nor by a
matter Healing'from
his
Mokdtib.
Two different
defcriptions
of cuitody.
the thief is not cut off, according to our dodors, (who in this in-
flance differ from the opinion of Shafei,) as there is a mutual right, of
ulufiud between hufband and wife, both according to cujtom, and
alfb by conjirudhon, for the contrad of marriage demonftrates this mu*
tual right of ufufkid between them. This diffent of Shafei, in the
prefent cafe, correlponds with his difference of opinion with refped
to giving evidence; for the evidence of a hulband or wife'regarding
each other is not admitted by our d o d o r s b u t by Shafei it is
admitted.
If a mafter fteal from the property of his Mokdtib, -his- hand is
not ftruck off, becaufe a mafter has a right in his Mokdtibh acquifi,
tions. And in the fame manner, the hand of a thief is not cut off
who Reals anything out of public.kplunder, becaufe in that he has a
fhare. This cafe, with its reafoning, is taken from yllee.
C ustody,is of two kinds f ir s t , that which h-cufiody from its
own nature, fuch as a houfe or Serai * ; secondly., cufiody, hyper*
fbnal guard. (Th e compiler .of the Hcdaya obferv.es that cuftody
is an indifpenfable requifiie to the eftablifhment of larciny, -fine®
without cuftody the circumftance of fecretly taking away cannot be
eftablifhed.) Thus cufiody fometimes conftitutedby place, that is-by a
place conftruded or appointed for the fafe keeping, of goods and effeds,
fuch as a houfe, Jhop, tent, or trunk ;. and.it is alfo fometimes conftitutedby
perfonal guard, that, is, by perfonal watch over the . property,
fuch as if a man were to fit in the middle of .the highways or
in a mofque, having his effeas near him, in which cafe thofe. effeas
are in keep or cufiody ; and the prophet, once cut off the hand of a per-
fon who: had ftolen a quilt from underneath the head , of Sifwan,
whilft he lay afleep in a mofque. It is to be. obferved that an article
* A quadrangular building, havingIheds or houfes all opening into the fquare within.
A high wall furrounding the whole forms the back o f the houies or Ihops; and the only
entrance is by one-or (at moil) two gateways.
which
which is in cuftody by place is not in cuftody by perfonal guard:
and this is approved, fince that article is in cuftody, without any
perfonal guard, by the,-cuftody of place, (fuch as a houfe, and fo ,
fotth,) although that place be without a door, or have a door Handing
open, (whence i f a perfon fteal any of the furniture from that place,
his- hand is cut off,) becaufe a houfe or fuch other edifice' is ereded for
the purpofe of fecurity. The hand, however, is not to be cut off unlefs
the article ftolen be carried out of the houfe, for until that happens it is
confidered as in the hands of the mafter o f the houfe : contrary to things,
in cuftody by perfonal guard, for here the thief’s hand is ftruck off
for the mere taking, as on the inftant of taking the property of the-
proprietor is deftroyed ; wherefore the larciny is completed by the
taking alone. It is to- be further obferved that no diftindion is here
made between the keeper being ajleep- or awake, or the effeds being
underbhm, or near him: and this is approved; becaufe a perfon lleep*-
ing «ear his effeds is accounted to be. watching them, in. common, acceptation;,
upon which principle it is that a truftee or borrower ia-
nof refponfible, where the truftee fleeps near, the depofit:,, or the
borrower near the-article borrowed, in. cafe of any accident befalling,
it, becaufe their fleeping is not held a defertion of the charge of that
property : contrary to what is adopted, m the Fatdvee *, for in fome,
decrees it is faid that if the truftee or the borrower lie down with the.
depofit or the loan under his head, andit.be ftolen, he is refponfible.
If a perfon fteal things out of a place which conftitutes cuftody, Vkridus cate
foch as a houfe',— or from- a place which does not conftitute cuftody, of cuP dy-
whilft the proprietor is near and has them, within his guard,— his hand,
is ftruck off, becaufe he has ftolen property from one of the two Ipe--
eies of cufiody»
* A collection of decrees or ctecihons o f the Mtifulman Mufiis or Razees; T here ,
are -many law books which hear this- title..