An incident used by a defender against a party called as haver, upon 60 days citation as being out of the country, was not sustained, because the letters bore no warrant to summon him as out of the country.
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An incident used by a defender against a party called as haver, upon 60 days citation as being out of the country, was not sustained, because the letters bore no warrant to summon the party as out of the realm upon 60 days, neither did the user thereof protest when litiscontestation was made for incident after that manner; but because the procurators for the raiser of the incident offered to make faith that he was not informed, or knew at that time that the parties were out of the country then, therefore albeit incident was refused, yet a long day was assigned to the party user thereof, to deduce all his probation upon the exceptions, for which the incident was used, during the which time he might use his incident against the parties called therein, and prosecute his probation against them, and that he should conclude all against the day foresaid, at which time they would conclude the cause and advise the same.
Act. Cunninghame.Alt. Millar.Clerk, Scot.
Fol. Dic. v. 1. p. 258. Durie, p. 431.
*** The like done, 19th March 1629, L. Newark contra Maxwell.
Act. Belshes.Clerk, Gibson.
Durie, ibid.*** Auchinleck reports the same case:
Summons of diligence execute against persons out of the country, at the market-cross of Edinburgh, pier and shore of Leith, upon 60 days, not sustained, because the summons bore no warrant; but the Lords gave the party a long day to conclude his diligence.
