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

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rteficium competently, in virtue of which they might re¬
tain fuch part of the donation as was neceffary for their
own fubfidence. Our law allows this benefit to fathers,
with refpeft to the provifions granted to their children,
and to grandfathers, which is a natural confequence of
childrens obligation to aliment their indigent parents;
but to no collateral relation, not even to brothers.
32. Donations, made in contemplation of death, or
mortis caufa, are of the nature of legacies, and like them
revokable : Confequently, not being effedtual in the gran-
ter’s life, they cannot compete with any of his creditors ;
not even with thofe whofe debts were contra&ed after
the donation. They are underftood to be given from a
perfonal regard to the donee, and therefore fall by his
predeceafe. No deed, after delivery, is to be prefumed
a donatio mortis caufa; for revocation is excluded by
delivery.
33. Deeds are not prefumed, in dubio, to be dona¬
tions. Hence, a deed by a debtor to his creditor, if
donation be not expreffed, is prefumed to be granted in
fecurity or fatisfaftion of the debt; but bonds of provi-
fion to children are, from the prefumption of paternal
affection, conftrued to be intended as an additional patri¬
mony: Yet a tocher, given to a daughter in her marriage-
contraiS, is prefumed to be in fatisfaftion of all former
bonds and debts ; becaufe marriage contracts ufually con¬
tain the whole prov ifions in favour of the bride. One who
aliments a perfon that is come of age, without an exprefs
padtion for board, is prefumed to have entertained him
as a friend, unlefs in the cafe of thofe who earn their li¬
ving by the entertainment or board of ftrangers. But
alimony given to minors, who cannot bargain for them-
felves, is not accounted a donation ; except either where
it is prefumed, from the near relation of the perfon ali¬
menting, that it was given ex pielate; or where the mi¬
nor had a father or curators, with whom a bargain might
have been ma4e.
Tit. 23. Of the Diffolution or Extinfiion of 0-
bligations.
Obligations maybe diffolved by performance or
implement, confent, compenfation, novation, and con-
fufion. 1. By fpecifical performance: Thus, an obliga¬
tion for a fum of money is extinguilhed by payment.
The creditor is not obliged to accept of payment by
parts, unlefs where the fum is payable by different divi-
fions. If a debtor in two or more feparate bonds to the
fame creditor, made an indefinite payment, without
afcribing it, at the time, to any one of the obligations,
the payment is applied, x. To intereft, or to fums not
bearing intereft. 2. To-the fums that are leaf! fecured,
if the debtor thereby incurs no rigorous penalty. But,
3. If this application be penal on the debtor, e. g. by fuf-
fering the legal of an adjudication to expire, the payment
will be fo applied to as to fave the debtor from that for¬
feiture. Where one of the debts is fecured by a cau¬
tioner, the other not, the application is tp be fo made,
cateris paribus, that both creditor and cautioner may
have equal juftice done to them.
2. Payment made by thedebtor upon a miftake in faft,
w.
to one whom he believed, upon probable grounds, to
have the right of receiving payment, extinguilhes the o-
bligation. But payment made to one, to whom the law
denies the power of receiving it, has not this effeift ; as
if a debtor, feized by letters of caption, Ihould make
payment to the meffenger; for ignorantia juris neminem
excufat. In all debts, the debtor, if he be not inter-
pelled, may fafely pay before the term, except in tack-
duties or feu-duties; the payment whereof, before the
terms at which they are made payable, is conflrued to
be collufive, in a queftion with a creditor of the landlord
or fuperior. Payment is in dubio prefumed, by the
voucher of the debt being in the hands of the debtor;
chirographum, apud debitorem repertum, preefumitur
folutum.
3. Obligations are extinguifhable by the confent of the
creditor, who, without full implement, or even any im¬
plement, may renounce the right conftituted in his own
favour. Though a difcharge or acquittance, granted by
one whom the debtor bona fide took for the creditor, but
who was not, extinguilhes the obligation, if the fatisfac-
tion made by the debtor was real; yet where it is imagi¬
nary, the difcharge will not fcreen him from paying to the
true creditor the debt that he had made no prior fatisfac-
tion for. In all debts which are conftituted by writing,
the extinfHon, whether it be by fpecifical performance,
or bare confent, mull be proved, either by the oath of
the creditor, or by a difcharge in wri’ing ; and the fame
folemnities which law requires in the obligation, are ne¬
ceffary in the difcharge : But, where payment is made,
not by the debtor himfelf, but by the creditor’s intro-
miffion with the rents of the debtor’s eftate, or by deli¬
very to him of goods in name of the debtor, fuch deli¬
very or intromiflion, being/in'?/, maybe proved by wit-
neffes, though the debt Ihould have been not only confti¬
tuted by writing, but made real on the debtor’s lands by
adjudication.
4. A difcharge, though it Ihould be general, of all
that the granter can demand, extends not to debts of an
uncommon kind, which are not prefumed to have been
under the granter’s eye. This doftrine applies alfo to
general aflignations. In annual payments, as of rents,
feu-duties, intereft, &c. three confecutive difcharges by
the creditor, of the yearly or termly duties, prefume
the payment of all preceedings. Two difcharges by the
anceftor, and the third by the heir, do not infer this pre¬
fumption, if the heir was ignorant of the anceftor’s dif¬
charges. And difcharges by an adminiftrator, as a fac¬
tor, tutor, <bc. prefume only the payment of all pro¬
ceeding duties incurred during his adminiftration. This
prefumption arifes from repeating the difcharges thrice
fiicceffively ; and fo does not hold in the cafe of two dif¬
charges, though they Ihould include the duties of three or
more terms.
5. Where the fame perfon is both creditor and debtor
to another, the mutual obligations, if they are for equal
fums, are extinguilhed by compenfation ; if for unequal,
ftill the leffer obligation is extinguifhed, and the greater
diminilhed, as far as the concourfe of debt and credit
goes. To found compenfation, 1. Each of the parties
muft be debtor and creditor at the fame time. 2. Each.
of