Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Captain Cassie, Slater, v. James Bain, Wright
Date: 27 December 1693
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The Lords found the discharge granted by Cassie to Sir William Binny, of the 4000 merks he owed James Bain, was good, and his application of it to the account Bain was then owing him, must subsist; unless he can prove, that the order he gave to Sir William to pay it to Cassie, bore expressly, (whether verbal or in writing,) that he should only pay it in part of the bond bearing annualrent, and not of the subscribed account, which bore none; in which case he could only recur against Sir William, and not against Andrew Cassie: for though, in the case of indefinite payment, the debtor has the application, and it should be ascribed in duriorem sortem, to extinguish the debt that is heaviest to the debtor; yet where the creditor has expressly applied it already by his discharge, that must be the rule; and, even in the general, the durior sors does not always take place, for it defaulks primo loco from the annualrents, and only secundo loco from the principal sum, though that be unquestionably the sors durior. But what seemed severe in this interlocutor was, that James Bain himself was not the payer, nor accepted of the discharge so qualified and applied, (in which case there would have been no doubt but it would have bound him,) but the same is made by a third party by his direction; his fault only was, that his order was not special, to what sum he would have the payment ascribed. And whereas the subscribed account, by the decreet, was also made to bear annualrent, it was thought James might be reponed against that, because it was only as holding him confessed on a promise of payment of annualrent.
