the eldest ; for portioners 

 it hardly admits a division, and the condition of the 

 vassal ought not to be made worse by multiplying su- 

 periors upon him. Where there are more such rights, 

 the eldest may perhaps have her election of the best ; 

 but the younger sisters are entitled to a recompense, in 

 so far as the divisions are unequal, at least where the 

 superiorities yield a constant yearly rent, e. g. a yearly 

 feu-duty. The principal seat of the family falls to the 

 eldest, with the garden and orchard belonging to ifc 



