BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Smith v James Oswald. [1687] Mor 6802 (00 November 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Mor1606802-004.html Cite as:
[1687] Mor 6802
Click here to view a pdf copy of this documet : PDF Copy
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.
