11

bio maritimo). In this contract a certain amount or sum is offered on the hull (cuerpo) of the ship, or on the goods therein laden, on condition to repay the capital with certain interest in case of arriving safe at their destination. Wedderkop, ibid. Lib. 3. tit. 11. § 123. When credit is given on the ship, it is the contract which the French call contrat à grosse aventure.

Hence we draw three principles, 1st, That those only who can bind the ship and wares may make this contract. 2d, That the [215] creditor runs the risk of the ship and the goods. 3d, That, by reason of this risk, he may demand the capital with interest.

From the first of these principles it is inferred, 1st, That those interested are bound in this contract for the value of the vessel and cargo, so that the quantity or amount exceeding it is considered a pure loan (emprestito), Wedderkop, ibid. § 126.: and according to L. 6. tit. 39. lib. 9. Rec. Ind. [L. 6. tit. 39. lib. 9. Rec. Ind.] no master can borrow on interest on a vessel which goes to the Indies more than a third part of the value, and with license of the consulado. 2d, That the captain can only borrow on interest, if the parties interested be present, with their approbation; and being absent on account of some urgent necessity, as for the repairs of the vessel, &c., Ordenanzas de Bilbao, cap. 41.12

From the second principle it follows, 1st, That the creditor begins to incur the risk from the time that he made the contract until the vessel hath arrived at the port of her destination, Wedderkop, ibid. § 130. 2d, That if the vessel hath incurred risk, not by a fortuitous event, but by varying the due course of her navigation, by arriving at a more distant port than that expressed in the contract, by carrying contraband goods, this ought not to cause any prejudice to the creditor, Wedderkop, ibid. § 131.; but it is to be observed that money lent on interest ought not to contribute to make good the damage caused by throwing overboard or jetsam (echazon), Wedderkop, ibid. § 134. By the third principle it is acknowledged that the interest on maritime loan (cambio) ought to be graduated in proportion to the danger and risk of the navigation, Wedderkop, ibid. § 132.

Cap. 3. The third contract which depends on chance, is wager, apuesta, or a reciprocal promise between two with respect to a conditional doubtful event, past, present, or future.13 Wagers or bets are

11 Vide 2d vol. Black. Commentaries, p. 457. edit. 1809, fœnus nauticum. Palacios here takes occasion to observe, that the ignorance, confusion, and informality which took place on the subject of maritime interest, induced the consulado of commerce of Barce lona, with its accustomed zeal, to represent the necessity of establishing there a register of maritime interests, which it proposed under eight articles, and which the king was pleased to approve by royal cedula of 23d of December, 1795, and that this is a proof of the necessity there is for seeing the laws which govern in each consulado, to acquire the corresponding information in these matters.

12 This quotation does not correspond with the edit. of 1813. vide cap. of ditto 24. n. 36. 37. 38. and 39. on this subject.

13 Palacios, referring to Cu. Phil. lib. 3. c. 15. n. 1. says, that a wager is a reciprocal promise which is made between two or more, each laying a wager to the contrary of what the other says, to gain or lose it upon a conditional, doubtful event (although it be with

Vol. I.-30

obligatory, provided that there be no fraud or deception (dolo) on the part of any of the contracting parties; see the examples set forth in Hevia, Cu. Phi. ibid. comercio naval. c. 15.

respect to a third and uncertain person), past, present, or to come. He adds, that a wager may be also defined a pact between two or more, who dispute upon any doubtful thing, by which it is agreed, that he on whose part that which is assigned is not verified, shall lose any sum or other thing, and the other shall gain it, or a third person, according to the agreement.

14 Although there be no fraud or deception, says Palacios, there are various wagers which are not obligatory. Wagers respecting who shall eat or drink most, and wagers respecting immodest or illicit things are not binding, although there be no fraud or de ception. If two lay a wager, and one should know the truth of the thing upon which the bet was made, and should not declare it to the other, who was ignorant of or doubted it, he would not gain the wager.

TITLE XVIII.

OF SECURITY.

SURETY is one who engages or promises to another to give [ 216 ] or do something by the order, or at the request of the person on whose behalf he enters into security, L. 1. tit. 12. P. 5. [L. 1 tit. 12. P. 5.] There are conventional and judicial securities. Here we treat of the first class.

From what has been said, we extract three principles, 1st, That suretyship is an accessary contract which requires consent. 2d, That sureties enjoy the benefit of order1 not to be sued but in default of the principal. 3d, That the surety who paid, alone, has an action against his co-sureties in virtue of the cession of the right of action of the creditor; and the sureties have an action against the principal debtor.3

From the first axiom it is deduced, 1st, That every person who can oblige or bind himself may be a surety, L. 1. tit. 12. P. 5. [L. 1. tit. 12. P. 5.] 2d, Bishops, clergymen, friars, cannot be, L. 2. tit. 12. P. 5. [L. 2. tit. 12. P. 5.] 3d, Nor the wife for the debt of her husband, although it should have been converted to her benefit, L. 9.

1 Beneficium ordinis sive excussionis.

2 It appears that judicial sureties do not enjoy this benefit; vide Pothier; Domat, C. L.; and 2d vol. Febrero Adicionado, p. 162. n. 49.; and Wood's C. L., p. 227. Palacios, referring to L. 11. tit. 12. P. 5., says, that the surety who paid the whole debt in the name of the debtor, has no action against the other sureties, but only against the debtor himself: if he paid in his own name, he has it also against the debtor; but he may, if he prefers it, require the creditor to cede to him his actions against the other sureties; to demand from each of them the proportion for which each is respectively liable; this cession is what is termed carta de lasto, or cession of actions. That if, when the surety paid, he said not in whose name he did pay, it shall be understood that he paid in his own name, provided he immediately afterwards demanded the cession of actions; but if he did not so immediately demand it, he shall be understood to pay in the name of the debtor.

3 One benefit of sureties, namely divisionis, is omitted. Vide Wood, C. L., p. 227.; and L. 8. tit. 12. P. 5.

4 Palacios, citing L. 28. tit. 21. lib. 4. Rec., which is L. 7. tit. 11. lib. 10. Nov. Rec., says, that laborers or planters (labradores,) are an exception to this rule; who, although they may bind or oblige themselves, cannot be sureties unless it is among one and other, and not for others, without their being able to renounce this privilege. See also nota 1. tit. 11. lib. 10. Nov. Rec.: which is auto 8. tit. lib. 5. Rec.

5 L. 2. tit. 12. P. 5, observes Palacios, says regular clergymen; for, generally speaking, it is permitted to clergymen, although they be of the superior orders, to be suretics for other clergymen for their churches, and for destitute persons; and even when they should enter into security for those for whom they are prohibited to be sureties, the security would be binding in regard to their property, although their superior might punish them for having done so.

But it would appear that when a woman joins in an obligation with her husband, she is liable, pro rata, according as she hath been proved to have been advantaged; vide L. 3.

tit. 3. lib. 5. Rec. [L. 3. tit. 11. lib. 10. Nov. Rec. ;] except in the eight cases mentioned by L. 3. tit. 12. P. 5.7 [L. 3. tit. 12. P. 5.] 4th, That no one can become security for any minor, if the latter has not the license of his father or curator, L. 2. tit. 11. lib. 5. Rec. [L. 3. tit. 1. lib. 10. Nov. Rec.] cited, which amends or alters, L. 4. tit. 12. P. 5. [L. 4. tit. 12. P. 5.] 5th, That suretyship may be accessory to every obligation, civil and natural, L. 5. tit. 12. P. 5. [L. 5. tit. 12. P. 5.] 6th, That the surety may be bound before or after the principal debtor, at a certain time, under condition, &c. L. 6. tit. 12. P. 5. [L. 6. tit. 12. P. 5.] 7th, That the surety cannot be bound for more than the principal, and this excess may consist in a greater amount, in an inconvenient place, or in a shorter time of payment, or even without condition, L. 7. tit. 12. P. 5. [L. 7. tit. 12. P. 5.] 8th, That the obligation of the surety is extinguished when that of the principal is; and for five causes besides. 1st, If the surety should pay the debt or part of it. 2d, If he should remain a long time bound, which is left [217] to the discretion of the judge to determine. 3d, If, on the arrival of the time for payment, he deposits the money before witnesses. 4th, If the time for which he became bound hath expired. 5th. If the principal debtor dissipates his property, L. 14. tit. 12. P. 5. [L. 14.

tit. 11. lib. 10. Nov. Rec.: except in case of necessaries, which the husband is bound to furnish her. She may be surety in respect of debts to the crown; but even though femme covert may be surety for her husband in respect of taxes or debts due to the crown by him, she cannot be arrested or imprisoned therefor; nor for any debts of her husband, L. 2. tit. 11. lib. 10. Nov. Rec. See also 6th Febrero Adicionado, P. 2. lib. 3. cap. 2. § 3. p. 400. n. 160.; also L. 4. tit. 11. lib. 10. Nov. Rec. and App. J.

7 This law (3. tit. 12. P. 5), is anterior to that of the Nov. Rec. (L. 3. tit. 11. lib. 10.) Palacios takes occasion here to remark, that the authors say, that a femme covert cannot be surety for the debt of her husband, although it may be converted to her own benefit; and in continuation they except eight cases; one of which is, that she may be so when it is for her own utility or advantage, as may be seen in L. 3. tit. 12. P. 5.; which they cite to this effect. That this is an error or want of explanation: that what is certain is, that the wife, if her being security for her husband is treated of, can be surety for him in no case, by L. 9. tit. 3. lib. 5. Rec.; which is L. 3. tit. 11. lib. 10. Nov. Rec.; and if her being security for a stranger or third person is treated of, although generally speaking, she cannot be so, there are eight cases excepted by L. 3. tit. 12. P. 5. See the law last cited for the excepted cases alluded to, by the Learned Professor. It must be observed, that the above general disability or disqualification of being surety, is not confined to a femme covert, but extends to all women. See L. 2. tit. 12. P. 5. The note, to which attention is craved, as it affects the above remarks of Palacios, was written before the Translator saw the observations of the Learned Professor; and he, with deference, ventures yet to submit it to scrutiny.

8 Palacios says, that it is doubtless L. 22. tit. 11. lib. 5. Rec., (L. 17. tit. 1 lib. 10 Nov. Rec.:) to which the text means to refer; and which, as also what is stated in this part of the text, must be understood, when the minor or child under paternal power (hijo de familias), should purchase or borrow any thing on security; as, in such cases, the law annuls the contract, oath, or security, which shall be entered into or given in respect thereof.

9 For these causes, says Palacios, the surety may demand of the judge, that the prin cipal debtor discharge him from the obligation. But it may be here observed, the discharge of the creditor is the object of the surety.

10 Quære, if he pay only part of it, unless he be merely jointly bound with others, and not in solidum.

tit. 12. P. 5.] 6th, The security is not at an end by the death" of the surety, but it descends to his heirs, L. 16. tit. 12. P. 5. [L. 16. tit. 12. P. 5.]

From the second principle it arises, 1st, That if execution go against the principal debtor, and he has not wherewithal to pay, the sureties may be sued; and if it should happen that the debtor should be absent from the place, and the sureties demand time to produce him, it must be granted to them, L. 9. tit. 12. P. 5. [L. 9. tit. 12. P. 5.] 2d, That if the sureties were simply or jointly bound, each can only be sued for his respective part or proportion; and if they have bound themselves each in solidum, or for the whole, the creditor may demand the whole debt from whomsoever of the sureties he pleases; but if there be among thern any poor persons, the rest must pay the whole,13 L. 8. tit. 12. P. 5. and L. 1. tit. 16. lib. 5. Rec. [L. 8. tit. 12. P. 5. and L. 10. tit. 1. lib. 10. Nov. Rec.]

12

On the third principle it is established, 1st, That if the creditor recovered from one of the sureties in solidum, he must assign to him his rights and actions, in order that he may recover from his co-sureties their corresponding proportions, L. 11. tit. 12. P. 5. [L. 11. tit. 12. P. 5.] 2d, That sureties in paying have a right to proceed against the principal debtor, unless they have paid with the intention of not demanding it; or if the security conduced to the utility of the sureties; or the sureties became bound against the will or desire of the principal debtor; L. 12. tit. 12. P. 5. [L. 12. tit. 12. P. 5.] 3d, That if one of the sureties paid the whole debt in the name of the principal' debtor, he can have recourse against him only, and not against his co-sureties,14 L. 11. tit. 12. P. 5. [L. 11. tit. 12. P. 5.] 4th, That if any one become bound by order or request (mandado) of another, who is not the principal, and any injury should arise to him by reason of such security, he has his action only against the person by whose order or desire he became bound,15 L. 13. tit. 12. P. 5. [L. 13. tit. 12. P. 5] 5th, That if the surety could oppose or allege any exception or defence in a suit respecting the debt due by his principal, and he did not do so, he will not be able to recover what he paid on account of the debt,16 unless this exception should belong

"In judicial bail for the appearance of a person accused. the obligation expires, of course, with the death of the party for whom it was given. Vide L. 11. tit. 19. P. 5. 12 That is, jointly and severally.

13 And this whether they be only simply or jointly bound, as well as if bound in solidum. Vide L. 8. tit. 12. P. 5., quoted.

14 See what is said in note 2, p. 219. ante,

15 But if the security produce advantage to the person for whom he became bound, he has his recourse against either: this observation is confirmed by a similar remark of Palacios, with the addition, that if the person on whose behalf the order or request was so made, was present, and did not contradict it, he is also liable to the surety. Vide L. 13. tit. 12 P. 5.

16 The omission to make the exception, a peremptory one is meant by the law cited, must be wilful: ignorance will excuse him. Vide L. 15. tit. 12. P. 5. quoted. By the civil law, the mismanagement of the cause by surety, scems only to affect his right of