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In a reduction James Lamb against Blackburn, for reducing of an inhibition, by reason that the command and charge of the letters bore, “ to prohibit the party at the market-cross of Edinburgh, pier and shore of Leith, and other places needful,” because the party was out of the country, for these are the very words of the letters, and this party was only prohibited at his dwelling-place, for the which there was no warrant; and the defender alleging, that seeing the inhibition was executed against the party at his dwelling-place, and that the letters bore as said is, to prohibit him at all other places needful, he doing the same at the party's dwelling-place, it behoved to be found sufficient; likeas the same was executed at the market-cross, and pier of Leith, against all the lieges in genere, and the party being one of the King's lieges, behoved to be found comprehended within that execution, and so the warrant of the letters was obeyed. This allegeance was repelled, and the reason sustained, for the letters gave no warrant to prohibit the party at his dwelling-place, for that was not craved therein, and the execution against the lieges at the market-cross and pier of Leith, could not extend to the party, because thereby the lieges were prohibited to receive alienations from the party to be prohibited to annailzie, who was not thereby prohibited to make alienation to the lieges, which ought specially to have been done against him. And the defender thereafter alleging, that in another action pursued betwixt Mr John Archibald and this same pursuer, an exception being proponed upon the same inhibition, and the inhibition as it now is, being used for proving thereof against this pursuer, the same was found to prove the exception against him then compearing, so that this objection being then competent to have been proponed, which now is used for a reason of reduction, and being then omitted, and not proponed, which might have been as well received there, by way of objection, as here in a reduction, the same consisting in jure, and being proven instanter by inspection of the writ, therefore he alleged, that the pursuer cannot be heard to reduce upon this reason. This allegeance was found relevant, and because this was not proponed in that process by way of objection, being in jure, and then competent to have been received aud discussed there; The Lords therefore found, that the pursuer could not be heard to reduce thereupon, albeit the pursuer replied, that he omitted to propone the same in that process, by way of objection, because he thought that it could not be received against the inhibition standing, and therefore of purpose reserved it to pursue reduction thereon, which was not respected, seeing he omitted to propone it, and protested not that he might be heard to reduce thereupon. See Process.
Act. Aiton & Lawrie.Alt. Hope.Clerk, Scott.
Fol. Dic. v. 1. p. 258. Durie, p. 364.
*** The same case is reported by Kerse, Division 4., Section 1. h. t.
