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proceedeJ iD bct\\'ccn flln·rirang and fun. fellin~ ; or at
leart it murt be finilh ed before the goiog off of day·
light. Thc powm of lheoffieer employed io lhe execu·
tion of poindiogs, are not clearly ddined by eurtom, in
tlle eafe of athird party elaíming lhe properly of lhe goods
to be poinded. This is cemin, lhat he may lake the
oalh of lhe elaimant, upon the verity of his claim; and
if from thence it {hall appear that the elaimant's litle is
collufivc, he oughl to proeeed in the diligenee; but, if
there remains the leall doubt, his fafell eourfe is tO deliver·
the goods ro the elaimant, and toexprefs inhis exeeutioo
the reafons why poinding did not proceed. .
14. Any perfon \Vho 1I0ps a poinding vi. jafli, on
groundlefs prttenees, is liable, ~oth eriminally, in the
pains of deforeement, (fee Tit. xxxiii. 15 .) and eivilly,
in the value of the goods which might have beeo poinded
by the creditor.
Tit. 26. Of Prefcription!.
PUSCRIPTION, whieh is a method, both of en.
blilbing and of extinguilbiog property, is either porative
or negative. Pofitive prefeription is genmlly defined,
as the. Romao rtjucllpio, me aequifilion of property (it
Ihould rather be, when applied toour law, the feeuring it
againll all fUrlher ehallcnge) by the polfelfor's eontinumg
his po(feffion for the time whieh law has deelared fulliei·
eOl for tbat purpofe: Negative, is the lofs or amiffion of•
,ight, by nesJeaing to follo\V il forth , or ufe it, during
the whole timelimited by law. The doarine of preferip.
tioo, whieh is, by fome writers, eondemned as eontraey
to jufliee, has been introdueed, that the e1aims ·of negli·
gent ereditors might not fubfifl· for ever, that property
might be at lafl fixed. and forgeries difeouraged, whieh
the dillieulty of deteaing mull have made exeeeding freo
quent, if PO length of time bad limited the legal elfea of
writiogs.
2. Pofitive preCeription was firfl introduced into our
Iaw by 161 7, c. 12 . which enaas, that whoever lball have
polfelfed his lands, annualrtnts, or other heritages, pe"ee·
ably, io virtue of infeftments, for forty years eontinually
after their dates, Ihall not tbereafter be difquieled in his
right by any perfon pretending a better title. Under he·
,i/agu are eomprehended every right that is jundoano
n(~UIII, aod eapable of cOnl inual polfeffion. Continued
polfellion, if proved as far baek as the memory of man,
prefumes poll'dlion upwards to thedate of the infeflment.
'rhe whole courCe of poll'effion mufl by the aa be fouod·
td on feifins, and eOJlfequeotly no part thereof 00 the
bare right of appareney; but forty years poll'effion, with·
Oul feiGn, is fuflicient jn the preCeriptionof fueh heritable
rights as do not require fejfin. T he poll'effion mafl alfo
be withoUI any'la'Wjul interruption, i. (. it mufl neither
be interrupted viajam, nor via jurÍJ. The pr&ription
of fubjeas not exprell'ed in the infeftment as part and
pcrtinent of another fubjea fpeciallyexprell'ed; has heen
explained, Tit. xiii. 6.
3. The aa requires, that the poll'ell'or produce.. as his
.tiale of prlfeription, a eharter of the Iands, preceeding
the fony years poll'cffion, with the feiGn following on it :
aad wherc there i~ co ehaner extant, fciGns, ooe or more
W.
lIanJing together for forty rears, ~nd procecding eil¡'~r
on retours, or prccepts of cla,( ronJla/. This has giveo
rife to a rcafúnable di(linaion obferved in praa ice, be–
tween the pr&ription of a fingular Cueeell'or, and of an
heir. Singular fueeell'ors mun produce for their title of
preferiplion, not only a feifin, bUI jts warranl, as aeharter,
diCpofilion, &,. either in their own perfon, or in that of
lhei r author: But the produaion hy an heir of feifins,
one or more, lIanding together for fony years, and pro·
eeeding on retours or preeepts of cla,( confla/, is Cuflicieot.
The heir is not obliged to produce the retours or pre·
cepts on whieh his feifios proeced, nor is the fingular
fuecell'or obliged to produce the ground of his eharter; fo
thal if the title of prefeription produeed be a fair deed,
aod a fuflieient tiale of property. the poll'ell'or js feeure
by the aa, which admits DO ground of ehallenge, but
falfehood. A fpecial natute, for ellahlilbing the pofitiye
prefeription in moveable rights, was not necell'ary; for,
finee a title in writing is nor requifite for the aequiring of
thefe, the oegative ¡ireCeriplion, by which all right of ae·
tion for reeovering their property is cut off, effcauaUy
feeures the poll'ell'or. .
4. The negative prcfcription of obligation!, by the
lapfe of fony yem, was introdueed into OUr law long
befare the pofitive, by 1469, c. 29.-1474, c. 55. This
prefeription is now amplified by Ihe forefaid aa 1617,
whieh has eXlended it to all atlions eompetent upon heri·
table bonds, reverúons, and olhers whatfocver i uolefs
where the reverfions arnither ineorporaled in Ihe hody
of the wadtet·right, or regiflred io the regirter of rever·
fions : And reverfions fo ioeorporated, or regiflr:d, are
nOI ooly exempted from the negative prefcriptipn, · bul.
they are an efFeaual bar agaioll aoy perfoo from pleading
the pofitive.
S. A lborter negative prefcription is introduced by na·
tute, in cerrain rights and debts. Mlions of fpuilzie.
ejeélion, and o/h:rI o[ /hal na/fin, mull be purCued
within tbree years after the eommiffion of the faa 00
whi.h lhe aaionis founded . As infpuilzes and ejeaions,
lhe purfuer was intitled, in odium of violence, to a prQof
by his own oath in ¡i/tln, and 10 the violent profits a·
gainn the defendel) the flalute meanl only,to limil thefe
fpeeial privileges by a three years preCeription, without
eutting off lhe right of aaino, where.!he e1tim rie.
ted to úmple rertitution. Under the general words, IInd
o/hm e[ /ha/ '/II/U", are comprehended all aélions
where the purfuer is.admitted to prove his libel by his
own oath in /ium.
6. Servants fees, houCe·rents, mens ordinaries, (i. e.
mony due for board,) and merehants aeeounts, fall un·
der the triennial preCcription, by 1579, c. 83. There
is alfo a general elaufe fubjoined to this flar~~e, o( o/ha
/h( like dd/I, whieh ineludes alimenlary debts, wages
due tO workmeo, and aceounrs due to writers, agenrs,
or procurators. Thefe debts.may by lhis aa, be proved
afler the three yem, ei the writing or oath of lhe
debtor; fo that they preferibe oolyas to the mean of
proof. by witnell'es ; .but afler the three year!, it behoves
the creditor to refer tO the debtor's oath, not only the
eonHitulit'n, bUI the fubfifleneeof the debt. In the pre–
feription of houre rents, fervaots fm, and aliOlony. eaeh
teJnú