A commiffion
to take pof-
feffion of fub-
fiance does
not involve a
commiffion to
litigate.
■ is confequently the principal, he being fo with refpedt to all fuch
rights as a contradt of exchange require;)— and fuch being the cafe,
he is of courfe the plaintiff, and is entitled to carry on the fuit in the
fame manner as an agent for litigating a right of pre-emption, or for
pur chafe. He moft refembles, however, an agent for litigating a
right of pre-emption; becaufe an agent for the receipt of a debt, in-
flitutes his fuit prior to the feizin of it, in the fame manner as an agent
for maintaining a right of pre-emption inftitutes his fuit prior to his
taking the right; whereas an agent for purchafe cannot inftitute a
fuit, until he has completed the contra ft of purchafe.
An agent for the feizin of fubftance * is not an agent for litigation,
according to all our doftors; becaufe he is a mere trujlee; and alfo,
becaufe the feizin of fubftance is not an exchange: he is, therefore,
confidered merely as a mejfenger.— Hence, if a perlon commiffion another
to take pofleffion of his Have, and the perfon in whofe pofleffion
the Have is ffiould prove by witnefles that the conftituent had fold the
flave to him, the Kdzee muft not decree the fale againft the agent,
until the conftituent himfelf appear.— This proceeds upon a favourable
conftrudtion.— Analogy would fuggeft that the Have Ihould be delivered
to the agent, becaufe, as the proof has been exhibited againft a
perfon who is not the adverlary, (fincg the agent is not the adverfary,)
it cannot therefore be admitted. T h e realbn for a more favourable
conftrudtion, in this particular, is that the evidence goes to two
points;— f i r s t , to prove the fale on the part of the conftituent, and
-the confequent deftruction of his property;— s e c o n d l y , to prove
that the faid agent has no right to make feizin of the faid Have.—
Now, although the evidence on the fir jl point be not againft a regular
adverfary, yet in regard to the fecond point it is againft a regular ad-
* Arab. A in ;— - meaning fome actually exijlant property, (fuch, for inftance, as an art
icle borrowed under an arretat loan,) in oppofition to a debt in money, or to an article
-compenfable by an equal quantity of the fame article (fuch as grainy and the like .)
7 verfary;
verfary; (for the agent is the adverlary on the fecond point:)— the
evidence, therefore, is admitted with refpedt to the fecond point, but
not with refpedt to the Jirft point; whence, i f the conftituent were
himfelf to appear, it would be neceflary to exhibit the evidence de
novo, to prove that he had fold the Have.— It is therefore the fame as
i f evidence had been adduced to prove that the conftituent had difmifjed'
his agent, for that would be admitted fo far as to prevent the agent
from the feizin; and fo alfo in the cafe in queftion.— T h e effect is-
the fame in cafes of emancipation, divorce, and the like.— Thus,, if a-
perfon commiffion. another to bring his wife from her prefent place of
relidence,— or to bring his male or female Have,—-and the agent ha vino-
arrived at the place of their relidence, the wife Ihould prove, by witnefles,
that her hulband had divorced her,— or the Have prove, by
witnefles, that- he or Ihehad been emancipated,— fuch evidence mult
be admitted, fo- far as to prevent the agent from carrying them away-
until the conftituent Ihall himfelf appear,.— but not. with refpedt to the:
divorce, or the emancipation..
I f an agent for litigation make an acknowledgment, before the An agent for
Kdzee, of fomething affedting his conftituent, fuch acknowledgment empowered
»valid with refpedt to the conftituent. If, however, he Ihould make tomake"*-
the acknowledgment before any other than the Kdzee, it is not . valid, half o f his
(according to Maneefa and Mohammed, arguing on a favourable con- conftltuent"
ftrudtion of the law ;)— but the agent, in confequence of making fuch..
acknowledgment before another than the Kdzee, is difmifled from his
appointment; and therefore,, if he Ihould afterwards claim his agency,,
and bring witnefles to prove his acknowledgment,, it would not be admitted.—
Mboo Toofaf alleges that an acknowledgment made before any
other than the Kdzee is likewife valid with regard to the conftituent.
What is here faid proceeds upon a favourable conftruftion.— Ziffer and ■
Shcfei maintain that the acknowledgment, is not in either cafe valid,
with refpedt to the conftituent: and this (which was the firft opinion,
of Aboo Toofaf on the fubjedt) is conformable to analogy; . becaufe the
agent.'