[1666] Mor 1790
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.
Date: Pennicook
v.
Lord Rutherfurd
10 January 1666
Case No.No 22.
Found in conformity with No 17. p. 1787.
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The deceased Earl of Teviot did leave in legacy to Mr Archibald Wilkie, the liferent use of L. 1000 Sterling; the fee thereof he did destinate for redeeming the said Mr Archibald his lands, in favour of Mr Archibald's son, Alexander Pennicook, as donatar to Mr Archibald his liferent and escheat; and having obtained general and special declarator thereupon, has now intented process against the new Lord Rutherfurd his tenants, and against him for his interest, for making arrested goods furthcoming. It was alleged for the Lord Rutherfurd, No process, at the donatar's instance, for one year's annualrent of the legacy, because, he had made payment thereof to the rebel himself, and received his discharge thereof, before the intenting of the special declarator.—It was replied by the pursuer, That he opponed his special declarator wherein the Lord Rutherfurd was compearing; and the allegeance being then competent, was omitted.——The Lords, in respect of the Lord Rutherfurd's absence the time of the dispute in the special declarator, and that the decreet was once stopt, reponed him to his defence; and being reponed, found that a debtor to the rebel was in bona fide to pay him, and to accept of the rebel's discharge quocunque tempore, before the special declarator; and found, that a general declarator does not put the rebel's debtor in mala fide, in regard the citation is only general at the market cross.
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