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In an action of spuilzie at the instance of Robert Dunbar of Burghie against the Tenants of Carse, the Lords sustained an incident diligence used at the defender's instance, for proving of an exception admitted to their probation, executed upon 60 days against the defenders caled therein, who were out of the country; albeit at the term of litiscontestation he protested not for an incident for 60 days, nor declared then that the parties were out of the country; notwithstanding whereof, the incident was sustained, seeing he had protested for an incident; but the Lords ordained the users thereof to make faith, that they had just cause to use that incident against these persons called therein, and that they were necessary parties, without the which making faith, they would not sustain the incident against them. See No 172. 12076.
Act. Sharp.Alt. —.Clerk, Gibson.
Fol. Dic. v. 2. p. 89. Durie, p. 260.
