The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. VII.
Six Knocks.
Sinclair v. Lord Bargeny
Date: 30 July 1696 Case No. No 124.
It is not necessary that an execution bear that the messenger sought entrance before giving six knocks at the door.
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In the declarator of the Lord Bargeny's escheat, pursued by Mr Archibald Sinclair advocate, it was objected, 1mo, The execution of the horning was null, seeing it did not bear, that he sought entrance before giving the six knocks, as required by act 75th, Parl. 1540; and cited Durie, 28th March 1637, Scot contra Scot, voce Proof; and Stair, Tit. Confiscation.——The Lords found this would overthrow the most part of the executions in Scotland, and that this formality was sufficiently included in the six knocks.—2do, Alleged, It was still null, because, by the 268th act of Parl. 1597, all executions of horning executed against persons dwelling within bailiaries, ought to be registrate there; but the Lord Bargeny then lived within the bailiary of Carrick, and yet the horning is not registrate within the court books of that jurisdiction, and so is null.—Answered, The act of Parliament imposes no necessity, but declares registration there, shall be equivalent as if done in the Sheriff's books; so that at most it is but a cumulative jurisdiction with the shire of Ayr, and not privative; as appears by this, that the Earl of Cassillis, as heritable Bailie of Carrick, applied to the Parliament to get the bailiary and jurisdiction disjoined from the shire of Ayr, and it was refused him; likewise these bailiaries of Kyle, Carrick, and Cunningham, were the private patrimony of the Stuarts before they got the Crown in 1370, and were then erected by them into bailiaries, but not to subtract them from the sheriffdoms where they lay. If they were regalities, there might be more pleaded for it; but it is incongruous to erect the King's own lands into regalities, he possessing these privileges, (which he communicates to his subjects by granting them regalities) jure proprio. Some of the Lords were for trying the custom, whether or not the lieges had been in use to registrate their diligences in the Bailie court books of Carrick, and if it was only actus necessitatis or optional to them. But it was not decided, because it was remitted to some of the Lords to settle them.
Fol. Dic. v. 1. p. 267. Fountaidhall, v. 1. p. 731.
*** The like was found 20th December 1705, Scrimzeour against Beatson, No 103. p. 3758.
