Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION XIII.

Contra non valentem non currit Prsæcriptio.
Subject_3 SECT. I.

Ubi dies non venit.

Moutray
v.
Hope

Date: 22 November 1682
Case No. No 367.

Prescription does not run against an inhibition but from the date of the comprising used upon the bond granted by the person inhibited, in respect the inhibiter cannot know of the bond until real diligence be done on it.

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In an action of reduction, ex capite inhibitionis, pursued by Moutray against Porteous, of a bond granted by the common debtor, whereupon comprising had followed; and it being alleged for the defender, That the inhibition was prescribed, being served in anno 1633; and it being replied, That the prescription was interrupted by a comprising deduced upon the bond, which was the ground of the inhibition, and which diligence being upon the bond, did interrupt prescription thereof, and consequently of the inhibition which was accessory thereto; the Lords found, That the comprising upon the bond was not an habile diligence, which could be ascribed to the inhibition; but they found, That the prescription did not run from the date of the inhibition, but from the date of the comprising, which was led upon the defender's bond, seeing the inhibiter could not know of the bond, until the diligence was done thereupon, to affect the heritable estate; therefore found, That prescription of the inhibition did only begin from the date of the defender's comprising.

Fol. Dic. v. 2. p. 123. P. Falconer, No 32. p. 17. *** Sir P. Home reports this case:

William Porteous having granted bond to Andrew Moutray, upon which there being an inhibition served, and thereafter a comprising led of certain tenements of land in Peebles, belonging to the said William Porteous, which being disponed to John Hope, Andrew Moutray, as heir served to his brother, and John Law, his factor, having pursued a reduction against John Hope, ex capite inhibitionis; alleged for the defender, That the inhibition could be no title for the reduction, in respect it was prescribed, there being no diligence done thereupon for the space of 40 years; as was decided the 11th February 1681, Thomas Crawford against James Kennoway, No 9. p. 5170. where Kennoway, having a right to a comprising, did raise a reduction of Crawford's apprising of the same lands; and Kennoway, finding he could not prevail in his apprising, he did add a reason of reduction upon the inhibition for the same debt; the Lords sustained the defence of prescription as to the inhibition, albeit the reduction was raised within the years of prescription, in respect the reason of reduction ex capite inhibitionis was not filled up till after the 40 years were expired from the date of the inhibition; and it is ordinary for accessory diligences to prescribe, albeit the principal right do not prescribe; as in the case of actions for mails and duties, removings, and apprisings, &c.; answered, That there being a comprising led upon the bond which was the ground of the inhibition, it was sufficient to interrupt the prescription, even as to the inhibition; for an inhibition, being an accessory security for the same, whatever diligence does interrupt the prescription as to the bond, does interrupt the prescription as to the inhibition, nam accessorium sequitur naturam seu principalis; and the foresaid practique does not meet the case; for the question there was not, if diligence used upon the bond should interrupt prescription as to the inhibition, but the question was only, that there being a reduction raised of the other party's right, albeit the reason of reduction ex capite inhibitione was not filled up ab initio within the 40 years, when that reduction was raised, yet that, after the 40 years were elapsed, the reason could be added; in which case, the Lords sustained the defence of prescription as to the inhibition, in repect there was not a reason of reduction libelled thereupon within the 40 years; whereas, in this case, the pursuer does not found his interruption upon the reduction, but upon the other diligence used upon the bond upon which the inhibition was served; and albeit actions of mails and duties, removings, &c. does prescribe, although the principal right do not prescribe, that is only introduced by a special law, which, upon particular consideration, makes these actions prescribe within few years; which evinces that such actions and accossory diligences would not prescribe in a shorter time than the principal rights, unless the same were provided by a special law; and albeit the inhibition could not prescribe, as it ought not, for the reasons abovementioned, yet the prescription can only run from the time that the defender's disposition of the lands was completed by real diligence, seeing, so long as the disposition remained in the naked terms of a personal right, the pursuer was not obliged to know if there was any such right made; and so was in bona fide not to pursue a reduction thereof. The Lords found, That the leading of a comprising upon a bond which was the ground of the inhibition did not interrupt the prescription of the inhibition, seeing that diligence could not be ascribed to the inhibition; but found that the prescription did not run against the inhibition, but from the date of the comprising used upon the bond or disposition craved to be reduced; in respect the party at whose instance the inhibition was served could not know of the bond, until real diligence was done thereupon to affect the lands.

Sir P. Home, MS. v. 1. No 259.