An oath of calumny was ordained to be given, even after the cause was concluded, and all further probation renounced.
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There was a process advised betwixt Ker of Mersington, and Ker of the Shaw; at the advising of which; the same being concerning the non-entries of certain lands; and the sowing of the lands during the alleged space of the nonentries being admitted to probation, because Ker of Mersington, who was the pursuer and donatar to the non-entries, was suspected to have subtracted some of the evidents; some of the Lords, as also the party's self, desired that he should give his oath de calumnia, if he had just cause to deny the having or subtracting of the evidents, and writs which was laid to his charge. It was answered by him, and his procurator, That the state of the process being concluded in the cause, he could not be ordained to give his oath; for, after the cause is concluded, and farther probation renounced, the parties can never thereafter, in any sort, be heard again.—The Lords, nevertheless, and notwithstanding of his allegeance, ordained the party to give his oath de calumnia, et hoc juxta ca 1. De juramento calumniæ in C. cujus ea verba sunt, ‘si de Calumnia seu de veritate dicend. in primo litis exordio non juret (ut debet) poterit postmodum in qualibet parte litis jurare, cum hujusmodi juramenta prestari ab initio de substantia ordinis judiciarii non existit.’
