A warrant to cite at the nearest market cross, where there is no tutus accessus to the party, must be granted by the Lords in pręsentia. upon a special bill.
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Dougal M'Pherson pursues Sir Rory M'Laud for payment of a sum upon his promise, and the summons bears a warrant to cite him at the market-cross nearest the place of his residence, being in the Isles; whereupon the pursuer craved him to be holden as confest. The defender alleged, That he was not personally apprehended, and so could not be holden as confest; and, that this citation at the market-cross was periculo petentis,. and not to be sustained in the time of peace, when there was no trouble in the country.
The Lords found that warrants for such citations ought not to be granted by common bills of course, but only by the Lords, upon special bills in præsentia, but seeing the defender compeared, they allowed his procurator a long time to produce him.
