IOHN RAMSAY of Kirkland, having Right to a Debt of 3000 Merks, due by Mr. George and James Campbels, and to an Inhibition used upon it, at the Instance of Alexander Gray, trustie for his Brothers and Sisters, pursues a Reduction of a vo­luntar Disposition made by the persons inhibited in favours of Sir William Hope, after the Inhibition [...].

The Defender Alleaged the Inhibition was null upon this ground, That it was not duely execute, in so farr as it was not published at the Market-cross of the Cannogate, which is the head burgh of the Regality of Brughtoun, within which the Lands disponed lye, and the Defender repeats the grounds alleadged in a parallel case betwixt William Clieland and David Falconer.

It was Answerd, The pursuers Inhibition was duely and legally executed, with all the Formalities, which Law doth require, Viz: At the Market-cross of Edinburgh, the head burgh of the Shire of mid Lowthean, within which Shire the Parties Inhibited dwelt, and the regality of Brughtoun is also locally within that Shire, And the Inhibition was duely registrated in the publick Regi­ster, which the Pursuer contends, is all that the Law requires; And the Pursu­er doth also repeat a debate in the like Case, at the Instance of Cleilland against Falconer, which doth take off all the pretences of Custom or Pratique; And doth also clear, that there is no Law requiting such a publication as the Defen­der doth pretend: And therefore, the Pursuer is not to trouble the Lords with a Repetition of any thing that concerned the Pratique or Decisions, but shall simply confine himself to the point of Law, and the Import of the several Acts of Parliament.

It is most certain, that Inhibition which are prohibitory diligences, have been in use with us, before any of our publict Laws relating thereto, for the first Law mentioning the same, is the 119 Act Parl: 7. Ja: 6. Anno 1581, which bears that Inhibitions and Interdictions were greatly abused by forging of Executions; and therefore doth appoint Registration of the Letters and execu­tions in the Shirreffs Books, where the party inhibited dwells. And likewayes, [Page 2]if the most part of his Lands lyes in another Shire, the Act doth appoint Regi­stration in that Shire also, within fourty dayes after publication, But as to the Publication, nothing is enacted, but the same manner of execution, which custom had introduced, was by that Act considered as sufficient, and no new method was prescrived; Because the Act doth plainly express that the securi­ty of the Lieges doth not ly in the Publication, which being a transient Act, false executions could easily be made up and forged, but by Registrating the Letters and executions, whereof an anteriour custom had fixed and constitute the method, the Leiges were to be Certiorat, whither their Debitor [...] were thrall to such diligences or not. Therefore the Pursuer contends, that as there was no-proceeding custom to execute any prohibitory diligence of Horning, Inhi­bition, or Interdiction, except at the Market cross of the Shire, where the party dwelt; So there was no new formality of execution enacted by this Law; And consequently although a party had lands lying in different Shires, whereby there were a necessity of Registration in both, that yet the Letters being duely execute at the head Burroughs of the Shire, where the party dwelt, needed no publication, in the other Shires.

2do. The next Act that mentions this diligence, is 268 Act Parl: 15 Ja: 6: which provides that in case the party Inhibited, dwell within a Regality, or Stew­artry, that the same shall be execute at the head Burrough of the said Regality or Stewartry, and Registrated there: But this Correctory Law, makes no alter­ation at all, except in case the party Inhibited dwell within the Regality, and so takes no place in this debate, because the party Inhibited dwelt at Leith, within the Shire, and the pretence is, only that the Lands lay within the Re­gality. And the pursuer doth contend, that as the first Law, did only consid­er the Registration in different Shires, and had no regard to Regalitys or Bail­liaries, within which the Lands might be situat; So this Correctory Law, did only make an alteration in the case of the Debitors Residences within the Rega­lity or Stewartry, but if the party did not dwell there; the first Law took place, without any Extension.

3tio. The Third Law is, Act 13. Parl: 16. Ja: 6. which also doth only concer Registration, and doth allow parties to record in the publict Register, which is declared to be as Au [...]hentick, as Registrated in any particular Shire or Juris­diction, and accordingly the Pursuers Inhibition is duely recorded in the pub­lick Register,

To all this it was Replyed, that the several acts do indeed only concern registration and not publication directly, yet by consequence they do also concern execution and publication, for an inhibition being a prohibitory diligence both against the party and Liegis wherever the same is appointed to be registrated. It follows that the diligence should also be published in that Jurisdiction, and therefore the first act appointing Registration in different Shires doth by necess [...]ry consequence appoint the prohibitory Diligence to be published at the Mercat Cross of the same Shires. 2do. As the first Act doth only consider the Jurisdiction of Sheriffdom: So the Second Act considers these of Stewartries and R [...]lities, as se [...]arat and distinct Jurisdictions, which are to be regarded as much as different Shires, and a Register to be keeped there, to the effect that all Diligences may be recorded in the same way, as if the Bailliaries and Stewartries were separat & distinct Shires, and by consequence the Lands in question lying within the Regality of Brughtoun: The Executions ought to have been used at the head Burgh thereof, whither the Debitor dwelt in the same or not. And as to the last Act of Parliament, it makes no alteration of the former, except only that the general Register in Edinburgh, as communis patria, shall be suf­ficient for the Registration, but makes no alteration as to the Execution or Publi­cation of the Diligence, which must be done in the same way since as before the last Act of Parliament, viz. At the head Burgh of every Jurisdiction where the Lands do ly. And Lastly, Consuetudo est optima legum interpres: And the uni­versal opinion, as well as practice of all the Leidges, and of the most eminent Lawyers, hath cleared and determined this Point. And so the Lords have deter­mined both of old and late, conforme to a condescendance of many decisions [Page 3]mentioned in the parallel case lately debated, and which in it self is most luteable to the nature of a real diligence, which ought to have a special respect to the place and situation of the Subject in question.

It was Duplyed, that the Pursuer doth insist upon these Grounds, which he will endeavour to make most evident to the Lords, Viz.: 1mo. That no Law hath ever required publication of inhibitions against the Lieges at any place, but one, Viz. The head burgh of the Jurisdiction, whither Shirreffdom, Stewartry or Regality, where the party inhibited dwells, and that the Laws appointing Registration in different Jurisdictions doth not inferr any necessity of publica­tion at the head burghs of these Jurisdictions by consequence. 2do. Tho the ne­cessity of publication could be inferred from that of Registration; yet it imports nothing to this case, because here registration, neither is nor ever was requisite, within the regality of Brughtoun, nor so much as in the publick register, but that a Registration in the particular Register, in the Shire of Midd Lowdian, would have been sufficient, in so far as the party not dwelling within the regality of Brughtoun. The second act doth not in the least alter the first, or any wayes alter, toutch, or concern this case. And lastly, that as there is neither written Law or reason to quarrel the Pursuers diligence, so there is no uniform custome to introduce an unwritten Law to regulat the case, neither is there any distinct decision in a parallel case, nor were ever these acts of Parliament, and the point in question, fully represented to the Lords in any former debate.

As to the first Point, The Pursuer takes for granted, that there was no ne­cessity of Publication in different Jurisdictions before the first Act of Parliament: But the Shire was considered as the only Jurisdiction, where this Diligence should be execute: And to this day, other prohibitory Diligences are on­ly execute at one Jurisdiction, as Horning execute at the head Burgh of the Shire, or of the Regality where the Party dwells, is effectual both for single and liferent Eesch [...]at of Lands, and Deb s lying, or due in other Jurisdictions; albeit Horning be not only a prohibitory Diligence, but Real; whereby the Superior hath the right to Mails and Duties; whereas Inhibition is only pro­hibitory, and gives no [...]l Right: For [...]he Adjudication that follows doth on­ly make the Debt Real: And the Inhibition by annulling, interveening volun­tar Rights, makes the Adjudication effectual. 2do: By the first Act of Parlia­ment, there is nothing of new statute, in relation to publication, but the Let­ters and execution thereof, according to the Stile and former Custom, are thereby ordained to be Registrated in several shires, and the Act bears expres­ly, that the Letters with the Indorsations thereof, within 40 dayes after publication and execution be first produced to the Shirreff Clerk of the Shire where the party dwells, and if he have Lands in another Shire, that the same duely execute be produced to the Clerk of that Shire within the same 40 dayes; which clearly imports, That the executions at the head Burgh of the Shire where the party dwells, must be Registrate in another Shire: And that there was no necessity of a 2d. Publication at any other Jurisdiction; in so far as it bears, That the Execution shall first be produced to the Sheriff Clerk where the Party dwell, [...]nd then [...]e produ [...]d to the Sheriff Clerk of another Shire, and duely Registrate by both.

And whereas it is Alledged, That tho the Sheriff Clerks of both Shires be o­bliged to Registrat the Inhibition and Indorsations; yet the Act does not bear, That the same Indorsations are to be Registrat in both Jurisdictions, but is to be understood, applicando singula singulis, each Sherriff Clerk is to Registrat the Letters and Indorsations used in their proper Jurisdictions.

It is Answered, This is redargued by the Act, bearing, That the Inhibition and Indorsation shall first be produced to the Sheriff Clerk where the Party dwells, and also to the Sheriff Clerk of any other Shires where the Lands lye: For a first production implyes a 2d. production of the same. 2do. The Act bears, That the first production shall be within fourty dayes after publication, at the Shire where the Party dwells; and the next production to the other She­riff Clerk, shall be within the same fourty dayes: Whereas if there were a new [Page 4]Publication and Execution requisit, there would be other fourty dayes allowed: And if any Man should Registrat Letters or Executions of Inhibition made in another Shire than where he dwells: Then certainly such a Registration would be void, not bearing the Execution which Law and Custom doth require, at the head Burgh of the Jurisdiction where the Party dwells. 3tio. The Publi­cation hath only a relation to the Residence, and not to the Situation of the Lands, as may appear from this Evidence: Suppose a Party's constant Resi­dence were in a Shire or Jurisdiction where he had no Land at all; yet most certainly an Inhibition behooved to be published against the Leidges in the Shire where he lived, whereas if the publication had respect to the Lands, it should signifie nothing in that Case, to execute where the Debitor dwelt: But the Law hath justly considered the publication as an necessary, but an empty Formali­ty; and that the true Security lyes only in Registration, which therefore must be made in the particular Shires, or now in the publick Register for all: Where­by Purchassers can easily be informed.

4to. To put that point beyond all Debate and Question, and to clear that Registration doth not import a necessity of publication by consequence, the Lords would consider, that by the 13 Act 16 Parl: Ja: 6, all Inhibitions are allowed to be Registrated at Edinburgh: And yet it was never pretended, that there was a necessity of publishing the same there, nor was it ever practised. And it is very strange, that the Defender should so much insist on this Imaginary consequence, without any foundation in Law, Reason, or Practice: For why should the former Acts of Parliament infer an obligation to publish in the par­ticular Jurisdictions, where the Diligences ar appointed to be recorded, and the last Act [...]f Parliament not have the same consequence?

5to. If there were any such imaginary consequence from the former Laws, then at least the lafl Law, taking off the necessity of Registration in any parti­cular Jurisdiction, and substituting t [...] general Registraton, for all must take off the implyed necessity of publication in other Jurisdictions, where Registra­tion is no more necessary or used.

The next Point to be cleared is, That suppose publication were alwayes required where Registration is necessary, and suppose farder, that the publick R [...]gister at Edinburgh, were to be considered as the private Register of a Rega­lity; Yet in this case, there was no necessity of Registration in the Regality or publick Register at all, but if the Pursuers Inhibition had been Registrated in the particular Register of the Shire, it was sufficient. And consequently, there can be no pretence of a necessity to publish at the Regality, and this the Pursuer clears from the express Words of the said 268 Acts Parl: 15. Bearing that Inhibitions execute against persons dwelling within a Bailiary or Stewartry shall be published at the Mercat Cross of the head Burgh of the said Bailiary or Stewartry, within which the Party dwells, and shall be Registrat in that Juris­diction. And the Defender cannot subsume in the Terms of that Act, That the party Inhibited dwelt, or had his residence within the Regality of Brughtoun, and consequently there was neither necessity of registration or publication in that Jurisdiction; And the pursuer might have registrate his inhibition in the private Register of the shire of Midd Lowthian, yet for super abundance he hath registrate the same in the publick Register, which by the last Act of Parlia­ment, is equivalent, as if it had been recorded in the books of the Regality.

And whereas it is alleadged, That the second Act did state Regalities and Stewartries, in separate and distinct Jurisdictions in the same way, as the first act did consider several shires, And as by the first there was a necessity both of Registration and publication in every shire where lands ly: so by the second act the same formalities are transferred, and appointed to be performed in every Jurisdiction of Regality or Stewartry by publication at the head Burgh thereof, and Registration in the books of that Jurisdiction, whither the party dwelt in that Jurisdiction or not, if he have lands situate there.

To this it was answered, That the alleadgance is a meer stretch of fancy, whereby one imaginary consequence is drawn from another, which is fictio [Page 5]fictionis; For 1: The defender supposes that by the first act requiring Registration in different shires, there was implyed a necessity of publication there also, which is already sufficiently redargued, and the pursuer shall not repeat the grounds above adduced. But 2 Upon this fiction the Defender builds another, Viz. That, because a Regality is considered as a different Jurisdiction in one parti­cular case, viz. if the Debitor dwell there, Therefore it is be considered as distinct in every case, and if so considered, then there must be a Registration there, as in a different shire, and if a Registratioin then a publication is requi­site, and by these stretched consequences it is inferred, that the Inhibition is null, because not execute at the Regality where the lands ly, albeit the Debitor dwelt not there; And albeit the inhibition be in Law considered as registrate there, the publick Registration where it is recorded being now in place of all private Jurisdictions, so that if any one circumstance fail of all these imagina­ry consequences, the whole falls to the ground: And for supporting the same, there is neither Law, Sense or Reason: For 1. There being no question as to the registration, but only as to the Execution which custome clears to be a meer empty formality, which can never inform the Lieges, all persons are oblieged to search the Records both of private Jurisdictions and publick Registers before they purchase; By which inquiry the defender would have discovered his dili­gence. 2. As no Law doth require publications in two Jurisdictions in any case, so the law appointing registration at the head Burghs of Regalities is li­mited and circumscribed to the case of the debitors living within the Regality And it is a groundless extension that the like execution is required, whither the debitor live within or without the same, which is inconsistent with the limited Law, upon which the alleagance is founded.

And as to the last point insisted on be the defender, pretending an uniform custome, and the universal opinion of Lawyers, and decisions of the Lords, and the nature of a real diligence.

It is answered, 1mo. That the pursuer refers himself intirely to the answers of­fered in the condescendance upon decisions in the parallel case depending, which clears to demonstration that the case of the several Acts of parliament, were never plead or under consideration, and that there is nothing determined, or ever debated that quadrates with this case, where the party inhibited was not residing within the Regality, but had only lands lying there: And the pur­suer doth acknowledge that if the party had been residing within that Juris­diction, the Inhibition would have been null.

2do. As to the Oppinion of Lawyers, the same Answers are Repeated, and there is no Lawyer that ever hath Written distinctly on this point, or stat­ed the several Acts which relate to it, and no Decision or Oppinion of Lawyers, without a particular consideration of the Grounds, which are now debated, can regulate this case, tho they might be sufficient Rules, as to these Cases that were then debated.

3tio. As to the uniform Custom of Executions, It is Answered, 1mo. The pursuer doth deny the Custom, and if it were worth the while to inquire into it, it would be found, that nothing could be cleared from them; For generally where parties are out of the Kingdom, executions are ordinarly at the Market▪ Cross of Edinburgh, Pear and Shore of Leith, & registrated in the publick Register, without any more: And if some Creditors who are curious, do execute at more Croses, yet there is nothing uniform in that matter, for many executions are found, neither at the head Burrough of the Jurisdiction, nor at the head Bur­rough of the Shire; But where partys dwells within a Royal Burrough, as in Fife, executions are oft times made at the market Cross of the burgh where they dwell, which no Law doth require: But all executions are made at the head Burgh of the Shire beside, and even after the act of Parliament, appoint­ing executions at the head burrough of Regalities, when parties dwell there, yet the execution is continued likewayes to be made at the head Burrough of the Shire, as will appear by the particular Register of the Shire of Fife: And the Truth is, the Act of Parliament anent Execution and Registration, at the head Burroughs of Regalities, in case of parties Recidence there, being in Decem­ [...]r 1597: The publick Register was declared Authentick, in place of the pri­vate [Page 6]Registers within little more than two years in Anno 1600, so that the time requiring Registration in Regalities was so short, that the Act never took effect. And it will not be found that there was any particular Register of Inhibitions within any Regality of the Kingdom during that time, And it appears the practice was then continued still to register in the Sherriff books, as appears by the Register of the shire of Fife, which contains three Regalities; And during these two years, all was registrate in the Sheriff Register; and thereafter the necessi [...]y of private Registers being taken off, the publick Register supplyed all: But first or last there was never necessi [...]y, or any uniform custome of executing at any Jurisdic­tion where the party did not dwell. 2. The common and most ordinary style of publication of inhibition, bears to be at the mercat cross of the head Burgh of the shire, Regality, or other Jurisdiction where the party inhibited dwells; but does not generally bear the head Burgh of the Jurisdiction where th [...] Lands which clears, That the Publication hath more relation to the residence of the Party, than the situation of the place. 3tio. As to the common Opi­nion suppose it were granted, it is not of the least moment: For the Lords are not to regulat their Decisions according to vulgar apprehensions, but conform to the Laws of the Kingdom, and the Lords are in use so to deter­mine: And where is there a more constant uniform practice than that the Inquest of the Apprisings; doth consist of Fifteen persons? Which is so general and universal a practice, that scarce any Lawyer or Writer would de­liberatly suffer it to be ommitted; yet an Apprysing being quarrelled on that Ground, The Lords would not annull it: But found that the Act of Parliament requiring only Thirteen persons of Inquest, no superadded custom, or Vulgar apprehension could introduce the necessity of moe: in a late case between Burn of Lelburn contra Milne; And generally, where the Law is silent, as in relation to the Forms of Executions, Custom takes place. But se­ing the Law does specially determine both the place of Publication and the Registration, no superadded Custom or vulgar Apprehension, tho it could be instructed, can impose a necessity on Parties, which the Law hath not required: For there is a great difference betwixt Consuetude where there is no Law, or Desuetude where there is a Law, and a custom agreeable to the Law, but super­adding certain Circumstances and Formalities which the Law hath not requi­red: For the Pursuer doth acknowledge, that Consuetude makes; and Desue­tu [...]e disolves the obligation of a Law; but a custome conforme to Law, and supperadding unecessary formalities beside it doth not oblidge a party to ob­serve these formalities, which have no other rise, than the ignorance, error or curiositie of parties.

In Respect whereof, It is confidently expected that the Lords will consider the se­veral Acts of Parliament, and will find it more reasonable to decide according to them, then to be regulate by the misapprehension of ignorant Messengers or the vul­gar notion, and apprehension of unthinking people, or even by unripe decisions which have not proceeded upon a due debate or consideration of the case, And there is not any instance, where the case hath been distinctly proposed by any Lawyer, or determined by any Judge: And if the Law be the rule, these points are undenyably evident. 1mo. That no Law doth require publication at any Jurisdiction, but the head burgh of the Shire, Stewartry or Regality, where the party dwels; And that there is no need to publish, tho parties be bound to registrate in other Shires where lands ly, or in the publick Register. 2do. That there is no necessi­ty either to registrat or publish inhibitions within a regality, where the party doth not dwell, but that a publication at the Market Cross of the Shire, in which the regalities is locally situat, with a registration, either in the general Register, or that of the Shire where the Lands ly, is sufficient.