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.

Henry Ecclis and David Craigie, Merchants in Edihburgh
v.
William Roberton, Vintner in Holyroodhouse

Date: 14 January 1715
Case No. No 27.

A person ordered another to buy wine for him. The merchant sent it immediately to the former. He notwithstanding accepted a bill drawn by the person whom he employed to buy; which, in the circumstances, he was found in bona fide to pay.

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The said William Roberton haying employed John Lind, cooper in Leith, to choice and send up to him two hogsheads of wine; Lind accordingly choosed one of them, in the cellar belonging to Henry Ecclis and David Craigie, which they thereupon sent up to Roberton. Thereafter the said merchants having acquainted Roberton that they had sent him a hogshead of wine, which Lind had bought on his account; he told them, that he had employed Lind, but knew not from whom he had got the wine: Whereupon Roberton goes with them to Lind's house, where Lind told him, that one of the hogsheads was got from the pursuers, in presence of Mr Ecclis, one of them, and several others; but gave no express order to Roberton to pay them. Nevertheless, sometime thereafter, Lind draws a bill upon Roberton for the price of both the hogsheads, payable to James Murray merchant; wherewith Roberton having acquainted the pursuers, and certisied them, that if they did not settle the matter with Lind he would accept the bill: Accordingly, after three months delay, he accepted, and thereafter paid the whole to Murray. But Mr Ecclis and Craigie insist against him still, as liable to them in payment of an hogshead: And that,

1mo, Because a cooper is only employed as a proxeneta or broker, for tasting and choosing wine, which the merchant himself sells to the vintner. Nay, by the custom of all trading nations, observed by Scaccia de Mercatura, brokers are prohibited to deal for their own behoof in those subjects in which they use to procure for others, 2do, Lind, in his above declaration, says not that he bought the wine from the pursuers, but that it belonged to them, and therefore he is to be considered only as a nuncius or servant. 3tio, Though Lind had really bought the wine himself, yet his above declaration evinces, that if they sold it to Lind, it was in Roberton's name.

Answered for the defender, to the 1st, That the assertion is without either authority or reason; for, as it is arbitrary for any man to gratify another by buying any thing upon his own credit, and giving it to his neighbour at the same price, so it were ridiculous to cut off coopers from the common privileges of mankind. And, in our practice coopers do trade for their own behoof; nay by the law of the burgh, they must be burgesses and guild, and consequently are entitled to merchandize. To the second and third, answered, That the simple declaration that the wine belonged to the pursuers could never infer that the defender thereby became liable to them; for one would think, if Lind had intended any such thing, he would have drawn a bill upon the defender to the pursuers, as he did to James Murray; and having not done it, it is clear that he acted not as a proxeneta, but judged himself bound for the price, 2do, The defender never having agreed to become the pursuer's debtor, and thus remaining still debtor to Lind, with whom only he contracted, he did optima fide thereafter accept of his precept, and pay it to Murray accordingly; specially considering his delay for three months to accept, and his desiring them in the interim to do something in the matter, with certification that he behoved otherwise to accept: So that it is plainly imputeable to themselves, that they did not either adjust the matter with Lind and Murray, or secure the price in the defender's hands by an arrestment.

The Lords found, That the payments made by the defender to Murray by Line's order, were Made bona fide; and that the same is relevant to assoilzie, unless the pursuers offer to prove, by the defender's oath, that he promised to pay them, or that Lind ordered the defender to pay them, and that he acquiesced.

Act. Robert Craigie. Alt. Walter Steuart. Clerk, Roberton. Bruce, No 26. p. 34.