Prescription. In Roman law, means a clause inserted in the preface to the formula under which an action was tried. The prescription longi temporis directed that the claimant should not succeed if the defendant had been so long in possession of the property in dispute that equity would not allow him to be disturbed. In England lapse of time may affect property rights in various ways. The right of a claimant to bring an action may be taken away by statutes of Limitation (q.v.), or the law may regard the long enjoyment of the possessor as evidence to show that his rights had a lawful origin. Possessory title to land is now gained under the express provisions of the modern statutes of limitation. In proving title by prescription to easements (such as rights of way, ancient lights, &c.) and other incorporeal rights over the land of another the claimant relies on immemorial enjoyment; but the courts would always infer the immemorial character of the right from a comparatively short period of actual enjoyment. And now, under the Prescription Act of 1832, the period is fixed at twenty years in the case of lights and other easements and thirty years in the case of profits (such as common of pasture, and the like). For the rules of the act, see Shelford's Real Property Statutes.
In the law of Scotland prescription is a method both of acquiring and of losing a right; hence it is divided into positive and negative. The positive prescription was introduced by Statute 1617, chap. 12. As that statute has been interpreted by decisions, possession of heritable subjects for forty years, on the requisite titles, recorded in the appropriate register, is sufficient to secure an owner against any one alleging a better title; or to determine the extent of an estate, where a question arises either as to what is comprehended under a general description or as to whether a specific piece of property has been carried under a clause of parts and pertinents; or to merge a title of property in the higher title of superiority. The possession must be uninterrupted and co-extensive with the right claimed. The Conveyancing Act, 1874 (37 and 38 Vict. chap. 94 sect. 34), simplified the title necessary for founding prescription, by enacting that 'any ex facie valid, irredeemable title,' recorded in the appropriate register, shall be sufficient; and shortened the prescriptive period by enacting that possession for twenty years continually and together, following on such recorded title, shall be equivalent to possession for the old period of forty years.
The negative prescription of obligations was first introduced by the Statute 1469, chap. 29, which declares that unless a person follow an obligation and take document thereon within forty years, his right shall prescribe and be of no avail. By the Act 1617, chap. 12, this prescription was extended to heritable bonds and other heritable rights, and it was enacted that the years of minority of the party against whom the prescription was used should not be counted. In addition to these long prescriptions there are several shorter prescriptions, whose object, generally speaking, is to protect parties against the consequences of negligence in preserving vouchers and, after the expiration of the prescriptive period, to change the onus probandi and to restrict the mode of proof. Among these lesser prescriptions are the vicennial prescription of twenty years, applicable to retours and holograph writings; the ten years' or decennial prescription, applicable to actions against tutors and curators; the septennial prescription of cautionary obligations; the sexennial prescription of bills of exchange; the quinquennial prescription of arrears of rent in an agricultural lease, of ministers' stipends, of bargains concerning movables made verbally, and of inhibitions; the triennial prescription, introduced by the Act 1579, chap. 83, applicable to actions for servants' wages, for house-rents, or for accounts to attorneys, surgeons, agents, &c. In Scotland if, within twenty years after the commission of a crime, no step has been taken to bring the offender to justice, it would appear that the right to prosecute falls to the ground.