It was provided in a bond for money, that the reversion in another security should expire, if the money were not paid at the time appointed. The borrower died before the term; and the money being offered two months after the time, the irritancy was found purgeable.
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A declarator being sought by the Doctor against the apparent heir of umquhile Robert Dickson of Headrig, who had borrowed 500 merks, to have been paid at Yule last, with provision in case of failzie of the reversion, which the said Doctor had granted him before, for redeeming of the lands of Headrig, wadset to him by the said umquhile Robert, by another anterior bargain, should expire; and for not payment, the declarator being sought, and a creditor of the defunct's compearing, and offering the money instantly to purge the failzie; the Lords found, that seeing the debtor, who borrowed the money, died before the term of payment, and that there was so little a space, viz. only two months or thereby, which had run since the terms of payment, that the failzie was purgeable, and that the creditor of the defunct might as well be admitted to purge the same by present payment, as the defunct or his heir; for albeit the Lords by an old ordinance had enacted, that they would abide by failzies and clauses of penalties, convened and agreed on betwixt parties in their securities, and decern according thereto; yet that ought only to have place in provisions which depended upon securities, convened upon in that same writ, which bore the provision, and not where the provision had respect to make other securities to fall, which were not made by that writ, bearing such provision; as in this case, where the provision was set down in a bond of borrowed money, appointing a reversion, contained in another writ and security, made betwixt the parties before, to expire, if the money borrowed were not paid at the time appointed; whereas if the wadset had been granted, and the reversion given back again by this bond of borrowed money, and therein that the parties had agreed upon this clause now libelled, the same eo casu might have had place, if the failzie had been incurred. See Personal and Transmissible.
Act. Heriot.Alt. Craig.Clerk, Scot.
Fol. Dic. v. 1. p. 486. Durie, p. 584.
