inafmuch as the appearance is no longer the fame, whence it; is that
the name is changed, and many of the original purpofes of the article
defeated; as grains of wheat, for inftanCe, which are fit for being
fown or roafted, but after being converted into flour are no longer fit
for tbefe purpofes,-: In fliort, by the alteration of an article ufurped
the right of the proprietor is deftroyed in one fhape, and that of the
ufurper with refpeft to the qualities is eftablifhed in every fhape; and
hence the right of the ufurper has a fuperiority with refpebt to the
original of that thing which has been in one fhape deftroyed. (With
refpedt to the a£t of the ufurper, it is not made the. occafton of pro-
perty peeaufe of its illegality, but becaufe of its being the performance
of a. valuable operation. It is. otherwife with regard to a goat flain by
the ufurper, an,d the fkin of it torn to pieces; for; after the killing of
a goat, and the deftrudion of its fkin, the name of goat is, ftill retained,
fince it is common to fay “ a Jlaughteredgoat." With refpeft to
what has been recited, that “ the ufurper is not entitled to derive
“ any profit from the article until he pay the compenfation,” it is according
to a favourable conftrudtion of the law. Analogy would lead
us to conclude that it is lawful to derive a profit from the article before
the payment of a compenfation. This is the opinion of Hajfan and
Ziffer, and there is alfo a report to that effect from Haneefa, of which
the relater.is the lawyer Aboo Lays. The reafon derived from analogy
is becaufe, after the alteration, the ufurper becomes the proprietor of
the thing, an,d may therefore perform any adt - with refpedt to it-, of
derive profit from it, in, the fame manner as he might lawfully give it
avyay or foil it. T h e reafon, however, for a more favourable con-
ftrudtion is, that in the days of the prophet a goat having been killed
and roafted without the confent of the proprietor, the prophet ordered
that the prifoner.s fhould be. fed with it, meaning, that it fhould be
bellowed in charity upon them. Now this order of the prophet
evinces that upon an alteration in the ftate of an article ufurped, it is
foparated from the property of the proprietor, and that it is unlawful
for the ufurper to derive a profit from it until he have fatisfied the
5 proprietor,
Book XXXVII. U S U R P A T I O N .
proprietor. Moreover, i f it' were lawful to the ufurper under thefe
cirdumftaiicés Rj take â profit, a doçr'would bê opened for ufurpafión;
and, therefore, to prèvënt 'fuch mlfchiëvbàafobhTequ'éhcës, the ac-
quifition of â profit fefore farisfaflioh tó n g made is riot perbit ted.'
With «fpfeé tó the aftertioris of É a ftk and Ziffer adduced in fupport
of their opinion, that thë |ÿft or t'hb /«/e bV the thing''ÿ lawful ;’’
it is anfwered, that notwithftanding the ‘ illegality o f deriving prdfit
from the article ufurped, ftill the fale or gift of it is lawful, becaufe
the article in queft'ibn is the property of thé iifurpfer, and the alft or
fale of property held under an invalid right is laWful. Whefe, h o w ever,
the ufurper makes a cofoperifation for the thing ufurped, he is
entitled to dérivé an advantage from it; Becâufe the right o f the pro-'
priétor has been transferred td him in confequence of his fnakiritf com-
perifatkm ; aud it becomes1 the fame as àh V.éichànge betwebh ' the
ufurper and the proprietor with their mutual confent. In the fâfrië
manner, alfè; hé-is entitled to derive profit from the thing iri quèftfön
when the proprietor exempts him from refporifibility for°if ; becaufo
in confequence of fuch exemption the right of the profmetbdctófts';
and fo hkewife where the propriety takes the compenfation; from1 the
ufurper, or where he demanda it and the ufufper affents thereto, àÿ
in that cafe the confent of the proprietor i£ bbtained ; and'fe alfo whefe
the A & e paffes1 a decrèé difeéting the üfmper tö pay a fcompenfatio'if
to the proprietor,— or Where the1 ufiirper pàÿs the compenfation' tipo'n
the decree of the Kâzee, becaufe in that cafe Iîkéwifë'the confent of
the- proprietor is obtained, fince the ATfere paflbs the decree at hfs foit.
It is to be obferved that m the famé mannër as a difagree'fnent fuh'fifts
between our doctors and Shafii concerning thefe cafés, fo‘ likeVVifo
with refpedt to the cafe of a perfon ufiirping wheat and foWing if, or
ufurping the ftones of dates and planting them. Iri fhe opinion of
AbooTbofaf, however, itris IW u l even in thefe cafes for an ufurper
to enjoy profit before the payment of compenfation, becaufe in both
thefe cafes the ufurper has deftroyed the fubftance of the thino- ufurped
m every refpebt. It is otherwife in the cafes before recited ; for in
thofe