Click here to view a pdf copy of this documet : PDF Copy
In an improbation pursued by Sir James Douglas against Patrick Oliphant, there being an incident produced, alleged, It could not be sustained, because it had been raised above two years before, and nothing done upon it, but had slept ever since, unwakened. Answered, There needed no wakening, because it being a part of the principal summons, when they were wakened, so was it; and the raiser of the incident could not make any use of the same, before the pursuer in the principal cause insisted. Replied, That might seem to have some ground, being alleged against the pursuer in the principal cause; but he proponed it for them that were called as havers in the incident, who were not obliged to answer, except the incident had been wakened. The Lords would not cast the incident; but if the defender therein, to delay himself, would allege it ought to be wakened, they would suffer the purseuer to do the same.
