An exception-
with refpedt
to the quality
is admitted,
i f the caufe.of'
the obligation
be not
mentioned by
the acknowledger
j
and alfa-
where it is-
mentioned,
i f it be either
ufurpaticn or
It often happens that dirms are Z ey f in borrowing, in- the fame manner
as in ufurpation. The reafoning of the .ZdMr-Rawayet -is- that
the common cuftom is to deal in good dirms, and therefore when the
explanation is abfolnte, good 'dirms mull be underftood.
If a perfon acknowledge that he- owes another a thoufand Z ey f
dirms, but without reciting the caufe, (fuch as J'ale or loan,') feme authorities
fay that his aflertion \yith refpeft to the quality of the dirms
is to be credited, according to all our doftors. Others, however,,,
allege that, according to Haneefa, it is not to be admitted, becaufe, as
the acknowledgment is abfalute, it may relate either to legal contracts,
or to a£ts of violence, fuch as-ufurpation or deftrudtion,, which are
illegal;—and the former fuppofition. Is adopted, as acknowledgment-.,
is rather to be. attributed, to a lawful than to an ««lawful caufe..
If a~ perfon acknowledge his having ufurped a thoufand dirms Horn,
another,, or. his having received them in depofit; and afterwards aflert
that the faid dirms: were Z ey f or Binhirja-, in that 'cafe his aflertion-
mull be credited, whether it be conjoined with or. feparate from.the:
acknowledgment; becaufe mankind are accuftomed to ufurp whatever
they can find,- and. to place in depofit whatever they poflefs * t
and therefore neither, of thefe afts neceflarily infers the dirms to have-
been. feed, (that is, good.) The ackno-wledger’s aflertion, therefore,
of the dirms being either Z ey f or Binhirjis. is- equivalent to an explanation
of the fpecies, and isconfequently admitted, even though it fhould
not have been conjunctively made.— For the fame reafon, alfo, if an
ufurper produce a defective article,.as the thing he had ufurped,— or a
truflee produce a defective article, as the thing he had received in depofit,—
the declaration fo made muft in either cafe be admitted.— It is
reported, from Moo Toofaf, that in cafe of an acknowledgment of
ufurpation, the acknowledger’s aflertion, of the dirms. being Z ey f ought
W ith ou t any regard to the fttc its or quality.
not
not to be credited where it is made feparately from the acknowledgement
; becaufe of the analogy of this cafe to that of & loan, on the
principle of feizin inducing refponfibility in both cafes, that Is, in a
cafe either of ufurpation or of loan;— for he holds that, in a cafe of
loan, the acknowledger’s aflertion of the money borrowed being Z e y f
cannot be credited, if feparately made; and fo alfo in the cafe in
queftion.
I f a perfon acknowledge his ufurpation of a thoufand dirms, or his Acknow-
receipt-of that fum, in depofit, and aflert that they were Sdtooka, in whhrefpea
that cafe his aflertion mull be credited, if conjoined with the acknow- t0 th,e deP?Ct - ' J or ufurpation ledgment.; but not other wife; becaufe, although Satooka be not in. of Satookg.
reality a fpecies of dirms, ftill it .is -cuftomary to apply that word to d>rm'
them figuratively the mention of this term, therefore., is a modifica-
tion, and mull: confequently be conjoined.
If a perfon declare that “ he owes fuch an One a thoufand dirms, An exception
“ on account of Certain goods,” or that 1 he has borrowed a thoufand H E s St'“'
“ dirms,” or that “ he has received a thoufand dirms in depofit,” or not ,to bc.
that “ he owes a thoufand Z ey f dirms," or that “ he has ufurped a madeftfw
“ thoufand dirms,"—and he afterwards except a particular number of ra“lji
dirms from the obligation,—in none of thefe cafes is his aflertion to
be admitted, -if made feparately from the acknowledgment,—whereas
if it be conjoined with the acknowledgment it mufl: be admitted,, as
the aflertion is in this cafe an exception, and an exception is valid
when conjunct. It is otherw-ife if he afieit the dirms to be Zeyf,
as a refervation of this nature is -not valid, fince Z ey f relates to quality,
but expreffion applies fole-ly to quantity, not to quality *; and exception
is not admitted with refpefit to any matter but what may be.pre-
■cifely exprefled. It is to be obferved, however, that if the exception unlefs this
arife from
* Meaning, perhaps, that number admits o f a precife and definite expreffion, whereas
quality can be afcer tained only by examination and infpeflion,
X 2 fhould