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The debtor in a 1000 merks bond having, after the term of payment, paid 700 merks without any application to the bond, or to a quantity of wine resting also by him; and thereafter having received more wine, and applied the payment wholly to the wine, and not to the bond; and the cautioner in the bond being pursued, he alleged upon the payment of the 700 merks, which behoved to be applied to extinguish the bond pro tanto, as the durior sors, especially considering that merchants use to allow year and day for the payment of wines.
Answered, It was in the debtor's power to apply the payment.
The Lords found, that the debtor might, ex post facto, apply so much of the 700 merks as effeired to the price of the wines furnished before the payment, unless the term of payment of the wine's price was not come when the money was paid; but that he could not apply it to wine furnished after the said payment, in prejudice of the cautioner in the bond.
Fol. Dic. v. 1. p. 461. Harcarse, (Cautioners.) No 250. p. 59.
