Rule in cafe
o f two prefent
heirs bearing
teftimony to a
remiffion by
zwahfent heir.
murderer is therefore under no neceffity o f again adducing evidence
upon the abfentee appearing, for the reafons ftated in the precedin'»
examples.
If the he.ics of the perfon murdered be three, and two of them
give evidence againft the third, that “ he has remitted the retalia-
“ tion,” their evidence fo given is null, but the retaliation -is confi-
dered as being remitted by thefe two ; becaufe, in bearing evidence as;
above, they acknowledge retaliation to have been remitted, and their
acknowledgment, fo far as it affefts themfelves, muft be credited__
(T h e nullity of the evidence, in this inftance, is becaufe of its tend-
ing to the advantage of the witnefles, as converting retaliation into]
property.)— It is to be obferved that the cafe here confidered may oc-1
cur iii four different lhapes.— F ir s t , where the murderer confirms
the evidence of the two heirs in queftion, and the third heir denies it
in which cafe a fine of blood Is due among the three, in equal Iharesjj
becaufe the murderer, in confirming the evidence of the two heirs,]
■ makes an acknowledgment of two thirds o f the fine in their favour!
and he at the fame time claims that “ the right of the third heir has
“ dropped, in confequence of the remiffion granted by the others,“]
a plea which is refilled by the third heir, and cannot be eftablifhed by!
the teftimony of the others, inafmuch as their evidence is null,—
whence he owes an atonement to this heir like wife, namely, a third
o f the fine.— Secondly, where both the murderer and the third heir;
confirm the evidence of the two heirs,— in which cafe two thirds m
the fine of blood go to the two teftifying heirs, for the reafon already
mentioned; but the third heir gets nothing whatever, as in confirming
the evidence of the other two he acknowledges a remiffion, and is
therefore not entitled to any thing.— T h irdl y , where the murderer
and the third heir both deny the truth of the evidence,— in which cafe:
the third heir is entitled to one third of the fine of blood ;— but the
two teftifying heirs, get nothing whatever; for as they have acknowledged,
againft themfelves, that retaliation has ceafed, they muft be
credited!
credited;— but they at the fame time claim that the ffiares of each
have been converted into property * ; and a claim cannot be admitted
unlefs fupported by proof, which with refpetft to them does not appear,
as their teftimony does not ferve for proof in their owncaufe.
The lhare of the third heir, on the contrary, is confidered as being-
coiiverted into property upon the force of their allegation, as that is
fufficient proof with refpedt to him.— F ou rthl y', where the third
heir confirms the evidence o f the other two, and the murderer denies
it,— in which cafe the murderer owes a third of the fine to the third
heir; becaufe, in denying the evidence of the two, he acknowledges
that the right of retaliation had ceafed in confequence of the remiffion
of thofe two alone, and that the lhare of the third is Hill due in property.
It is to be obferved, however, that this heir, on receivin'»
fuch third, muft make it over to the other two; becaufe they claim
two thirds of the fine of blood for themfelves, and the murderer denies
their claim in point of properly, but acknowledges a fine to be due to
the third heir, as having acknowledged that the right of retaliation has
ceafed in confequence of the avowal of the other two heirs, at the
fame time that the lhare of the third became converted into property.
Whatever, therefore, the murderer acknowledges in behalf of the
third heir, he [the third heir] acknowledges in behalf of the other
two, in having confirmed their teftimony;— in the fame manner as
where a perfon makes an acknowledgment o f a thing as being due to
another, and that other declares the thing to belong, not to himfelf,
but to a third perfon; in which cafe the article goes to that third
perfon; and fo here likewife. This proceeds upon a favourable con-
ftrudlion of the l aw . Analogy would fuggeft that nothing whatever
is in this cafe incumbent on the murderer, as the two teftifying
heirs advance a claim for property, which the murderer refills, at the
fame time making an acknowledgment in favour o f the third heir,
which he [the third heir] denies, whence it would appear that nothing
* B y this phrafe is to be underftood “ commuted fu r a fin e ,”
Vol. IV . T t " |