A back-bond was granted, agreeing to mitigate a bond of provision at the sight of friends, one being fine qua non. This person having died, the provision sustained in toto.
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A gentleman having given a bond of provision to his sister for 3000 merks, took a back bond from her, importing, “That it being rather too great for his circumstances, therefore she consented that the same should be mitigated by friends to be chosen hinc inde, her mother being always one.” After the mother's decease, the brothers creditors insisting for a mitigation secundum arbitrium boni viri, it was answered, That the condition of the mitigation had failed, the mother being now dead; and therefore the bond must subsist in toto, as if this power of restricting had never been.——The Lords found there was no arbitriment in this case, and that the bond subsisted in toto.
