In indefinite payment the brocard electio est debitoris holds not where the debtor is bankrupt.
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Samuel M'Reith pursues Donald Campbell, as cautioner for Hector M'Neil, in a sum of L. 300 Sterling, who alleged absolvitor, because this sum being due to Mr Man in Norwich, to whom M'Reith was factor, he produces a receipt of L.600 Sterling from Man, of the sums due to him by Mr M'Neil, with an application thereof by M'Neil to this sum before any diligence; and it is a certain maxim in law, that payment made and accepted indefinitely by a debtor to a creditor, to whom he owes several sums, electio est debitoris, and the debtor may apply the payment to which sum he pleases, and he has done so in this case. It was answered, That the payment could not be ascribed to this bond, being made a day before the day of payment of this bond, but behoved to be ascribed to the other anterior debts, whereof the term was past. 2do, Though ordinarily the debtor has election, that cannot hold here, because the debtor was broken and insolvent before the election, after which he could not, to the creditor's prejudice, apply the indefinite payment to a sum secured by caution, and leave the creditor to seek sums unsecured from a bankrupt.
The Lords sustained the election by the debtor, if he was solvent and entire the time of the election, albeit the indefinite payment was a day before the term of payment of this bond, to which the debtor had applied it.
