Scottish Court of Session Decisions

Subject_1 BONA FIDE PAYMENT.
Subject_2 SECT. II.

Payment to a Person who has lost his Right; to one who is not the true Creditor; to a Creditor denuded. Bona Fide Payment must be actual and real Payment.

Montgomery of -
v.
-

Date: 19 July 1662
Case No. No 20.

Payment bona fide of a particular bond, was sustained, though after intenting of reduction, as there was no special reason of reduction libelled.

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Mr William Wallace having obtained a disposition of the lands of Hagburn from Thomas Hunter, he gave a back-bond, obliging him to sell the same at the best avail, and, as a part of the price, to pay a bond of provision to Thomas's sisters and brother, granted by their father, and having retained his own sums, and such as he was cautioner for, was obliged to count for the rest; and being first pursued before the Englishes, and now before the Lords, he was decerned to take the lands at sixteen years purchase and a half, and to count accordingly. It was alleged, He could not have allowance of the sums paid to the brother and sister, because these could not exclude lawful creditors. It was answered for Mr William, He had paid bona fide a part, and had given bond for the rest, and could not now be called in question. It was answered, he was in mala fide, because the payment was made after intenting of the reduction against his right, at the pursuer's author's instance. Mr William answered, non relevat, unless there had been a reason libelled in that reduction against these bonds. The pursuer answered, It was sufficient that reduction was used against, the whole right, to which any reason might be added.

The Lords found this allegeance not relevant to put Mr William in mala fide, unless there had been a special reason of reduction filled up, and shown to Mr William against these bonds particularly.

Fol. Dic. v. 1. p. 113. Stair, v. 1. p. 131.