Where the
trovehasbeen
bellowed in
alms, the
owner may
either ratify
the alms-gift,
or . take indemnification
from the
finder,
to the owner, where he is diftovered, or by bellowing it in alms,
fo as that a return for it, (namely, the merit) may reach the owner,
as he will affent, upon hearing of its having been fo bellowed: or if
the finder chufe, he may continue to keep the property, in hopes of
difcovering the owner and reftoring it to him.
If the finder of a trove property difcover the owner, after having
bellowed it in alms, the owner has two things at his option:—if he
chufe, he may approve of and confirm the charity, in which cafe he
has the merit of i t ; becaufe, although the finder has' bellowed it in
alms by permiflion of the law, yet as the owner has not confented
to his fo doing, the alms-gift remains fufpended upon his confent to
it: as the pauper, however, becomes endowed with the property in
queftion previous to his confent, it does not remain fufpended upon
the continuance of the fubjeft*: (contrary to a cafe of fale by an un-
authorifed perfon; in other words, if an unauthorifed perfon execute a
fale, the validity of it depends upon the continuance of the fubjedt j-,
that is, of the article fold, becaufe the purchafer does not become endowed
with it until after confent:) or, if the owner chufe, he may
take an indemnification from the finder, becaufe he has bellowed a
property upon the poor without confent of the proprietor.
Objection. It would appear that indemnification is not incumbent
upon the finder, as he has bellowed the property in alms, with
the confent of the law.
Reply.—Mis bellowing it in alms, with the confent of the law,
does not oppofe the obligation of refponfibility, in behalf of the right
of the Owner; in the fame manner as where a perfon eats the property
of another when perilhing with famine; for in this cafe he owes in*
“ Upon the continuance o f the fubjeft.” T h a t is, upon the continuance o f the property
in the hands o f either the donor or the proprietor.
t T h a t is, upon the continuance of the property, which is the fubject o f the fale, in the
hands o f the owner.
6 demnifi cation,
demnification, although he be permitted by the law to eat another’s
property in fuch a fituation; and fo alfo in the cafe in queftion.
— Or, if the owner chufe, he may take indemnification from the pauper,
where the trove property has perilhed in his hands,;— becaufe he has
taken poffeflion of the property of another perfon without his confent;—
or, if the property be remaining in the hands of the pauper, the owner
may take it from him, as he thus recovers his a&ualproperty.
Objection.— It has been already Hated that the pauper becomes
endowed with the property previous to the owner’s confent; whence
it would appear that the owner' has no right to reftitution.
Reply.—Eftablilhment of property does not oppofe a right to
reftitution; in the fame manner as a donor is at liberty to refume his
gift, although the donee have become proprietor upon taking pofief-
iion of it.
I t is laudable to ftecure and take care of ftrayed cattle; fuch as
oxen, goats, or camels. Malik and Shafe'i maintain that where a perfon
finds ftrayed camels or oxen in the defert*, it is moll eligible to
leave them, the feizing of them being abominable:— and concerning
the feouring of ftrayed horfes there is the fame difference of opinion.
T h e argument of Malik and Shafei is that illegality is originally eon-
necfted with taking the property of another, which is not allowable
except where there is apprehenfion of its: perilhing if it be not taken:
but where a trove property is of fuch a nature as to be capable of repelling
beafts of prey, (fuch as oxen; who may repel them with their
horns, or camels and horfes, who may repel them with their hoofs
or their teeth,) there is little apprehenfion of its perilhing: it is ftill
however to be lulpedted that it will perilh, and hence it is declared abo-
* Arab. Sihra. T h is is the term applied in general to the extenfive and barren deferts
o f Arabia; it alfo means any wafte or unenclofed land.
or from the
pauper upon
whom it has
been fo bellowed
:
or, i f ftill
exifting, may
claim reftitution
o f it.
Stray animals
ought to be
fecured and
taken care o f
for the owner*
minable