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their profecution muft be admitted generally, in the fame manner
as that of the proprietor: (for, the admifiion of the profccution of
the proprietor for the purpofe of manifefting the theft is becaufe he
is deiirous of recovering the property from the thief, l'o as that he may
be enabled to difpofe of it according to his own pleafure ;— and the
lame motive is applicable to the profecution of the trufiec, ufurper,
borrower, or fo forth, lince they are alfo deiirous. of recovering the
property from him, that they may be enabled to difpofe of it according
to their pleafure; as the borrower or hirer are deiirous to recover
it, in order to make ufe of it, and the pawner or truftee in order to
return it to the owner, and thereby free themfelves from the refpon-
iibility for it, and from their obligation to the charge of it :) lince,
therefore, it is evident that their profecution mult be admitted generally,
in the fame manner as that of the proprietor himfelf, what
Ziffer alleges falls to the ground. With refped to what he further
advances, that “ ■ if the thief’s hand'were cut off at their fuit the
“ protebhon of the property would be defeated,”— we reply that
the failure of protedion is in this cafe neceflarily involved, lince
as it appears that their profecution is the fame as that of the adual
proprietor, it follows that at their fuit the hand of the thief mull be
cut off; now one confequence of amputation is that the protection of
the property ceafes; and the failure of this protection, as being a
thing neceflarily involved, is not to be regarded.
O b j e c t io n .— Although their profecution be admitted, yet it
would appear that the hand of the thief Ihould not be cut off at their
fuit, fo long as the proprietor is not prefent, becaufe it is poffible that,
if he were prefent, he might declare the thing ftolen to be the property
of the thief.
Reply.— This fuppolition is merely imaginary, and therefore of
no weight; in the fame manner as a limilar imaginary fuppolition would,
not be regarded in a cafe where the proprietor was prefent, and the borrower
(or other perfon from whom the property had been ftolen) ab-
feut; for then the thief’ s hand would be cut off at the fuit of the proprietor
tor) according to the ZdhirRawdyet j) although it be poflible that, if the
borrower or other perfon were prefent, he might declare that he had
given permiflion to the thief to enter the place of cuftody where the
goods were kept, as this is merely an imaginary fuppofition.
If the hand of a thief be cut off for Healing any property, and
another thief Heal the property from this thief, neither the firft thief
.nor the proprietor are competent to profecute the fecond thief; becaufe
the property is not appreciable in refped to the firft thief,
(whence if it were deftroyed in his hands he is not refponfible,) and
it is not protested in refped to the proprietor, (whenc, if it had been
deftroyed in the hands of the firft thief, he could not make him refponfible;)—
the fecond theft, therefore, docs not occafion amputation.
There is one tradition, according to which the firft thief
may take the property back from the fecond thief, in order to- reftore
it to the proprietor, which it is incumbent upon him to d o ; but,
according to another tradition, the firft thief is not at liberty to take
back the property from the fecond thief, as he had not been himfelf
legally poflefl'ed of it, lince a legalpoffejfion or feizin means a feizin
either o f proprietary, refponfibility, or trujl, and the feizin of the firft
thief is not of any of thefe deferiptions. It is faid, in the Rattahal-
cTakdeer, that it is moft eligible, in this cafe, if the proprietor be
prefent, that the Kdzee caufe the property to be reftored to him, or,
if not, that he keep it with himfelf, as a trull, neither reftoring it to
the firft thief, nor yet leaving it with the fecond, whofe offence is
manifeft.— If, however, the fecond thief Heal the property before the
inflidion of amputation upon the fir jl thief, or after the remilfion of
punilhment in confequence of fome doubt [operating in bar of punilh-
ment,] his hand is cut o ff at the fuit of the firft thief; becaufe, in
this cafe, the property is appreciable with refped to the firft thief,
fence it would be ^inappreciable with refped to him only in confequence
of amputation ; but here amputation has not taken place upon
him; he is therefore, in this inftance, the fame as a ufurper.
Q^jt If
Cafe of a fe cond
thief
dealing the
property from
the firjl thief.