A G E N C Y . B o o k XXIH.
srcnt was directed to litigate ; and by litigation is underftood contention.,
fince this is an effential property of litigation: now acknowledgment
is the feverfe of contention; and a direction to perform any aft
cannot extend to the reverfe of that a ft : on which principle it is
that (as contention is neceffary to the exiftence of litigation) an agent
for litigation is not competent to the afts of compofition or exemption
* ;— and alfo, that a com million of agency is valid, where the
agent’ s acknowledgment is exprefsly excepted from it, for if acknowledgment
be comprehended under litigation, the exception of it would
be invalid, in the fame manner as the exception of the denial of the
ao-ent "j"._A limilar difagreement alfo fubfifts with refpeft to the
cafe of a perfon appointing another his agent to give, in an abfolute
manner, an anfwer in his behalf: for this kind of agency is reftrifted
to an anfwer that relates to litigation; becaufe fuch is the common
praftice-; and hence an agent to give an anfwer in an abfolute manner
is, in fact, an agent for contention.— T h e reafon for a more favourable
conftruftion of the law, in this particular, is that agency for litigation
is indifputably valid; and the validity of it extends to every
point in which the conftituent is competent. Now the conftituent is
in an abfolute manner competent with refp?ft to an anfwer, whether
it relate to denial or acknowledgment; for his power is not confined
and determined to one of thefe only. T h e agent, therefore, is alio
competent to either of thefe. Simple litigation J, moreover, figuratively
lignifies general reply ; and as there is always an affinity between
the figurative and the literal fenfe of a term, (as will be hereafter de-
monftrated,) the term mult, in the prefent inftance, be received in
its figurative fenfe, fo as to render the agency indifputably valid: for
* In other words, o f agreeing to a compofition, or giving a difehargs, for a debt.
t “ In the fame manner as the exception o f the denial o f the a g e n t that is, in the fame
manner as i f the agent’ s'power o f denying and rejoining, & c . were exprefsly excepted from
-his commiffion.
J Arab. Khafmmt.— T h e reafoning in this paflage turns entirely upon the primitive
fenfe and generally accepted meaning o f the term.
C iiäp. HI. A- G> E N C Yi 49
-if the term be'adopted in ids-literal .{elite, (namely, contention',)'it
'.would follow-that the appointment is a .commiffion to quarrelt&nA cort-
.tenir, and■ quarrelling Contention are prohibited; and the-appointment
of an agent "with- refpeft tola prohibitedthmg is forbidden. I t ’is
.therefore indifpenfible' that the .term- be taken in its,-figurative fenfe,
;>(foas-to render the Agency valid*)’ as this is mod becoming the Muf-
fuléari.ck$x&&.et.
I f a -perfon*appoint'an a’gent for litigation, and'excêpt his acknow- Cafe o f an
lëdgment, it *is: recorded-froiii i#oi9 Yotifaf that the appointment*fs ofagency"
'invalid j ' fitice after - the' exicèpttion o f the aekhowledgtnent there re?-
mains only the denial-, and tê thd conftituent 'not empowered with knowledg-
réfpeft to denial-'óvdj', except- where he1 knbws tlie'dlaim of the 'ad-
veffary to be uiijuft, he 'cannot limit the pówèr o f thfe’ agefht to1 denial
only.— It is recorded from Mohdmtned, (on the other hand,) that this
•is'valid-;: fóf' the exception o f ''aèltriowledgment by the c'o'nftitueht
clearly indicates'that he hiriifelf is empowered only with relpeft to
denial, ■ becaufe o f his knowing' the fallity o f -his adverfety'S pléS.— If,
however, -heihould ha've expreffed himfelf generally, the commiffion
mull be interpreted to convey a power of general reply, 1 which-is becoming
the condition of Mujfulmans.— It is alfo related of Mohammed,
that he made a. diftinftion between the plaintiff and defendant, ob-
fieivïng that ifl a defendant ffiotild appoint an agent for litigation, and
Ihould exceptTuS'acknowledgment, it is invalid ; becaufe a defendant
is compelled to make an acknowk'dgfnent When put to his'oath, and
therefore hat hot'tfië'powër to eftablifh agency for.a purpbfe prejudicial
to the’plaintiff,' that is* for denial,\ as to this he himfêlf is "hot' competent.—
T h e plaintiff, on the contrary, is at liberty either to acknowledge
or deny, as he pleafes; and hence hè is entitled to appoint
an agent for one of thefe purpofes, and to except the other.— Aboo
Ybofdf argues that an agent is the fubftitute of hi.s conftituent; and as
the acknowledgment of a conftïtuéüt is not limited to the court of the
Kdzee, fo neither ought that of his fubftitute to be fo limited.— Ha-
Y o l . I I I . H neef a 1