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In a pursuit for the price of a quantity of victual, conform to a contract of vendition thereof,
Alleged for the buyer, That a part of the victual was not delivered.
Answered for the pursuer, That he offered to prove delivery of the whole, partly scripto, partly by witnesses.
Replied for the defender, That witnesses could not be allowed to take away the writ as to the obligement for delivery of the victual, more than they could be allowed to prove payment of the price; 2do, By the late act of Parliament probation of bargains by witnesses prescribes in five years.
The Lords demurred upon this point, if the obligement in the contract to deliver so much victual, could be taken away without writ or oath; but they found, that the act of Parliament related to verbal bargains, not constituted scripto.
