Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. VIII.

Incident Diligence.

Mr Roger Hogg, and other Creditors of Wauchton,
v.
Countess of Hume

Date: 3 July 1667
Case No. No 181.

Incident not sustained at the instance of any but those whose names as pursuers were filled up in the bill.

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In an incident pursued by the Creditors of Wauchton against the Countess of Hume, it was alleged for the Countess, that the incident as to several of the creditors could not be sustained, and likewise could not be sustained against several of the havers, because, as to these, the incident was without warrant, their names not being contained in the bill at the Signet. It was answered, The bill contained several names, and a blank for others, which is a sufficient wartant for the raisers of the incident to insert whom they please. It was replied, That incidents being odious, strict form should be observed in relation to them, So that a new pursuer cannot be supplied by the blank, who did not supplicate by the bill; and alleged a decision the last Session, where it was so found in an incident at the instance of the Feuars of Goldinghame against the Lord Justice-Clerk.

The Lords sustained not the incident as to any of the pursuers thereof whose names were not in the bill; but sustained the same against any of the havers, albeit their names were not contained in the bill, it being ordinary to get summons upon bills, upon such persons named, and others wherein the persons names insert, are always sustained; but it is not so in the pursuers; and yet this would hardly have been sustained in another case than an incident, which is unfavourable.

Stair, v. 1. p. 468.