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In an action pursued by the Laird of Touch, as assignee constitute by William Hume, Provost of Dunglass, to the duties of the Prevostry, addebted to him, against the tenants intromitters, and addebted in payment of the said duties, the Lords found the payment made of the said duties by the tenants to the Earl of Hume, who was father to the Provost, for he was a bastard and a natural son to the Earl of Hume, and which payment was made to the father, the son who was Provost being minor all the years of the payment, to be relevant to defend the tenants, and that the said payment was made bona fide, and so sufficient to liberate the tenants; albeit it was answered for the pursuer, that the said payment could not be found good, which was made by them to the father, seeing the father could not be found lawful administrator to a bastard son, as in filiis legitimis, especially seeing the son being a Church-man, viz. a Provost, of whose benefice the father is not presumed to be lawful administrator: Likeas, the pursuer, to exclude bonam fidem, and to put the defenders in mala fide, offered to prove, that the Provost had obtained letters conform, upon this provision to the Provostry, before any payment made to the Earl of Hume, which Provost also had chosen an administrator and Economus to him in his benefice, and which Economus was in use to set tacks to divers persons, of the said benefice, and to receive the Provost's duties, and to give acquittances thereupon; likeas, the same tenants were convened at the Provost's instance and this Economus per expresum in an action of improbation, which was a sufficient intimation that he was the person to whom the only payment should have been made, and to none other; which reply was repelled, and the exception and payment made to the father sustained, and found done bona fide, seeing the father was found to be lawful administrator to his bastard son was in these things which are given to him by the father, as was this Provostry, whereto he was presented, and provided by the father; and also, in respect that the defenders offered to prove, that the duties paid by them to the father, were converted and applied by the father to the entertainment and maintenance of the Provost at schools and virtue, partly within, partly without the country, which was found, being applied to that use, to be as sufficient, as if the payment had been made to the Provost's self or to his Economus. Quia extraneus potest dare curatorem rebus a defuncto minori relictis.
Act. Stuart & Craig.Alt. Hope.Clerk, Gibson.
Durie, p. 120.
