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.
Donatar of L Cleghorn's Escheat v. Tenants
Date: 30 January 1628 Case No. No 17.
The debtors of a rebel, whose liferent escheat had been gifted, were found in bona fide to pay him before special declarator. A general declarator, which is executed only at market cross, does not put the rebel's debtors in mala fide.
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In a special declarator by the donatar of L. Cleghorn's liferent, after a general declarator, against the tenants of certain of the rebel's lands, for payment of certain farms of the lands possessed by them, of all years since the rebel was year and day at the horn:——The Lords found the payment made by the said tenants, defenders, to the rebel himself, of all years preceding the citation of them in this special declarator and summons, to be sufficient to liberate them at the hands of the donatar, seeing they were in bona fide to pay their farms and duties to their master, to whom they were in use to pay before his rebellion; whose rebellion they might excusably not know before it was intimated by citation to them particularly: And albeit the pursuer replied, That this payment ‘could not be admitted for any terms since the decreet of general declarator, seeing that sentence put all the lieges in mala fide to deal with the rebel, in prejudice of the king and his donatar, seeing all parties having interest were cited thereto: Yet the reply was not sustained, but the payment made after the general declarator was allowed, for all terms preceding the special citation of these parties, even for the terms intervening, after the general declarator, and before the special citation.
Act. Mowat.Alt. ——
Fol. Dic. v. 1. p. 113. Durie, p. 336.*** The same case is observed by Spottiswood:
A General declarator puts not the rebel's tenants in mala fide to pay their farms to him, found in a special declarator pursued by Cleghorn younger against his father's tenants, who alleged that they had paid bona fide their farms to his father the rebel, as they were wont to do, and that before the mention of the pursuer's special declarator: Which exception was sustained.
