rate o f hire
for his work.
T h e parti-
tioner muft
be juft* and
fkilful;
but muft not
always be the
fame perfon.
T h e partners
may agree to.
a partition,
procuring ( if
one be an
infant) an
order from
the magif-
trate.
One public
partitioner
cannot be
concerned
with another.
the allowance from the public treafury, he muft at all events appoint
a perfon who will make the partition for a certain rate of hire, to be
paid by the parties who are concerned and particularly benefitted by
the divifion. In this cafe, the rate muft be moderate and fixed, fo
that the partitioner may not be able to make exorbitant demands.—
It is, however, more eligible that his allowances be paid from the
public trealury, as this is eafier for the people in .general, and
precludes, in a greater degree, the imputations of corruption and
injuftice.
T he partitioner muft be a man noted for juflice and integrity;
and he muft alfo poflefs a knowledge of that particular bufinefs.
T he magiftrate muft not compel the people always to accept o f
one particular perfon for their partitioner; becaufe the tranfadtion
which -pafles betwixt the partners and the partitioner is* a fpecics of
contradt; and it is.not lawful to compel any perfon to enter into a
contract;— and alfo, becaufe, if fuch a practice were admitted, the
perfon poffeffing the exclufive appointment would demand an immo-
derate rate of hire.
I t is lawful for feveral partners to agree amongft themfelves, and
to make a divifion o f their joint property. But i f there be an infant
among them, it is requifite that they procure an order from the ma-
giftrate; for they poflefs no power over the infant.
T he Kdzee muft not fuffer the perfons employed in making partitions
to be concerned together in the hire or profit arifing from
their bufinefs, fuch a conjunction tending to raife the hire to an exorbitant
rate; for each of them, when Applied to, will make fome
excufe for declining the employment, and they will refer the party
who hasoccafion for their fervices from one to another, until at length
he be conftrained to confent to immoderate t e rmswhe r e as , if
every
every man is concerned only for himfelf, each will readily confent
to be employed for a moderate hire, rather than lofe it altogether.
T he rate of wages to a partitioner is regulated by the number of ^ neJ?;sr p"itj
perfons for whom the divifion is. made, according, to Haneefa. T h e in proportion
t . . . . . tothenpmber
two difciples'maintain that it is determined m proportion to their 0f claimants,
refpedtive ftiares,' the wages of the .partitioner being, on account of
their property, and therefore determined according to its extent, like
the wages of a public weigher, of a meafurer, or of a perfon who digs
a well to be held in joint property,— or like the maintenance of a
{lave belonging to feveral partners. T h e argument of Haneefa is,
that the wages of the partitioner are 'given to him for diferiminating
and feparating the {hares, in doing which it fignifiesenot whether the
Iharesiibe large or fmall, fince the {hare of the inferior partner is dif-
tino-uiflied and fevered by hjs work, as well as that of him who
holds a large proportion. It moreover fometimes- happens that the
labour in calculating a fmall {hare is more than in afeertaining a large
{hare; and fometimes the reverfe: hence it is difficult to determine
how far the one or the other is attended with the moft trouble ; and
therefore the hire muft be referred to the mere adt o f dividing off or
diferiminating. It is otherwife in digging a well-, for, in that in-
ftance,'the wages are'on account of digging and carrying away the
earth, in which there .is' difference in the labour performed for each
partner’ s proportion. With reipedt to weighing ox meafuring, i f thofo
Toe performed in order to effedt a partition of any thing,: (fuch as
wheat held in partnerlhip,) it is affirmed by fome that the lame difference
of opinion fubfilts betwixt Haneefa and the two difciples:—
but if they be performed merely to afeertain the quantity of the
whole, or for any other purpofe than partition, the wages are then
on account of the weighing or meafuring, which "is greater in the
larger than in the fmaller {hare. There is alfo another opinion
maintained upon the authority of Haneefa,— that the hire of the partitioner
falls entirely upon the one who folicits the partition, and not