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

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other part, he is intitled to the recovery of his neceflary
diftmrfements on the fubjedt, and to be relieved of the
obligations in whi h he may have bound hinifelf in con-
fequence of the management.
15. Indebiti folutio, c the payment to one of what
is not due to him, if made through any miftake, either
of faft, or even of law, founds him who made the pay¬
ment in an adtion againfl the receiver for repayment
(.condittio indebiti.) This adlion does not lie, 1. If the
fum paid was due ex xquitate, or by a natural obligation ;
for the obligation to reftore is founded folely in equity.
2. If he who made the payment knew that nothing was
due ; for qui confulto dut quod non debebat, prafumitur
donate.
16. Where two or more perfons become common pro¬
prietors of the fame fubjedt, either by legacy, gift or
put chafe, without the view of co partnerlhip, an obliga¬
tion is thereby created anrtong the p oprietors to commu¬
nicate the profit and lofs arifing from the fubjedf, while
it remains common : And the fubjedt may be divided at
the fuit of any having interert. This divifion, where the
queftion is among the common proprietors, is according
to the valuation of their refpettive properties : But,
where the queltion is between the proprietors and thofe
having fervitudes upon the property, the fuperfice is only
divided, without prejudice to the property. Commonties
belonging to the King, or to royal boroughs, are not di-
vifible. Lands lying runrig, and belonging to different pro¬
prietors, may be divided, with the exception of borough
and incorporated acres ; the execution of which is com¬
mitted to the judge-ordinary, or juftices of the peace.
17. The throwing of goods overboard, for lightening
a (hip in a florm, creates an obligation, whereby the
owners of the fiiip and goods faved are obliged to con¬
tribute for the relief of thofe whofe goods were thrown
overboard, that fo all may bear a proportional lofs of
the goods ejei^ed for the common fafety. - In this contri¬
bution, the'fhtp’-s provifions fuffer no eftimation. A ma¬
iler who has cut his mad,-or parted with his anchor, to
fave the {hip, is intitled to this relief; but if he has loft
them by the ftorm, the lofs falls only on the fhip and
freight. If the ejection does not fave the fhip, the goods
preferved from (hipwreck are not liable in contiibution.
Ejeftion may be lawfully made, if the mafter and a third
part of the mariners judge that meafure neceffary, though
the owner of the goods (hould oppofe it: And the goods
ejected are to be valued at the price that the goods
of the fame fort which are faved {hall be afterwards
fold for.
18. There are certain obligations, which cannot fub-
fift by themfelves, but are acceflions to, or make a part
of other obligations. Of this fort are fidejuflion, and the
obligation to pay intereft. Cautionry, or fidejufiion, is that
obligation by which one becomes engaged as fecurity for
another, that he {hall either pay a fum, or perform a deed.
19. A cautioner for a 'fum of money may be bound,
either fimply as cautioner for the principal debtor, or
conjuniftly and feverally for and with the principal debtor.
The firft has, by our cuftoms, the beneficium ordinis, or
of difcuflion ; by which the creditor is obliged to difcufs
the proper debtor, before he can infift for payment againft
A W.
the cautioner. Where one is bound as full debtor with
and for the principal, or conjun&Iy and feverally with
him, the two obligants are bound equally in the fame
obligation, each in folidum ; and confequently, the cau¬
tioner, though he is but an acceffory, may be fuedforthe
whole, without eitherdifcuffing, or even citing the principal
debtor. Cautioners for performance of fafts by another,
or for the faithful difcharge of an office, e. g. for fadtors,
tutors, &c. cannot by the nature of their engagement
be bound conjun&ly and feverally with the principal ob-
ligant, becaufe the fadt to which the principal is bound
cannot poffibly be performed by any other. In fuch en¬
gagements, therefore, the failure muft be previoufty con-
ftituted againft the proper debtor, before adtion can be
brought againft the cautioner, for making up the lofs of
the party fufFering.
20. The cautioner, who binds himfelf at the defire of
the principal debtor, has an aftio mandati, or of relief
againft him, for recovering the principal and intereft paid
by himfelf to the creditor, and for neceflary damages ;
which adtion lies de jure, though the creditor Ihould not
affign to him on payment. As relief againft the debtor
is implied in fidejulfory obligations, the cautioner, where
fuch relief is cut off, is no longer bound : Hence, the
defence of prefcription frees the cautioner, as well as the
principal debtor.
21. But, 1. Where the cautionry is interpofed to an
obligation merely natural, the relief is reftridted to the
fums that have really turned to the debtor’s profit. 2.
A cautioner who pays without citing the debtor, lofes
his relief, in fo far as the debtor had a relevant defence
againft the debt, in whole or in part. Relief is not com¬
petent to the cautioner, till he either pays the debt, or
is diftreffed for it; except, 1. Where the debtor is ex-
prefsly bound to deliver to the cautioner his obligation
cancelled, againft a day certain, and has failed ; or, 2;
Where the debtor is vergens_ad inopiam ; in which cafe
the cautioner may, by proper diligence, fecure the debt¬
or’s funds for his own relief, even before payment or
diftrefs.
22. A right of relief is competent de jure to the cau¬
tioner who pays againft his co-cautioners, unlefs where
the cautioner appears to have renounced it. In confe-
quence of this implied relief, a creditor, if he fhall grant
a difcharge to any one of the cautioners^ muft, in demand¬
ing the debt from the others, deduft that part, as to
which he has cut off their relief by that difcharge.
Where a cautioner in a bond Ggns a bond of corrobora¬
tion, as a principal obligant with the proper debtor, and
with them a new cautioner, the cautioner in the new bond
is intitled to a total relief againft the firft: cautioner, at
whofe defire he is prefumed to be bound,
23. Cautionry is alfo judicial, as in a fufpenfion. It
is fufficient to loofe the cautioner, that when he became
bound, the fufpender had good reafon to fufpend, e. gi
if the charger had at that period no title, or had not then
performed his part, though thefe grounds of fufpenfion
fhould be afterwards taken off. In all maritime caufes,
where the parties are frequently foreigners, the defender
muft give caution judicio ftjli et judicatum folvi : Such
cautioner gets free by the death of the defender before
fentence 5,