英文法律词典 P-98

PRESCRIPTIBLE. That which is subject to prescription¹.

PRESCRIPTION. The manner of acquiring property by a long, honest, and uninterrupted possession or use during the time required by law. The possession must have been possessio longa, continua, et pacifica, nec sit ligitima interruptio, long, continued, peaceable, and without lawful² interruption. Domat, Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co. Litt. 113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20, art. 22, 29, il faut une possession continue et non interrompue, paisible, publique, et a titre de proprietaire. See Knapp's R. 79.

2. The law presumes a grant before the time of legal memory when the party claiming by prescription, or those from whom he holds, have had adverse³ or uninterrupted possession of the property or rights claimed by prescription. This presumption⁴ may be a mere⁵ fiction, the commencement of the user being tor-tious; no prescription can, however, be sustained, which is not consistent with such a presumption.

3. Twenty years uninterrupted user of a way is prima facie evidence of a prescrptive right. 1 Saund. 323, a; 10 East, 476; 2 Br. & Bing. 403; Cowp. 215; 2 Wils. 53. The subject of prescription are the several kinds of incorporeal⁶ rights. Vide, generally, 2 Chit. Bl. 35, n. 24; Amer. Jurist, No. 37, p. 96; 17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt. 113; 2 Conn. R. 584; 9 conn. R. 162; Bouv. Inst. Index, h. t.

4. The Civil Code Louisiana, art. 3420, defines a prescription to be a manner of acquiring property, or of discharging debts, by the effect of time, and under the conditions regulated by law. For the law relating to prescription in that state, see Code, art. 8420 to 3521. For the difference between the meaning of the term prescription as understood by the common law, and the same term in the civil law, see 1 Bro. Civ. Law, 246.

5. The prescription which has the effect to liberate⁷ a creditor⁸, is a mere bar which the debtor⁹ may oppose to the creditor, who has neglected to exercise his rights, or procured¹⁰ them to be acknowledged during the time prescribed by law. The debtor acquires this right without any act on his part, it resalts entirely¹¹ from the negligence¹² of the creditor. The prescription does not extinguish the debt, it merely places a bar in the hands of the debtor, which he may use or not at his choice against the creditor. The debtor may therefore abandon this defence, which has been acquired by mere lapse¹³ of time, either by paying the debt, or acknowledging it. If he pay it, he cannot recover back the money so paid, and if he acknowledge it, he may be constrained¹⁴ to pay it. Poth. Intr. au titre xiv. des Prescriptions¹⁵, Bect. 2. Vide Bouv. Inst. Theo. pars¹⁶ prima, c. 1, art. 1, 4, s. 3; Limitations.