The retractation
o f evidence
to a
fale does not
occafion re-
fponfibility,
unlefs a price
had been at-
telled fhort o f
the value.
I f two witnefles give evidence concerning a man, of his having
married a woman on a proper dower, and afterwards retradl the fame,
Rill they are not bound to make any compenfation, although by their
teftimony they have deftroyed the property of that man; becaufe the
deftrudlion in this inftance is attended with an equivalent, inafmuch
as the connubial enjoyment 5s confidered as an article of value, whenever
it becomes the right of any one; and deftrudlion attended with a
confideration or equivalent, is the fame, in effedl, as no deftrudlion.
T h e ground of this is that relponfibility is founded upon fimilarity.
Now there is no fimilarity between deftrudlion with an exchange and
deftrudlion without an exchange. If, therefore, in the cafe in queftion,
a compenfation were taken from the witnefles, it would bea deftruc-
tion of their property without any thing in return.— If, however, the
witnefles were to teftify to any amount beyond the proper dower, and
afterwards retract, they are in that cafe refponfible for the excels, as
having deftroyed that much without any confideration in return.
If two witnefles bear evidence to a fale for a price tantamount to,
or greater than, the value of the thing fold, and afterwards retradl,
they are not in that cafe liable to any compenfation; fince deftrudlion
attended with an equivalent is, in effedl, no deftrudlion.— If, on the
contrary, they fhould give evidence of the fale for a price lefs than the
value, they are in that cafe refponfible for the deficiency of value, becaufe,
in that amount, they have occafioned a deftrudlion without
any equivalent. The law here applies equally to fale. with or without
an option to the feller; becaufe, in the cafe of an option, the caufe
of light of property is the.original fale, and not the determination of
the option.— The effedt, therefore, is referred to the fale, upon the
determination of the option ; and hence the deftrudlion is referred to
the evidence of the fale.
I f
I f two witnefles give evidence of a man having divorced his wife
prior to confummation, and afterwards retradl, they are in that cafe
refponfible for a moiety of the dower; becaufe they have eftablifhed
upon that man a thing which flood within the poffibility of dropping,
(in other words, which might perhaps have been altogether cancelled,
by the wife apoftatizing from the faith, or admitting the fon of her
hufband to carnal connexion * ;)— and alfo, becaufe feparation prior
to the confummation is equivalent to an annulment of the marriage,
and therefore annuls the whole of the dower, as has been already explained
"f-; but afterwards the half of the dower is eftablifhed de novo,
in the manner of a Matât or prefent j , and hence the faid half is rendered
due by the teftimony of the witnefles. •
If witnefles atteft that a certain perfon had emancipated his flave,
and afterwards retradl their teftimony, they are in that cafe refponfible
to the perfon in queftion for the value of the faid flave, becaufe of
their having deftroyed his property in the flave without any equivalent
in return.— The right of Willa, moreover, with refpedl to the flave,
refts with that perfon and with the witnefles; becaufe as- the emancipation
of the flave is not, on account of their refponfibility, afcribed
to their teftimony, it follows that the Willa does not go to them.
I f two witnefles bear evidence againft a perfon, in a cafe of retaliation
for murder, and then retradl their teftimony after the' perfon
has been put to death, they are in that cafe bound to pay a Deeyat, or
fine of blood, but are not to fuffer death by way of retaliation. Shafei
maintains that they are to fuffer death, fince they were the efficient
eaufe of death, inafmuch as the retaliation was executed on the ftrerr^th
of their evidence; and they therefore refemble a Mokrih, or compeller,
(in other words, they compel the commiffion of m urder;)—nay, they
are ftill more criminal than a Mokrih, inafmuch as the avenger of blood'
* V o l. I . p, 182.
iot
Witnefles retracing
their
evidence to
divorce before
confummation
are
liable for half,
the dower.
Witneffes retracing
their
evidence to
manumiflion
are liable for
the value of
the flave.
Witnefles retracing
in a
cafe o f retaliation
are liable
to a finey
but not to r*>
t filiation.
+ Vol. I. p. 14.5;
4 Z 2
J V o ll I . p. 125.