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In a pursuit Stirling against M'Phadrick, for delivery of four mares, with four foals yearly, by the space of three years, or the prices thereof libelled, conform to a paction made betwixt the parties for that effect, when the mares were delivered, and put by the pursuer to the defender in grazing; this was sustained to be proved by witnesses, and it was not found necessary that the pursuer could be compelled to refer the summons or paction therein contained to the party's oath, albeit the action was not pursued till three or four years were past after the alleged time of the paction and delivery of the mares.
Act. Nicolson.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 2. p. 230. Durie, p. 401.*** Auchinleck reports this case:
James Stirling agreed with John M'Phadrick to graze him four mares for payment of a certain grass-mail, and pursues him, conform to the said agreement, to make restitution of the said mares and foals by the space of three years. The defender alleges, This summons could not be proved but by writ or oath of party. The Lords found, that it might be proved prout de jure, because such probations for the grazing of goods were not usually made by writ, and so may be proved by witnesses.
Auchinleck, MS. p. 154.*** This case is also reported by Spottiswood:
By paction and agreement made between James Stirling and John M'Phadrick, 1625, the said John was obliged to graze four mares to the pursuer James for four merks yearly, and to make their offspring forthcoming to him yearly. Upon this paction James convened him for re-delivery to him of the said four mares and their foals for the space of three years. It being alleged by the defender, That the libel being founded upon a paction, could only be proved scripto vel juramento; the Lords notwithstanding sustained it to be proved prout de jure.
