Maintenance
t o the parents
of an abfentee
maybe de-
creed out of
his effe&s.
The parents
of an abfentee
maytaketheir
maintenance
out of his effets
: but a
If an abfent foil be poflefled of property, a-maintenance to his
parents -is to be decreed out of it*, for the reaforis-already mentioned :
and if a father were to fell his abfent fon’ s efféas, for the purpofe of
providing his maintenance, it is held by Haneefa to be lawful, on a
principle of benevolence ; but he cannot lawfully fell his lands. The
two difciples fay that the fale of his effects is alfo illegal ; gnd this is
conformable to analogy, becaufe a father has no abfolute authority
over liis adult fon, and therefore is not, empowered to fell his effefts
in his: prefence on any pretence, nor to do fo in his abfence but for
the difcharge of debts which do not include; maintenance ; and the
fame reafoning applies to the mother. The reafon for the more favourable
conftruction, as adopted by Haneefa, is that a father is authorized
to take charge of his abfent fon’ s effedts ; for as the confer
vat ion of an abfentee s property is allowed to devolve upon his executor,
it muft be admitted that it appertains to his father in a fuperior
degree, as he is more immediately interefted ; and the fale of move-
able property is one part of confervation ; wherefore the father is at
liberty to fell his abfent fon’ s moveable property but this reafoning
does not apply to lands, thefe not being fubjedl to confervation, as they
do not require it ; neither does it apply to any other than a parent, as
the more diftant relations are not endowed with any abfolute authority
whatever over an infant, nor with any power of confervation over the
effedts .of an adult.— And where a father thus fe llf’the property of his
abfent fon, if the price he receives for it be of the fame nature with
his right, (namely, maintenance,) he is at liberty to take his right
therefrom: and in the fame manner, if a father difpofe of the effedts
or lands of his infant fon, he is at liberty to take his maintenance out
of thé price, that being of the fame nature with his right.
I f the effedts of an abfent fon be in the hands of his parents, and
they take their maintenance from them, they are not refponfible, as
what they take in this manner is their right, a maintenance being
their due, independant of any decree from the Kâzee-ÿ. but if the effects
fedts be in the hands o f a ft ranger, and he furaifh the maintenance to traI1ee cannot
the parents therefrom, without a decree from the Kdzee, he is refpon.
fible, as he in that cafe takes upon him to difpofe of the pro- ";“houtadcperty
of another without authority, fince he is no more than merely
the abfentee s agent for confervation: (contrary to where he adts
under the Kdzee's orders, in which cafe he is not rafponfible/as'thofe
are abfolute and indifpenfable :)— and being thus refponfible, he has no
right to feek indemnification from the parents, becaufe in affumin°-
the refponfibility, he, in fadb, becomes proprietor, and then appears
to have given the property to the parents gratuitoufly.
I f the Kdzee decree a maintenance to children, or to parents, or to Arrears not
relations within the prohibited degrees, and fome time fhould elapfe c r^m a t
without their receiving any, their right to. maintenance ceafes, be- tenance' .
caufe it is due only fo far as may fuflice, according to their neceflity,
(whence it is not fo to thofe who are opulent,') and they being able-to
iuffer a confiderable portion of time to pafs without demanding or receiving
it, it is evident that they have a fufficiency, and are under
no neceflity o f feeking a maintenance from others: contrary to
where the Kdzee decrees a maintenance to a wife, and a fpace o f time
elapfes without her receiving any, for her right to maintenance
does not ceafe on account of her indépendance,-becaufe it is her due,*
whether fhe be rich or poor.— What has been obferved on this occa- unIefs wh<*
Hon applies to cafes only in which the Kdzee has not authorized'the tobe“ -
parties to provide themfelves a maintenance upon the abfentee’ s credit : ed uPon,the
but where he has fo authorized them, their right to maintenance does *” *»■ * *
not ceafe in confequence of a length of time paffing without their receiving
any, becaufe the authority of the .Kdzee is univerfal, and
hence his order to provide a maintenance upon credit is equal to that
of the abfentee himfelf, wherefore the proportion o f maintenance for
the time fo elapfed is a debt upon the abfentee, and does not ceafe
from that circumftance.— The time here meant is any term beyond a
month ; and if the time elapfed be ftrort o f that term, maintenance does
not ceafe. . - . 1
V ol. 1. H h h S E C T .