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In an action betwixt the Earl of Marr and Lo. Kildrimmie, for reduction and improbation of writs made to the Lo. Elphingston, of the Lordship of Kildrimmie, wherein an incident being used by the defender, and litis-contestation made therein, admitting the same to the Lo. Elphingston's probation; this incident was not further sustained, but the term circumduced; because, by the letters of diligence written by the clerk upon the act, no power was given to summon the King's Advocate, at whose instance the principal summons in the principal cause was raised, and who being pursuer therein, was found by the Lords to be a necessary party, who ought to have been warned to all the diets of the incident; and albeit the King's Advocate was summoned, and execute against by the indorsation of the diligence, and execution thereof; yet seeing the letters bore no warrant to summon him, the execution could not be lawful, as wanting a warrant, and was not sustained, but holden as if he had not been summoned.
Act. Hope et Aiton.Alt. Nicolson et Stuart.Clerk, Scot.
Fol. Dic. v. 1. p. 142. Durie, p. 108.
