proprietor that does not look after his effects timely, yet one cannot with a good conscience detain from another what is his; and before accomplishment of the prescription the law does not transfer the property to the possessor..... So where the ground of debt is not cut off by prescription, but only the mean of proof by witnesses is excluded, the debtor cannot honestly take the benefit if he knows the debt to be still owing, because the law does not discharge him from the debt, but only secures him against the danger of a groundless claim, by not admitting of a proof by testimony of witnesses, after a certain number of years; and therefore, though the creditor should not insist for his oath, yet he ought, as an honest man, to make payment; for otherwise he defrauds the creditor of his money" (m). The pleading of the Statute of Limitations, said Holt, C. J.(n), is no disparagement to anybody. Garrow, B., also said, that he remembered it to have been remarked by Lord Kenyon, that the defence of the Statute of Limitations was by no means generally dishonourable, as some persons supposed: and added, it is right, that the subject should take advantage of the principle of a statute which, if it may in one or two cases, through the laches of the party, have barred a just demand, yet has the constant effect of shutting out unjust claims, founded on experiments made to take advantage of carelessness or misfortune, on the chance of vouchers being lost or mislaid. In the same case, Richards, C. B., said, that infinite injustice had been prevented by the statute (o). Lord Cranworth, C., also said (p), it may often be a righteous defence. The object of any statute of limitation, with respect to debts, is to make time a bar where there is a debt claimed, upon the ground that, after a certain time, a (m) 2 M'Douall, Inst. L. of Scotland, 183, 184. (n) 7 Mod. Rep. 12. (0) 6 Pri. 26, 31. person does not retain the means of proving payment of the debt. It is not passed in order to enable the debtor, who really owes a debt, to escape payment, but to protect honest debtors. At the same time, I do not mean to say, that dishonest debtors have not a right to take the benefit of the statute. I refer to the purpose and intention of the legislature (q). Instead of being viewed in an unfavourable light as an unjust and discreditable defence, the Statute of Limitations should receive such support as will make it, what it was intended to be, emphatically, a statute of repose (r). SECTION III. The Mode of Operation of Prescription. Laws of this kind, in their most general and com- Operation in prehensive operation, may be regarded simply as bars general. or exceptions, of law or of fact, to the prosecution of any claim. law. In the ancient Roman law, there was this principal In the Roman difference between usucaption and prescription, that whoever acquired a thing by right of usucaption, at the same time acquired a right of claiming it wherever he found it; whereas prescription only enabled him to elude the demand of the former master, but afforded no means to recover possession when once lost (s); and imported strictly that plea, demur, or exception, by which the person in possession invalidates the claim of the first proprietor. Though these different names (g) Per Kindersley, V.-C., 4 Drew. 442. (r) 7 Curt. Amer. Rep. 618. (s) Grotius, B. ii. c. iv. s. 1, n. 1. Twofold aspect. Division of things in the Roman law. Prescription in that law. (usucapio, præscriptio) are frequently taken for the very same notion; and the latter now prevails in common use, and is the term by which we render the former (t). They may also be regarded in a twofold aspect, as a mode of acquiring and of transferring property. As between the actual possessor and the preceding one, and regarding the possession by the former only as the sole foundation of his claim, he may be considered as having acquired the property by virtue of his possession and as between the same persons, and regarding the right or claim of the latter, the property may be considered as transferred by him. Videtur ALIENARE qui patitur usucapi (u) is the maxim of the Roman law. In the Roman law things were divided into two classes, corporeal and incorporeal, and the former class was subdivided into things moveable and things immoveable; and to things corporeal or incorporeal, the enjoyment of them for such a time as was required by law gave to the possessor a title to them (v). This mode of acquiring a title, when applied to things corporeal and moveable only, was designated usucaption, rem usucapere (w), and when applied to things immoveable, as lands, or incorporeal, as securities, rights of action, &c., was designated prescription (x). Prescription in the Roman law, says Lord Mackenzie (y), gives an unchallengeable title to property by continuous possession for a certain time under the conditions determined by law. It is also a mode of extinguishing claims which are not prosecuted within the time fixed by law. By modern jurists, the term is used in a general sense, so as to apply either where lapse (t) Puf. B. iv. c. xii. s. 1. (v) D. 41, 3, 3. (m) Wood's Inst. 124. (y) Studies in Roman Law, 186. branch of ancient English law. of time extinguishes the right of the former owner and transfers it to the possessor, or where it merely bars the remedy of the former owner against the possessor. Usucaption was also a branch of our ancient law, but Usucaption a seems to have had a more extended application than in the Roman law. Bracton says (z), 66 rerum corporalium dominia transferentur sine titulo, aut traditione, per usucaptionem, scilicet, per longam, continuam et pacificam possessionem, ex diuturno tempore." The things mentioned as the subjects of this law, as will be observed, are, however, things corporeal generally without any distinction, as in the Roman law, between those which were moveable and those which were immoveable. In later times, and down to our own day, no such mode of acquiring a title to lands, as is generally designated by the term Prescription, has been known by that appellation in the law of England. As a mode of acquisition of property our law, as we shall presently see, applies it to things in their nature incorporeal only. land on this The law of Scotland on this subject is founded on Law of Scotthe Roman law, and, as respects personal property, subject, and corresponds with (a), but, as respects real property, how viewed. formerly differed from, the law of England, and is designated, like its great prototype, by the term prescription, used however in a general sense, and is divided into positive and negative; positive, that the possessor shall not be disturbed after forty years; negative, that the neglect of the owner to exercise or prosecute his right during the whole period the law allows him for that purpose shall operate the loss or forfeiture of such right (b). But this division appears to rest upon only the operation of the law as applied to, in the former case, the possessor, in the latter case, the owner. In reality no substantial difference between the two kinds (z) B. 2, c. 22. (a) Don v. Lippmann, 5 Cl. & F. 1. (b) Ersk. Inst. 556. In the law of England two kinds of prescription. exists. And even if the division be considered as founded upon the distinction that, in the former case, the law gives to the possessor a positive title against all persons, and, in the latter case, takes away the title of him who has allowed the appointed time for asserting it to expire, the difference between the two kinds of prescription is still rather apparent than real. The negative kind is considered to correspond with the English law as depending on the Statutes of Limitation (b). The law of Scotland, said Lord St. Leonards (c), "has been very much embarrassed by the introduction of these terms. They are not to be found in the act of parliament (d); they do not properly belong to the subject, nor do they properly describe it; for there are many cases in which you might very well, in point of language, say that there is a negative prescription even where a positive prescription also intervenes. The two must often be blended with each other. And I believe that there has been more contention about the meaning of those words than upon the substance of the cases in which those words have been matter of discussion. The act of parliament itself is the simplest act of parliament that ever was passed. It is a statute which he who runs can read ;-there never was anything so plain and intelligible. It applies solely to heritable rights that is, rights of real property; and it declares that where there has been possession upon a title for forty years the right shall be good against the world; that is to say, no extrinsic circumstances shall ever be brought forward to affect it;-although perhaps originally it may have been defective; for it was not to support good titles, but to fortify infirm ones, that the statute interposed." --- In the law of England also prescription has been considered by some writers as of two kinds, positive or (d) Scotch Stat. 1617, c. 12. (b) 2 M'Douall, 184. |