THe Laird of Grant having lately obtained from his Majesty a Signature erecting his Lands in a Regality , and a part of his Lands lying locally within the Shire of Elgin , when this Signature was presented to be past the Exchequer , Dunbar of Westfield heretable Sheriff of the said Shire opposed and protested against it , as hurtful and prejudicial to his heretable Sheriff-ship , and Grant having now past Infeftment of the said Signature , the Sheriff for vindicating of his heretable Office , and the bounds thereof from such a manifest Incroachment , hath raised a Reduction and Declarator to hear and see it found and declared , that Grants Signature of a Regality , cannot be extended to , nor comprehend●●● of the Land●●●●●●ging to 〈…〉 in prejudice of the said Sheriffs heretable Office , but the samen ought in so far to be declared and reduced .

This Action being called in the Inner house , it was alledged , that the Laird of Grant had also raised a Reduction and Declarator against the Sheriff for taken away of his heretable Office of Sheriff-ship , but the Production not being satisfied by the Sheriff , in so far as was requisit for debating of Grants Reduction and Declarator , and on the other hand , the Sheriffs Reduction , and declaim against Grant being ready to be debated , the Sheriff insisted in his Action and some little Qustion having been moved about his Title , as if his Seasin on his Retour as Heir to his Father were not sufficient ; The Lords allowed him to produce farder eum processu , which is also done , the Sheriffs heretable Sheriffship being indeed uncontestable , and founded in a clear Progress of more than a hundreth Years with an interrupted Possession .

It was therefore alleadged for the Sheriff , that the Ground and Reason of his Reduction and Declarator , was in it self so clear and so clearly founded in one of the first Maxims of Law , viz. quod meum est sine facto meo aufferri non potest , or that no mans property can be taken from him without his own consent , or the force of Law which is equivalent , that it was not capable either of farder Probation or Illustration ; But ita est that the foresaid heretable Office within the whole bounds teereof is the Sheriffs undoubted Right and Property , and therefore cannot be taken away or diminished by the Laird of Grant either in whole or in part , without the Sheriffs own consent , or the deed of Law which is equivalent .

To this there were several Answers and Exceptions made by the Laird of Grant , which for shuning of Repetition shall be notised and taken off by the Sheriff in order as they were proponed , and are now resumed . 1. It was Answered for Grant , that there was a Distinction to be made betwixt an Office tho' heretable , and other Rights of Property , in as far as an Office was in effect but only a Power and Commission flowing from the King , who still retained the Soveraign Power , and by vertue thereof might erect other Offices , as that of Regality within the bounds of any Shire , albeit it should be found restrictive or prejudicial to the heretable Office of Sheriff-ship , whereas other Rights of Property as of Lands and Tenements were full and absolute , and by the Law secured from all Diminutions and Incroachments ; And farder , that a bare Office was not to be judged in patrimonio , and could never hinder the King to erect Regalities which were Praedial and Feudal Jurisdictions , which the King in all time might give with the Feu of the Lands at his pleasure .

To which it was replyed for the Sheriff , that this Answer and Distinction was neither founded in Law nor Reason , but in effect did militat as well against the Defenders Regality , as the Sheriffs Sheriff-ship ; The Defenders Procurators in proponing this Allegiance , acting clearly Sampsons Part , who to destroy the Philistines , pulled down the House , and involved himself in the same Ruines ; It being evident that if heretable Offices cannot be reckoned Property , but are still subject to be limited or restricted by the Kings Soveraign Power , the same may happen as well to an heretable Regality , as an heretable Sheriff-ship , nor doth it signifie any thing , that the Office of Regality is praedial or Feudal , and annexed to Lands , because the Question here is , not concerning the nature of Regalities , but precisely this , whether the heretable Office of Sheriff-ship being lawfully constitute , can be diminished by the erecting of a Regality within the same bounds , seing whether the Regality be annexed to Lands or not , it is not material to this Question whereof the precise point is , whether a prior Right of the Office of Sheriff ship can be taken from the Sheriff without his own Deed or Law , by erecting another Office within the same bounds , manifestly privative of the Sheriff-ship , whether that other Office be called a Regality or not , or whether this Office of Regality be annexed to Lands or not ? And without Controversie , if the King should grant a Feu of certain Lands within a Shire , with an Office of Bailliary , or of any other Designation , but still privative of the Sheriffs Jurisdiction , the heretable Sheriff might still reclaim , notwithstanding of its being annexed to Lands , which plainly makes no material difference in this case .

But 2. The Defenders material Error is , that he would have a heretable Office to be no Property nor Right , and in effect it cannot well be said what he would make it , or how he would distinguish it from any precarious Commission , but setting aside these dark Notions , it is granted that a heretable Office is neither Lands nor Tenements , but quid incorporium , is it therefore not capable of Right or Property , when it is certain it hath all Marks , Characters and Uses of any other Right , in so far as it may be transmitted to Heirs , it may be Gifted or Sold , or Apprysed , and even as to the Soveraign Power whence it flows , it is so far a Right of Property , that the King hath himself bought back heretable Sheriff-ship by a considerable Price , and the Defender contends that they are still redeemable , seing therefore that a heretable Office is a mans Property as well as a heretable Right of Land , the Defenders distinction is wholy groundless , and farder it is certain that an heretable Office hath not only Emoluments and Perquisits , which even the Defender cannot deny to be in patrimonio , but also that the heretable Office it self , seing it may be Bought and Sold is patrimonial .

3. The Absurdity and Impertinency of the foresaid distinction as to the case in hand , is yet more manifest ; If it shall be inquired , whether the King may on the ground thereof erect another Sheriff-ship within a Sheriff-ship , or if he may dismember a Shireff-ship , and no doubt both will be denyed ; If then he may not erect another Shireff-ship within the Bounds of an heretable Sheriff-ship , or dismember a Sheriff-ship by making two of one even albeit he should grant this new Erection with an annexation to Lands , multo minus may he erect a Regality , because a Reg●lity in effect is as privative of the Sheriff-ship , as if it were another Shire : And it is a mistake , as if the priviledge of Regality were only to repledge from the Sheriff , and to have some Casualities of Escheat , and the like which the Sheriff hath not , when in effect the Bounds of the Regality are so distinct from the Shireff ship that they are plainly alterum territorum , and a Sheriff by the Act of Parliament , in the Pursuit of a Man-slayer , or Robber , is to behave towards a neigbouring Lord of Regality , as toward a neighbouring Sheriff . It is true , that as the Lord of Regality , hath some powers of Jurisdiction as well as Casualities beyond the Sheriff , so the Sheriff hath power in some Cases , even within the Regality ; as to fortifie his Court with Suits out of the Regality , when they are wanting out of the Shire : And to raise the Inhabitants of the Regality with the rest of the poss-comitatus , but it is as certain , that these are only measures of Policy and Government , and making nothing to the present question , which is precisely this , whether an Heretable Sheriff-ship can be diminished or incroached upon by Erecting of a Regality , which is clearly privative , and if by the same Rule , the whole Sheriff-ship may not be exhausted , by erecting the like Regalities over the whole Shire , which is plainly the same , as if an old Heretable Sheriff-ship were Dismembred in so many New Sheriff-ships , as should leave the old Sheriff nothing but the Name , which were most absurd : But seing the Heretable Office of Sheriff is truly the Sheriffs Property , for which he payes a distinct Redendo , wherein he makes his Equie every year , and that it hath all the marks of property , and is in patrimonio as said is . It is certain that in Law , and by the Kings real Intention which is never by any Gift to take away another Mans Right , it can no more be diminished in part , or destroyed in the whole , for both are the same thing , by new Regalities , than by new Bailliaries , Sheriff-ships , or other exclusive Jurisdictions , for names are but names and signifie nothing .

But here it was farder urged for the pursuer , that in the late Times , viz. In the year 1681. there was an Act made for the Kings cumulative Jurisdictiction , which all men know was purposely designed , not as the Defender alledged to have some Laws more sharply execute , but really to diminish some Heretable Jurisdiction , and yet this Law by an express Act of Parliament in the year 1690 : was abrogat , if then the granting of cumulative Jurisdictions , in prejudice of Heretable Rights , was judged a Grievance , and abrogat , how much more the granting of private Jurisdictions , which are evidently ly a far greater Nonsense . And farder it is to be remembred , that even when the Parliament 1693. did make the Act for a Commission of Justiciary in the High-lands , they would not incroach upon the Heretable Justiciaries of the Earl of Argle and others , without their own consent , and if any Person having Lands within the Justiciary of Argyle , or of Caithness , &c. Should obtain a Regality to be Erected , it would certainly be reprobat : How can it then be questioned , but that an Heretable Sheriff may Defend his Right in like manner .

As to what the Defender here answered , that the Act anent Cumulative Jurisdictions , was made for a warrant to give Commissions to Officers to execute the then Laws , as Sheriffs in that Part , in place of the ordinary Sheriffs . And therefore , and for no other Reason abrogat , it was reasonably replyed , that as to that excess and abuse of the Cumulative Jurisdiction , it was Condemned by the Claim of Right , but the Estates and the Parliament went yet farder , and found , That the very power of Erecting new Jurisdictions Cumulativè , within the Bounds of Old Jurisdictions , was a Grievance , and therefore did abrogat it , which concludes a fortiori , that the Erecting of new privative Jurisdictions within the same Bounds , are multo magis to be reprobat , and in effect are so contrary to the fundamental Rule of Right , that there is no need of a positive Constitution to discharge them .

2. It was alledged for the Defender , that the Custom hath now been for many years , that the King hath granted several Regalities within the Bounds of Heretable Sheriff-ships , and this hath been generally acquiesced to , nor hath it hitherto been disproven in Judgement , so that the old Act of Parliament , Ja. 2. Discharging the Erecting of New Regalities : without the deliverance of Parliament , is gone in desuetude , and the contrary Custom hath taken place .

To which it was replyed , for the Pursuer , that this Alledgeance of Custom , is most groundless and frivolous , seing that any Custom that can be condescended on , is meerly consuetudo facti , which hath no binding power , or Warrand in it . Because 1. It is but resent , and none of the late Erections of Regalities , hath yet so much as attained to prescription , much less can a binding Custom be thence inferred . 2. Because this Custom is not general , or universal , which is another Charecter of a binding Custom . 3. Because no Custom contrary to Law , or private Right , can never be binding , but this Custom of Regalities is contrary to Law , viz. The foresaid express Act of Parliament , and albeit it be granted , that the said Act of Parliament is not in that fresh observance , to cry down , and reduce all contrair Reg●lities , yet it will not be doubted , but that the Act of Parliament is still of that consideration , as to hinder any Custom to prescribe against it , in prejudice of any mans private Right ; And it is very observable , that the Act of Parliamenr hath not only since been made a perpetual Article of our Kings Revocations , who expresly revoke all Regalities , as contrary to Law , but hath also still had the force , that to this day it cannot be condescended on , that ever there was such a Decision establishing a Regality , by way of Regality , against any other mans Right , and that the foresaid Custom of Regality is contrary to privat Right cannot be denyed , even by the Defenders , since it no dobut , deminishes the Right of the Heretable Sheriffs , where ever it happens : And therefore can never be judged a binding Custom . And further , it is certain , that if all Scotland should by never so long ane acquiescence , much more , when the acquiescence is not yet the length of Prescription , suffer their privat Rights to be diminished , yet it would never prove a Custom to bind any single man , who had stood out to depart from his Right , it being in this case absolutely necessary , that Customs prejudicial in this sort should be established by a tract of Decisions , to give them the force of a binding Law , nor doth this in the least militat against the Kings power and gift , who certainly never gives any thing to the prejudice of private Rights , but if any Gift of that kind happen to be Impetrat , it is only periculo impetrantis , but in so far as it debords from the intention of the Kings Justice and Goodness ; it is to be understood as the deed of the Impetrator , rather than of His Majesty . But 4. The late Gifts of Regalities have for the most part been reclaimed against by Protests taken in Exchequer , whereof many instances can be given , and particularly the Pursuer produces the Protest , both taken and admitted in Exchequer , against the Regality of Athol by the Earls of Argile and Breadalbin , and several others : By all which it is evident , that the alledged custom of granting Regalities , is only consuetudo facti , and no binding Custom to found any defence in prejudice of the Pursuer . And farder , if it were worth the inquiry , it would be found that the acquiescing of persons concerned to the foresaid new Erections , hath proceeded from private Motives and Bargains , but it is enough for the Pursuer , that this pretended Custom cannot be alledged to be a binding Custom , and that he for himself is very far from acquiescing to it .

3. It was alledged for the Defender , that the King hath always granted , and every day grants new Baronies within Heretable Sheriff-ships , and the same neither has , nor can be questioned . If then he grant Baronies , why not Regalities ? Seing magis & minus non variant speciem .

To which it was Replyed , 1. That the Maxim majus & minus non variant speciem , was never admitted either in Morals , Politicks , or Questions of Law . 2. That the difference betwixt Baronies and Regalities is vast , in as far as it is certain , that except a small Right of Pretention , the Baron hath nothing that in the least prejudges the Sheriff ; and the same Right of Pretention is in effect rather an ease than prejudice to the Sheriff ; whereas a Regality is quite privative of the Sheriffs Jurisdiction , diminishes his Territorium , and consequently both his Jurisdiction and Imperium , and erects a new Jurisdiction , as distinct from , and Collateral with him , as a new Sheriff-ship , and all within the Sheriff-bounds , whereby in effect by a few more Regalities , the Sheriff-Shire may be quite evacuat . But 3. Baronies as they are no ways privative of the Sheriffs Jurisdiction , so they are therewith plainly co-ordinat and subordinat thereto within the same bounds , and perpetually owned as such by all our Acts of Parliament ; so that the Law arising from these Acts , doth establish Baronies ; whereas on the other hand the Acts of Parliament Reprobat Regalities , unless granted in Parliament , and all our Kings have constantly revocked them , which is a most manifest disparity . And whereas it was alledged by the Defender , that Regalities and Baronies were in this equal , because the power of Regalities was as well defined by Law , as the power of Baronies , which is all the Argument imports . It was Replyed , that the Argument is not taken from the abstract power of Baronies , but the disparity alledged by the Pursuer lyes in this , that the very co-ordination & subordination of Baronies within Shires , appears to be constantly supposed and ratified by Acts of Parliament , which can no ways be said of Regalities , which not only excludes the Sheriffs power , but are expresly condemned by several Acts of Parliament .