but by felling a part, and defraying the expence of it out of the
amount; and all our doctorsagree that the property of an abfentee cannot
be fold .— Haneefa is of this opinion, becaufe the Kâzee cannot fell
the effbfts even of a perfon on the. fpot, but muft require him to fell
them, and difcharge the maintenance with the amount ; and confe-
quently he is prohibited from felling the property of an abfentee, à fo r tiori.
The two difeiples alfo are of the fame opinion, becaufe, although
they hold that the Kâzee may difpofe of the property of a perfon
on the fpot, for the difcharge of his wife’ s maintenance, without
his confent, yet this is only where he refufcs to do fo ; but the property
of an abfentee cannot be thus difpofed of, as his refufal is not
known.
but flie muft W hen the Kazee decrees a woman her maintenance out of the
give fecurity . .
that the has effe&s of her abfent hufband, it behoves him to take fecurity from her
received any for whatever Ihe receives for the indemnity of the abfentee, as it is
thing in ad- poflible that Ihe may already have received her maintenance in ad-
vance. * . .
vance, or that Ihe may have been divorced, and her Edit, h e palled ;
and the Kâzee muft alfo require her to make oath that. Ihe has not
received any part of her maintenance in advance: contrary to a
cafe where the Kâzee makes a diftribution of inheritance among pre-
fent heirs, according to evidence, and they do not deny any knowledge
of another heir, for in this., cafe he does not require a limilar
fecurity from them in behalf of another heir, who may hereafter appear,
becaufe the Makfool-le-hoo, or furetee, is there unknown and
undefined; but in the prefent cafe the furetee is known, being the
abfent hulband.
It can be de- a Kâzee cannot decree maintenance, out of the effects of an ab-
the ■ wfi.in- fentee, in behalf of any but thofe already mentioned, (namely, the
^m’tanJsoi wife, infant children, and parents of the abfentee,) as they alone are
the abfentee. authorized to receive a maintenance indépendant of any decree of the
Kâzee, (that, iri the prefent cafe, being only in aid of their right,)
whereas
whereas the other relations within the prohibited degrees are not entitled
to any maintenance without a decree of the Kazee previoufly
Obtained for that purpofe, as the obligation of it with relpedt to them
varies according to circumftances, wherefore the Kazee decreeing it
to them would amount to a judgment againft an abfentee, which is
not. allowed.
If the Kazee himfelf be not affined that the woman is the wife of No decree
the abfentee, and the truftee, factor, or debtor, do not acknowledge againft'fiT11
her to be fo, and Ihe fhould offer to produce witnefles to prove that abfcntee’s
Ihe is fo,— or, if the abfentee Ihould not have left any effects, and Ihe upon the bare
offer to prove her marriage by evidence, with a vie,w to obtain a decree °f
authorizing her to procure a maintenance upon the abfentee’s credit,
ftill the Kazee cannot iflue a decree accordingly, becaufe this, would
be a judgment againft an abfentee, which is inadmiffible.— Ziffer fays
that it is the duty of the Kazee to hear the proofs, and (although he
cannot decree the marriage to be thereby eftablilhed) to order her. a
maintenance, as this is a tendernefs due. to her, and no injury to the
abfentee, becaufe, i f he Ihould afterwards appear and confirm her af-
fertion, Ihe has only taken what was her right,— or, i f he Ihould.
deny the marriage, an oath will be tendered to her, (in cafe of her
having no witnefles,) and i f Ihe decline fwearing, his aflertion remains
eftablilhed; but i f Ihe prove her aflertion by evidence, her, right
is; eftablilhed; and if Ihe cannot produce any proof, and he fwear, Ihe
or her bail then remain relponfible.— The author of this work fays
that it is the duty of the Kazee, in the prefent inftance, to decree
maintenance to the abfentee’ s wife, from neceflity.
SECT.