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Some goods having been alleged stolen out of lock-fast places in a country house, the master's oath in litem was sustained as a proof of the quantities and values, against the servant to whom the key of the outer door was entrusted, and who was not alleged to have any accession to the theft, but who was found liable, upon this single circumstance, that he had been versans in illicito in lodging a travelling packman one night in his master's house; though the packman was not the thief, and the goods must have been stolen some time thereafter. It was argued for the servant, That the oath in litem can only be admitted where it is aliunde certain a theft is committed; and supposing this proved, can only be admitted against the person who has been principal or accessory to the theft; and yet here there is no other proof, save the pursuer's oath, that any theft was committed at all, neither is the defender alleged to be accessory; and the circumstance of lodging the travelling packman, when no damage happened, cannot be qualified more penal than neglect; which was repelled, in respect it was answered, That supposing the servant liable, there scarcely can be any other proof, in the nature of the thing, than the master's oath.——See Stair, L. 4. T. 44. § 4. See Appendix.
