The ufurper
o f a female
{lave is not
liable for any
damage fhe
may receive
by bearing a
child, provided
the v alue
o f the
child be adequate
to fuch
damage.
“ proprietor,” (as has been already explained.) Now the poffeffion
of the proprietor had not been eftablifhed, with refpeft to the iticreafe,
fo as to admit the deftruSfori of it. Betides, i f thè poffeffion of the
proprietor with regard to the increafe be admitted by way of depend-
ancy on his property, ftill his poffeffion continues, and the ufurper
has not deftroyed i t ; for it is apparent that the ufurper has not hindered
him from taking his increafe;— yet if he refute to give it to him upon
his demand, he is then retpontible to him for i t ; in the fame manner
as where he commits a trefpafs with regard to it, by deftroyingit, or
killing and eating it, or felling it and delivering it to the buyer.
With refpect, moreover, to the fawn before mentioned, it is not a
fubjedt of refponfibility when deftroyed prior to the ability of the treft
pafl'er to place it in the inciofure, becaufe he is not, before that,
guilty of any obftruftion or hinderance;— in fhort, he is liable to rë-
fponfibility only where he deftroys the fawn after his ability to place it
in the inciofure ; and this, becaufe he is then guilty of an dbftruiftioft
after the eftablifhment of the claimant’s right, *.
If a female ftave be injured by bearing a child whilft in the poft
feffion of the -ufurper, and the value of the child be equal to the damage
fuftained, the ufurper is not liable for a eompenfation. Shajej
and Ziffer maintain that the value of the child cannot be made a remedy
for the injury; becaufe the child is the property of the proprietor
of the Have; and confequently cannot be applied to remedy the
damage fuftained by her;— in the fame manner as in the cafe of the
fawn above recited;— that is to fay, if a perfon drive a deer out of an
inciofure, and fhe then bring forth a young one, and be injured by
'.fuch delivery, and the value.of the young be adequate to the damage,
in that cafe the perfon is not only obliged to reftore the deer and its
* A final] portion ó f the text is' here omitted, as it relates merely, to the prohibition
againft trefpaffmg tipon game in the facred territory,- (round Mecca,) a fubjeft.the difcuffion
o f which is o f little importance to the point in queftion, and which is treated o f at.large
elfewhere.— (See Scyid )
6 ■ young
young one to the inciofure,' jnjt nstnft glfo make good the damage fuft
tained. It is ajfo the lame where the child dies prior to the ufurper’s
reftoratiou of the mother; or where the mother djes in confequence
of the delivery of the child, and the value of the child is adequate to
renjedy the lofs; or where a perfon fheers the wool o f a fheep belonging
-to another, or lops off the branches pf a tree belonging to another,
or caftrates the ftave of another, or teaches him the knowledge
of feme art in confequence p f whjçh he is rendered in any refpecl
defe.dtive * ;— for .in nil thefepafes the . perfon ftp aâing .is refponfible
"for the injury, notwithftanding the value of die article be.increafed
in confequence. T h e arguments .of our doctors are that, in the in-
ftance in queftion, the caufe of the increafe and of the injury is the
fame, namely, childbirth ;— .arid iuch being the cafe, the injury is
not taken into the account, becaufe, in oppofition to it, an increafe
«has been obtained. Hence an injury o f this nature" does not occafion
refponfibility ; it being, in fadt, analogous to where a perfon ufurps a
-fat female ftave, who afterwards becomes lean, and then grows fat
again; or who lofes two o f her fore teeth, and then’ acquires two
new ones ;— or-where a perfon cuts off the hand o f an ufturped Have
whilft in the poffeffion of the ufurper, and the ufurper receives the
-fine from him, and gives it with the ftave to the proprietor;.—for in
all thefe cafes no eompenfation for the injury is incumbent upon the
ufurper.— With refpedt to the cafe of the fawn, as adduced by Ziffer
and S hffei, it is not admitted as applicable.-;—With refpedt, moreover,
to the death o f the mother, in confequence o f her delivery, (as
alfto adduced by them,) there are two opinions on record,— T h e firft
is, that i f the value of the child he adequate to remedy the injury, it
is then taken as fuch ; and the fécond ( which is according -to the
Zâhhr Raxvayef) is, that the value of .the child cannot he taken as a
eompenfation for. the injury, for this reafon, that the delivery is not
* T h a t is, defective in regard to the purpofe for which his mailer -had intended him ;
as ;by a lots of health, o r apy accident fuftained in the coutic o f his learning the art.
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