Execution of an incident without a warrant against the person cited cannot subsist.
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In the Earl of Marr's action against my Lord Elphinston, after the defender had produced his incident, alleged for the pursuer, in the principal cause, No process in the incident against the King's Advocate, because the executions bear him to be summoned where there was no warrant for the doing thereof, neither in the act nor letters, without which the diligence cannot be sustained. Replied, The diligence would be sufficient, albeit the advocate were not summoned, seeing he is a party compearing in the principal cause, but far more here where he has summoned him; and were it alleged done without a warrant, that is the clerk's fault, and not the party's. Duplied, That the advocate is a necessary party to be summoned in the incident (as was found between my Lord Buccleugh and Yester, No 123. p. 2242, voce Citation,) and therefore should have done with a warrant. The Lords found the exception relevant, because no execution can subsist without a warrant, and the fault was as well in the defender's procurators (who should have seen the act and letters mended before the forthtaking thereof) as in the clerks.
Spottiswood, (Summonds of Incident Diligence.) p. 174.
