A tutrix granted a personal bond of corroboration for a sum of bygone annualrents, in an heritable bond upon her pupil's estate. Found that partial payments were to be imputed in satisfaction of the bond of corroboration in which she was personally bound, and not of the subsequent annualrents of the heritable bond, for which she was liable only tutorio nomine.
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The Laird of Comistoun having granted to the Lady Semple an heritable bond upon his estate for L. 24,000, the granter's Lady, after his decease, did, by her bond of corroboration, as tutrix for her son, oblige herself personally for L. 3691 of bygone annualrents of the foresaid principal sum, resting by him, as heir to his father; but, at the same time, got a backbond from the Lady Semple, suspending personal execution against herself for seven years, and reserving all manner of execution against Comistoun and his estate; so be, that the current annualrents of the corroborated sum, and the whole L. 24,000, were duly paid.
The Lady Comistoun being charged upon her bond of corroboration, after she had made several partial payments indefinitely, and having suspended, the Lords found these partial payments applicable to the sums charged for, and not to be imputed in satisfaction of the annualrents of the L. 24,000, which the payer was liable for, tutorio nomine.
Albeit it was alleged for the charger, That the payments should be ascribed in satisfaction of the sum and annualrents, which, by the backbond, were to be punctually paid, and the suspender was liable for, as tutrix to her son, and could not be imputed to extinguish any part of the bond charged for, in regard the same stood suspended, as to execution, for seven years, upon the condition of punctual payment of the annualrents of all sums due by her, or her son, to the charger. For, albeit a debtor hath the election to impute indefinite payments to what debt he will, yet that election is restricted by l. 3. sect. 1. D. De Solut. so that he cannot apply his payment by emulation, in prejudice of the creditor, to extinguish a principal sum, while any annualrents are due; all payments being first ascribed to annualrents.
In respect it was answered for the suspender, That she, a debtor, having paid indefinitely, hath jus applicandi, and doth apply the payment to extinguish the bond charged on, bearing annualrent, as the durior sors, which she may do, more especially in this case, where the bond bears to have been granted for annualrents due by her son, the uplifting of whose rents, and applying them to satisfy the said bond, was an application in payment of the charger's annualrents. 2do, Some of the payments expressly relate to sums due by the suspender herself; and so it is, that she owes not a sixpence to the charger, beside the sums charged for; nor yet is the L. 24,000 debt so much as constituted against her pupil.
