A claimant
on a plea pf
purchafe, and
a claimant on
a plea of mar -
riage, are
upon an equal
footing.
A plea of
pawnage and
feizin is preferable
to a
plea o f gift
and feizin.
giver may retraB the gift; whereas charity is binding, and cannot be
retraced.
R e p l y .— No preference is given excepting for fome effedt immediately
operating; and the legality of retracting a gift, and the illegality
of retracing charity, relate to the fu tu re ; but at the moment
they are on a foot of equality.— It is to be obferved that this doCtrine
of the equality of claims of g ift and of charity, and of the neceffity for
decreeing jointly to both, is when the thing in queition is capable of
divifion. But if the thing be incapable of divilion, there is a difference
of opinion; fome maintaining that the law in this cafe is the fame ;
and others maintaining that the law in this cafe is different, as it
induces a g ift with refpeCt to indefinite property, which is unlawful.
’
If two perfons lay claim to the fame thing, one of them in virtue
of purchafe, and the other (being a woman) in virtue of the pofleflor’s
having married her, and having fettled that article as her dower,—in
this cafe both plaintiffs are upon an equal footing; becaufe the claim
of each in point of ftrength is equal, fince a contract of purchafe,
and of marriage, are both contracts of exchange, and both equally oc-
cafion a right of property.—This is according to Haneefa and Aboo
Toofaf. Mohammed maintains that the plea of purchafe is to be preferred,
and that the hufband muft be made refponfible to the woman
for the value of the article in difpute; as by this means a preference is
given to the plea of purchafe, whilfl at the fame time the claims of
both are attended to.
I f one o f two plaintiffs plead pawnage and feizin , and the other1
plead g ift and feizin, and each produce evidence in fupport of his plea,
in this cafe the plea of pawnage muff be preferred.— This proceeds
upon a favourable conftruCtion. — Analogy would fuggeft that the plea
o ig ift ought to be preferred, becaufe gifts oecafion a right o f property,
” whereas
whereas pawnage does not.— The reafon for a more favourable con-
ftruCtion in this inftance is that feizin in virtue of pawnage occafions
refponfibility, which is not the cafe with refpeCt to feizin in confe-
quence of g f t ; and a contract which occafions refponfibility is ftronger
than one which does not oecafion it.— It is different where the gift is
made fe exchange fo r fome other thing-, becaufe fuch a gift is ultimately
a fale-, and fale is ftronger than pawnage.
If two men claim an abfolute right of property in the fame article, Two cla!ms>
which is in the pofleflion of a third perfon, and each mention the date poned^muft
of commencement of his- right, it muft in that cafe be adjudged in ed'by'thf""
favour of him who pleads the oldeft date;—becaufe havino- eftablifhed Priority of
his prior right of property, it follows that no other can afterwards
obtain that but from him; and the other plaintiff, in this inftance, has
not obtained the right of property from him.
If two men prefer a claim of purchafe againft another who is not Two pleas o f
the poffeffor of the article in difpute, and each bring evidence of his tfrchf ‘>Ve:
purcnale, lpecifymg different dates, the perfon who proves the prior me Perfon>
date muft be preferred, as he proves his right at a period when he
had no opponent. by the oldeft
date.
If two claimants prefer an allegation of purchafe, the one bringing If, againft
evidence in proof of his having bought the article in difpute from twodifferent
Zeyd, and the other bringing evidence in proof of his having bought
it from Omar, and the witneffes of each fpecify the dates of thefe ■ ■
purchafes, in this cafe both plaintiffs are on a footing of equality, as bothcla™'
each of them has eftablifhed the right of property of his refpe&ive
feller, and hence the cafe is the fame as if the two fellers were them-
elves prefent and claimed their refpedtive rights.—Each plaintiff,
therefore, is at liberty to take the half of the thing at half of the price*
or to relmquifh his purchafe entirely, for the reafon before explained.
If