O b j e c t i o n .— The point upon -which the difference of'opinion
refts, on the prefent occafion,is the decree itfelf; and hence the cafe requires
that the validity of the decree be fufpended upon the warranty
of another Kdzee
Reply. The decree itfelf is not what the difference of opinion
refts upon in the prefent inftapce, but the caufe of the decree, name- •
ly, the evidence’, the point of difference being, merely, whether evidence,
where there is no aftuah profecutor, amounts to proof ?— and
where the Kdzee is of opinion that the evidence amount#* to proof,
and directs accordingly, his decree is legal and valid.
The mining — It is to be obferved that, if there be, among the effects of the
perfon s penin- i °
able effefts milling penon, articles of a perilhable nature, (fuch as fruity and
ib forth) the Kdzee muff fell them ; becaufe, as the ppeferyation of
them both in fubjlance and in effeSl is impracticable, they are to be
but not thofe preferved in effebl. But he is not to fell any articles not liable to perifh,
which are aw- 1 mm , . J r
pej-ifijabie. either on account of fubfiftence, or for any other purpofe; becaufe the
Kdzee is inverted with authority, with refpett to an abfente'e, for the
' confervation o f his property, and hence it is incumbent upon him to
preferve it in fubfance where that is practicable.
Subfiftence The Kdzee is to give fubfiftence to the wife and children of a • mult be ar- °
forded, out of miffing per]on out of his property. This rule is not reftrifted to his
the Cf l r m u immediate children, but extends to all related to him in the line of pa-
and riiWo«! ternity, fuch as the father, the grandfather, the fon’ s foil, and fo
ptrfm-, audio forth; for it is a rule that every perfon entitled to a fubfiftence from
whorwithout t^e Pr°Perty ° f the miffing perfon whilft he was prefent, independent
' edTled’We-rC °^anor<^er fr°m the Kdzee (fuch as his infant children, and adult
during his daughters, or adult fons who are difabled) muft in his abfence be
■ prefence.
here advanced affords a ftriking inflance o f the power o f a Kdzee, and the latitude allowed
to him in paffing his decrees.
* Becaufe this Kdzee being himfelf a reprefentative o f the Mafkood, or miffing perfon,
and consequently a party concerned in the decree, cannot carry it into effedt, without
fuch authority.
furnilhed
furniftied with a. fubfiftence, out of his property, by the Kdzee:—
but to thofe who, whilft the miffing perfon was prefent, had no
rivht to- fubfiftence independent of an order from the Kdzee, (fuch as
brothers, filters, or maternal, uncles or aunts,) no fubfiftence is, in
his abfence, to. be furniftied by the Kdzee, becaufe thefe are entitled
to a fubfiftence only through a degree, and a decree againft an abfentee
is illegal. By the property of the miffing' perfon, as here mentioned, is
meant moneyy becaufe- the. right of the above perfons is meat and
clothing, and where, thofe are not to be found among the miffing per-
fon’s effeCts, there is a neceffity for the Kdzee to decree the value;
and the value confifts of cap. Bullion (that is, uncoined gold and
filver) is in this refpeCt fubjeCt to the fame rule with cap, fince that
alfo admits of being given as value, in the fame manner as cap. This
is where the Kdzee has money in his hands. If, however, there be
no money in his hands;. but there'happen to be fome in truft; in the
hands of anothe perfon,— or a debt owing from fome other perfon;
the Kdzee is in that cafe to provide the fubfiftence from fuch depofit
or debt, where the truftee or debtor acknowledges the.depofit or debt,
and alfo the marriage or parentage '. This acknowledgment, however,
isneceffary only where thefe points are not fully known to the Kdzee;
for if they be fully known to him, the acknowledgment is not reT
quifite.— If, on the other hand, fome of thefe. points be known, fuch
as the debt and the depofit,') and others unknown {fuch as the marriage
or the parentage)— or vice verfa, in this cafe the acknowledgement.
is requifite with refpeCt to that, which is unknown: this is
approved. If the truftee-or debtor furnilh the fubfiftence without an
order from the Kdzee, the truftee is refponfible for fuch dilburfement,
and the debtor is not difcharged. from his .debt, becaufe in fo doing
they have not paid any thing either to the. owner or to his reprefentative.:
contrary to where they funiilh fubfiftence by order'of the
Kdzee, becaufe .he appears as reprefentative of-the owner.
If the truftee or debtor- deny the depofit or debt, together with
Vol. II. P p
Where there
are no effefts
in the Kazee's
hands, he may
furnilh the
fubfiftence
from debts, or
defofitSy the
property of
the mifGng
perfon.