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Scottish Court of Session Decisions >>
Paterson v Executors of Paterson. [1626] Mor 1786 (18 March 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor0501786-016.html Cite as:
[1626] Mor 1786
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.
Paterson v. Executors of Paterson
Date: 18 March 1626 Case No. No 16.
Payment being made to one confirmed executor, qua nearest of kin to the creditor, the same was sustained, though the creditor was a bastard, and could have no nearest of kin, which the debtor was not bound to know.
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A pursuit being moved at the instance of John Paterson, as donatar to the bastardy of umquhile Robert Hunter, and as having right from the King as ultimus hæres to umquhile James Hunter, son to the said bastard; which son died without bairns, and intestate, against the executors of umquhile Thomas Paterson, debtor to the said James Hunter, son to the said bastard, in a special sum of money, for the which they were convened, by a special declarator, to make payment to the donatar: The said Thomas Paterson's executors alleged, That they had made payment of the sum and debt libelled, to the said umquhile James Hunter, son to the bastard, his executor confirmed, before the intenting of this cause, or granting of that gift to the donatar: Which the Lords found relevant to liberate the defender at the donatar's hand, seeing the defender had no necessity to inquire or to know the condition of the creditor, if he was the son of a bastard or not, or if the king would have right, as ultimus hæres; but that there being a testament confirmed, by the which an executor dative was decerned to the son of the bastard, the debtor was in bona fide to pay the debt to the said executor confirmed, notwithstanding that the executor was not nominate by the defunct's self, who died intestate and within the age of pupillarity. And the Lords sustained the said payment made to the said executors confirmed; albeit it was voluntarily done, and without any sentence recovered against them to that effect, by the said executors, before the payment, as the donatar alleged ought to have preceded before they could have paid; which the Lords repelled, and found no necessity of a sentence; but that the debtor might lawfully pay to the executor confirmed voluntarily, without any process or sentence. The Lords nevertheless reserved to the donatar his action for the said sum against the executor, to whom the payment was made prout de jure.
Act. ——.Alt. Burnet.Clerk, Hay.
Fol. Dic. v. 1. p. 113. Durie, p. 193.
