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In an action pursued by George Ker against the Town of Jedburgh, there being an exception admitted to the defender's probation, they raised an incident, which ran out in the whole terms, and a new term taken of the defender's own consent, to produce their whole probation; which being likewise come, the pursuer craved the term to be circumduced; and then the defender's declared they would refer the matter to the pursuer's oath, in place of all other probation: The Lords would not sustain it, because in the beginning the exception being only probable by writ or oath of party, the defenders used election at the first term, by using of an incident, and therefore they would not grant any further delay.
