Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Laird of Kinneir
v.
John and William Paties, his Shepherds

Date: 19 January 1677

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In an action at Kinneir's instance, against his shepherds, for the price of 100 lambs, upon this ground, That he desired the shepherds to separate the lambs from the rest of the sheep and ewes, who were all bleating and crying, which was a clear presumption that they were not the natural lambs of his ewes; but, instead of doing thereof, he drove in the lambs to a house, where he did cut many of them; and then did bring and made offer of them, which he was not bound to accept of:—

It was alleged for the shepherds, That they did refer to the pursuer's oath that they did make oifer of his own lambs, and so were no farther liable.

It was replied, That he could not be obliged to depone, it being a matter which did not consist in his knowledge; and it being an ordinary trick in shepherds to change their master's good lambs for worse, the presumption in law did militate against them, who refused a natural trial.

The Lords did sustain the libel to find the shepherds liable for the true price of the lambs, which his neighbours got for that same gang and quality; and found, That the presumption against the shepherds, in refusing to separate, did prove against them, and did free the master to give his oath upon what he could not know.

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