Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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wTioTe burden of fuch expence falls upon the pofrerior
creditors.
i j. Apparent heirs are intuled to bring adlions of fale
of the eftates belonging to their anceftors, whether bank¬
rupt or not; the ex pence of which ought to fall upon
the purfuer, if there is any excrefcence of the price, after
payment of the creditors.
16. As proceffes of ranking and fale are defigned for
the common intereft of all, the creditors, no diligence car¬
ried on or completed during their pendency ought to
give any preference in the competition ' pendente l.ite, ni-
iil innovandum.
17. It is a rple in all real diligences, that where a cre¬
ditor is preferable on feveral different fubje&s, he cannot
ufe his preference arbitrarily, by favouring one creditor
more than another; but tnuft allocate his univerfal or
catholic debt propo-tionally againft all the fubje&s or
parties whom it affeifts. If it'is material to fuch cre¬
ditor to draw his whole payment out of any one fund, he
may apply his debt fo as may beft fecure himfelf; but that
inequality will be redtified, as to the pofterior creditors,
who had likewife, by their rights and diligences, affedted
*he fubjedls out of which he drew his payment, by obli¬
ging him to aflign in their favour his right upon the fepa-
rate fubjedts which he did not ufe in the ranking ; by
which they may recur againft thefe feparate fubjedts for
the (hares which the debt preferred might have drawn out
-of them. As the obligation to alEgo is founded merely
in equity, the catholic creditor cannot be compelled to it,
if his afUgning (hall weaken the preference of any feparate
debt veiled in himfelf, affedting the fpecial fubjedl fought
to be affigned. But if a creditor upon a fpecial fubjedt
(hall acquire from another a catholic right, or a catholic
creditor (hall purchafe a debt affedling a fpecial fubjedf,
with a view of creating to the fpecial debt a higher de¬
gree of preference than was naturally due to it, by an
arbitrary application of the catholic debt, equity cannot
protedt him from affigning in favour of the creditor ex¬
cluded by fuch application, efpecially if, prior to the
purchafe, the fubjedl had become litigious by the procefs
of ranking; for tranfmiflions ought riot to/hurt creditors
who are no parties to them, nor to give the purchafer
any new right, which was not formerly in himfelf or his
cedent.
Tit. 20. Of Obligations and Centrafis in general.
The law of heritable rights being explained, moveable
rights fall next to be confidered, the dodtrine of which
depends chiefly on the nature of Obligations. An obli¬
gation is a legal tie, by which one is bound to pay or
perform fomething to another. Every obligation on the
perfon obliged, implies an oppofite tight in the creditor,
fo that what is a burden inregard to the one is right with
Tefpedt to the other ; and all rights founded on obligation
are called perfonal. There is this eflential difference
between a real and a perfonal right, that a jus in re,
whether of property, or of an inferior kind as fervitude,
entitles the perfen veiled with it to poffefs the fubjedl as
his own ; or if he is not in poffefHon, to demand it from
the pofTeffors; whereas the creditor in a perfonal right
Von. II. No. 6j. 2
A W. 92*
has only jus ad rem, or a right to compel the debtor to
fulfil his obligation ; without any right in the fubjedl: tt-
felf, which the debtor is bound to transfer to him. One
cannot oblige himfelf, but by a prefent adt of the will.
A bare refoiution therefore, or purpoie to be obliged, is
alterable at pleafure.
2. Obligations are either, firft, merely natural, where
one perfon is bound to another by the law of natme, but
cannot be compelled by any civil adlion to the perform¬
ance. Thus, though deeds granted by a minor having
curators, without their confent, are null, yet the minor
is naturally obliged to perform fuch deeds ; and parents
are naturally obliged to provide their Children in reafon-
able patrimonies. Natural obligations intitle the creditor
to retain what he has got in virtue thereof, without being
fubjedted to reftore it. 2. Obligations are merely civil,
which may be fued upon by an action, but are elided by
an exception in equity; tijjs is the cafe of obligations
granted through force or fear, tec. 3. Proper or full
obligations, are thofe which are fupported both by equity
and the civil fandtion.
3. Obligations may be allb divided into, j. Pure, te
which neither day nor condition is adjedted. Thefe may
be exadfed immediately. 2. Obligations {ex d/e), which
have a day adjedted to their performance. In thefe, dies
fiatem cedit, fed non venit; a proper debt arifes from
the date of the obligation, becaufe it is certain that the
day will exift ; but the execution is fufpended, till the
lapfeof that day. 3. Conditional obligations ; in which
there is no proper debt (d/Vr non cedit) till the condition
be purified, becaufe it is poffible the condition may exift ;
and which therefore are (aid to create only the hope of a
debt; but the granter, even of thefe, has no right to re¬
file. An obligation, to which a day is adje<Sed that pof-
fibly may never exift, implies a condition ; dies incertus
pro conditions habetur. Thus, in the cafe of a provifion
to a child, payable when he attains to the age of four¬
teen, if the child dies before that age, the provifion falls.
4. Obligations, when confTdered with regard to their
caufe, were divided by the Romans, into thofe arifing
from contrail, quafi contradt, deliil, and quafi-delidti
But there are certain obligations, even full and proper
ones, which cannot be derived from any of thefe fources,
and to which Lord Stair gives the name of obediential.
Such as the obligation on parents to aliment or maintain
their children; which arifes fingly from the relation of
parent and child, and may be enforced by the civil magi-
llrate. Under parents are comprended the mother, grand¬
father, and grandmother, in their proper order. This
obligation on parents extends to the providing of their
iffue in all the neceffaries of life, and giving them fuitable
education. It ceafes, when the children can earn a lively-
hood by their own induftry; but the obligation on pa¬
rents to maintain their indigent children, and reciprocally
on children to maintain their indigent parents, is perpe¬
tual. This obligation is, on the father’s death, transfer¬
red to the eldeft fon, the heir of the family; who, as
reprefenting the father, muft aliment his younger bro¬
thers and filters : The brothers are only intitled to alimo¬
ny, till their age of twenty-one, after which they are
prefumed able to do for themfelves ; but the obligation
9 21 to