appropriator,
it invalidates
the appropriation.
The income
o f an appropriation
mult
be expended
(in the firft
inftance)
upon keeping
it in repairi
unlefs the ap-
propriatee be
richt in which
cafe he is an-
fwerable for
the repairs;
appropriates, as the fale of an appropriated article is unlawful: but if it
is the appropriator who pays the balance, it is lawful, and what he
gets in return is his property;—if, therefore, he be defirous of having
it divided off from the part he has appropriated, he muft refer the
matter to the Kazee, in order that he may feparate the portion
appropriated from what he [the appropriator] getscin return for the
balance.
I t is incumbent that the income of an appropriation be in the
firft inftance expended in the repairs * of it, whether the appropriator
may haveftipulated this or not; becaufe his delign was that the
income fhould ferve as a perpetual fund; and as a perpetual income
cannot fee drawn from the article appropriated unlefs it be preferv-ed
in continual repair-, that is a -necefiary attendant upon it-; and alfo,
becaufe all acquifttion muft be attended with expenc^— (in other
wordiybe who enjoys the profit muft alfo bear the lofs.)— In fhort,
upon the perfon to whom the advantage of a thing accrues muft reft
the inconveniencies attending i t ; and fuch being the cafe, it follow's
that the repair of an appropriation refembles the fubfiftence of a Have
whofe fervice has been bequeathed to any one, for the fubfiftence of
fuch Have refts upon the legatee of ufufruft. If, therefore, the appropriation
be to the poor, and the requifition of repairs from them be
impoffible, (becaufe of the appropriation itfelf being their foie de~
pendance,) the repairs muft be afforded out of the income arifing from
it. If, however, the appropriation be to feme particular perfon, in,
the firft inftance, and after him to the poor, the repairs are in this cafe
due out of that perfon s property, (but he is at liberty to furnifh the
means out of whatever part o f his property he choofes,) during his.
life; and in-this cafe no part of the-income is laid out in repairs, be-
* Arab. Tameer: meaning, the rendering a place habitable, by cultivation, i f i t ’be
land, or by rebuilding, & c ..i f it be heufes,.
saufe
caufe the requifition from the perfon who enjoys the benefit is in fuch
inftance poflible, fince he is fpecified and known. It is to be under -
ftood, however, that the repairs are to be made out of the property,
only in fuch a degree as may be requifite to preferve it in the ftate in
which it was appropriated: if, alfo, it faE to ruin [or run Voafie^ it is
to be reftored to the ftate in which it was appropriated, becaufe the
income of it was made fever to others, and was to be derived from it
as in that flate, and not as in any fuperior date', and as fuch income
is the right of him to whofe ufe it is appropriated, it is not lawful,
without his permiflion, to expend it in repairs to a degree'beyond the
original ftate of the appropriation. Some are alfo of opinion that the
fame rule obtains where the appropriation is to the poor at large, and
not to any particular individual,^— that is to fay, the income is not to
be expended in repairs beyond the original ftate of the appropriation.
Others - allege that this is, lawful. The former, however, is the
better opinion; becaufe the income arifing from an appropriation is
expended in the repairs of it only from the neceffity of preferving it
as it was originally, and there is no neceffity for repairs beyond what
may fuffice for this purpofe.
If a perfon appropriate a houfi, with this condition, that his fin or
any other perfon fhall refide therein during life, the repairs are incumbent
upon him who has the right to inhabit it, becaufe he who
enjoys the profit muft alfo bear the lofs, (as has been already ftated,)
and the cafe confequently refembles the fubfiftence of a Have whofe
fervice has been bequeathed to any perfon by his mafter.- If, therefore,
the perfon in queftion refufe or neglect to repair the houfe, or be
incapable of fo doing, from poverty, the magiftrate muft: an this cafe
let it, and provide for the repairs out of the rent; and muft return it
to him upon the repairs being completed; becaufe, fey-this-means attention
is paid to the rights both of the appropriator and of the perfon
to whofe ufe it is appropriated, fince, if it were not duly repaired, the
tenement would be loft, and the rights of both would be confequently
Y y 2 deftroyed;
but in fuch a
degree, only,
as may fuffice
to preferve
it in its
original Hate.
The repairs
o f a houfe are
incumbent
upon the individual
OCCU ‘
pant pro tempore
;
or i f he ne-
gledt this, the
magiftrate
muft let the
houfe, and
furnifh the
repairs out o f
the rent;