Thefeconda-
ry witneffes-
afferting the
falfehood or
error o f the
primary witneffes
is of
no eiFe&..
Purgators receding
from
theirjuftifica-
tion are re-
iponfible.
fecondaries,—or (according to his own doftrine) it paffes on the evidence
of the principals; and hence the defendant has the option of
taking the compenfation from whomlbever of the two he pleafes :_.
but as originality anddependancy are of different natures,' it is not permitted
to unite both the principals and the fecondaries in the- payment
of the compenfation; that is to fay,, the defendant cannot , take it from
both.
If , in the above cafe, the fecondary withefles aflert that the primary
witnefles had either been guilty of falfehood, or had committed
an.error in their evidence, the Kdzee imift not attend to this affertionv
becaufe his decree, as having paffed and iffued', cannot be affected by
any aflertion of theirs. And .in this, cafe the fecondary witnefles are
not liable to any compenfation-, fince they have not retraced their
own evidence, but have merely repeated the evidence of the principal
witnefles, notwith-ftanding they had.retraced it...
If purgators recede from their juftification, they become refpon-
Able, according to Haneefa.—The two difciples are' of opinion that
they do not become refponfible, becaufe they have merely performed,
a generous-■affiori'in behalf' of the witnefles,- and' therefore refemble
witnefles who bear evidence to the- marriage of' a perfon accufed' o f
whoredom*, and who, in cafe of retracing their'evidence after the
flowing of the perfon to whom it related, do not become relponfible
for the fine of blood.—The reafoning of Havcefa is tEat juftification is
the caufe of credit given to witnefles, inafmuch as the Kdzee proceeds--
not" upon the evidence itfelf,. but upon'the juftification of it'.-__Hence
the juftification is, in -effed, the moving caufe of the decree.__It is'
otherwife with witnefles to the marriage of a perfon accufed of whoredom,
becaufe in that inftance the circumftance of the accufed being as
ntarried perfon is particularly eflential to induce lapidation ~h
* L ite ra lly—«-w-ho-bear,evidence to Ibfah.” (See. V o L I . p, 48 .) f See V o l. I I . p. 8”
3 If.
I f two witneffes give evidence o f a Tameen (or fufpenfion on a
condition) of divorce or emancipation, and two other witneffes give
evidence that the condition had taken place, and both parties afterwards
retrad their evidence, compenfation is in that cafe due only
by the witnefles who attefted the deed-of Kutneen, which is the cauj'e
of the damage, and not by thofe who attefted the occurrence of the
event on which the divorce or emancipation was fufpended; becaufe
the decree o f the Kdzee proceeded on the evidence to the deed, and not
on the evidence to the condition.— If only the witneffes to the occurrence
of the condition retrad, there exifts in that cafe a difference of
opinion amongft the Haneejite dodors.— It is to be obferved that by the
divorce here mentioned is to be underftood divorce before confumma-
tion; for in a cafe of divorce fubfequent to confummation neither party
o f the witneffes are liable to make compenfation, becaufe the wife’ s
right to her dower is eftablilhed by the confummation * .
* See V o l. I . p. 123.
Cafe o f retractation
in
fufpended
manumifiion
or divorce.
EN D OF TH E SECOND VOLUME.