Bava Kamma

where the other party is not present?'  And why not? Was it not stated: 'Whether adults or minors they would be liable'?  — The other rejoined: 'Is not the divergent view of Symmachus  under your nose?'  He  retorted: 'Has the whole world made up its mind  to adopt the view of Symmachus just in order to deprive me of my property? Meanwhile the matter was referred from one to another till it came to the notice of R. Abbahu  who said to them: Have you not heard of what R. Joseph b. Hama reported in the name of Oshaia? For R. Joseph b. Mama said that R. Oshaia stated: If a minor collected his slaves and took possession of another person's field claiming that it was his, we do not say, Let us wait till he come of age, but we wrest it from him forthwith and when he comes of age he can bring forward witnesses [to support his allegation] and then we will consider the matter? — But what comparison is there? In that case we are entitled to take it away from him because he had no presumptive title to it from his father, but in a case where he has such a presumptive title from his father, this should surely not be so. R. Ashi  said that R. Shabbathai stated: [Evidence of] witnesses may be accepted even though the other party to the case is not present. Thereupon R. Johanan remarked in surprise:  Is it possible to accept evidence of witnesses if the other party is not present? R. Jose b. Hanina accepted from him the ruling [to apply] in the case where e.g., [either] he  was [dangerously] ill, or the witnesses were [dangerously] ill, or where the witnesses were intending to go abroad, and  the party in question was sent for but did not appear. Rab Judah said that Samuel stated that [evidence of] witnesses may be accepted even if the other party is not present. Mar Ukba, however, said: It was explained to me in so many words from Samuel that this is so only where e.g., the case has already been opened [in the Court] and the party in question was sent for but did not appear, whereas if the case has not yet been opened [in the Court] he might plead: 'I prefer to go to the High Court of Law'.  But if so even after the case had already been opened why should he similarly not plead: 'l prefer to go to the High Court of Law'? — Said Rabina: [This plea could not be put forward where] e.g., the local Court is holding a writ [of mandamus] issued by the High Court of Law. Rab said: A document can be authenticated  even not in the presence of the other party [to the suit], whereas R. Johanan said that a document cannot be authenticated in the absence of the other party to the suit. R. Shesheth said to R. Joseph b. Abbahu: I will explain to you the reason of R. Johanan. Scripture says: And it hath been testified to its owner and he hath not kept him in;  the Torah thus lays down that the owner of the ox has to appear and stand by his ox [when testimony has to be borne against it]. But Raba said: The law is that a document may be authenticated even not in the presence of the other party; and even if he protests aloud before us [that the document is a forgery]. If, however, he says, 'Give me time till I can bring witnesses, and I will invalidate the document', we have to give him time.  If he appears [with witnesses] well and good, but if he does not appear we wait again over the following Monday and Thursday and Monday.  If he still does not appear we write a Pethiha  out against him to take effect after ninety days. For the first thirty days we do not take possession of his property as we say that he is busy trying to borrow money; during the next thirty we similarly do not take possession of his property as we say perhaps he was unable to raise a loan and is trying to sell his property; during the last thirty days we similarly cannot take possession of his property as we still say that the purchaser  himself is busy trying to raise the money. It is only if after all this he still does not appear that we write an adrakta  on his property. All this, however, is only if he has pleaded: 'I will come [and defend]', whereas if he said: 'I will not appear at all' we have to write the adrakta forthwith; again these rulings apply only in the case of a loan, whereas in the case of a deposit we have to write the adrakta forthwith.  An adrakta can be attached only to immovables but not to movables, lest the creditor should meanwhile carry off the movables and consume them so that should the debtor subsequently appear and bring evidence which invalidates the document, he would find nothing from which to recover payment. But if the creditor is in possession of immovables we may write an adrakta even upon movables.  This, however, is not correct; we do not write an adrakta upon movables even though the creditor possesses immovables, since there is a possibility that his property may meanwhile become depreciated in value.  Whenever we write an adrakta we notify this to the debtor, provided he resides nearby,  but if he resides at a distance this is not done. Again, even where he resides far away if he has relatives nearby or if there are caravans which take that route, we should have to wait another twelve months until the caravan is able to go there and come back, as Rabina waited in the case of Mar Aha twelve months until a caravan was able to go to Be-Huzae  and come back. This, however, is no proof for in that case  the creditor was a violent man, so that should the adrakta have come into his hand it would never have been possible to get anything back from him, whereas in ordinary cases  we need only wait for the usher [of the Court] to go on the third day  of the week and come back on the fourth day of the week so that on the fifth day of the week he himself can appear in the Court of Law. Rabina said: The usher of the Court of Law  is as credible  as two witnesses; this however applies only to the imposition of Shamta,  but in the case of Pethiha,  seeing that he  may be involved in expense through having to pay for the scribe,  this would not be so. Rabina again said: We may convey a legal summons  through the mouth of a woman or through the mouth of neighbours; this rule, however, holds good only where the party was at that time not in town,