I f the thing
given in compofition
after
acknowledgment,
prove the
right o f another,
it muft
be reftored,
and the plain«
tiff is entitled
to an equivalent
from the
defendant.
I f this happen
in com pofition
after Ji-
lence or denial»
the plaintiff
muff claim,
from the .defendant,
.the
article injdif-
jpute.
A composition
for an
undefined part
If the thing given in compofition prove the right of another,
the plaintiff is in that cafe entitled to receive from the defendant
the whole amount of the compofition, provided it be after
acknowledgment, as this fpecies of compofition is equivalent to fale, (as
was before explained.)— If, alfo, the right of another appear to a part
of the compofition, the plaintiff is entitled to a proportionate part of
it, for the fame-realon.
If , in a cafe of compofition after jilenee or denial, it appear
that the whole or a part of the thing given in compofition is the property
of another, the plaintiff muft prefer a claim againft the defendant
for the thing in diipute between'them, either wholly, Or in part, as
the cafe may be.— It is otherwife in a cafe of fale after denial; as
■ where, for inftance, a perfon lays claim to a houfe, and the perfon
upon whom the claim is made denies his right, but afterwards compounds
the matter by means of a Have, ufing, however, the word
•“ fo ld " inftead of “ com p ou n d ed as if he fhould fay “ I have
“ fold this flave for the laid houfe;” for, in that cafe, if the houfe
afterwards prove to be the property of another, the plaintiff, inftead
of claiming, is entitled actually to take the houfe from the defendant;
becaufe the defendant, in felling the flave for the houfe,
does virtually acknowledge the houfe to be the property of the plaintiff;—
contrary to a cafe of compofition, as compofitions are frequently
made merely to remove contention.— It is to be obferved that, in cafe
the thing given in compofition be either loft or deftroyed in the hands
■ of the defendant, previous to the delivery of it, the law is the fame
as where it proves the right of another:— that is, if the compofition
follow acknowledgment, the plaintiff is entitled to take the article
c l a imed o r , if it follow denial or ftlence, he muft prefer a claim for
it againft the defendant.
If a perfon claim a right in a houfe, without explaining the extent
of it, (fuch as a third, a fourth, or the lik e ,). and the defendant,
under
under this ftateof uncertainty, give him fomething in compofition for o f a thing is
his claim, and the right of another afterwards appear to a part of the by'th^H^ht
houfe, the plaintiff is not in that cafe, obliged to return to the de- ° f another
fendant any part of the thing received in compofition, fince it is pof- appearing to
fible that the right may relate to feme other part of the houfe, and not nung* °f
to that part which the plaintiff had claimed. It is different where
the whole of the houfe proves to be the property of another; for in
that cafe the whole of the thing given in compofition muft be returned
to the defendant; fince it would otherwife neceflarily follow that the
defendant had received nothing in exchange for the thing he gave in
compofition; and this is unlawful; as has been already explained under
the head offale.
If a perfon claim a houfe, and the defendant compound the claim Compofition
for a part of the houfe, fuch compofition is unlawful, becaufe what j'.>oconfldtr1'
the plaintiff receives is already his adtual right, and the reft o f his of the i'ubj elt
•claim remains unfatisfied. There are two devices, however, by 15lnvalld’
which this compofition may be rendered lawful.— T h e one is, by the
plaintiff adding a dirm to the fhare of the houfe; in which cafe,
the dirm is confidered as an equivalent for the remaining part of the
claim-;— the fecond is, by the plaintiff exempting the defendant from
the remaining part of the daim.
S E C T I O N ,
C o m p o s i t i o n s are lawful in claims otproperty, for a compofition Difputescon-
(as was before explained) being in the nature of a fale, it follows that be
whatever may be lawfully fo ld may alfo be lawfully compounded.— cornPounded5
Compofitions are likewife lawful in claims of ufufruci; as for inftance,
where