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In an action of improbation pursued by Mr John Johnston against the Laird of Castlemilk, the Lords, after production of incident diligence by the defender, granted certification for the rest of the writs not contained in the incident.
January 22.—In the same cause, the said Mr John offered to improve the execution of the incident, both cum processu; which having past to interlocutor, the Lords found, that if Mr John proponed improbation by way of exception, he behoved to confess the whole libel, otherwise they would reserve him his improbation by way of action.
Kerse, MS. fol. 204.*** Haddington reports the same case.
Mr John Johnston pursued the Lairds of Castlemilk, elder and younger, for improbation of their evidents of Castlemilk, made to them and their predecessors, by his Majesty, or by his Majesty's mother, or by King James the Fifth, King James the Fourth, or by the Duke of Lennox, or his father or mother, Earl of Lennox, or John Earl of Lennox. In the which cause, the defenders raised an incident against my Lords of Blantyre, Kilsyth, and diverse others, for certain evidents of the said lands, made to the defenders and their predecessors, by the Earls of Lennox. The pursuer urged certification for the rest of the writs called for, and neither contained in the incident, nor produced. It was answered, That until the incident were discussed, the production could not be concluded, and before that time, he would satisfy the production for the rest, or suffer the certification then to pass. The Lords found, That the certification should be presently granted far all the particular evidents called for by the principal summons, and not contained in the incident. Thereafter, the pursuer alleged, That no process could be granted in the incident, because the necessary parties were not called, to wit, the said Mr John Johnston, and the advocate, who were pursuers in the principal cause; and in so far as they were indorsed upon, as summoned, the said Mr John offered to improve that execution. The pursuer of the incident alleged, That the improbation of the execution of his incident could not be received by way of exception, but behoved to be pursued by way of action. The Lords found, That because Mr John Johnston was pursuer of the principal cause, and delayed himself by proponing the improbation of the execution of the incident, that they would admit his exception of improbation as peremptory in the incident; wherein if he succeeded, the incident should be held as proved against him.
