thoufand dims to the claimants, fince in paying them the one thou-
fand which was prefent he only pays each half his due*— Sup-
pofing that the Kdzee, in confequence of a refufal to take the
firft oath, Ihould immediately pafs a decree in favour of the firft
claimant, without waiting to tender an oath with refpedf to the
claim of the other, in this cafe Imam Alee Tezadee, in his commentary
upon the fama Sagheer, lays that an oath mull be tendered
with regard to the fecond;— and if the defendant refufe to take it,
a decree muft~ then be palled, jointly, in favour of both claimants,
in an equal degree; becaufe the decree in favour of the fir jl claimant
was not deftrudtive o f the right of the fecond, fince the precedence;
in the adminiftration of the oath, was determined either by the
will of the Kdzee, or the chance of the die; and neither o f thefe
have power to deftroy the fecond’s right.— Khafdf has fubftituted a
(lave in this cafe ; that is, inftead of one thoufand dims, he has
fuppofed the difpute to relate to a Have; and he maintains that the
fentence ought to be executed in favour of the firft claimant, fince
the matter is uncertain, in as much as feveral of the learned have
given it as their opinion, that a decree Ihould be palled in favour of
the firft without waiting for the fecond, as a denial to take an oath
is equivalent, by implication, to an acknowledgment.— He, moreover,
remarks, that the oath with relpeft to the fecond claimant
muft not be adminiftered to this effeft, “ ■ this Have is riot the Have
“ of fuch an one," becaufe a refufal on the part of the defendant
to take fuch an oath is of no confequence, after the Have in queftion
had been proved to be the property of another.— T h e tenor of the
oath, therefore, muft be “ there is nothing due from me to this
“ man; not this Have, nor the value of him, (which is fo much,)
“ nor lefs than the laid value.” — He allb obferves, that it is re-
quifite this oath be adminiftered, according to Mohammed; but
not according to Aboo Toofaf; becaufe if a truftee Ihould make an
acknowledgment of the depofit in favour of a certain perfon, and
i the
the thing acknowledged Ihould by a decree of the Kazee be given to
another, then, according to Mehamtned, the acknowledger is re-
fppnfible, but not according to Aboo Toofaf. — Now the cafe in
queftion is a branch of this cafe relative to the acknowledgment o f a
depofit; and confequently the law in the one cafe is the fame as
in the other.— T h e cafe o f acknowledgment here alluded to, is where
a perfon firft acknowledges a particular Have to be the property
of a particular perfon, and afterwards denies it, averring .that another
perfon had depofted the Have with him, and a decree is palled in
favour of the firft acknowledgee, becaufe of the fecond acknowledgment
being a retra&ation of the firft;— in which cafe, i f he
Ihould havé given the Have to the firft without a decree of the
Kazee, he is refponfible, in the opinion of pH our doctors; or if
he Ihould have given the Have by the decree of the Kdzee, in that
cafe alfo, according to Mohammed, he is refponfible, becaufe he
acknowledges his obligation to keep the Have on account of the
fecond, and yet he deftroys the faid Have, (that is, lb far as relates
to the claim of the fecond,) by means of his acknowledgment,
and is confequently refponfible.— According to Aboo Toofaf he is not
refponfible in this inftance, becaufe, as he holds, it is not the immediate
a£t of acknowledgment that deftroys the Have, fo far as relates
to the right of the other, but the giving o f him to the other,
which is the neceflary confequence of the order o f the Kdzee. Mohammed,
on the other hand, maintains that it was he who ur°ed
the Kdzee to pafs that decree; whence he is refponfible. Now the
reafon for affimilating the cafe in queftion with this one is, that the
acknowledgment in favour o f the fecond claimant, after the firft
had acquired a right to the thing, is ufeful to the fecond claimant,
in as much as (in the opinion of Mohammed) it induces a relpon-
fibility in his favour. Hence, in this cafe, it is requifite, according
to Mohammed, to adminifter an oath to the fecond claimant,
■ notwithftanding the Have have been proved to be the right of the
N n a firft*