If a perfon Beal property out o f a bath, or from a houfe which
the owner allows all men indifferently to enter, his hand is not to be
cut off, becaufe general accefs is allowed to a bath by cufiom, and to
a houfe by a particular permiflion, whence there is a doubt with
refpedt to fuch a place conflitutingcfc/?»^/. This is where the things
are Bolen out of the bath or houfe during the exiflence o f fuch general
leave of ingrefs : and the lame rule applies to fhops or Caravan-
Serais, becaufe the mafler allows men to enter a (hop or Caravan-
Serai :— but yet, if a perfon were to Beal any thing therefrom during
the,night, his hand is to be cut off, as thofe places are conftrudted for
the protection of property, and people are allowed to enter them in
■ the day-titne only.
I f a perfon Beal goods out of a mofijue, and the proprietor be near
thofe goods, the hand of the thief is ftruck off, as they are under
cuflody by perfonalguard: but .if a perfon Beal goods out of a bath or
houfe the owner of which allows people to enter it, and the proprietor
of the goods be near them, the thief’s hand is not cut off. The
difference between a mofque., and the bath or houfe now mentioned,
is that a mofque is not erected with a view to the fecurity of property,
wherefore cuBody is in that cafe regarded as conflituted by
perfonal guard, and not by means of the place: contrary to the houfe
-or bath, as thefe are eonBructed for the purpofe of fecurity, wherefore
cuBody there is not regarded as depending upon perfonal guard:
and concerning fuch a place confiituting cuBody there is a doubt, on
account of the general permiffion of ingrefs; for which reafon the
thief’ s hand is not Bruck off
Amputation] I f a gueB Beal the property of his hoB, his hand is not cut off, as
curred by"! the houfe of the hofl: is not a place of cuBody with refpedt to the
tuifi Itealirg guefl, becaufe the euefl is allowed to enter it,— and alfo, becaufe a
gueB is as an inhabitant of the houfe of his hofl ; the act of the gueit,
therefore, is treachery, or hreach o f trujl only, and not theft.
I f
I f a perfon Beal any thing in a Serai, and do not carry it entirely
out of fuch Serai*, his hand is not cut off; becaufe the whole Serai
is one place of cuBody, wherefore it is requifite to the eflablilhment
of the theft that the thing Bolen be carried quite out of the Serai;—
and alfo, becaufe the Serai and whatever it contains is in the hands
of the mafler of it, by conftrudtion, wherefore there is a doubt
whether the thief has yet conveyed it away. If, however, the Serai
be one of thofe which contain a number of independent habitations,
the occupiers of which have no common ufe of the area or
fquare,. excepting merely as a pajfage or thoroughfare, and a perfon
were to Beal any thing out of one of thefe habitations, and carry it
forth into the area, his hand is to be cut off, becaufe every one of
thefe habitations is (with refpedt to the inhabitants') a feparate place
of cuflody; for which reafon, if one of thefe were to Beal any thing:
out of the lodge or habitation of another, he incurs amputation.
I f a thief break through the wall of a houfe, and enter therein,
and take the property, and deliver it to an accomplice Banding at the
entrance of the breach, amputation is- hot incurred by either of the
parties, becaufe the thief who entered the houfe did not carry out the
property; and that property, before his coming out, fell into the pof-
feffion of another, which pofleffion is regarded; and the other thief
has not committed any violation of cuBody, as he did not enter into-
the place of cuflody; and hence the full fenfe of larcinyis not' applicable
to the add of either of them. It is recorded from Aboo Toofaf
that if the thief who goes within the houfe put his hand through the
breach, and the thief without thus take the property from him, the
hand of the former is cut off: but if he' who remains without put his
handthrough the breach into the houfe, and thus take the property from
him who is within, each of them incurs amputation. This example
is founded upon another which will be hereafter recited.— If the
* isj o u to f the outer gate o f the quadrangle.
6 thief
n<Jr' By flea1-*
ing in a Serai,
unlefs the
goods be carried
out o f
the outer
gate; or
unlefs the Serai
be particularly
con-
ftrufted.
Cafes o f bur-
glary.