Cafe of a
claim made
by two perfons
to a houfe
where one
claims the
ha lf and the
other .the
whole.
fuperiority, fince it is in the ftrength of a caufe, and not in the number,
that a fuperiority lies.
If a houfe in pofleflion of any perfon be claimed by two other
perfons, one of them alleging his right to the whole, and the other to
the half, and each bring evidence in proof of his claim, in this cafe
the Kdzee mull: adjudge three fourths to the claimant of the whole,
and one fourth to the claimant of the h a lf according to Haneefa, be-
caufe (agreeable to his tenets)'regard mull: be had to the nature o f the
difpute; and as, in the prefent inftance, no difpute fubfifts with refpedt
to one half, that half goes exclufively to the claimant of the whole;
but as there is a difpute between the parties refpedting the other h a lf
and as they are both upon an equal footing with regard to the ground
of their claim, that half therefore goes to them both in equal proportions.—
The two. difciples allege that the houfe muft be divided
between the claimants in three equal lots, two going to the plaintiff
for the whole, and one to the plaintiff for the h a lf; becaufe, accord-'
ing to them, regard muft be had to arithmetical proportion; in other
words, the plaintiff for the whole, in confideration of his claim, which,
is to the two- halves, is entitled to two lots, and the plaintiff for the
h a lf in confideration of his claim, which is to one half, is entitled to
one lo t: the houfe, therefore, is divided between them in three lots_•
If, on the t>ther hand, the houfe in difpute be in the pofleflion of the:
parties, the whole of the houfe in that cafe goes to the claimant of the
whole; for he receives the half poflefled by the claimant of the half
in confequence of a decree of the Kdzee, (which decree muft necef-
farily be granted him, fince in being a claimant for the whole, he is a
claimant for that half, without having pofiTeffion of it, and judgment
muft therefore be given according to his evidence;)— and he keeps the
other half, of which he was himfelf poflefled, as-it is a neceflary inference
that the claim of the other plaintiff related only to that half of
which he was in pofleflion, fince if he were to prefer a claim to the
ether half, it muft follow that the half of which he is in pofleflion.
is held by an unjuft tenure:— and as no claim fubfifts with refpedt to
the half in the hands of the claimant of -the whole, it confequently
■ remains with him.— In fhort, the whole houfe remains with him.
If two perfons lay claim to an animal, and each adduce evidence In claims ’
to prove its produaion, at the fame time fpecifying the date, in this generation™
•cafe the animal muft be adjudged to the claimant whofe witnefles fpe- be^tdto1
cified a date apparently according with the age o f the animal; becaufe, the-,&/«fated
■ %,probability is an argument in his favour, heis therefore entitled to antthe c!aira'
a preference.— If, however, the age of the animal be doubtful, and an
agreement with the date on one fide or the other not apparent, it
muft then be adjudged in an equal degree to both, and -the fpecjfica-
tion of dates fet afide: that is, the cafe muft be confidered in the fame
light as i f no dates had been mentioned.— If, on the other hand, both
the dates be repugnant to the apparent age of the animal, the evidence
of each party is nugatory, (and fuch alfo is reported from Hakim,')
becaufe the falfity of the evidence on both parts is in fuch'a cafe ma-
nifeft:— the animal is therefore left with the perfbn who may be in
pofleflion of it. ■ •.
If two perfons 'feverally prefer a plea againft another who is in One party
pofleflion of a flave; the one pleading that “ the pofleflbr has upurfied H a l 1
< ( .t e . j n c i . , , * ° r J r truft) and. the
tne laid Have from him, and the other, that “ he has committed other aflert-
“ the faid flave to him in t r u fif in this cafe the Kdzee muft r^ e a^ iT
decree one half of the flave to each, as their claims are equally “pQonMeclua!
ftrong. °owg>
V ol. in . R S E C T I O N .