case, if no fault was directly imputable to the owner, he was entitled to free himself from all responsibility by abandoning the offending slave or animal to the person injured, which was called noxo dare.1 Though these noxal actions are not classed by Justinian under the title of obligations quasi ex delicto, yet, in principle, they evidently fall within that category.2 All animals feræ naturæ, such as lions, tigers, bears, and the like, must be kept in a secure place to prevent them from doing mischief; but the same vigilance is not required in the case of animals mansueta naturæ, the presumption being, that no harm will arise in leaving them at large, unless they are known to be vicious or dangerous. So where a foxhound destroyed eighteen sheep, belonging to a farmer, it was decided by the House of Lords in an appeal from Scotland, that the owner of the dog was not liable for the loss, there being no evidence necessarily showing either knowledge of the vicious propensities of the dog or want of due care in keeping him; and it was observed that, both according to the English and the Scotch law, "the culpa or negligence of the owner is the foundation on which the right of action against him rests."3 This decision, however, was modified by the Act 26 & 27 Vict. c. 100, applicable to Scotland, which declares that " in any action brought against the owner of a dog for damages in consequence of injury done by such dog to any sheep or cattle, it shall not be necessary for the pursuer to prove a previous propensity in such dog to injure sheep or cattle." "The occupier of any house or place or premises in which any dog which has injured any sheep or cattle has been usually kept or permitted to live or remain at the time of such injury, shall be liable as the owner of such dog, unless the said occupier can prove that he was not the owner of such dog at the time the injury complained of was committed, and that such dog was kept or permitted to live or remain in the said house or place or premises without his sanction or knowledge." 1 I. 4. t. 8 and 9. 2 Marezoll, § 150. 3 Fleeming v. Orr, 1855, 2 Macq., pp. 14 and 23. See also May v. Burdett, June 1846, 2 B. 101. CHAPTER VIII. OF THE TRANSFER OF OBLIGATIONS. Form of transfer. Effects of transfer. By the Roman law the right, as well as the engagement resulting from an obligation, passed to the heirs of the creditor and debtor respectively, on the principle of representation ; but, by a subtlety of the law, the right of the creditor was considered to be inherent in his person, so that it could not be directly transferred by him to a third person without the debtor's consent. Thus, the creditor who wished to make over the profit of an obligation to another, could only do so by giving him a mandate to raise an action for the claim, and retain what was recovered for his own benefit. This was called mandare or cedere actionem. The mandatary, after having obtained execution on the judgment, applied the amount for his own benefit, and was therefore called procurator in rem suam. In this way claims arising under obligations might be transferred to a third person in virtue of sale, exchange, donation, or any other title. He who made over the obligation to another was called cedens; and he who received it was called cessionarius or procurator in rem suam. The effects of the transfer are such as naturally arise from the transaction: 1. The claim of the cedent is transferred to the assignee with all accessory rights and privileges thereto belonging. 2. The assignee is liable to all exceptions which would have been competent to the debtor against the cedent, and also to all exceptions personal to the assignee himself, because he is procurator in rem suam. 3. The cedent generally guarantees the existence of the debt assigned, but not the solvency of the debtor. law. To prevent speculators from purchasing debts at low Anastasian prices, and exposing debtors to vexatious prosecutions, the Emperor Anastasius ordained that the assignee should not be entitled to exact from the debtor more than he himself had paid to acquire the debt, with interest.1 This rule was adopted and confirmed by a constitution of Justinian.2 The Anastasian law applied only to assignments that were onerous, not gratuitous; but if an attempt was made to disguise a transaction which was onerous in whole or in part, by representing it as gratuitous, the debtor was entitled to plead the benefit of the law. It was limited to obligations for payment of money or delivery of fungibles-that is, articles which consist in quantity, and are regulated by number, weight, or measure, as corn, money, wine. Where the subject of the obligation is a thing of a given class, the thing is said to be fungible—that is, the delivery of any object which answers to the generic description will satisfy the obligation, -in genere suo functionem recipiunt. A thing to be delivered in specie is not a fungible. A thing merely determined by the class to which it belongs is styled a genus, as a bushel of corn, a pound of gold, and so on.3 Anastasius. 1 C. 4. 35. 22. 3 Mackeldey, § 369-374. Maynz, § 272-4. In the Roman law fungible was taken to mean res quæ pondere, numero et mensura constant; and, though the term is said to be un- CHAPTER IX. EXTINCTION OF OBLIGATIONS. Payment made by any one. OBLIGATIONS are extinguished by actual fulfilment of the engagement, as by payment or performance; by virtual fulfilment, as by compensation, novation, confusion; by acceptilation or discharge; and by prescription arising from the lapse of time, which is considered under a separate head. Sect. 1.-Payment or Prestation. This is the most ordinary mode of extinguishing an obligation. The term solutio imports every satisfaction of an engagement, whatever its nature may be. The creditor is not bound to accept of payment by instalments, or of anything short of proper payment at the time and place agreed upon. It is not material by whom the payment is made, whether by the debtor himself or by another for him; for a debtor becomes free from his debt when another has paid it, either with or without his knowledge, or even against his will.2 But this doctrine does not apply so absolutely to obligations ad factum præstandum. In some cases of that description where skill and ability are relied on, the creditor has an interest to insist that the contract shall be performed by the person specified, and may therefore object to accept performance from any other. In order to be effectual, the payment 1 D. 50. 16. 176. 2 I. 3. 30. pr. 3 3 D. 46. 3. 31. Code Civil, 1237. must be made to the true creditor or to some one duly authorised by him to receive it. Where several debts are due, the debtor in making the Indefinite payments. payment may appropriate it to any one he pleases. If no appropriation was made by the debtor, the creditor, by the Roman law, was bound to apply it as the debtor himself would have done, and, consequently, to that debt which bore hardest upon him.1 A different rule is followed both in England and Scotland, the creditor being generally entitled to apply such indefinite payment in the manner most favourable to himself-as, for instance, to the debt least securedunless there be some other debt, which, if left unsatisfied, would expose the debtor to a rigorous forfeiture. If principal and interest be due, the payment should be imputed first to the interest, and the surplus, if any, is applied to principal.3 When performance has become impossible without any Performance imposfault of the debtor-as, for instance, where the engagement sible." relates to a specific subject which has perished by unavoidable accident-the obligation is extinguished. But if the impossibility to fulfil the engagement has been caused by the fault of the debtor, he will be liable in damages to the creditor. When the debtor failed to pay, the creditors, after obtaining judgment, were entitled to proceed with execution both against his person and his property in the manner afterwards explained. Sect. 2.-Compensation. compensa Compensation is the reciprocal extinction of debts between Nature of two persons, each of whom is indebted to the other,-Com- tion. pensatio est debiti et crediti inter se contributio. If the debts to be compensated are unequal, the lesser obligation is extinguished and the greater is diminished so far as the concourse goes. The general requisites of compensation are these:-1st, 1 D. 46. 3. 1. 2 Roscoe's Digest of the Law of Evidence, p. 470. Ersk. 3. 4. 2. 3 C. 8. 43. 1. Code Civil, art. 1253-6. 4 D. 16. 2. 1. Modestinus. |