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.

Mackie
v.
Dumbar

Date: 9 December 1628
Case No. No 18.

A relict having no direct action against her husband's debtors, unless confirmed, it was found unwarrantable to pay her a third without sentence; and the debtors were obliged to pay the whole, notwithstanding, to the exetor.

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In an action Mackie against Dunbar, the executors of a defunct pursuing the intromitters with the goods and gear of another defunct, for payment to them of a debt owing by that defunct to him, to whom the pursuers were executors, and they alleging, That they had paid the third of that debt to the relict of the defunct, to whom they were executors; for the which they craved defalcation: This allegeance was repelled, and no defalcation was admitted for the relict's third, seeing no sentence was obtained by the relict against them therefor, without which they could not have been compelled to pay the same, seeing the debtor remains only obliged to the executor, and the executor to the relict, in those things which she hath not in possession in her own hands, and the relict hath her direct action against the executors, and not against the debtors to her husband. See Executor.

Fol. Dic. v. 1. p. 113. Durie, p. 407.