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In an action moved by a Frenchman against Mr Thomas Fleming, as cautioner for umquhile Lord Fleming, for the sum of ——, which the said Mr Thomas obliged him to pay, or cause the said Lord pay the same, it was answered, that the said umquhile Lord Fleming had paid to the said Frenchman. It was replied, That the said Lord was owing to him as much by an obligation of an older date, and the said payment was to be understood for the oldest debt; and was answered, that the debt, wherefore he had found caution, was more hard and painful, and therefore of the law it is to be interpreted, that the debtor would first have relieved the same L. 89. § 2 D. De solutionibus. The Lords admitted the reply to probation, notwithstanding the said law, which had not been received in this realm.
