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In an action of recognition pursued by Adam Rae contra the Laird of Kelly, there were proponed certain exceptions peremptory, for proving whereof, there is an incident diligence used; which incident, by compearance of party, is denied, and litiscontestation is made therein, and a term assigned to prove; at the which term, the defenders allege, That the execution of the first summons was false and feigned. The Lords sustained the exception of improbation, notwithstanding it was answered, That the party has approved the citation by compearance, and had omitted this exception tempore litiscontestationis.——(See No 53. p. 6459.)
