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Scottish Court of Session Decisions >>
Margaret Murray v Robert Burnet. [1695] 4 Brn 277 (12 November 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040277-0619.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Margaret Murray v. Robert Burnet
Date: 12 November 1695
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In the reduction pursued by poor Margaret Murray, against Commissary Robert Burnet, writer to the signet, of a disposition impretrated from her uncle, as granted in lecto,—he having objected against her title, that there was a nearer heir, and she offering to prove he was abroad, and an act of litiscontestation having been extracted thereon, and witnesses examined on a commission; but the same not being yet come in by the course of the roll, she, for abridging her process, craved Robert's oath of calumny, if he could deny that he knew he was dead. It came to be a debate among the Lords, If he was obliged now to give his oath, she having neglected to crave it when he first proponed the allegeance. Some thought an oath of calumny may be sought in any part of the process, before sentence, ad lites amputandas. And Hope, Prac. tit. Of Oaths of Calumny, seems to be of this opinion; though he says olim it could not be sought after probation. Others argued, Having elected the manner of probation by witnesses, she could not recur to his oath of verity, if the probation be either affirmative or negative; ergo, multo minus seek an oath of calumny; and that it was, the last session, refused in Fotheringham's case against the Earl of Home.
The Lords looked on the case as of general importance, and desired to be fully informed before they proceeded to a decision therein.
