Notwithstanding the act of Parliament touching arresting persons within burgh, the Lords found, that Englishmen may be arrested within burgh, on the Scots side of the border, though by strangers and no burghers, this being the practice on the English side.
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In a reduction and suspension of a decreet obtained before the Sheriff of Roxburgh, at the instance of James Bell against Robertson, who was cautioner for one James Potts, Englishman, who was arrested at Bell's instance as his debtor for the price of certain sheep and goods bought from him in Scotland, upon this reason, that the arrestment was against law, the said Bell not being a burgess of the burgh of Jedburgh, where the arrestment was used; and albeit he had been a burgess, yet he could have no such arrestment, because, by the 8th act of Parliament 2d Cha. II. anno 1672, the said custom and privileges of burgesses is only restricted for the price of men's meat and horse meat, and abulziements, for which burgesses have action against those who are their debtors within burgh; whereas the arrestment was for the price of goods bought in the country in a fair market, by an Englishman, who could only be the subject of a personal action, and falls not within the act of Parliament.—It was answered, That notwithstanding of the reason, the arrestment was duly executed; because, by a constant custom of the borders betwixt England and Scotland, as all Scotsmen are ordinarily arrested upon the English side, for any debt due to the inhabitants of England, so the like custom hath been constantly practised for arresting Englishmen on the Scots side of the border, et tacitus populi consensus pro lege habetur.—It was replied, That such a custom having no authority from law, was a mere oppression, especially not being ratified in that act of Parliament, which is expressly made in consideration of the arrestments of the persons of debtors before sentence, or any process intented.——The Lords having considered this and the act of Parliament, did find that it did not fall within that act, which was only made betwixt burgesses and Scots subjects; and therefore found, that the custom on the English side of the borders arresting Scotsmen, and the like custom of arresting English on the Scots side being proven to have been constantly observed, should sustain the decreet, and make the cautioner liable, as being founded in jure commune.
Fol. Dic. v. 1. p. 328. Gosford, MS. No 833. p. 527.
