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The Lords found an inhibition null used against Sir James Erskine personally, because the letters bore warrant to inhibit only upon sixty days warning at the market-cross of Edinburgh, pier and shore of Leith, and market-cross of of Stirling upon sixty days warning.
This same found and more, 19th March 1628, Lamb contra Blackburn. See Div. 4. Sect. 1. h. t. See No 4. p. 3683.
Fol. Dic. v. 1. p. 258. Kerse, MS. fol. 61.*** Durie reports the same case.
In an action of reduction at the instance of Erskine against the Lord Erskine, founded upon a reason of inhibition, The Lords found the inhibition null, because the command and warrant of the letters of inhibition gave power to charge the party, being then out of the country, upon sixty days, at the pier and shore of Leith, and at the market-cross of Stirling, being the head burgh of the sheriffdom where the party to be inhibited his lands lay; but the saids letters had no further power, nor warrant therein contained, albeit the execution upon these letters, now used against the party exhibited, bore personally apprehended within the Cannongate, for doing whereof there was no warrant in the letters, so that the execution wanting a warrant of the letters, was not sustained; and the Lords repelled the allegeance proponed by the pursuer, to sustain the execution, alleging, that seeing the whole lieges were lawfully inhibited, as was necessary of the law, and that the execution against the party was only used to intimate the inhibition to him, the same was more clearly intimate by an execution made personally, than by any which had been made as against one out of the country; and so that he having done not only equivalent to the command of the letters, but more nor was therein prescribed, his execution should be found lawful; which was repelled as said is; for the Lords found, that he ought to have craved a command to do the same; for albeit he might lawfully done the same, if he had sought it, and could not been refused; yet not having sought the samen, he could not do it of himself without a warrant.
Act. Cunninghame.Alt. Hope, Nicolson, & Aiton.Clerk, Hay.
Durie, p. 262.
