Found, that one proponing improbation had passed from all other defences.
Click here to view a pdf copy of this documet : PDF Copy
The Lord Oliphant, assignee to umquhile N. Oliphant of Kellie, pursued Andrew and Peter Oliphants, heirs of tailzie to the said Laird of Kellie, for to give him a reversion, which the said Andrew obliged him to do to the said Laird of Kellie, his heirs and assignees, for redemption of certain lands analzied by the said Laird to the said Andrew. For verification of the said promise, the said Lord produced an instrument. The defenders offered them to unprove the said instrument, omni modo quo de jure, as false and feigned, but, at the day assigned for improbation, they found no cautioner, nor would not, but passed from the probation, and so the pursuer protested for circumduction of the term. Thereafter the defenders alleged, That although the instrument, and every point thereof, were of verity, yet it was not sufficient to compel them to give a reversion, in respect of the act of Parliament, that all reversions, and bonds of reversion, should be sealed and subscribed by the party maker and promiser thereof; or if it be under form of instrument, the same should have been registered in the books of some ordinary judge, or else to have no faith; and by reason this instrument was not registered, it was not sufficient to prove their intent. The pursuer alleged, They should not be heard to use that allegeance, because in the term assigned to them to unprove the instrument, they passed from the same, and therefore they affirmed the instrument to be true in itself, and every point thereof; and it is of truth, that the said instrument bore the said promise, and, in respect of the pursuer's allegeance, the defenders should not be heard to allege invalidity of the said instrument; and yet, notwithstanding, if they should unprove as of before, they should yet be heard, but not otherways; which allegeance of the pursuer the Lords found relevant, and repelled the defenders allegeance.
