but not i f the
denial be
made to a
ltranger.
A truftee is
at liberty to
carry the dépolît
withhim
upon a journey,
wife where the truftee deviates from his inftru&ions by tranfvreffin?
upon the property, and afterwards ceafes from fueh deviation, and
conforms to his orders, for in this cafe a recovery appears into the
the pofleffion of the proprietor’s fubftitute, as was before ex*
plained.
If the truftee deny the depofit to fome other than the proprietor,
he is not refponfible, according to Aboo Toofaf (contrary to the-
opinion of Ziffer,) becaufe denial to any other than the proprietor may
be for the fake of prefervation. The truftee, moreover, is not competent
to his own difmiffion, unlefs in the prefence of the depofitor,
or unlefs the depofitor claim his property from him. The order for
keeping the property, therefore, ftill continues in force:— contrary to
where the denial is made to the depofitor.
A trustee is at liberty, according to Haneefa, to carry the depofit
with him when he travels, although carriage and other expences
be thereby incurred.— T h e two difciples maintain that this is not permitted
to him where carriage or other expence is incurred. Shafei,
on the other hand, maintains that it is not allowable in either cafe,
becaufe he confideVs an order to keep the article in the common acceptation
o f keeping, namely, keeping in cities; in the lame manner
as where a perfon hires another for the prefervation of his goods for a
Hated time, in which cafe the perfon hired is not at liberty to travel
with the goods,— or, if he Ihould do fo, becomes refponfible for them.
The argument of Haneefa is, that the proprietor’s commiffion for prefervation
is abfolute and unconfined; and that a plain is a place of prefervation,
provided the road be fecured; on which principle it is permitted
to a father or guardian to travel with the property of their ward.
T h e reafoning of the two difciples is that, in cafe o f travelling,
where carriage for the depofit is neceflary, the expence of it mull fall
on the depofitor; and as it is probable he may not affent to this, his
commiffion for keeping the article mull, in fuch a cafe, be confidered
as
as limited to a city.— The anfwer to this is that the circumftance o f
the expence of removal falling upon the proprietor is of no moment,
as it may be a confequence o f an attention to the prefervation of his
property, and the fulfilment of his commiffion.— Tho anfwer to Shafei
is that although all articles chiefly abound in cities, ftill the keeping or
prefirving of them is not particularly confined to cities, but extends
alike to cities and to plains; fince the inhabitants of plains mull necef*
farily keep their property in plains.— Befides, a removal of the depofit
may fometimes be a definable öbjeél to the proprietor; as where it is
made from a city in danger to one in fecurity; or to the particular
city in which the proprietor dwells.— Now as the keeping of an article
is not, in its common acceptation, limited to cities, it follows that a
commiffion for keeping is not limited to any particular city. It is
otherwife in a cafe o f hire for keeping, as hire is a contract of exchange,
which requires a delivery of the fubjedt of the contrail
(namely, keeping or guarding) in the place where the contrail is executed.—
It is to be obferved that this cafe proceeds on a füppofitioti of (provided the
the contrail being abfolute, the road which the truftee travels fafe, a S ro , the
and the journey neceflary: for, if the road be dangerous, orthejoür- Se journey1“1
ney not neceflary, the truftee is refponfible, according to all our doc- n<*effary,)
tors.— If, alfo, the journey be not neceflary, and the truftee travel
withall his family, he is not refponfible: but if, the journey not
being neceflary, he Ihould leave his, family behind, he becomes refponfible,
as in that cafe it was his duty to have left the depofit with
his family.
I f the proprietor exprefsly prohibit the truftee from carrying the unlefs this be
depofit out of the city, and he neverthelels carry it out, he becomes Mbhed!ypr°'
in that cafe refponfible for it, as the reftri&ion fo iffipofed is a valid
one, fince keeping the article in a city is moft eligible.
If two men depofit iorpething jointly with .another,’ and one of in cafe o f a
them afterwards appear, and demand his ftare of the depofit, the truf- perfons^the0
M m 2 tee