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Found an inhibition null ope exceptionis of lands within the sheriffdom, because it was not execute at the market cross of the regality where the party inhibited dwelt.
Fol. Dic. v. 1. p. 255. Kerse, MS. fol. 61.*** Durie reports the same case:
An alienation being desired to be reduced, because it was made by the disponer after inhibition, and an exception of nullity being proponed against the inhibition, upon the 268th act of Parliament 1597, because conform thereto it was not execute at the head burgh of the regality, within which the party prohibited then dwelt; for the execution bore, that the party was prohibited at his dwelling-place at Pitmews, which he offered to prove was within the regality of Kyllimuir, at the head burgh whereof it was not executed. This exception was found relevant, and the nullity was found might be discust hoc ordine, without further process of reduction, albeit the same consisted in facto, and required probation, and albeit it could not be instantly proven: and it being replied, that albeit the said nullity might be admitted, yet it could not be admitted in toto, to make the inhibition null, except only for any lands lying with-in the regality, and could not annul the inhibition, as it is executed at the party's dwelling-house, and at the head burgh of the sheriffdom within which the dwelling-house is, for the lands libelled, which lay within that regality; for he alleged, that that neither was, nor could be the mind of the act of Parliament, seeing the same extends only to make such inhibitions null, which are not execute at the head burgh of the regality, for such lands only as are within the regality; and cannot annul the same for the lands Within the sheriffdom, at the head burgh whereof it is executed, no more than if he had been inhibited, personally apprehended, and executed against the lieges at the head burgh of the sheriffdom, he dwelling at that time within the regality, where no execution was made, quo casu the inhibition could not fall for the lands within the sheriffdom, ergo no more here, and therefore it is clear that the act of Parliament cannot extend thereto; which reply was repelled, and the exception still sustained, in respect of the act of Parliament, which declares such inhibitions null without restriction, or words taxative, but indefinitely.
Act. Advocatus et Nicolson.Alt. Stuart et Fletcher.Clerk, Gibson.
Fol. Dic. v. 1. p. 262. Durie, p. 419.
*** The like was decided Jan ury 1732, Stirling against Jamieson.
