Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Agnes Frazer and her Husband Simon M'Kenzie
v.
Thomas M'Kenzie

Date: 25 November 1664

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By contract of marriage betwixt Kenneth M'Kenzie and Mr John M'Kenzie, his father, on the one part, and Agnes Frazer and Hugh Frazer of Culbockie, on the other part,—her father, the said Mr John, was obliged to infeft the said Kenneth and the said Agnes, the longest liver of them two, in liferent, in the lands of Arcanduth and others, and to warrant the lands, teinds, and others, to be worth six chalders of victual, with customs, carriages, and services, used and wont, by and attour the feu-duties and other impositions mentioned in the contract, except so much of rental as shall fall through the said Agnes her default. The said Kenneth being deceased in anno 1641, immediately thereafter, Mr John, his father, offered, by an instrument, to the said Agnes, to find tenants to pay her the six chalders victual, and relieve her of the feu-duties and other impositions, and to find a sufficient gentleman, of the name of M'Kenzie, cautioner; which the said Agnes refused. The said Agnes and her present husband, Simon M'Kenzie of Loslin, alleging the said lands to have been inlacking of the rent twenty bolls of victual since the year 1641; convening Mr Thomas M'Kenzie, as representing his father, to make payment thereof: the Lords found the defender should make up to the pursuer the six chalders of victual since the date of the summons, and not before; and found, That, in time coming, the defender should be obliged to give sufficient tenants to take the conjunct feelands at the rate, and therefore could be cautioner himself for other payment.

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