been emancipated
by the
teftator, the
allegation o f
the heir is
credited with
refpect to the
date o f the
deed.
Cafe o f an
alleged emancipation
and
debt,credited
by the heirs.
fpe£t to the time of fuch emancipation, (the legatee aflerting that it
was during his health, and the heirs, on the other hand, maintaining
that it was during his ficknefs,) in that cafe the word of the heirs
muft be credited, and the’legatee is entitled only to what remains after
the value of the have is deriu&ed from the third of the teftator’ s whole
property*; becaufe the legatee here pleads his title to a third of what
remains after the emancipation of the Have, fince manumiliion granted
during health does not Hand as a bequeft, (whence it is that it takes
effedt from the whole of the property,) and the heirs refill his plea,
aflerting that the teftator had emancipated the {lave during ficknefs ;
and as manumiflion during ficknefs is a Ipecies of bequeft, and takes
place of a bequeft of a third of the property, the heirs are therefore
negators -, and as the aflertion of a negator [the defendant,] upon oath,
muft be credited, the legatee is therefore entitled to nothing whatever;
— unlefs there fhould remain fome excels in the third of the property
over and above the value of the Have, in which cafe the legatee is entitled
to fuch excefs ; or, unlefs the legatee confirm his aflertion by
evidences, in which cafe he is entitled to a third of what remains of
the whole eftate after the emancipation of the Have.
If a perfon die, leaving no other property except one flave, and
the flave fay.to the heirs “ your father, whilft he was in health,
“ emancipated me,” and another perfon fay to them “ your father
“ was indebted to me one hundred dir ms," and the heirs credit both
thefe aflertions, (as, for inftance, by replying to them together, “ you
“ both fpeak truly,” ) the flave is, in that cafe, required to perform
emancipatory labour to the full extent of his value, according to
Haneefa. The two difciples, on the contrary, maintain that the flave
is emancipated without performing any fervice whatever, becaufe the
* Literally, u is entitled to nothing whatever ” T h e tranflator renders the paflage in a
modified fenfe, becaufe o f the refervation afterwards ftated.
proof of the debt and of the emancipation during health are eftablifhed,
jointly, as the heirs have acknowledged both at the fame time, and
the emancipation of a flave during health does not induce the neceflity
of labour notwithftanding the emancipator fhould be involved in debt.
T h e argument of Haneefa is, that the acknowledgment o f the debt on
the part of the heirs is ftronger than that of the emancipation; becaufe
the former is valid at whatever period it may have been contracted,
and is difchargable from the whole eftate; whereas the latter,
if performed during ficknefs, is limited to a third o f the eftate; and
fuch being the cafe, it would follow that the emancipation is utterly
annulled. As, however, emancipation, after having been made,
does not admit o f being abfolutely annulled, it is therefore virtually annulled,
in this inftance, by the impofition of emancipatory labour.—
T h e fame difference of opinion fubfifts in the cafe where a perfon,
dying, leaves one thoufand dirms, and one perfon aflerts that the de-
ceafed owed him one thoufand dirms, and another, that he had de-
pofited one thoufand dirms in truft with the deceafed, and the heirs
confirm both aflertions at one and the fame time; for in fuch cafe the
two difciples are of opinion that both claims are upon an equal footing,
and that the one thoufand dirms are therefore to be divided equally
between the parties; whereas Haneefa maintains that the claim of the
depofitor is the ftrongeft, as his right relates to the identical dirms
jwhilft: the creditor has only a general claim on the perfon.
V ol, IV . U u u S E C T I O N .