Where the
plaintifT's
witnefles are . within call,
the defendant
muft give bail
for his appearance
for
three days-:
bat i f the
witnefles be
not within
call, bail cannot
be required.
from
the defend«
ant.
eeflion of an advantageous nature,, (as being the means of terminating
a contention,) it follows ;that the cutting off the hand is advantageous
in this inftance, in the fame; manner as i.t is- advantageous to amputate
a limb in a cafe of mortification, or to draw a tootftincafe of ex-
ceffive pain.
If a plaintiff affert that ?f:hi& witneffes- are in the city,” the defendant
muft, in that cafe, be required to give bail, to anfwer for his
appearance within the term of three days, left he abfcond, and. thus
the right of the plaintiff be deftroyed:— and it is lawful thus to take
bail for his appearance, (according to our dodtors,) as has-been already
explained *.— T h e taking of bail from the defendant, in this inftance,
immediately on the preferment of the allegation by the plaintiff', proceeds
upon a favourable canftrudtion of the law, becaufe of its being
advantageous to. the plaintiff, and not materially detrimental to the
defendant; and the reafon for taking it is that it is incumbent upon the
defendant to make his appearance in court upon the inftant of the
claim; (whence it is that a perfon is.immediately difpatched to fum-
mon him;} and as this might prevent him from going, on with any
bufinefs in which he may be then employed, it is. therefore lawful to
take bail for his appearance.— The term of three days, as above mentioned,
is recorded from Haneefa; and that term is approved..— In
taking bail (according to the Zahir Raw&yet)- there is no difference
between an unknown perfon and one: of eftablifhed note; nor between
the claim of a large and of a frnall fum. T h e declaration of the plaintiff,
however, that “ his witnefles are in the city,” is indifpenfable
towards the taking of bail for appearance: and hence, if the plaintiff
Ihould fay “ I have no witneffes,— or, “ my witneffes are abfent
“ from the city,” bail is not in that cafe to be required from the defendant,
as it is of no ufe f .. If, therefore, the defendant, in this
* See Bail, V o l. I I . Book X V I I I .
t Becaufe the plaintiff, being deftitute of witneffes, cannot poflibly eftablifh his claim.
inftance,
inftance, upon being applied to, give bail for his appearance, it is
well: but if be refufe, the Kdzee muft then diretft the plaintiff to attend
and watch over him, in order that his own right may not be
deftroyed: excepting, however, where the defendant may happen to
be a traveller, or about to travel, for then the plaintiff is; to' watch
over him only whilft in the court of the Kdzee-, and i f be fhould' take
bail for his appearance under thefe circumftances, fit muft'be-extended
only to the breaking up of the court of the Kdzee-, becaufe i f either
the bail or the watching over him were extended to a longer period,
it would occafion a detriment to the defendant, in as-much as he would
be prevented, during that fpace, from purfuing his journey; but
where it is limited to the time of the fitting of the court, he is not
fubjefted to any apparent inconvenience.— The particulars of watching
or attendance will be explained in treating of inhibition.
S E C f I O N .
O f the Manner 9 / Sw e a r i n g , and requiring an O a t h ,
A n oath is not worthy of credit unlefs it be taken, in the name' o f
G od, becaufe the prophet has faid “ whoever takes an oath, let him
“ take it in th e name < f G od ; otherwife let him omit the oath entirely :”
— and alffo, becaufe he has declared “ whoever takes an oath
otherwife than m the name o f G od is mof certainly- an assocl-
“ ator
I t is incumbent upon the Kdzee to defire the fwearer to corroborate
his oath by reciting the attributes of G od__Thus he muft
* Arab, Mtojharik, meaning a Pagan, or a Polythei/l,
T h e oath
muft be taken
in the name
o f God; '
and the Kdzee
muft di&ate
the terms of
it.
direfl