them at a
■ particular
time, or in a
particular
m i
"Cafes in
which the
oath o f the
defendant .
.mull relate
to the. caufe',
and cafes in
which it mull
relate to the
ebjeSi.
oath is a reverence to him in whofe name it is taken, and this depends
not on any particular time or place.—Befides, if the corroboration of
oaths to Mujfulmans, by a reftridion to time and place, were neceffary,
it would fubjed the Kdzee to an inconvenience, in the neeeffity he
would be under of attending at the particular time- and place;
and the law admits not of inconvenience, more efpeeially'where
the fulfilment of right, or the execution of jufticeftloes.not depend
upon it.
If a perfon allege that he has bought a Have from another for a
thoufand dirms, and the feller deny the fad; in this'cafe the feller
muft be required to fwear, in the following manner, “ I fwear by.
“ God that there does not abfolutely at prefent exift any contradt of
“ fale between me and-the plaintiff;”— and hot in this manner, “ I
“ fwear by'GoD that I have not fold, &c.”—becaufe it often happens
that a fale is made, and afterwards an Ak&ia, or diffolution of the contradt,
takes place.—In cafes of ufurpation it is neceffary that the defendant
fwear, in the prefence of the plaintiff, in this manner, “ there is no
“ part of that which you allege that-1 have ufurped from you, due by
me,” and not “ I have not ufurped, &c.”—becaufe an ufurpation is often
done away by the proprietor felling or making a gift of the thing to
the ufurper.—In cafes of marriage it is requifite that the defendant
fwear to'this effedt, “ no marriage -does at this time fubfift between
“ me and the plaintiff;”—becaufe a marriage is fometimes diffolved
by Khoola.—In cafes of divorce the hufband muff fwear “ this wo-
“ man is not at prefent finally feparated from me, by the divorce
which fhe pleads;”—and not, in an abfolute manner, that “ he has
not divorced h er;”—becaufe a new marriage fometimes takes place
after a faldk Bdyeen, or complete divorce.—Thus, in all thefe cafes,
the Kdzee muft fwear the defendant with refpedt to the object of the
plea, and not with refpedt to the caufe of i t ; fince, if he were to ad-
minifter the oath with refpedt to the caufe, it might be injurious to
the defendant.—What is here advanced is conformable to the opinion
of
of Haneefa and Mohammed.— Aboo Toofafis o f opinion that, in all thefe
cafes, the Kdzee muft fwear the defendant with refpedt to .the caufe,
(except where the defendant particularly requefts the contrary;) becaufe
fales, for inftance, are fometimes made, and afterwards diffolved
; divorces fometimes executed, and afterwards fucceeded by a
marriage _de npvo; and ufurpations fometimes done away by g ift or
fa le:— in all thefe cafes, therefore, the oath muft be adminiftered with
refpedt to the objeft.-— Some have faid that the Kdzee ought to be
guided by the denial of the defendant;— in other words, if the defendant
deny the catffe, let the oath relate to the caufe,— or, if he
deny the effedt, let the oath relate to the ebjefl.— It is to be obferved
that (according to Haneefa and Mohammed) the oath muft in every
iijftance relate to the objeA, where the caufe is of fuch a nature as
renders it liable to be done away by lome other caufe; excepting only
where, in refting the oath upon the objeft, the tendernefs due to the
plaintiff is likely to be deftroyed; for, in this cafe, the oath (according
to all our dodtors) muft be refted upon the caufe. Thus, i f a
wife, having been completely divorced, fhould prefer a claim of maintenance
againft her hufband, and the hufband fhould not think .him-
felf bound to comply, becaufe of his being of the fed of Shafei,— or,
if a proprietor of a houfe, or of land, fhould prefer a claim of preemption
againft the purchafer of a contiguous property on a plea of
Shaffa, and the purchafer, being of the fed of Shafei, fhould not
admit his claim,— in thefe cafes (according to all our dodors) the
oath ought to relate to the caufe\— for, although the defendant could
not deny, upon oath, the caufe or circumjlances of the cafe, ftill he
might, upon oath, deny the objeft;— in other words, he might deny
the validity of the claim as founded upon thefe circumftances: if,
therefore, the oath were to relate to the objefl, it would evidently be
injurious to the plaintiff— If, on the other hand, the caufe be of fuch
a nature as cannot be removed or done away by fome other caufe, in
that cafe the defendant’s oath (according to all our dodors) muft relate
to the caufe.— Thus, i f a Muffulman flave fhould plead his having
• V ol. III. M been