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.
Homes v. John Bonnar
Date: 14 December 1601 Case No. No 19.
A debtor having transacted with the supposed creditor, and obtained his discharge, his bona fides was found relevant only for what was truly paid.
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Mary and——Homes, as donatars to the escheat, and liferent, of umquhile John Home, pursued John Bonnar, for count, reckoning, and payment of the sum of 16,000 merks due to the rebel, for the price of a house. The defender alleged absolvitor, because he had bona fide made count, reckoning, and payment to Mr Alexander Home, assignee constituted by the rebel, before any citation or diligence done against him, to put him in mala fide so to do, and produced the assignee's discharge, bearing, that the defender had made count with the assignee, and that there remains only the sum of 1100 merks, which he acknowledges to have received, and therefore discharged him of the whole. The pursuers alleged, the discharge, not hearing payment of the whole sum, but only of 1100 merks, nor yet bearing, that the instructions were given up to the assignee, cannot exoner the defender; but he must yet reproduce the account and instructions thereof; likeas he has produced a great part thereof in this process; because no discharge could be relevant to liberate this defender, but only payment made bona fide.
The Lords found the discharge sufficient to liberate the defender; mainly, because, albeit the discharge mentions not the instructions to be given up, yet the defenders were not obliged to preserve the same, or be at the hazard thereof. The pursuer further offered them to prove, that the defender had yet in his hand the account and whole instructions, and therefore ought to reproduce the same, that the Lords might consider, whether the rebel's assignees had allowed any thing to him, which ought not to be allowed, and did belong to the donatar; which the Lords sustained.
