aft according to his judgment and difcretion.— T h e cafe is the fame
with refpeft to partnerlhip and commixture of the Hock, with the
manager’s own property;— that is to fay, if the manager fhould commix
the flock with his own property and thus become a partner
therein, it is lawful, provided the proprietor have empowered him,to
aft according to ,his judgment and difcretion, becaufe mixture, and
copartnerfhip are in the nature of trade, and the power fo given is
therefore held to extend to it.
The manager If a perfon give property to another by way of Mozdribat, and
cannot devi- o . r . . . . . .
ate from any reitrict nis management of it to a particular city or to particular artiim^
fcd upon cles’ is not lawful for the manager to deviate therefrom; becaufe
him in the this is in the nature of a commiffion of agency; and as reflriftion is
contract. , , . . . . . . ° J
attended with an advantage, it is therefore allowed to operate.— (An
explanation will hereafter be given of the nature of reflriftion).—
Neither is it lawful for the manager under fuch circumflances to
give the flock by way of Bazal to another perfon, to be carried by
him from that particular c ity ; for as it is not lawful for the manager
himfelf to carry it from that city, he therefore is not entitled to
delegate fuch a power to another.
Upon violat- If the proprietor reflrift the management of the flock to a
flrfaion, the particular city, and the manager neverthelefs carry it to an-
comesreffon- ot^er ^*7’ and there purchafe fomething with it, he becomes
fibie for the in that cafe refponfible for the flo ck ; and whatever he may
have purchafed with it becomes his property, as well as the profit
which may.arife therefrom; becaufe he Hands as a ufurper, fince he
has afl'umed a power of aftion with refpeft to the property of another
without that other’s confent.— If, however, the manager, having
carried the flock out of the particular city, fhould not purchafe any
thing with it until he had returned to the city to which the proprietor
had reflrifted his power of aftion, he becomes freed from
refponfibility, (in the fame manner as a truflee who has' oppofea
the
the depofiter becomes freed from refponfibility on the ce'fiation of fuch
oppofition,)— and the flock refumes its former nature of Mozdribat,
in virtue of its continuance in the pofTeffion of the manager, under the
original contraft.— In the fame manner, alfo, if the manager, having
bought fomething with part of the flock in the city in queftion,
fhould depart from it with the remaining part of the flock, and again
return without having purchafed any thing with it, in that cafe
both the purchafe which was at firfl made, and the part which
was afterwards brought back, are confidered in the nature of Mozdribat,
for the reafon above-mentioned.— It is to be obferved that what
has been here relatèd with refpeft to the manager’ s becoming refponfible
upon carrying the flock to another city, and thete making a purchafe
with it, is recited from the Jama Sagheer.— In the Mabfoot,
treating of Mozdribat, it is related that the manager becomes refponfible.
immediately on carrying the ftoek from the prefcribed city.— T h e
more approved doftrine, however, is that the manager becomes refponfible
immediately on carrying away the flock from the prefcribed
city; and that upon his- making a purchafe with it in another city
the refponfibility becomes fixed and permanent, fince there then exifls
no probability of his bringing it back to the prèfcribed city— The
condition Hated in the Jama Sagheer,. therefore, of the manager
making a purchafe out of the city, relates to the confirmation of the
refponfibility, and not to the original birth of it, which, takes place
immediately on carrying the property out of the. city.
I f a perfon give flock to another by way of Mozdribat, on condition
of his making a purchafe with, the faid flock in the market-place
of a particular city, the condition is invalid; becaufe a city, notwith-
flanding the diftinftion of its parts, is yet like one place; and fuch a;
reflriftion is therefore ufelefs.— If, however, he exprefsly limit the
purchafe to'the market-place, by faying, “ purchafe with this flock
“ in the market-place, and no where elfe,” a purchafe made out of
the market-place is in that cafe unlawful, becaufe the proprietor in
8 i ■ . this
A reftridtioa
to any particular
part o f a
city is invalid,
unlefs ftipu-
lated under
anexprefs exception
o f any
other place.