or heirs may be abfent, fince- death is often fudden, and may happen
at a time when they are not ail prefent ; and as the taking of fecurity
is on this account an advifeable precaution, the Kdzee mu ft therefore
take this precaution, in the fame manner as he exadts fecurity when
he delivers a trove, or a fugitive flave, to the owner, or when he
awards maintenance to a wife from the eftate of her abfent hufband.
T h e arguments of Haneefa upon this point are twofold.— F ir s t , the
right of thofe that are prefent is eftablifhed with certainty in cafe of
there being no abfent heirs, and is apparently eftablifhed in the mean
time, even if there be abfent heirs; and as it is incumbent on the
Kdzee to a£t according to what is apparent to him, he mult not fuf-
pend his proceedings in favour of thofe that are prefent, by exadino-
fecurity for the rights of the abfent, whofe aftual exiftence is uncei-
tain ;— in the fame manner as where a perfon eftablifhes the purchafe
of any thing in the hands of another,— or a debt due to him by a flave ;
that is:, if a perfon prove a right by purchafe to a thing in the pof-
feflion of another, it is the duty of tht Kdzee immediately to order it
to be delivered to him without exadting fecurity, although another
may eventually appear and claim it in virtue of a prior purchafe ;_and
in the fame manner, if a perfon prove a debt due to him by a flave,
the Kdzee muft order the flave to be fold, to the end that payment
may be made from the price, without exadirig any fecurity, althouo-h
there be a poffibility of another creditor afterwards appearing._
S e c o n d l y , the principal is unknown, and fecurity is invalid if the
principal be not clearly pointed out,— as where, for inftanee, a perfon
fays to lèverai debtors “ I am bail for one of you,” in which cafe the
fecurity is invalid, becaufe the adual principal is not fignified, not-
withftanding there be a certainty of his exiftence. In the cafe in quef-
tion, therefore, the fecurity is invalid a fortiori, fince even the ex-
ijlence of the principal is uncertain.— It is otherwife in the cafe of decreeing
maintenance to the wife of an abfentee from the effeds of her
hulband, becaule her right being known and eftablifhed, the perfon
in favour of whom the fecurity is given is not uncertain.—With refped
to. the cafe of a fugitive flave, or a trove property, there are two
traditions.-r-Concerning thofe, however, there is alfo a difference of
.opinion.— Some have faid that if the Kdzee give a trove property to the
proprietor, on his defcribing the marks, or a fugitive Have to his
mailer, on the acknowledgment of the flave that “ the faid perfon is
his mafter,” it is incumbent upon him, in either cafe, to take fecurity.—
And all our dodors coincide in this opinion; becaufe the right
of the receiver is not proved, whence it is in the power of the Kdzee,
if he pleafe, to withhold the flave from the perfon in queftion altogether.
If a perfon prove, by evidence, that a houfe then in the pofleffion ffl the joint
1 r J . . - - i * i r inheritance of
of another had been left between him and his brother, who is abient, a property
in that cafeone half of the houfe muft be given to him, and the other ^perfon,
half left in the hands of the perfon who has pofleffion; and, no fecu- the prefent
rity muft be exadted from him.— This is according to Maneeja.— T h e hisfhare; but
two difciples are of opinion that if the pofleffor deny the right, the “
lhare of the abfent brother muft be put into the hands of a truftee behalf of him
until his return; but if he acknowledge the rights it muft then be left
in his pofleffion;— for they argue that a denier, as being an opponent,
cannot be trufted with the property; whereas it may be entrufted to
an acknowledger, as he is a friend and confident.,— The argument of Haneefa
is that the decree of the Kdzee, awarding that “ the deceafed left
“ the houfe to his heirs,” is a decree merely in favour of the deceafed-,
for inheritance cannot take place unlefs the property of the perfon
through whom it devolves be proved; and as there is a probability of
the deceafed having conftituted the pofleffor truftee, it follows that the
houfe cannot be taken from him; as holds in the cafe of his acknowledging
it.— In regard to his denial, it is virtually annulled by the decree
of the Kdzee-, and there is a probability of his not denying the
right again, becaufe the difpute in queftion has become known both
to himfelf and the Kdzee.— If the claim, in the cafe in queftion, relate
to moveable property, feme have faid that the article is to be taken
from