A defender craving protestation; the pursuer's counsel not entitled, without express authority from his client, to take a day to insist, with certification of absolvitor if he then failed.
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The L. of Wardis craving protestation against a summons, pursued against him by his Creditors, who were, infeft in his lands of Wardis, and which lands were evicted by the Earl of Mar, whereupon Wardis had gotten regress against L. Balcolmy, and therefore the saids creditors craved regress to the lands of Balcolmy, according to their proportion of their wadset, against which summons, this protestation was craved; and the pursuers desiring a day to be assigned, at which day their procurators declared, that they were content, that if they insisted not at that day, that absolvitor should be given simpliciter from that pursuit, sicklike as if after protestation, they had been summoned to insist with that certification.——The Lords found, seeing the pursuer's self was not present, to take the day with that certification, that no such day could be taken by, or assigned to advocates, which might bind their parties, they not being summoned for that effect.
Act. Stuart & Aiton.Alt. Nicolson & Lawtie.Clerk, Hay.
Fol. Dic. v. 1. p. 25. Durie, p. 513.
