An inhibition marked on the back as registered in a stewartry, was found null, in respect there was no record of the stewartry for that year, and for some preceding and following it.
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Bailie —— Kennan merchant in Dumfries, had right by progress to a wadset on the lands of Thrievegiange, his authors having apprised it, and also obtained a voluntary disposition from the person in the right; but the same being also apprised by the authors of William and Margaret Dawlings; in a competition that arose between them, it was objected to Kennan's rights, that they were reducible upon an inhibition led 1665 by the Dawling's authors.
Answered, The inhibition was never registrated, though it is marked upon as if it were, 27th March 1665, which appears from this, that there is no book of the stewartry of Kirkcudbright, where the lands lie, for that year.
The Lord Ordinary, January 5th 1745, on advice with the Lords, sustained the objection to the inhibition.
Pleaded in a reclaiming bill, the inhibition being marked by the clerk, is presumed to have been registered; and though it should be granted that if it never actually was, it would be null, yet the fatality of the loss of the record, ought not to affect a private person, who had not the charge of keeping it.
2do, Although the book were produced, and it appeared never to have been registered, yet being marked on the back, it ought to be sustained by the intention of the act 19, Parliament 1686, sustaining sasines so marked upon, which is declaratory of the act 16, Parliament 1617, establishing registers; for, it bears to be without prejudice thereof, which it could not be, if it statuted any thing new; and therefore the act 18, Parliament 1696, is to be considered as a new statute.
The Lords, on enquiring into the state of the register of Kirkcudbright, and finding there was no book from the year 1621, till 6th April 1665; so that it could not be presumed there ever was a book in which this was registrated, 'refused the petition.'
Act. A. Macdouall.Alt. Boswell.Clerk, Kilpatrick.
D. Falconer, v. 1. p. 57.
