Scottish Court of Session Decisions

In 1813, William Hogg, proprietor of the lands of Raw and others, in consideration of a sum of £210, granted a heritable annuity of £35, over them, in favour of the late William Pearson, writer in Glasgow. John Muirhead, farmer, became bound along with Hogg. In 1814, Pearson used inhibition against Hogg, and recorded it in the general register of inhibitions. In 1815, Hogg sold the lands to Alexander Henry, who was in right of a heritable debt, affecting the lands anterior to the debt of Pearson. After the death of Pearson, his representative John Pearson, merchant in Glasgow, raised a reduction of the sale, ex capite inhibitionis, and Henry afterwards raised a reduction of the inhibition, on several grounds, one of which was that it had never been duly registered.

It appeared that the register did not engross at full length either the letters, or their executions against the debtor, and against the lieges. In place of this, the Letters, after the word “George” for the King's name, omitted the whole preamble containing the address to messengers-at-arms, and also the words that it was “humbly meant and shown to us by our lovite.” The next word in the record, after “George, &c.,” was “William Pearson, writer in Glasgow,” who was the complainer. The Letters then proceeded to state, in substance, but by the use of words which were full of abbreviations, and which contained the sums and dates after-specified, in figures, and not in words, that William Hogg, and John Muirhead, by bond of annuity dated 15th and 22d December, 1813, in consideration of £210, paid by William Pearson, bound themselves to pay a liferent annuity or yearly payment, of £35, at two terms in the year, Lammas and Candlemas, from and after the date of the bond, during the lifetime of a certain party, as the said bond, containing a heritable conveyance in security, shown to the Lords of Council and Session had testified: that the half-year's annuity, due at Lammas, 1814, was still unpaid, and the said William Hogg and John Muirhead were daily squandering their estate and effects, whereby they had become vergentes ad inopiam, and refused, or at least delayed, to pay what was due, or give security for future annuities. The record then proceeded in the following words, that the said William Hogg and John Muirhead also intended “as the compl ^r is informed to sell, alienate, &c., unless a remedy be provided thereagainst—Our Will, &c., denuded thereof, in defraud and to the hurt and prejudice of the compli anent the mak ^g pay ^t of the sums of money fores ^d. Accord ^g to justice. Because the L ^ds have seen the prin ^I bond and disp ^r above ment ^d, 4th August, 1814.

“Ex Delib. D. C. Ja ^s. S. Robertson for Mr Tho ^s Adair, p. wr ^t, wr by Tho ^s Lear his clerk.”

In order to exhibit the condition of the Letters, and the Executions, as recorded, they are subjoined below, ^* ad longam, as they were printed for

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^* “ George, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, defender of the faith— To messengers-at-arms, our sheriffs in that part, conjunctly and severally, specially constituted, greeting.— Whereas it is humbly meant and shown to us by our lovite ^miilliam Pearson, writer in Glasgow, That ^milliam Hogg, farmer at Sandyhills, near Glasgow, and John Muirhead, farmer at Laighcoats, near Airdrie, by bond of annuity, dated the 15 fifteenth and 22 twenty-second days of December 1813 eighteen hundred and thirteen, in ⁿation of the sum of £210 st ^r two hundred and ten pounds sterling, advanced and p ^d aid to them by the s ^d aid W ^m illiam Pearson, bound & and obliged themselves, & and their respective heirs, & and executors & and successors whomsoever, jointly and sev ^ly erally, to content & and pay to the s ^d aid W ^m illiam Pearson, or to his heirs, exers executors or assignees, during all the days of the lifetime of Ja ^s mes Denniston jun ior, Esq uire, presently residing at Breahead, in the parish of Govan, son of James Denniston, Esq uire of Colgrain, & and also of John Jardine, Esq uire, advocate, Edin burgh, son of Geo rge Jardine, professor of Logic in the College of Glasgow, and till the death of the longest liver of them, an annuity or yearly pay ^t ment of £35 thirty-five pounds st ^r sterling, and that from & and after the date of s ^d aid bond of annuity, pay ^le able the s ^d aid annuity at the Bank of Scotland office in Glas ^w gow, at two terms in the year, Candlemas & and Lammas, by equal portions, beginning the first term's pay ^t ment at Candlemas then next, for the period immediately preced ^g ing that term, & and the next term's pay ^t ment at Lammas thereafter, for the half-year preced ging, & and so continuing in the regular pay ^t ment of the ^d aid annuity, half-yearly thereafter, at the terms afore ^d said, during the periods before ment ^d ioned, & and also to pay to the heirs, exers executors, or assignees of the s ^d aid W ^m illiam Pearson, any annuities or termly pay ^ts ments which may be res tsing unpaid, along with a proportional part of the s ^d aid annuity from the term preced ^g ing the death of the longest liver of the s ^ds aids Ja ^s mes Dennistoun junior, & and the s ^d aid John Jardine, till that event shall happen, with a fifth part more of each of the s ^d aid termly pay ^ts ments farther of liquidate penalty in case of failure in the punctual pay ^t ment of the same, together with the legal in ^t erest of the s ^d aid termly pay ^ts ments from the periods they respectively became due till the same are actually paid, as the said bond, of the dates foresaid, containing a conveyance by the s ^d aid W ^m illiam Hogg in favour of our s ^d aid lovite, of certain heritable subjects therein described, in security of the s ^d aid annuitie, shown to our L ^ds ords of Council & and Session, hath testified: That the half-year's annuity due at Lammas 1814 eighteen hundred and fourteen, is still unpaid, & ^s s ^d aid W ^m illiam Hogg & and John Muirhead are daily squandering and disposing of their estate & and effects, whereby they have become vergentes ad inopiam, & and not only refuse, but at least delay to pay what is already due, or to give security to the camp ^r lainer to his satisfaction for pay ^t ment of the annuities cont ^d ained in the s ^d aid bond that may afterwards fall due, and pay ^le able in terms thereof; but also intends, as the com ^erainer is informed to sell, alienate, &c. wadset, dispone, assign, renounce, dilapidate, and put away all and sundry their lands, teinds, heritages, annual-rents, reversions, liferent, mills, woods, fishings, tacks, steadings, rooms, possessions, and others pertaining to them, and to grant dispositions, wadsets, assignations, resignations, renunciations, discharges, and other rights thereof; and to contract and take on debts, and to grant bonds and other securities therefor, unless a remedy be provided thereagainst—Our will is herefore, and we charge you, that on sight hereof ye pass, and in our name and authority, inhibit and discharge the said William Hogg and John Muirhead personally, or at their dwelling-places, if within Scotland, and if furth thereof, by open proclamation at the market cross of Edinburgh, pier and shore of Leith, that they in nowise sell, alienate, wadset, dispone, resign, renounce, dilapidate, or put away any of their lands, teinds, heritages, annualrents, liferents, reversions, mills, woods, fishings, tacks, steadings, rooms, possessions, heritable rights, pertaining and belonging to them, nor make any public or private alienations, dispositions, wadsets, assignations, resignations, discharges, and renunciations, or other rights and securities thereof, to any person or persons, nor contract, nor take on debts, nor grant bonds or other rights or securities therefor, nor do any other act or deed, directly or indirectly, whereby the said heritable subjects, lands, and others pertaining to them, may he anyways evicted or adjudged from them, or they denuded thereof, in defraud, & and to the hurt & and prejudice of the comp ^r ainer anent the mak ^g ingpay ^t ment of the sums of money fores ^d aid: And also, that ye, in our name and authority, inhibit and discharge all and sundry our lieges, and others whom it effeirs, by open proclamation at the market cross of and other places needful, that neither they nor any of them presume or take upon hand, under any colour or pretext, to buy, block, take, or receive in wadset, mail, mail-free or otherwise, from the said William Hogg and John Muirhead, or either of them, any of their lands, teinds, heritages, annualrents, liferents, or others foresaid pertaining to them, nor receive from them any dispositions, assignations, wadsets, or other rights and securities thereof, nor lend them any sums of money, nor receive any bond or other right and security therefor, nor do any act or deed, directly or indirectly, in defraud, and to the hurt and prejudice of the complainer as said is; certifying those that do in the contrary, that all such alienations, wadsets, dispositions, bonds, or other rights, shall be null, and of no avail, force, strength, or effect, with all that has followed, or may follow thereupon, and shall make no faith in judgment, or outwith the same, in all time coming; and that ye cause registrate these our letters, and executions to follow thereupon, within forty days, conform to act of parliament. Accord ^g ing to justice. Because the L ^ds ords have seen the prin ^l cipal bond & and dispos ⁿ tion above ment ^d ioned, as ye will answer to us thereupon. Which to do we commit to you, and each of you, full power by these our letters, delivering them by you, duly executed and indorsed again to the bearer. Given under our signet, at Edinburgh, the 4 fourth day of August, in the fifty-fourth year of our reign 1814.

Ex Delib eratione D ominorum C oncilii, Ja ^s mes S. Robertson for Mr. Tho ^s mas Adair, p er. w arr ^t ant, wr ⁿ itten by Tho ^s mas Lear-his Clerk.

(Execution against the debtors.)

Upon the 12th twelfth day of Aug ^tust 1814, eighteen hundred and fourteen years, I, Alex ^r ander Fullarton, mess ^r engerr-at-arms, by virtue of l etters of ⁿibition, dated and signeted the 4th, fourth day of Aug ^t ust curt trent, raised at the inst ^ce ance of W ^m illiam Pearson, writer in Glasgow, ag ^t ainst W ^m illiam Hogg, farmer at Sandyhills, near Glasgow, & and John Muirhead, farmer at Laighcoats, near Airdrie, passed, & and in his Majesty's name & and auth ^y ority, lawfully inhibited and disch ^d arged each of the s ^d aid W ^m illiam Hogg & and John Muirhead, that they in nowise sell, alienate, wadset, dispone, resign, renounce, dilapidate, or put away any of their lands, teinds, heritages, annualrents, liferents, reversions, mills, woods, fishg ^s ings, tacks, steadg ^s ings, rooms, possessions, heritable rights, pertain ^g ing and belong ^g ing to them, nor make any public or private alien ^s ations, disp ^ns ositions, wadsets, assig ^ns ations, resig ^ns nations, discharges, & and rennu ^ns ciations, or other rights, & and securities thereof, to any person or persons, nor contract or take on debts, nor grant bonds or other rights or securities thereof, nor do any other act or deed, directly or indirectly, whereby the s ^d aid her ^le itable subjects, lands, & and others pertin ^g ing to them, may be anyways evicted or adjudged from them, or they denuded thereof, in def ^d raud, & and to the hurt & and prejudice of the compl ^r ainer & and anent the pay ^t ment mak ^ging to him of the whole sums of money cont ^dained in the bond of annuity narrated in s ^d aid letters, with cert ⁿ ification conformably to the s ^d aid letters in all points, a just copy of inh ⁿ ibition, in virtue whereof, to the effect fotes ^d aid, I left for each of the s ^s aid W ^m illiam Hogg, within his dell ^g ing place, near Chryston, & and John Muirhead, within his dwelling-house at Chryston, in the hands of their serv ^ts ants, to be given to them respectively, because I could not find any of them personally; which copies of inhib ⁿ itions were signed by me, did bear the date hereof, & and cont ^d ained the date & and signet ^g ing of s ^d aid letters, with the names & and desig ^ns nations of John Dalgleish & and Tho ^s mas Ferrier, indwellers in Glasgow, witnesses to the premises, & and hereto with me subscrib ^g ing (Signed) Alex. Fullerton, John Dalgleish, witness. Thos. Ferrier, witness.

(Execution against the lieges.)

Upon the 23 twenty-third day of Aug ^t ust in the year eighteen hundred and fourteen 1814, by virtue of letters of inhib ⁿ ition, dated & and signeted the fourth 4th day of Aug ^t ust curtrent, raised at the inst ^ce ance of W ^m illiam Pearson, writer in Glasgow, ag ^t ainst W ^m illiam Hogg, farmer at Sandyhills, near Glasgow, & and John Muirhead, farmer at Laighcoats near Airdrie—I Tho ^s mas Paul, mess ^r enger-at-arms, passed at the Market Cross of Lanark, head burgh of the sh ^m eriffdom of Lanark, within w ^h hich sh ^m eriffdom, the s ^d aid W ^m illiam Hogg & and John Muirhead, live & and reside, & and part of their lands and heritages lye, & and thereat, after crying three sev ^l eral oyeses, open proclam ⁿ ation & and public read ^g ing of the s ^d aid letters, in his M ^ys ajesty's name & and auth ^y ority, lawf ^y ully inhibited & and disch ^d arged, all & and sundry, his M ^ys ajesty's lieges, & and others whom it effeirs, that neither they nor any of them presume or take upon hand, under any colour or pretext, to buy, block, take, or receive in wadset, mail, mail-free, or otherwise, from the s ^d aid W illiam Hogg & and John Muirhead, or either of them, any of their lands, teinds, heritages, annualrents, liferents, reversions, mills, woods, fahg ^s ings, tacks, stead ^gs nings, rooms, poss ^ns essions, herit ^le able rights, pertaing ^g ing to them, nor receive from them any disp ^ns ositions, assig ^ns nations, wadsets, or other rights & and securities thereof, nor lend them any sums of money, nor receive any bond or other right & and security therefor, nor do any act or deed, directly or indirectly, in defraud, & and to the hurt & and prejudice of the comp ^l ainer, anent the mak ^ging pay ^t ment of the sums of money spec ^d ified in the s ^d aid letters, & and cont ^d ainned in the bond ment ^d ioned in s ^d aid letters, with certif ⁿ cation to them, conform to the tenor of s ^d aid letters in all points. A just copy of inhib ⁿ tion in virtue of the s ^d aid letters, and to the fores ^d aid effect, I affixed and left for all and sundry, his M ^y ajesty's lieges, & and others whom it effeirs, at & and upon the market cross of the said burgh of Lanark, after using the fores ^d aid solemnities, which copy of inhib ⁿition was signed by me, did bear the date hereof, & and cont ^d ained the date & and signeting of the s ^d aid letters, with the names and desig ^ns nations of W ^m illiam Thomson & and Tho ^s mas Thomson, both indwellers in Lanark, witnesses to the premises, and hereto with me, subscribing upon this, & and the two preced ^g ing pages. (Signed) Messr. & Wits. William Thomson, witness. Thos. Thomson, witness.

the Court, the words and letters in Roman characters being those which entered the record, and the words and letters in italics, being those which, according to a full and accurate style of letters of inhibition and their execution, should have appeared in the original letters and executions if extant.

In reference to this state of the registration, Henry pleaded (1.) that by 1581, c. 119, it was “statute and ordained, that all inhibitiones and interdictiones to be raised hereafter, for quhatsumever cause, with the executiones and indorsationes theirof, be within forty days after the publication and execution of the saidis inhibitiones and interdictiones, produced first to the schireffe-clerk of the schire quhair the persone interdicted or inhibit dwellis and makis his residence, &c.”—“Quhilkes letters of interdiction and inhibition, with the execution thereof, the saidis schireffe -clerkes sall insert in their registers, takand for everie letter, with the executions thereof, five shillings.” The act farther provided that “the extract of the quhilk register sall have as great faith and strength, as gif the original were schawin,” excepting where improbation was proponed by way of action or exception, in which case the originals required to be produced. And the act declared that “na interdiction or inhibition, to be raysed and executed hereafter, be of force, strength, or effect to onie intention, bot the samin to be null and of nane avail, except the samin be dewlie registrat as said is.” The object of the statute could not be attained unless the whole letters and executions were engrossed, at length, in the register. Many defects existing in the originals might escape notice altogether if blanks were to be allowed to occur in the register, and to be held as filled up on the general principle of omnia rite et solenniter acta. (2.) At least if any blanks were allowed to occur in the register without being fatal, they ought to be of a sort which were clearly immaterial. In this instance, however, there were several material omissions, and among others the entire body of the Will of the Letters, containing every thing essential as to their nature and efficacy, was omitted from the record. Whether the Will was to use arrestments, or poinding, or horning, or caption, did not necessarily appear from the register, as the entire body of the Will was omitted. (3.) One of the witnesses was entered on the record, in the execution against the debtors, as being Thomas Ferrier, while in fact, he was Thomas Fermer, which alone invalidated the registration.

Pearson answered, inter alia, that the only omissions in the register were immaterial, being mere clauses of style which were invariably the same in all inhibitions; and, separatim that the registration was made according to the general practice of the country, prior to 1815, at which period, a fuller registration was introduced in consequence of certain steps which were then adopted by the Society of Writers to the Signet. Pearson therefore pleaded not only that the registration was justified by conformity with the practice of the country at the time, which had effectually construed the requirement of the statute ordering registration, and showed in what sense it was to be understood; but, that the consequences of holding such registration to be invalid, would be most alarming, as it would render the greater part of diligences of that class, with all that had followed on them, illegal, so far as the illegality was not cured by the long prescription. In various analogous cases, ¹

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¹ Ersk. (by Ivory) p. 284. Notes; Young, Feb. 7, 1708 (3105); A. v. B. Feb. 10, 1631.

the Court, even when they found it necessary to check a practice as improper, and to declare by Act of Sederunt that it should in future be held illegal, had nevertheless sustained it as to the past, in respect of the communis error. In the present instance, if the registration were held defective, that course was peculiarly necessary, because hornings, though equally required by statute, had been made with similar abridgements, they also must be held to be illegal, so that all the captions which had followed on them, for forty years past, must be held illegal, and have the effect of subjecting in damages, those who used that diligence.

In regard to the alleged erroneous transcript on the record of the name of one of the witnesses to one of the executions, a separate defence was pleaded.

The Lord Ordinary reported the cause on cases, and the Court ordered a report as to the practice of registering inhibitions. A joint minute was then lodged by the parties, agreeing that, in order to avoid the heavy expense of a full examination of the registers, the agents on both sides “should make a joint search of the records from the passing of the act above written (1581, c. 119) for such a number of years as will satisfy them of the state of the registers at that period, and if they deem such to be necessary, to examine the records further; and to continue the search at such intervals as will satisfy the parties in what way the registers have been kept down to the present period.” The Court interponed their authority to this minute.

A search was made, and the results were exhibited in several tables, one of which, relating to the General Register, is subjoined. ^*

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* TABLE showing the State of the General Record of Inhibitions since the commencement of the present time, exhibiting the number and state of Examples taken during each successive ten years.

From this report it appeared that the practice of making large omissions in the register, though varying in its details at different periods, had almost always existed, in a remarkable degree. In the whole twenty-seven examples chosen between 1800 and 1810, the Will was not recorded, excepting in such terms as these, “Our Will is therefore—Given, &c., 3d Oct. 1802;” and in the whole twenty-two examples between 1810 and 1815, only two were recorded in full, both of which were entered at the time of the resolutions of the Society of Writers to the Signet already mentioned, the previous registrations being defective, and, inter alia, having the Will as much abridged, or nearly so, as in those cases last noticed. Since 1815, the practice was introduced of merely abbreviating the preamble, and making the record otherwise complete.

The state of the particular registers exhibited defective registrations analogous in character and extent, to those shown by the General Register, though varying in their details.

From 1602 to 1610	44 Examples taken. 36 Full. Executions not signed by the witnesses, and the form of the executions from this period down till after 1686, does not bear that witnesses should subscribe. In many of the executions previous to 1686, the names of prom four witnesses were inserted. 1 Full—but the subscription of the messenger, as well as 1602 to 1610. witnesses, omitted in one of the executions. 3 Have clause of delegation abbreviated. 2 Abbreviating command at commencement of will, and clause of delegation. 1 Letters Full—but several abbreviations in the execution. 1 Having preamble abbreviated, also the command, and the delegation clause.
1610 to 1620.	3 Examples taken. 1 Preamble and command abbreviated. 2 Having preamble abbreviated, and also words of style at conclusion of narrative abbreviated. In the will the command is abbreviated, and also in the repeating “words, lands, heritages, &c., alienations and such like, &c.,” nearly the whole clause of certification is omitted. The clause narrating warrant to record is omitted, and the delegation clause is abbreviated.
1620 to 1630.	1 Example taken. Preamble is abbreviated; the concluding words of style in narrative abbreviated. In the will the command is abbreviated, and many of the repeating words throughout, such as “lands, &c., annailzie, &c., buy block, &c.,” and the like. Clause of certification almost omitted. Registration clause omitted, and the clause of delegation abbreviated. In 2d and 3d execution the words of style, corresponding to those in will omitted, are also omitted. In two of the omissions there is inserted the words ut supra, referring to the first execution, which is full.
1630 to 1640.	3 Examples taken. In all the preamble is abbreviated. In two of them the narrative is complete; in the other, the words are omitted from sell, annailzie, &c. In all, the repeating words of style in will, such as sell, annailzie, &c., alienations, &c., and such like, are omitted throughout; the certification is abbreviated, and also the clause of delegation. A very short abreviation at the end of one of the executions.
1640 to 1650	9 Examples taken. 2 Having preamble only abbreviated. 1 Has preamble abbreviated, and the words of style of the narrative at the end, the whole repeated words in the will, in which nine, &c. occur, the clause of certification is omitted, as well as the clause narrating warrant to record, and the whole clause of delegation. In the execution, the same, &c. occur as in the will as recorded, omitting the repeating words. 1 Having command omitted. 4 Having preamble abbreviated. In two, style at the end of narrative abbreviated; and in all, almost the whole words of style in the will inhibiting the debtor; the entire clause inhibiting the lieges being omitted merely stating “to inhibit the lieges in common form;” the clauses of certifications and registration are omitted, and also the clause of delegation. In three of the last some slight abbreviations occur in the executions. 1 Having the preamble abbreviated; the command at commencement of will, with the inhibition against the lieges, said to be in common form; clause of delegation omitted altogether.
From 1650 to 1660	3 Examples taken. 1 Complete. 2 Having the clause of delegation abbreviated; one further having the command abbreviated.
1660 to 1670.	11 Examples taken. 3 Full. 2 With preamble abbreviated; command abbreviated; words of style omitted throughout the will, at sell, &c., lands, &c., alienations, &c., and such like repeated words of style; in one, clause narrating warrant, and clause of delegation omitted; in other, the clause of delegation is abbreviated. 6 Having preamble abbreviated, and narrative towards the end, the will being recorded similar to the above. Four of them omitting the inhibition against the lieges entirely, merely stating “and to inhibit the lieges, &c.” 3 With executions slightly abbreviated.
1670 to 1680	6 Examples taken. 1 Full in all respects. 2 Having preamble abbreviated, also the command at commencement of will. 3 Having preamble abbreviated, and also the command at commencement of will. The inhibition against the lieges omitted, merely stating “inhibit the lieges, &c. in communi forma,” and omit the clause of delegation at the end of the will.
1680 to 1690.	10 Examples taken. All have preamble abbreviated. The will inhibiting the debtor recorded in full. That against the lieges entirely omitted, thus, “to inhibit the lieges, &c. in communi forma;” clause of delegation is abbreviated. First instance of witnesses signing, 1686.
1690 to 1700.	6 Examples taken. All recorded precisely similar to the immediately preceding entry. One wanting six words at end of narrative, though no &c. occurs to show state of original letters.
1700 to 1710.	1 Example taken. Also recorded precisely similar to the last entry.
From 1710 to 1720.	5 Examples taken. All similar to the last entry; but still further omit a part of the style after the designation of the debtor, “personally, &c.”
1720 to 1730.	No illustrations taken during this period.
1730 to 1740.	7 Examples taken. 5 Precisely similar to entries between 1680 and 1720. 2 Recorded similarly; and further, the narrative in one is abbreviated at conclusion, and the command of the will is omitted; the other has some of the words of style against the debtor omitted. In one of them the recording clerk appears to have missed, per incuriam, the part of the letters between one word in narrative and a similar word in will.
1740 to 1750.	No examples taken.
1750 to 1760	7 Examples taken. 6 Have preamble abbreviated, and omit a few words of style at the end of the narrative; the command at the commencement of the will is abbreviated; the words, “personally, or at their dwelling-places,” being omitted, and inhibition against the lieges omitted; the record merely bearing that the letters contained inhibition against the lieges, and arrestment in common form. 1 Example having the narrative similar to the above. But in the will, a few words at the commencement of the clause inhibiting the lieges is introduced: in other respects it is precisely similar.
1760 to 1770.	14 Examples taken. 8 Having the preamble abbreviated; the repeating words of style at the conclusion of narrative omitted, such lands, teinds, &c., public alienations, &c. In the will the command is abbreviated, and the whole repeated words of style being as follows, “personally, &c., that he in noways sell, &c., nor put away any of the lands, &c., nor others pertaining and belonging to him, nor make no private, &c., nor other rights nor securities, yrof to no person or persons,” follow thereafter full to inhibition against the lieges, the whole of which, except the words “inhibit and discharge all and sundry our lieges,” being omitted, also registration clause. 3 Having the narrative complete, and the will till inhibition against lieges, the whole of which is omitted, except the words “in. and dis. all and sundry our lieges,” and omits the delegation and signet clause. 1 Similar to the preceding examples; but the warrant on which letters are raised is further omitted; and omitting some of the repeating words in the will. 2 Having preamble and narrative very similar to the above. Will recorded thus: “Our will is, &c., inhibit and discharge the said Charles Buchan personally, &c., and also, &c., inhibit and discharge all and sundry our lieges, &c., containing arrestment in common form.—According to justice, &c. Because the Lords have seen the dependence above written, as our will, &c.—Dated and signeted 31st January, in the 10th year of our reign, 1770.—E.D.D.C.” (Signed) “W. Ross.”
1770 to 1780.	15 Examples taken. 4 Having preamble abbreviated; the words of style at the conclusion of the narrative omitted, and the will recorded nearly similar to the last example above written. The warrant on which letters were raised is further omitted. In three instances there appear to have been originally various abbreviations in the executions, which have subsequently been interlined in the record. 3 Similar, but somewhat more full in the inhibition against the debtor. 1 Having preamble abbreviated; narrative concluding thus: “to sell, annailzie, &c., in common form.” Will recorded thus: “Our will is, &c.—According to justice. Because the Lords have seen the dependence. Dated and signeted 12th April, 1775.—E. D. D. C.” Omissions similar to the preceding in the executions interlined. 3 Having preamble abbreviated; the narrative complete, but in the will nearly the whole repeated words of style are omitted, containing 14, &c; nearly the whole inhibition against the lieges omitted; clause of registration, clause narrating warrant, delegation, and signet clause, entirely omitted. 3 Having several words of style at end of narrative omitted. Will recorded similar to the last entry above written. 1 Preamble abbreviated; narrative concludes thus: Knowing perfectly that the complainer is to suit all manner of execution, &c. &c. No part of the will is recorded, but the dates of letters and signeting are given. During this period two executions are recorded, omitting the repeating words of the style, similar to the will of letters.
From 1780 to 1790.	11 Examples taken. 1 Preamble abbreviated; otherwise full. 2 Having preamble abbreviated; narrative complete; will thus: “Our will is, &c., inhibit and discharge the said David Crawfurd personally, &c.; and also that ye, in our name and authority foresaid, all and sundry our lieges, &c., and they in noways presume, &c.,—Given, &c., at Edinburgh, the 30th day of July, in the 24th year of our reign, 1784—E. D. D. C. (Signed) John Tait.” In other instance the registration clause is inserted, and the words inhibit and discharge inserted before the word lieges. 4 Having preamble abbreviated; will omitting command, otherwise full against the debtors, but omitted against the lieges, except the words “inhibit and discharge all prom and sundry our lieges.” Two of them omit the clause narrating the warrant on which letters were raised, and delegation and signet clauses in all are omitted. 2 Having preamble abbreviated; narrative abbreviated from the word intends, &c., “Our will is, &c., inhibit and discharge the said John Rutherfurd personally, &c.; and also, &c., all and sundry our lieges, and others whom it effeirs, by open proclamation,” &c. Because the Lords have seen the decreet above mentioned. Delegation and signet clauses omitted. 1 Having preamble abbreviated; narrative full; will recorded thus: “Our will is, &c., inhibit and discharge the said John Sheddan personally, &c., if within Scotland, and if furth thereof, by open proclamation at the m.-c. and p. and s. of Leith; that he in noways sell, &c., any of his lands, &c., vide executions, &c.—According to justice. Because the Lords have seen the dependence above mentioned, &c., dated and signeted 1783.” 1 Preamble abbreviated; narrative slightly abbreviated; will omitting 18 words, at command of will; execution slightly abbreviated. (Signed) “Messenger and Witnesses.”
1790 to 1800.	21 Examples taken. 3 Full in all respects. 10 Having preamble abbreviated; but otherwise full. 5 Having preamble abbreviated, and omitting almost all the repeating words of style in the will, such as, “sell, annailzie, &c., lands, heritages, &c.,” and be on throughout. One of the examples further omitting the words of style at the conclusion of the narrative. In one instance narrative is abbreviated. 1 Complete, excepting warrant omitted. 1 Complete, excepting eighteen words omitted at commencement of will. 1 Omitting eighteen words at commencement in will, and abbreviating the delegation clause. 3 Executions all belonging to one inhibition in this period signed ‘Messr and Wits.,” prefixing messengers’ name, but witnesses’ subscription wanting. One instance of a short abbreviation substituted for the execution itself.
1800 to 1810.	27 Examples taken. 13 Having preamble abbreviated; narrative full; will is recorded thus: “Our will is herefore,—Given, &c., the 3d day of October, 1802.” 14 Similar to the above; but further, several of the words of style at the end of narrative are omitted. In five instances the executions are abbreviated in the terms which are adopted from the letters, such as sell, &c., and the like. In five instances signed “Messr. and Wits,” four belonging to one inhibition, subscriptions not given.
1810 to 1815.	22 Examples taken. 2 Recorded in full, both in 1815. One three days before the meeting of Writers to the Signet Society, passing resolutions anent the recording of inhibitions; the other subsequent to such meeting. 1 Having preamble abbreviated; narrative full; will thus: “Our will is, &c. Dated 24th December, 1811.” (Signed) “ Wm. Innes.” 4 Having preamble abbreviated; various words of style omitted at conclusion of narrative; will recorded thus: “Our will is, &c. Given 6th January, 1812.” 6 With narrative similar to above; will recorded thus: “Our will is herefore, &c. Dated and signeted.” 1 With narrative as above, but not one word of the will entered. 1 Preamble abbreviated; narrative abbreviated towards end, and will thus: “Our will is, &c.; because the Lords have seen the dependence above-mentioned. Given and signeted 22d May, 1812.” (Signed) “ A. Dallas.” 1 Same as preceding, till will, and then thus: “Our will is, &c., According to justice, because” full to the end of letter, and executions signed “Messr. and Wits.” 7 Preamble abbreviated; will recorded thus: “Our will is, &c., anent payt. making to them of the sums of money foresaid, &c. According to justice; because the Lords have seen the regd. protest above-mentioned. Dated and signeted 22d March, 1815.” (Signed) “ Hugh Macqueen. Written on these eight pages, by my clerk.” In three of these cases several words of style at the conclusion of narrative are omitted. During this period, among the examples taken, eight executions are recorded, abbreviating various parts of the style where it corresponds with letters. 6 Instances occur where the subscription to the execution is merely is merely signed “Messr. and Wits.”
1815 to 1835.	18 Examples taken. These all have the preamble abbreviated, but are completely recorded in every other respect.

On considering the report, the Court ordered minutes on it, and afterwards directed “the papers in this case to be laid before the Judges of the Second Division, and the Lords Ordinary, with a request that they will communicate their opinions on the case to this Court.”

The following unanimous Opinion was returned by the consulted Judges:—

“We are of opinion that in this case the defence founded on usage ought to be sustained.

“It appears from the preamble of the Act 1581, cap. 119, introducing the registration of inhibitions and interdictions, that it was passed with the view of preventing the evils which had been found to arise from the falsification of the dates of those prohibitory writs, and of enabling the lieges to ascertain exactly, the disabilities under which, by the force of such writs, any party might lie. For this purpose it was enacted, that all inhibitions and interdictions should, within forty days after their publication and execution, be produced to the Sheriff-clerk of the shire,—‘Quhilkes letters of interdiction and inhibition, with the executions thereof, the said Sheriff-clerks sall enter in their registers.’ While the registration, or the entry of the writs in the register, was thus declared to be necessary, no express rule was laid down for the form of such entry; and it would appear that no opportunity was afforded, by litigation on the point, for the authoritative determination of the precise form of entry which the statute required.

“The consequence seems to have been, that, from a very early period, a considerable latitude, and that gradually increasing, was assumed in the mode of carrying the regulation into effect. Nor is this, perhaps, to be wondered at, as a great part of the letters of inhibition consists of words of style, the repetition of which in the register is certainly not indispensable for the attainment of the object of the registration, Accordingly, the general practice, as clearly established by the reports in process, was introduced, of substituting for the literal insertion of the whole letters of inhibition, a kind of abbreviate, containing what might be considered as its essentials, and omitting those words of form, which were immaterial for the purpose of publishing the disability of the party, and identifying the date and execution of the writ by which such disability was imposed. And in this particular, as might be expected, the practice was not uniform, the omissions varying in the different registers, probably according to the views entertained by the different officers, of the importance or non-importance of the different passages of the writ.

“Without entering, however, into any detail of the comparative extent of those omissions, we must hold it to be established by the inquiries instituted in this process, that, from the earliest period, the literal insertion in the register of the whole inhibition and executions, was not in practice held to be necessary. And we may also infer, from the absence of any litigation on the point, that this latitude, however inexpedient and objectionable in other respects, has not been found to interfere materially with the beneficial operation of the statute.

“In these circumstances, considering that although the statute has been in constant observance, there has been no inflexible rule as to the precise mode of observing it,—that abbreviates, fully as much divested of the mere formalities of the writ, as that employed in the present case, have been held in practice a sufficient compliance with the statute,—and above all, that the omissions are not such as in any way to frustrate the spirit and object of the enactment, we do not consider ourselves warranted in sustaining the objection now brought forward in the present case.

“In coming to this conclusion, we are not attributing to practice the effect of dispensing with the observance of the statute, but are only refusing to enforce what must now be considered a highly penal construction of it as to the mode of observance; to which construction the practice of centuries has been adverse. And we are the less disposed to adopt that construction in the present case, as the result of such a judgment must necessarily be the challenge of innumerable securities, and the disturbance of innumerable transactions, on which the most perfect reliance has hitherto been placed.

“But, in expressing this opinion on the point now submitted to us, we are bound to notice the great inexpediency (to say the least) of permitting the continuance of that very loose practice, which is disclosed by the reports obtained in the present case. As the registration of a writ is properly a matter of form, it is of great importance that that form should be imperative and unvarying; and that as little as possible should be left to the discretion of the parties or keepers of the record. Such discretion is in itself an evil, and it is apparent from what has already taken place, that it is likely to increase.

“We therefore submit it, as worthy of the consideration of the Court, whether some authoritative rule ought not to be laid down for the future observance of the statute; either by defining the form of the abbreviate, if the Court shall consider that to be expedient, or by taking perhaps the safer course, and that more consistent with the strict construction of the statute, of requiring the literal insertion of the whole inhibition in the record.”

The Court then resumed consideration of the cause, along with the Opinion of the consulted Judges.