1000000030

other rart, he is iotitkJ tO the reeovery of his necen,try

dilborfemeots 00 Ihe Cubjeé! , aod tO be rdievell of the

obligatioos io whi. h he may have Louod hiOlfelt iD con–

fequenee of the

OI~nagcmcnt,

lntlebili l ol//Iio,

Or the pal'lnent to one of what

is not due to him, ir

m~de

throllgh

~ny

millake, either

of fall, Or even of law, fOllnds hilo who made the pay–

ment in an allion againll the receiver for repayment

(conditliDindrbili.)

This allion does not lie, l.

the

/iun

paij wasdue

t.r

«quilalt,

or by a naturol obligation

for tbe obligatioo to "llore is founded (olely in equily,

he who made the payment koew that nothing was

due

for

qui con/"IIO dal quod non d.6t6a l, prtejul/lilur

donan.

16,

Wllere IWO or more perCon! become eommon pro–

prietors of the

(~me

Cubjell, either by Icgacy, gift or

purehaCe, withoul Ihe viewof co.partner!hip, an

oblig~lion is thereby created among Ihe proprielors 10 commu–

nicate thc profil and 10Cs arifing from the fubj eét, while

it remains common : And Ihe fubj eét may be divided at

Ihe (uil of any having intm ll, This divifion, where the

quellioo is among the common proprielors, is

-ccordillg

Ihe .a/ualion

Ih,ir "fpdliv< pro/,erli,, :

But,

where

~he

quellion is belween the

pr~prielors

and thoCe

having fervitudes upoo theproperty, thefuper6ce is only

divided. without prejudice to the property. Commonlies

belonging

tll

Ihe King, or 10 roy,1 boroughs, are nOI di–

tifible'. Landslying runrig, and belonging 10 different pro–

prietolS, may bc divided, with Ihe exception

borough

aDd incorpormd acres

the exeeulion of whieh is com–

mitted tO Ihe judge-ordiDary, or jumees of the peaee.

17. The throwing of goods omboard, (or lightening

a !hip io a Ilorm, creates an obligation, whereby the

owners of the Ihip and goods faved are obliged 10 coo–

tribute for Ihc relief uf thofe whoCe goods were Ihrown

overboard, that fa all may bear a proportional lo(s of

the goods ejeéted for the commonCafety. In Ihis contri·

bulion, Ihe !hip's provifioos fulfer no ellimalioo. A Ola–

/Ier who has cut his mall, or

p~md wil~

his anchor, to

fave the !hip, is intided to this relief; bUI if he has loll

them by the norm, the lo(s falls only

the !hip aorl

freighl.

the ejelliondoes not fave the !hip, thegoods

preferved from !hipwreck are nOI liable in contribution.

Ejeétion maybe lawfully made, if the maller and a Ihird

par! of them"iners judge

th~1

meafurenecell'"y, though

the owner of Ihe goods Ihould oppo(e it: Aoo the gQods

cjelled are 10 be valued al the price that the goods

of Ihe (ame fon "hich are faved Olall be

aflerw~rds

fold (or.

18. There nre c.nain obligations, which cannot (ub–

fin

by lhemfd "es, but are accdlions to, or

m~ke

a pm

of olher obligallons. Of this (orl are fidejllllion, and Ihe

obligation

pay iQlercO, Cautionry, or fidejllllion, is thal

oblig~tion

by which one bccomes engaged as Cccurity for

another, th, t he Ihall either

p~y

a film, or perform .deed.

19, A calltioner for a fum of money Olay be bOllnd,

either fim ply as cau:ioner for the principal debtor. or

coojunllly and feverally(ur and with the princip,1dehtOr,

The r,rll h,s, byour CUIlOOlS, the

h~I/'I,illlll

ordiniJ,

or difculliun ; by whieh the m dilOr is ubliged 10 diCcuC,

Ihe plopera, UlOr, bcfo:ehccan inlin for payn,col

~Cainl!

th: camionero Where one is uound as (u11 dzbtnr witb

~nd

for the principal, or conj"nétly and

C~verally

with

hilO, lIle I\VO obliganl$ are bound equally in the (ame

obllgation. eaeh

in [o/idum

and

coore~uently,

Ihe cau–

lion~r,

though he is but ao accell'ory, may Le (ued for the

whole, withouteitherdifcufling, or even citing the priocipal

d~btor.

C.utioners for

pertorm~nce

of fall s byanother.

Or for thefailhfu ldiCchorge of an ollice,

~. g.

for fallors.

lutors,

&c.

cannot by Ihe oature of their engagement

be bouno eonjunllly and (evmlly with the principal ob–

liganl, becau(e the faét tO which the principal is bound

cannot pollihly be pcrformed by any other. In fuch eo–

gagemenu, therefore, Ihe fai lure mull Ue previouOy coo–

lIiluted againll Ihe proper debtor, before allion can be

brought againfi Ihe caulioDer, for maing up the lofs oí

the party fufTering,

20.

The caulioner, who binds himfelf at Ihe defire'of

the principal debtor, ' has an

. {/jolIIandJli,

or of relief

againll him, for recovering Ihe principal aod interen paid

by hiOlfdf 10 Ihe credilor, and (or' necell'ary

d~mages

which allion lies

j l ft,

thollgh Ihe creditor Ihould!,ot

aJlign 10 him on paymenl.. As relief againn :he deblor

is implied in fidejull'ory obligations, Ihecauliooer, where

fueh relief is CUI olf, is no longef bound: Heoce, Ihe

defence of prefcriplion frees the eautioner, as well as tite

principal debtor. .

But,

Where the cautionry is interpoCed 10 an

obligation mereJy natural, Ihe relief is rellrilled 10 Ihe

funu that have really lurned to Ihe debtor's profil.

A cauliooer who pays withoul citing the deblor, lolés

his relie(, in

far as Ihe debtor had a relevant defence

again/l thedebl, iowholeor in parto Re/id is 001 com.

petenl to the cautioner, till he either pays the debt, or

is dillrerred for it ; except, l . Where Ihe deblor is

el(–

prefsly bound to deliver 10 the caulioner his obligadon

cancelleo, agaion a day cemin, and has failed; or,

Where the deblor is

."gml .d

i~opiam

;

iD whieh cafe

Ihe cautioner may, by proper diligence, fecure the debl–

or's funds for his

own

relief, even befare payment or

dinreCs.

22.

A riglll of rslief is competent

de jure

to Ihe cau–

tiooer who pays agaioll his co·cautioners, unlefs where

Ihe c.utioner appears 10 have renounced it. In coof.–

quence of this implied relief, 1 credilor, if be !hall grant

a difcharge to any one of the cautioners, muO, in demand–

inC' Ihe debt from the others, 'dedu& thal part, as to

which he has cut olf their relief. by. Ihat dilcharge.

\Vhere a camioner in a bond figns a bond of corrobora–

lion, as a principal obliganl IVith the proper

d~btor,

and

with thema nelV cautiooer, Ihe

c~utioner

in the newbond

is intitled to a lotal relief 'gainl! the firll caulioner, al

whofe defire he is prcfuOled ro be bOllnd

Cautionry is alfo judicial, as in • CuCpenfion. 11

is fu"ffi eient to 100Ce the eaulioner, Ihal whcn he

bec~me

b~lInd,

the fufpender had gOl)d leafon to f"fpend,

t .

if thecharger had

allh~1

pcrioo no litlc, nr had not Ihen

performed his port, Ihough Ihde

grollnds ?~

furpenr,on

nlO"ld he aftcrlVa,Js I.ken olf. In

~II

r.13T1I1Ole Clnf",s,

IVhere the parties are freq"ently forcigners. the d. fcnder

mnl!

~ivc

COlllioll

j/ldid, Jijli

j //.Iirdl''''' f."'i :

S".:h

eaulion~r g~ts

flt<by the dc,lIh of tite J

'(~nJer

befur.

rent·:oce ;