thofe inftances the ufurper is not entitled to derive profit, fince there,
the fubftance of the article continues in one refpeft extant. In the
cafe, therefore, of fowing ufurped wheat, it is not neceffary (according
to Aboo Toofaf) to bellow in charity fuch part of the produce of
it as exceeds the quantity fown and the expence of the labour ; contrary
to the opinion of Haneefa and Mohammed, as has been already
explained.
Any altera- i F a perfon ufurp gold or lilver, and convert it into dirms or
upon'gold^or deenars, or make a veffel from it, fuch filver or gold does not feparate.
transfer'the*1 from the ProPerty of the proprietor, according to Haneefa,— whence
propertyofit. he is entitled to take it from the ufurper without giving him any com-
penfation. The two difciples maintain that the ufurper, in fuch
cafe, acquires a property in the metal, and owes a compenfation of a
i im i l a r quantity o f gold or filver to the original proprietor; becaufe he
has performed a valuable operation upon the metal, which in one;
fhape deftroys the right of the proprietor, fince in fo doing he has
broken it down fo as to deftroy its original purpofes, inafmuch as bullion
is unfit to become the flock in a contrail of Mozdribat, or o f
partnerfhip, whereas coined money has this fitnefs. T h e reafoning
o f Haneefa is, that in the cafe in queflion the fubftance of the thing
ufurped is extant in every refpecl, iufomuch that it ftill preferves its.
name; and tlie purpofes to which gold and filver relate, fuch as price
and weight, are alfo extant, infomuch that ufury by weight takes,
place in them when coined, in the fame manner as before coinage..—
With regard, moreover, to the fitnefs of them (when coined) for
conftituting flock, it is an effeft of the workmanfhip, and not a quality
inherent in the fubftance of the thing. Befides, the workmanfhip
in queflion does not always increafe the value, but is fometimes attended
with value, and fometimes not; as where, for inflance, genus
is oppofed to genus,—in which cafe workmanfhip is of no value.
If
If a perfon ufurp a beam, and build a houfe upon it, the beam is
in that cafe feparated from the property of the proprietor, and the
ufurper mull make a compenfation to him for the value of it. Shafei
maintains that the proprietor is entitled to take it. T h e arguments of
the two parties on this point have been already recited'; but in this
cafe there is another reafon in addition to thofe of our doctors, namely,
that if (according to the opinion of Shqfev) the proprietor were to take
the beam, an injury would refult to the ufurper, as-his houfe would
thereby be demolifhed without his receiving any compenfation.— "
Where, on the contrary, (according to the opinion of our doctors,)
the beam is feparated from the property of the proprietor, and becomes
the property of the ufurper, although an injury be thereby oc-
cafiotied to the proprietor, yet that is done away by the ufurper
making compenfation. T h e cafe is,' therefore, analogous to one
where an ufurper fows the belly of his male or female flave with an
ufurped thread*, or inferts an ufurped plank into his own boat; for
in thefe cafes the proprietor is not permitted to take away the thread
or the plank, but is entitled to a compenfation for their value.
If a perfon ufurp and flay the goat of another, the proprietor has
it in that cafe at his option either to take a compenfation for the
value from the ufurper, making over the goat to him, or to keep
the goat, receiving from the ufurper a compenfation for the damage
done by flaughtering it. Such alfo is the law with refpedl to
a camel; or where a perfon cuts off one of the legs of a goat or camel
belonging to another. This is according to the Z&hir Rawdyet; and
the reafon of it is, that a deftruftion of the animal is occafioned in one
refpefl in a termination of many of its ufes, fuch as milk, and progeny,
and the tranfportation of burdens, whilft fome of its ufes ftill
continue, fuch as that of the flejh, for inftance ; whence the cafe is
* T h is is the literal meaning in both the Jrabic and Perft'm verfion ; but what cuftom
or particular operation it alludes to, the tranflator has not been able to d ifeover. | ■
VoL. III. fimilar
T h e con-
ftru&ion o f a
building
upon an
ufurped beam
transfers the
property o f
the beam to
the ufurper.
In the cafe o f
flaying an
ufurped
animal, the
proprietor
has an option
o f taking the
carcafe, (receiving
a
compenfation
for the damage,)
or
making it
over to the
ufurper for
the value.
Z z z