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The Lady Dryburgh having voluntarily restricted her jointure of sixteen to twelve chalders of victual, in favours of her son, and the heirs-male of his body, secluding heirs-female, with this provision, That if payment was not made at the terms appointed, she should return to the sixteen chalders, and the restriction be void, the terms of payment not being observed, she pursued for the whole sixteen chalders.
Alleged for the creditors of the son, who was dead: That they were content to purge bygones, and to pay in time coming.
Answered: This being a voluntary restriction, and no failzie, or pactum commissorium in wadsets, was not purgeable now, as had been several times decided.
Replied: The clause not being taxative and personal to the son, was apprisable by his creditors.
The Lords allowed the creditors to purge between and Candlemas; and they did not consider if there was an onerous cause for the restriction or not, as was done in the Lady Dean's restriction.—This decision seems contrary to some former decisions.
