A cautioner in a contract of marriage, bound to employ a sum for the Lady's liferent, was found not entitled to consign the sum, or otherwise get quit of the duty.
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In a suspension, Nasmith contra Menzies, the relict, upon her contract of marriage, having charged the cautioner for employment of 1000 merks upon annualrent to her use in her lifetime; and the party exhibiting the money at the bar, to be delivered to her for her employment foresaid, she finding caution to make the principal sum forthcoming after her decease, to the heir: And the relict alleging, That she was not holden to receive the money, which she could not gat employed, and that she was not obliged to receive the same, nor find caution, which, she alleged, was not in her power to find; and that she sought payment only yearly of that annualrent for her lifetime:—The Lords found, That this offer of delivery of the money to the relict, as said is, (which sum also was exhibited in presence of the Lords) freed not the cautioner; and that the relict was not holden to accept the same, but if she pleased; and that the cautioner remained subject to employ the money for the use of the relict, that she might get the annularent thereof so long as she lived.
Act. Aiton.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 125. Durie, p. 380.
