I f a pawner
die, leaving
an article in
pledge with
two pawnees,
it is fold for
the difcharge
o f their
claims.
therefore, it is impoffible to decide according to the evidences of either
they are both fet alide.
O b j e c t i o n ,— It would appear that the Kd%ee- ought to decree the
Have to be the pledge of both, fince they have both, as it were, received
him at the fame time, the period when he was pledged not
being afeertained.
R eelYi.— T h e Kdzee has no power to pafs a decree of that nature
as he would thereby depart from the evidence adduced by the parties,
each having exprefsly declared, that the Have was wholly pawned
into his hands towards obtaining a fatisfaclion for the whole o f his
particular claim. If, on the other hand, he were to decree ail half
to each, he would a# in opposition to the evidence, which a Kdzee is
not at liberty to do.
I f a pawner die, leaving a pledged Have (for inflance) in the
hands of two pawnees, and each of them produce evidence to prove
that the Have had been pledged wholly to him, a moiety o f the Have is
in that cafe awarded in pledge to each, and may refpe#ively be fold
by them in fatisfa#ion of their claims, upon a favourable conftru#ion;
and fuch is the opinion o f Haneefa and Mohammed.— Analogy would
fuggeft that the pawn is in this inflance null ;■ (and fuch is the opinion
o i AbooYoofaf\) for, as the intendment of a contra# of pawnis.that
the pledge lhall be detained towards obtaining payment of a claim, it
follows that the decree of the Kdzee, awarding a moiety of the Have to
each, proves the pawn to have been indefinitely held, in feveralty,
which is unlawful now, in the fame manner as in the lifetime of the
pawner.— T h e reafon, however, for a more favourable conftru#ion
of the law in this particular is, that the obje# is not the mere contract
but its utility. Now the utility of the agreement in the lifetime
of the pawner confifls in a detention of the pledge, which cannot
be accomplilhed in the cafe of an indefinite feveralty of claim; but the
utility of-it after his death is, that the pawnee may-fell it in order to
6 difcharge
difchkrge his debt, which a feveralty of claims does not prevent,—
the cafe being the fame as where two men contend that they are
married to the fame woman,— or where two lifters contend that they
are married to the lame man, and evidences are produced to prove it
by both;— for in this cafe the evidence adduced is difregarded during
the lifetime of the man ; but after his death a decree is paffed affign-
ing them their refpective lhares o f inheritance, as that is capable of
divifion.
C H A P . III.
Of Pledges placed in the Hands of a Truftee*.
I f the pawner and pawnee agree to place the pledge in the hands of
any upright perfon, (to a# as truftee for both,) it is lawful. Malik is
. of opinion that this is not lawful; becaufe the feizin of the truftee, is
the fame as that of-the pawner; (whence it is that the truftee has.re-
eourfe to him for indemnification where the pawn is loft in his pof-
feffion, and another, having proved a right to it, takes a compenfation
from him for its lofs;) and fuch being the cafe, no account is made
of the feizin of the pawnee; wherefore the contra# of pawn is incomplete,
becaufe of the failure of one of its conditions, namely, the
feizin of the pawnee. The argument of our do#ors is that the feizin
of the truftee is apparently the fame as that-of the pawner, with refpe#
The parties
may, by
agreement,
entruft the
pledge to the
cuftodyofany
iipright perfon
}
A rab . Adil> an upright perfon. (See note in p. 19 5.)
G g 2