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<NAME>TCP Staff (Michigan)</NAME>
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<DIV1 TYPE="affidavit">
<PB N="1" REF="1" MS="y">
<HEAD>INFORMATION FOR <HI>John Ram&s;ay</HI> of <HI>Kirkland,</HI> and <HI>John Gray</HI> of <HI>Creichie,</HI> and his Bre|thren and Si&s;ters, AGAINST SIR WILLIAM HOPE</HEAD>
<P>_IOHN RAMSAY of <HI>Kirkland,</HI> having Right to a Debt of 3000 Merks, due by Mr. <HI>George</HI> and <HI>James Campbels,</HI> and to an Inhibition u&s;ed upon it, at the In&s;tance of <HI>Alexander Gray,</HI> tru&s;tie for his Brothers and Si&s;ters, pur&s;ues a Reduction of a vo|luntar Di&s;po&s;ition made by the per&s;ons inhibited in favours of Sir <HI>William Hope,</HI> after the Inhibition <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 span">.</P>
<P>The Defender Alleaged the Inhibition was null upon this ground, That it was not duely execute, in &s;o farr as it was not publi&s;hed at the Market-cro&s;s of the <HI>Cannogate,</HI> which is the head burgh of the Regality of <HI>Brughtoun,</HI> within which the Lands di&s;poned lye, and the Defender repeats the grounds alleadged in a parallel ca&s;e betwixt <HI>William Clieland</HI> and <HI>David Falconer.</HI></P>
<P>It was An&s;werd, The pur&s;uers Inhibition was duely and legally executed, with all the Formalities, which Law doth require, <HI>Viz:</HI> At the Market-cro&s;s of <HI>Edinburgh,</HI> the head burgh of the Shire of mid <HI>Lowthean,</HI> within which Shire the Parties Inhibited dwelt, and the regality of <HI>Brughtoun</HI> is al&s;o locally within that Shire, And the Inhibition was duely regi&s;trated in the publick Regi|&s;ter, which the Pur&s;uer contends, is all that the Law requires; And the Pur&s;u|er doth al&s;o repeat a debate in the like Ca&s;e, at the In&s;tance of <HI>Cleilland</HI> again&s;t <HI>Falconer,</HI> which doth take off all the pretences of Cu&s;tom or Pratique; And doth al&s;o clear, that there is no Law requiting &s;uch a publication as the Defen|der doth pretend: And therefore, the Pur&s;uer is not to trouble the Lords with a Repetition of any thing that concerned the Pratique or Deci&s;ions, but &s;hall &s;imply confine him&s;elf to the point of Law, and the Import of the &s;everal Acts of Parliament.</P>
<P>It is mo&s;t certain, that Inhibition which are prohibitory diligences, have been in u&s;e with us, before any of our publict Laws relating thereto, for the fir&s;t Law mentioning the &s;ame, is the 119 Act Parl: 7. <HI>Ja:</HI> 6. <HI>Anno</HI> 1581, which bears that Inhibitions and Interdictions were greatly abu&s;ed by forging of Executions; and therefore doth appoint Regi&s;tration of the Letters and execu|tions in the Shirreffs Books, where the party inhibited dwells. And likewayes,
<PB N="2" REF="2">if the mo&s;t part of his Lands lyes in another Shire, the Act doth appoint Regi|&s;tration in that Shire al&s;o, within fourty dayes after publication, But as to the Publication, nothing is enacted, but the &s;ame manner of execution, which cu&s;tom had introduced, was by that Act con&s;idered as &s;ufficient, and no new method was pre&s;crived; Becau&s;e the Act doth plainly expre&s;s that the &s;ecuri|ty of the Lieges doth not ly in the Publication, which being a tran&s;ient Act, fal&s;e executions could ea&s;ily be made up and forged, but by Regi&s;trating the Letters and executions, whereof an anteriour cu&s;tom had fixed and con&s;titute the method, the Leiges were to be Certiorat, whither their Debitor<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> were thrall to &s;uch diligences or not. Therefore the Pur&s;uer contends, that as there was no-proceeding cu&s;tom to execute any prohibitory diligence of Horning, Inhi|bition, or Interdiction, except at the Market cro&s;s of the Shire, where the party dwelt; So there was no new formality of execution enacted by this Law; And con&s;equently although a party had lands lying in different Shires, whereby there were a nece&s;&s;ity of Regi&s;tration 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.</P>
<P N="2"><HI>2do.</HI> The next Act that mentions this diligence, is 268 Act Parl: 15 <HI>Ja:</HI> 6: which provides that in ca&s;e the party Inhibited, dwell within a Regality, or Stew|artry, that the &s;ame &s;hall be execute at the head Burrough of the &s;aid Regality or Stewartry, and Regi&s;trated there: But this Correctory Law, makes no alter|ation at all, except in ca&s;e the party Inhibited dwell within the Regality, and &s;o takes no place in this debate, becau&s;e the party Inhibited dwelt at <HI>Leith,</HI> within the Shire, and the pretence is, only that the Lands lay within the Re|gality. And the pur&s;uer doth contend, that as the fir&s;t Law, did only con&s;id|er the Regi&s;tration in different Shires, and had no regard to Regalitys or Bail|liaries, within which the Lands might be &s;ituat; So this Correctory Law, did only make an alteration in the ca&s;e of the Debitors Re&s;idences within the Rega|lity or Stewartry, but if the party did not dwell there; the fir&s;t Law took place, without any Exten&s;ion.</P>
<P N="3"><HI>3tio.</HI> The <HI>Third</HI> Law is, <HI>Act</HI> 13. <HI>Parl:</HI> 16. <HI>Ja:</HI> 6. which al&s;o doth only concer Regi&s;tration, and doth allow parties to record in the publict Regi&s;ter, which is declared to be as Au<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">hentick, as Regi&s;trated in any particular Shire or Juris|diction, and accordingly the Pur&s;uers Inhibition is duely recorded in the pub|lick Regi&s;ter,</P>
<P>To all this it was Replyed, that the &s;everal acts do indeed only concern regi&s;tration and not publication directly, yet by con&s;equence they do al&s;o concern execution and publication, for an inhibition being a prohibitory diligence both again&s;t the party and Liegis wherever the &s;ame is appointed to be regi&s;trated. It follows that the diligence &s;hould al&s;o be publi&s;hed in that Juri&s;diction, and therefore the fir&s;t act appointing Regi&s;tration in different Shires doth by nece&s;&s;<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ry con&s;equence appoint the prohibitory Diligence to be publi&s;hed at the Mercat Cro&s;s of the &s;ame Shires. <HI>2do.</HI> As the fir&s;t Act doth only con&s;ider the Juri&s;diction of Sheriffdom: So the Second Act con&s;iders the&s;e of Stewartries and R<GAP DESC="illegible" RESP="KEYERS" EXTENT="3 letters">lities, as &s;e<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">arat and di&s;tinct Juri&s;dictions, which are to be regarded as much as different Shires, and a Regi&s;ter to be keeped there, to the effect that all Diligences may be recorded in the &s;ame way, as if the Bailliaries and Stewartries were &s;eparat &amp; di&s;tinct Shires, and by con&s;equence the Lands in que&s;tion lying within the Regality of <HI>Brughtoun:</HI> The Executions ought to have been u&s;ed at the head Burgh thereof, whither the Debitor dwelt in the &s;ame or not. And as to the la&s;t Act of Parliament, it makes no alteration of the former, except only that the general Regi&s;ter in <HI>Edinburgh,</HI> as <HI>communis patria,</HI> &s;hall be &s;uf|ficient for the Regi&s;tration, but makes no alteration as to the Execution or Publi|cation of the Diligence, which mu&s;t be done in the &s;ame way &s;ince as before the la&s;t Act of Parliament, <HI>viz.</HI> At the head Burgh of every Juri&s;diction where the Lands do ly. And La&s;tly, <HI>Con&s;uetudo e&s;t optima legum interpres:</HI> And the uni|ver&s;al opinion, as well as practice of all the Leidges, and of the mo&s;t eminent Lawyers, hath cleared and determined this Point. And &s;o the Lords have deter|mined both of old and late, conforme to a conde&s;cendance of many deci&s;ions
<PB N="3" REF="2" MS="y">mentioned in the parallel ca&s;e lately debated, and which in it &s;elf is mo&s;t luteable to the nature of a real diligence, which ought to have a &s;pecial re&s;pect to the place and &s;ituation of the Subject in que&s;tion.</P>
<P>It was Duplyed, that the Pur&s;uer doth in&s;i&s;t upon the&s;e Grounds, which he will endeavour to make mo&s;t evident to the Lords, <HI>Viz.: 1mo.</HI> That no Law hath ever required publication of inhibitions again&s;t the Lieges at any place, but one, <HI>Viz.</HI> The head burgh of the Juri&s;diction, whither Shirreffdom, Stewartry or Regality, where the party inhibited dwells, and that the Laws appointing Regi&s;tration in different Juri&s;dictions doth not inferr any nece&s;&s;ity of publica|tion at the head burghs of the&s;e Juri&s;dictions by con&s;equence. <HI>2do.</HI> Tho the ne|ce&s;&s;ity of publication could be inferred from that of Regi&s;tration; yet it imports nothing to this ca&s;e, becau&s;e here regi&s;tration, neither is nor ever was requi&s;ite, within the regality of <HI>Brughtoun,</HI> nor &s;o much as in the publick regi&s;ter, but that a Regi&s;tration in the particular Regi&s;ter, in the Shire of <HI>Midd Lowdian,</HI> would have been &s;ufficient, in &s;o far as the party not dwelling within the regality of <HI>Brughtoun.</HI> The &s;econd act doth not in the lea&s;t alter the fir&s;t, or any wayes alter, toutch, or concern this ca&s;e. And la&s;tly, that as there is neither written Law or rea&s;on to quarrel the Pur&s;uers diligence, &s;o there is no uniform cu&s;tome to introduce an unwritten Law to regulat the ca&s;e, neither is there any di&s;tinct deci&s;ion in a parallel ca&s;e, nor were ever the&s;e acts of Parliament, and the point in que&s;tion, fully repre&s;ented to the Lords in any former debate.</P>
<P>As to the fir&s;t Point, The Pur&s;uer takes for granted, that there was no ne|ce&s;&s;ity of Publication in different Juri&s;dictions before the fir&s;t Act of Parliament: But the Shire was con&s;idered as the only Juri&s;diction, where this Diligence &s;hould be execute: And to this day, other prohibitory Diligences are on|ly execute at one Juri&s;diction, as Horning execute at the head Burgh of the Shire, or of the Regality where the Party dwells, is effectual both for &s;ingle and liferent Ee&s;ch<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">at of Lands, and Deb s lying, or due in other Juri&s;dictions; albeit Horning be not only a prohibitory Diligence, but Real; whereby the Superior hath the right to Mails and Duties; whereas Inhibition is only pro|hibitory, and gives no <GAP DESC="illegible" RESP="KEYERS" EXTENT="3 letters">l Right: For <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">he Adjudication that follows doth on|ly make the Debt Real: And the Inhibition by annulling, interveening volun|tar Rights, makes the Adjudication effectual. <HI>2do:</HI> By the fir&s;t Act of Parlia|ment, there is nothing of new &s;tatute, in relation to publication, but the Let|ters and execution thereof, according to the Stile and former Cu&s;tom, are thereby ordained to be Regi&s;trated in &s;everal &s;hires, and the Act bears expre&s;|ly, that the Letters with the Indor&s;ations thereof, within 40 dayes after publication and execution be fir&s;t produced to the Shirreff Clerk of the Shire where the party dwells, and if he have Lands in another Shire, that the &s;ame duely execute be produced to the Clerk of that Shire within the &s;ame 40 dayes; which clearly imports, That the executions at the head Burgh of the Shire where the party dwells, mu&s;t be Regi&s;trate in another Shire: And that there was no nece&s;&s;ity of a 2d. Publication at any other Juri&s;diction; in &s;o far as it bears, That the Execution &s;hall fir&s;t be produced to the Sheriff Clerk where the Party dwell, <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">nd then <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e produ<GAP DESC="illegible" RESP="KEYERS" EXTENT="2 letters">d to the Sheriff Clerk of another Shire, and duely Regi&s;trate by both.</P>
<P>And whereas it is Alledged, That tho the Sheriff Clerks of both Shires be o|bliged to Regi&s;trat the Inhibition and Indor&s;ations; yet the Act does not bear, That the &s;ame Indor&s;ations are to be Regi&s;trat in both Juri&s;dictions, but is to be under&s;tood, <HI>applicando &s;ingula &s;ingulis,</HI> each Sherriff Clerk is to Regi&s;trat the Letters and Indor&s;ations u&s;ed in their proper Juri&s;dictions.</P>
<P>It is An&s;wered, This is redargued by the Act, bearing, That the Inhibition and Indor&s;ation &s;hall fir&s;t be produced to the Sheriff Clerk where the Party dwells, and al&s;o to the Sheriff Clerk of any other Shires where the Lands lye: For a fir&s;t production implyes a 2d. production of the &s;ame. <HI>2do.</HI> The Act bears, That the fir&s;t production &s;hall be within fourty dayes after publication, at the Shire where the Party dwells; and the next production to the other She|riff Clerk, &s;hall be within the &s;ame fourty dayes: Whereas if there were a new
<PB N="4" REF="3">Publication and Execution requi&s;it, there would be other fourty dayes allowed: And if any Man &s;hould Regi&s;trat Letters or Executions of Inhibition made in another Shire than where he dwells: Then certainly &s;uch a Regi&s;tration would be void, not bearing the Execution which Law and Cu&s;tom doth require, at the head Burgh of the Juri&s;diction where the Party dwells. <HI>3tio.</HI> The Publi|cation hath only a relation to the Re&s;idence, and not to the Situation of the Lands, as may appear from this Evidence: Suppo&s;e a Party's con&s;tant Re&s;i|dence were in a Shire or Juri&s;diction where he had no Land at all; yet mo&s;t certainly an Inhibition behooved to be publi&s;hed again&s;t the Leidges in the Shire where he lived, whereas if the publication had re&s;pect to the Lands, it &s;hould &s;ignifie nothing in that Ca&s;e, to execute where the Debitor dwelt: But the Law hath ju&s;tly con&s;idered the publication as an nece&s;&s;ary, but an empty Formali|ty; and that the true Security lyes only in Regi&s;tration, which therefore mu&s;t be made in the particular Shires, or now in the publick Regi&s;ter for all: Where|by Purcha&s;&s;ers can ea&s;ily be informed.</P>
<P N="4"><HI>4to.</HI> To put that point beyond all Debate and Que&s;tion, and to clear that Regi&s;tration doth not import a nece&s;&s;ity of publication by con&s;equence, the Lords would con&s;ider, that by the 13 <HI>Act</HI> 16 <HI>Parl: Ja:</HI> 6, all Inhibitions are allowed to be Regi&s;trated at <HI>Edinburgh:</HI> And yet it was never pretended, that there was a nece&s;&s;ity of publi&s;hing the &s;ame there, nor was it ever practi&s;ed. And it is very &s;trange, that the Defender &s;hould &s;o much in&s;i&s;t on this Imaginary con&s;equence, without any foundation in Law, Rea&s;on, or Practice: For why &s;hould the former Acts of Parliament infer an obligation to publi&s;h in the par|ticular Jurisdictions, where the Diligences ar appointed to be recorded, and the la&s;t Act <GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">f Parliament not have the &s;ame con&s;equence?</P>
<P N="5"><HI>5to.</HI> If there were any &s;uch imaginary con&s;equence from the former Laws, then at lea&s;t the lafl Law, taking off the nece&s;&s;ity of Regi&s;tration in any parti|cular Jurisdiction, and &s;ub&s;tituting t<GAP DESC="illegible" RESP="MURP" EXTENT="2 letters"> general Regi&s;traton, for all mu&s;t take off the implyed nece&s;&s;ity of publication in other Jurisdictions, where Regi&s;tra|tion is no more nece&s;&s;ary or u&s;ed.</P>
<P>The next Point to be cleared is, That &s;uppo&s;e publication were alwayes required where Regi&s;tration is nece&s;&s;ary, and &s;uppo&s;e farder, that the publick R<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">gi&s;ter at <HI>Edinburgh,</HI> were to be con&s;idered as the private Regi&s;ter of a Rega|lity; Yet in this ca&s;e, there was no nece&s;&s;ity of Regi&s;tration in the Regality or publick Regi&s;ter at all, but if the Pur&s;uers Inhibition had been Regi&s;trated in the particular Regi&s;ter of the Shire, it was &s;ufficient. And con&s;equently, there can be no pretence of a nece&s;&s;ity to publi&s;h at the Regality, and this the Pur&s;uer clears from the expre&s;s Words of the &s;aid 268 <HI>Acts Parl:</HI> 15. Bearing that Inhibitions execute again&s;t per&s;ons dwelling within a Bailiary or Stewartry &s;hall be publi&s;hed at the Mercat Cro&s;s of the head Burgh of the &s;aid Bailiary or Stewartry, within which the Party dwells, and &s;hall be Regi&s;trat in that Juri&s;|diction. And the Defender cannot &s;ub&s;ume in the Terms of that Act, That the party Inhibited dwelt, or had his re&s;idence within the Regality of <HI>Brughtoun,</HI> and con&s;equently there was neither nece&s;&s;ity of regi&s;tration or publication in that Juri&s;diction; And the pur&s;uer might have regi&s;trate his inhibition in the private Regi&s;ter of the &s;hire of <HI>Midd Lowthian,</HI> yet for &s;uper abundance he hath regi&s;trate the &s;ame in the publick Regi&s;ter, which by the la&s;t Act of Parlia|ment, is equivalent, as if it had been recorded in the books of the Regality.</P>
<P>And whereas it is alleadged, That the &s;econd Act did &s;tate Regalities and Stewartries, in &s;eparate and di&s;tinct Juri&s;dictions in the &s;ame way, as the fir&s;t act did con&s;ider &s;everal &s;hires, And as by the fir&s;t there was a nece&s;&s;ity both of Regi&s;tration and publication in every &s;hire where lands ly: &s;o by the &s;econd act the &s;ame formalities are transferred, and appointed to be performed in every Jurisdiction of Regality or Stewartry by publication at the head Burgh thereof, and Regi&s;tration in the books of that Juri&s;diction, whither the party dwelt in that Juri&s;diction or not, if he have lands &s;ituate there.</P>
<P>To this it was an&s;wered, That the alleadgance is a meer &s;tretch of fancy, whereby one imaginary con&s;equence is drawn from another, which is <HI>fictio
<PB N="5" REF="3" MS="y">fictionis;</HI> For 1: The defender &s;uppo&s;es that by the fir&s;t act requiring Regi&s;tration in different &s;hires, there was implyed a nece&s;&s;ity of publication there al&s;o, which is already &s;ufficiently redargued, and the pur&s;uer &s;hall not repeat the grounds above adduced. But 2 Upon this fiction the Defender builds another, <HI>Viz.</HI> That, becau&s;e a Regality is con&s;idered as a different Juri&s;diction in one parti|cular ca&s;e, <HI>viz.</HI> if the Debitor dwell there, Therefore it is be con&s;idered as di&s;tinct in every ca&s;e, and if &s;o con&s;idered, then there mu&s;t be a Regi&s;tration there, as in a different &s;hire, and if a Regi&s;tratioin then a publication is requi|&s;ite, and by the&s;e &s;tretched con&s;equences it is inferred, that the Inhibition is null, becau&s;e not execute at the Regality where the lands ly, albeit the Debitor dwelt not there; And albeit the inhibition be in Law con&s;idered as regi&s;trate there, the publick Regi&s;tration where it is recorded being now in place of all private Juri&s;dictions, &s;o that if any one circum&s;tance fail of all the&s;e imagina|ry con&s;equences, the whole falls to the ground: And for &s;upporting the &s;ame, there is neither Law, Sen&s;e or Rea&s;on: For 1. There being no que&s;tion as to the regi&s;tration, but only as to the Execution which cu&s;tome clears to be a meer empty formality, which can never inform the Lieges, all per&s;ons are oblieged to &s;earch the Records both of private Juri&s;dictions and publick Regi&s;ters before they purcha&s;e; By which inquiry the defender would have di&s;covered his dili|gence. 2. As no Law doth require publications in two Juri&s;dictions in any ca&s;e, &s;o the law appointing regi&s;tration at the head Burghs of Regalities is li|mited and circum&s;cribed to the ca&s;e of the debitors living within the Regality And it is a groundle&s;s exten&s;ion that the like execution is required, whither the debitor live within or without the &s;ame, which is incon&s;i&s;tent with the limited Law, upon which the alleagance is founded.</P>
<P>And as to the la&s;t point in&s;i&s;ted on be the defender, pretending an uniform cu&s;tome, and the univer&s;al opinion of Lawyers, and deci&s;ions of the Lords, and the nature of a real diligence.</P>
<P>It is an&s;wered, <HI>1mo.</HI> That the pur&s;uer refers him&s;elf intirely to the an&s;wers of|fered in the conde&s;cendance upon deci&s;ions in the parallel ca&s;e depending, which clears to demon&s;tration that the ca&s;e of the &s;everal Acts of parliament, were never plead or under con&s;ideration, and that there is nothing determined, or ever debated that quadrates with this ca&s;e, where the party inhibited was not re&s;iding within the Regality, but had only lands lying there: And the pur|&s;uer doth acknowledge that if the party had been re&s;iding within that Juri&s;|diction, the Inhibition would have been null.</P>
<P N="2"><HI>2do.</HI> As to the Oppinion of Lawyers, the &s;ame An&s;wers are Repeated, and there is no Lawyer that ever hath Written di&s;tinctly on this point, or &s;tat|ed the &s;everal Acts which relate to it, and no Deci&s;ion or Oppinion of Lawyers, without a particular con&s;ideration of the Grounds, which are now debated, can regulate this ca&s;e, tho they might be &s;ufficient Rules, as to the&s;e Ca&s;es that were then debated.</P>
<P N="3"><HI>3tio.</HI> As to the uniform Cu&s;tom of Executions, It is An&s;wered, <HI>1mo.</HI> The pur&s;uer doth deny the Cu&s;tom, 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&punc; Cro&s;s of <HI>Edinburgh,</HI> Pear and Shore of <HI>Leith,</HI> &amp; regi&s;trated in the publick Regi&s;ter, without any more: And if &s;ome Creditors who are curious, do execute at more Cro&s;es, yet there is nothing uniform in that matter, for many executions are found, neither at the head Burrough of the Juri&s;diction, nor at the head Bur|rough of the Shire; But where partys dwells within a Royal Burrough, as in <HI>Fife,</HI> executions are oft times made at the market Cro&s;s of the burgh where they dwell, which no Law doth require: But all executions are made at the head Burgh of the Shire be&s;ide, and even after the act of Parliament, appoint|ing 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 Regi&s;ter of the Shire of <HI>Fife:</HI> And the Truth is, the Act of Parliament anent Execution and Regi&s;tration, at the head Burroughs of Regalities, in ca&s;e of parties Recidence there, being in <HI>Decem|<GAP DESC="illegible" RESP="KEYERS" EXTENT="2 letters">r</HI> 1597: The publick Regi&s;ter was declared Authentick, in place of the pri|vate
<PB N="6" REF="4">Regi&s;ters within little more than two years in <HI>Anno</HI> 1600, &s;o that the time requiring Regi&s;tration in Regalities was &s;o &s;hort, that the Act never took effect. And it will not be found that there was any particular Regi&s;ter of Inhibitions within any Regality of the Kingdom during that time, And it appears the practice was then continued &s;till to regi&s;ter in the Sherriff books, as appears by the Regi&s;ter of the &s;hire of <HI>Fife,</HI> which contains three Regalities; And during the&s;e two years, all was regi&s;trate in the Sheriff Regi&s;ter; and thereafter the nece&s;&s;i<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">y of private Regi&s;ters being taken off, the publick Regi&s;ter &s;upplyed all: But fir&s;t or la&s;t there was never nece&s;&s;i<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">y, or any uniform cu&s;tome of executing at any Juri&s;dic|tion where the party did not dwell. 2. The common and mo&s;t ordinary &s;tyle of publication of inhibition, bears to be at the mercat cro&s;s of the head Burgh of the &s;hire, Regality, or other Juri&s;diction where the party inhibited dwells; but does not generally bear the head Burgh of the Juri&s;diction where th<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> Lands which clears, That the Publication hath more relation to the re&s;idence of the Party, than the &s;ituation of the place. <HI>3tio.</HI> As to the common Opi|nion &s;uppo&s;e it were granted, it is not of the lea&s;t moment: For the Lords are not to regulat their Deci&s;ions according to vulgar apprehen&s;ions, but conform to the Laws of the Kingdom, and the Lords are in u&s;e &s;o to deter|mine: And where is there a more con&s;tant uniform practice than that the Inque&s;t of the Appri&s;ings; doth con&s;i&s;t of Fifteen per&s;ons? Which is &s;o general and univer&s;al a practice, that &s;carce any Lawyer or Writer would de|liberatly &s;uffer it to be ommitted; yet an Appry&s;ing being quarrelled on that Ground, The Lords would not annull it: But found that the Act of Parliament requiring only Thirteen per&s;ons of Inque&s;t, no &s;uperadded cu&s;tom, or Vulgar apprehen&s;ion could introduce the nece&s;&s;ity of moe: in a late ca&s;e between <HI>Burn</HI> of <HI>Lelburn</HI> contra <HI>Milne;</HI> And generally, where the Law is &s;ilent, as in relation to the Forms of Executions, Cu&s;tom takes place. But &s;e|ing the Law does &s;pecially determine both the place of Publication and the Regi&s;tration, no &s;uperadded Cu&s;tom or vulgar Apprehen&s;ion, tho it could be in&s;tructed, can impo&s;e a nece&s;&s;ity on Parties, which the Law hath not required: For there is a great difference betwixt Con&s;uetude where there is no Law, or De&s;uetude where there is a Law, and a cu&s;tom agreeable to the Law, but &s;uper|adding certain Circum&s;tances and Formalities which the Law hath not requi|red: For the Pur&s;uer doth acknowledge, that Con&s;uetude makes; and De&s;ue|tu<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e di&s;olves the obligation of a Law; but a cu&s;tome conforme to Law, and &s;upperadding unece&s;&s;ary formalities be&s;ide it doth not oblidge a party to ob|&s;erve the&s;e formalities, which have no other ri&s;e, than the ignorance, error or curio&s;itie of parties.</P>
<P><HI>In Re&s;pect whereof, It is confidently expected that the Lords will con&s;ider the &s;e|veral Acts of Parliament, and will find it more rea&s;onable to decide according to them, then to be regulate by the mi&s;apprehen&s;ion of ignorant Me&s;sengers or the vul|gar notion, and apprehen&s;ion of unthinking people, or even by unripe deci&s;ions which have not proceeded upon a due debate or con&s;ideration of the ca&s;e, And there is not any in&s;tance, where the ca&s;e hath been di&s;tinctly propo&s;ed by any Lawyer, or determined by any Judge: And if the Law be the rule, the&s;e points are undenyably evident.</HI> 1mo. <HI>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 publi&s;h, tho parties be bound to regi&s;trate in other Shires where lands ly, or in the publick Regi&s;ter.</HI> 2do. <HI>That there is no nece&s;&s;i|ty either to regi&s;trat or publi&s;h inhibitions within a regality, where the party doth not dwell, but that a publication at the Market Cro&s;s of the Shire, in which the regalities is locally &s;ituat, with a regi&s;tration, either in the general Regi&s;ter, or that of the Shire where the Lands ly, is &s;ufficient.</HI></P>
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