creafe of value from a black dye, the black dye is the fame as a red
dye. If, however, the ufurped cloth be of fuch a nature that a red
dye occafions a diminution of its value, (as if, for inftance, the value
o fit having been thirty dir ms, it (hould, after receiving the red dye,
be worth only twenty dirms,') in that cafe it is related as an opinion
.of Mohammed, that regard mull be had to the additional value which
the red dye may have occafioned .in feme other piece of cloth; and if it
amount to five dirms, that then the proprietor of the cloth has a right
to take it, and to receive, befides, five dirms from the ufurper; for
the proprietor of the cloth is entitled to a compenfation of ten dirms
from the ufurper for the amount of the damage occafioned to his cloth;
and the ufurper is entitled to five dirms from the proprietor as the
value of his dye, having operated that increafe upon another piece of
cloth. Hence the proprietor is entitled to take five dirms from the
ufurper, and the remaining five is cancelled by the value of the dye
thus eftimated at fivs dirms.
S E C T I O N .
An ufurper,
damaging the
article ufurped,
becomes
proprietor o f
it upon the
- owner demanding
the
'Value:
If a perfon ufurp any article of goods or furniture*, and damage
it, and the proprietor demand a compenfation for the value from the
ufurper, he [the ufurper] .in that cafe becomes the proprietor o f fuch
article, according to our doctors. Shafei maintains that the ufurper
does not become proprietor, becaufe the aft o f ufurpation, as beincr
oppreffive and illegal, is therefore incapable of occafioning a right of
property; in .the fame manner .as where a perfon ufurps a Modabbir,
* Arab. Rakht wa.Matia-, houfeholi-Jluff, & c . as oppofed to M al.— T h e diftinflion is
fully explained elfewhere.
and
and injures him, and the proprietor takes from him the . value of the
Modabbir as a compenfation for the injury,—in which cafe he [tha
ufurper] does not thence become proprietor of the Modabbir. T h e
reafoning of our doftors is, that in the cafe in queftion the proprietor
of the article obtains a return for i t ; and: as the article ufurped is fit to
be Ihifted from the property of one, perfon to that of another, the
ufurper becomes the proprietor o fit, in order to remove the injury he
would otherwife fuftain. It is different with refpedt to a Modabbir, as
he is not fit to be removed from the property of one perfon to that of
another. (Th e contrail o f l^adbeer, however, is fometimes annulled
by order of the Kdzee; in which cafe the fale o f the Modabbh;- is lawr
ful, as it then is the fale of mere property, fince he becomes, fuch by
the annulment of the contra f t .)— It is to be obferved that, in after--
taining the value of the article ufurped, the affer-tion of the ufurper,
confirmed by an oath, is to be credited, fince the proprietor is the
claimant of a large value, and the ufurper is the denier of the fame,
and the affertion of the denier upon oath muft be admitted;— unlefs,
however, the proprietor bring evidence in fupport of his’ claim; for
then the affertion of the proprietor muft be credited, as being fup-
ported by evidence, which is convincing proof.— If, therefore, the
fubftance of the article ufurped appear or be found at a period when
the value of it is greater than the compenfation given by the ufurper,
and. fuch compenfation have been given in confequence of the claim of
the proprietor, or of evidence adduced by him, or of the non-denial”
of the ufurper,— the proprietor, in that cafe, has not the option of
taking the fubftance of the thing.ufurped: on the contrary,, it remains
the property of th^ ufurper, fince his property in it has been rendered
complete in confequence of a caufe conjoined with, the confent of the
proprietor, inafmuch as he claimed that extent of value;— whereas
if, on the contrary, the proprietor have taken, a compenfetion in confequence
of the affertion of the-ufurper, corroborated by an oath, he
has in that- cafe the option either to adhere to the compenfation he has
taken, or to take the fubftance of the article ufurped, and peftore to
7 the
the amount o f
which is af-
certained by
the declaration
o f the
ufurper upon
oath,— or by
evidence adduced
by the
.proprietor;
and after accepting
this,
the proprietor
cannot remand
the article,
i f the
compenfation
be given in
conformity
with .his .
claim.