PRESCRIPTION has, by the law of Scotland, a much wider operation than either by the civil law or the law of England, supplying the place of the Statute of Limitations in the latter system. It not only protects individuals from adverse proceedings which other parties might have conducted if the lapse of time had not taken place, but it in some instances creates a positive title to property. The prescription by which a right of property can be established is that of forty years—a period probably borrowed from the Praescriptio quadra ginta tumor= of the Romans. What ever adverse right is not cat off by the other special prescriptions of shorter periods, is destroyed by the long pre scription. It may be said generally to preclude the right of exacting perform ance of any claim, as to which no judi cial attempt has been made to exact per formance for forty years from the time when it was exigible. To create a title to real property, the long prescription must be both positive and negative. The party holding the property must, by himself or those through whom he holds, have been forty years in unchal lenged possession of the property on a title ostensibly valid—this is called posi tive prescription ; and the claimant and those whom he represents must have been forty years without an ostensible title, and must, by not judicially attack ing it, have tacitly acquiesced in the pos sessor's title—this is called negative pre scription. An action raised in a compe tent court interrupts the long prescrip tion. It is usually stated in the Scottish law-books that it is interrupted by the minority of any person who could chal lenge the opposing right ; but it would be more correct to apply in this case the phraseology of the French lawyers, who say it suspends prescription, as the years of minority are merely not counted in making up the period of forty years, while, when there is a judicial interruption, a new period of forty years commences to run. When the prescription applies to a pecuniary obligation, payment of interest or an acknowledgment of the obligation will interrupt it. It may be
observed that, by a sort of analogy from the system of prescription, when there is in Scotland any judicial inquiry as to the antiquity of a custom, it is usual to limit the period of the inquiry to forty years, as sufficient to establish its having existed from time immemorial. It hav ing been the practice in the neighbour hood of Edinburgh for the proprietors of land to irrigate fields with the contents of the city sewers—the system increas ing until it became offensive to the neigh bourhood—these proprietors produced evidence of their having continued the practice for forty years ; and although it had during that time increased from an evil felt only by the individuals imme diately concerned with the practice, to the extent of a public nuisance, these pro prietors have, so far as the dispute has hitherto gone, been able to defend them selves on the ground of prescription.
The other and shorter prescriptions cut off particular descriptions of claims or methods of supporting them. By the vicennial or twenty years' prescription, holograph writings, not attested with the usual solemnities of Scottish writs, cease to " bear faith in judgment." An obligation of cautionary or suretyship is limited to seven years. Bills of exchange and pro missory notes cease to have force after six years; but the debts they represent, if they do represent debts, may be proved by other means. The quinquennial prescrip tion cuts off all right of action, after the lapse of five years, on bargains proveable by witnesses. It also protects agricultural tenants from a demand for rent after they have been five years removed from the land to which the demand applies. The triennial, or three years' prescription, is very important. It cuts off claims on account for goods or services, the three 7ears running from the date of the last item of the account ; and also claims for wages, each year's wages running a sepa rate prescription, and ceasing to be exigi ble, if not pursued for, in the lapse of three years from the time when it became due.