this refpedt (and not becaufe he is feized o f the property) he is fubjedt
to the plea.— It is different where the plaintiff afferts abfolutely his
right o f property; becaufe in that cafe the defendant cannot be fub-
jedted to the claim other.wife than from his pofl'effion of the thing:
whence it is that an ablhlute .claim of property in an article is not admitted
.againft any except the actual poffeffior of the article; 'whereas a
plea for the adt [of acquifition, fuch as ufurpation, and fo forth] lies
againft any other perfon.
and fo alfo,
i f the plaintiff
fue upon
a plea.of
theft, without
fpecifvi-ng the
t h i e f ■
I f , In a fait, the plaintiff fhould fay to the defendant, who is
feized of the thing in difpute, “ this thing which is in your pofleffion
“ is my property, and has been taken from me by theft and the defendant
fay “ a certain abfentee depofited this thing with me;” and
bring evidence to prove his affertion, ftill he is not releafed from the
claim.— This is the opinion of Haneefa and Aboo Yoofaf; and.proceeds
upon a favourable coaftruction of the law. Mohammed holds the defendant,
in this cafe, to be exempted from the claim, as the plaintiff
has not exhibited the claim of theft againft him, but againft an unknown
perforr, and as a claim of this nature againft an unknown perfon
is nugatory, it follows that the claim, with refpedt to the ad?, cannot
Hand:— nothing, therefore, remains . except a' claim with relpedt to
the right a f property; and as, in a claim concerning a right o f property,
the fuit is let aiide, by the defendant proving the article in difpute to
have been committed to him in trufi, the cafe is therefore the fame
as if the plaintiff had declared the thing to have been taken from him
,by ufurpation, without naming the ufurper.— The reafoning of Haneefa
and Aboo lo o fa fis that the mention of the ad? involves a plea
againft the agent; and the prefumption is that the pofleflor is the
agent, hut that the plaintiff, from motives of tendernefs, may not
have fpecified him, in order to fereen him from puniftiment. T h e
cafe is, therefore, the fame as if the plaintiff had faid “ you have
ftolen this thing.— It is otherwife where the plaintiff charges the defendant
with ufurpation, for in this cafe, although he make the charge
in diredt terms, ftjll puniftiment is not incurred, notwithftanding it be
evident that his defign is to prove the ufurpation.
I f the plaintiff" ftiould fay to the defendant “ I have bought this but not i f the
* J . _ plaintiff fue
*c thing from a certain perfon,” and the defendant reply 66 that perfon h im on a plea
“ configned the thing to me in tru fifi in this cafe the defendant is o!P"rchafe•
exempted from the claim without the neceflity of producing evidence;
becaufe both the plaintiff and the defendant are agreed that the thing
is, originally, the property of another man; and confequently the
tenure of the perfon feized of it is not- a matter of difpute between'
them.— If, however, the plaintiff fay that “ a certain perfon had ap-
“ pointed him an agent for feizin of the faid thing,” and produce
evidence in proof of this, he is entitled to profecute his fuit againft
the pofleflor, as having eftablifhed, by witnefles, a fuperior right to
the poffeffion of the article in queftion.
C H A P . IV.
Of Things claimed by two Plaintiffs.
I f two men feparately claim the property of an article in the poffeffion I f the claim
of another, and each bring evidence in fupport of his claim, the Kâzee thing of a eïm
u f t , in that cafe, adjudge the article to be the joint property of-both nature,
• i j WÊÈBÈÊMÈ r ctr • 1 • r - / andtheproofs in an equal degree.— One opinion of Shafei, in this cafe, is that, as the on each part
évidence refpectively adduced by the parties is contradictory of each îhing muft'be
other, they muft both be rejected.— Another opinion of his is that the ^judged
I f '1 1 . 1 . 1 ] equally be-
J\.azee ought to tnrow the die to determine to whom the property be- tween both
V ol. III. p iono.s> claimants