An inhibition against a person out of Scotland, is effectual against all his lands within the kingdom, if published at the market-cross of Edinburgh, and pier and shore of Leith.
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Hugh Ross was proprietor of certain lands lying in the shires of Ayr and Ross, which were brought to judicial sale.
In the ranking of his creditors, Elizabeth Ross produced as her interest, a claim secured by an inhibition which was executed against Hugh Ross, as forth of the kingdom, at the market-cross of Edinburgh, pier and shore of Leith, and was published against the lieges both there and at the market-cross of Ayr, the head burgh of the county where he generally resided when in Scotland. It was regularly recorded, with all these executions, in the general register at Edinburgh.
To this inhibition Henry Pierse and other creditors of Hugh Ross
Objected; That as it had not been published at the head burgh of the shire of Ross, it could not be effectual as to the lands belonging to the common debtor in that county. The object of publication is to give warning to the lieges (who are always presumed to be within the kingdom) of the debtor's situation; it must be made therefore at the head burgh of the county where the debtor resides; and, if he is out of the kingdom, at the head burgh of every county in which his property is situated; 9th June 1752, Blackwood against the Creditors of Hamilton, No 47. p. 3396.
Answered; If the debtor is within Scotland, it is sufficient that an inhibition be published at the market-cross of the head burgh of the county where he resides, in order to be effectual against his heritage wherever situated; and, if he is out of the kingdom, it is only necessary for this purpose, that it should be published at the market-cross of Edinburgh, as the commune forum, and at the pier and shore of Leith. The publication at the market-cross of Ayr, in the present case, was merely used ob majorem cautelam. If publication at the market-crosses of the head burghs of every shire where the lands lie, were required, no inhibition could be depended upon, with respect to the debtor's subsequent acquisitions, unless it were published at the market-cross of the head-burgh of every county in Scotland; Stair, IV. 50. 10.; Macdowall, I. 7. 136.; Erskine, II. 11. 6.
The Court, upon the ground stated for Mrs Ross, ‘Repelled the objection.’
Lord Ordinary, Swinton.Act. Rolland, Swinton.Alt. Wight.Clerk, Sinclair.
Fol. Dic. v. 3. p. 187. Fac. Col. No 21. p. 43.
