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.

Mr John Stuart of Ascog, Baillie Hope, and Other Creditors of the deceased James Muirhead of Stevenson,
v.
The Earl of Orkney, and William Hamilton of Wishaw

Date: 12 June 1713
Case No. No 26.

A person who had received money from a person holding English letters of administration, was found to have been paid bona fide, in competition with creditors regularly confirmed executors in Scotland, although the letters of ad ministration had been improperly taken out.

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Ascog and others confirmed before the Commissaries of Edinburgh executors qua creditors to James Muirhead who died in Flanders, pursued the Earl of Orkney, as having intromitted with their debtor's money, and the Laird of Wishaw who received it from the Earl.

Alleged for the Laird of Wishaw: He cannot be obliged to repeat or pay back the money: Because, 1mo, He, as creditor to James Muirhead, had, by virtue of letters of administration from the Prerogative Court of Canterbury, uplifted the money from the Earl of Orkney, residing in England, as Colonel of an English regiment, before the pursuer's confirmation in Scotland. And James Muirhead having died an officer in a regiment under English pay, in a foreign country, without having larem & focum, or any effects in Scotland, (whereby he had changed his domicilium), there was no other way to affect the money which he left behind him, but by administrating to him conform to the law of England. 2do, An administration in England being a title of intromission, equal to a confirmation in Scotland, February 1687, Elliot of Dunlabyres contra Dryden*; and the defender being prior tempore in diligence, is potior jure: But again, 3tio, Whatever might be said were the money still in medio unuplifted, yet after the defender, invested with a lawful and effectual title, hath bona fide uplifted the money, and got payment, it were strange to make him refund it, qui suum recepit! And as, by our law, an executor, though not qua creditor, uplifting the defunct's money, may exhaust the same by debt due to himself before the confirmation, merely exceptione compensations, Stair, Instit. tit. Executry,

* See Service and Confirmation.—Foreign.

§ 73. January 26. 1628, Adie contra Gray, Durie, p. 332. voce Passive Title: Multo magis may this be done by the defender, who is administrator qua creditor for debt due long before the administration.

Answered for the pursuers: Had the subject of the competition been res mobiles, (which we call goods as distinct from sums of money or obligations for money), a title behoved to have been made up to them in Flanders, where Muirhead died, and the goods were. But here the question is concerning a sum of money belonging to a Scotsman dying abroad, which, as res fungibilis, usu perit, and can be no otherways affected than by a confirmation in Scotland, which is additio hæreditatis mobilium. The defunct's dying in Flanders at the time of payment, will make no alteration in the point of law: For the maxim, mobilia sequuntur personam, must be understood either of the place where he died, and then it excludes the English administration, as well as the confirmation in Scotland; or it must be understood of the locus originis, which affords preference to the pursuers, who have made up their title in Scotland. Nor doth the English administration concern the Earl of Orkney, who made payment to the defender; the Earl being a Scottish man, and a Scottish Peer, and commander of a regiment originally levied in Scotland, (though under English pay), and subject to answer before the Courts in Scotland. The practick in February 1687, Elliot of Dunlabyres contra Dryden, is a quite different case; for an English administration might be a colourable title to excuse from vitious intromission, and yet not sufficient, to prefer in a competition, 2do, Where can there be a legal bona fides with such defects, which might as well be pretended from a title made up in any foreign country? Again, bona fides doth liberate a man from repetition of annualrents, fruits, and profits, but never from answering for the stock or inheritance. And the brocard suum recepit holds only, 1mo, Where payment is made by the debtor, and not where it is recovered by diligence out. of his effects: 2do, Where the diligence is just in the form of law, though not preferable. Neither of which can be applied to this case.

The Lords sustained Wishaw's allegeance and defence, That he, a true creditor of the defunct, did bona fide uplift the money by virtue of an administration in the Prerogative Court of Canterbury, before, any process or confirmation in Scotland. See Foreign.

Forbes, p. 677.