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 , 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 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 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 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 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 .