A decree can*
not be ifilled,
refpeding a
claim to landt
without the
adduction o f
evidence.
A claim made
by the feller
o f a female
Have to a
child born o f
her within
lefs than fix
months after
the fale, is
efiabli/hed:
I f two men claim a piece of ground, each, refpeftively, aflerting
it to be “ in his pofleffion,” the Kdzee in this cafe muft not pafs a
decree in favour of the pofleffion of either, until evidence be produced
; linee pofleffion of land is not of a nature to be actually feen by
the Kdzee, becaufe of the imprafticability of producing it in court;
and alfo, becaufe it is neC'eflary to prove by evidence whatever is concealed
from the knowledge of the Kdzee.—If, therefore, either of the
parties produce evidence in fupport of his claim, the land muft be adjudged
to be in his pofleffion ; becaufe of the eftablifhment of proof,,
and alfo becaufe poffej/ion is a right which is the object of defire, in the
fame manner as other rights.—If both parties produce evidence in fupport
of their claims, the ground muft in that cafe be adjudged to be
jointly in pofleffion of both.—If, however, one of the claimants fhould;
have made bricks upon the ground, or fhould have built upon it, or
dug a welt or a ditch in it, in all thefe cafes the pofleffion muft be adjudged
to him on account of thofe a£ts..
C H A P , V,
Of Claim of Parentage,
I f a perfon fell a female ftave, and fhe afterwards bring forth a child,
and the feller claim it,— in that cafe, provided the birth take place in
lefs than fix months from the fale, the child is adjudged' to the feller,
and the mother is his Am-Waiid.— This is according to a favourable
conftruftion of the law. In the opinion of Ziffer and Shafei the claim
is null; and this is agreeable to analogy; becaufe the feller, in making
1 the
the fale, has virtually acknowledged the child to be a Have, which is
inconfiftent with his plea of its being his child.— The reafon for a
more favourable conftruction in this particular is, that as the birth
happened in lefs than fix months from the fale, it is evident that the
conception muft have exifted whilft the ftave was in the pofleffion of
the feller; and this argues the conception to have proceeded from the
feller, fince there is no reafon to fuppofe that the woman was guilty
of whoredom. As pregnancy, moreover, is a circumftance which
may remain unknown for a time, the feller is on this account vindicated
from the charge of prevarication or inconfiftency, and his claim
is confequently valid.— Now as his claim of parentage is valid, it is
therefore referred to the period of conception; and hence it appears
that the man has fold his Am-Walid; and as the fale of an Am-Waltd
is unlawful, it muft therefore be annulled, and the price muft be returned
by the purchafer, as having been unjuftly obtained.—If, on and if tlie
the other hand, the purchafer fhould, either at the fame time with, m”akethefame
or pofterior to, the claim of the feller, claim the parentage of the claim, ftiii
child, in that cafe, alfo, the claim of the feller is preferred, becaufe the filler is
of its having exifted prior to that of the purchafer, as being referred prcferred"
to the period of conception.— Suppofing, however, the child to be if the bit*
born two years after the fale, the feller’s claim of parentage is not in .haPP°1 ^th-
that cale valid; becaufe the conception, in this inftance, could not month* to two
poffibly have taken place during his- pofleffion o f the ftave, and this is
the only idea under whicha deciiion could pafs in his favour:— his
claim, therefore, cannot be admitted unlefs it be confirmed by the without the
purchafer; in which cafe the parentage o f the child is eftablifhed in fhe th
feller, as on a fuppofition of marriage:— for this reafon, however, the
ehild is not free, nor is the fale annulled,, fince it is. evident that the
conception did not take place whilft the ftave was in the feller’s pof-
feffion:— the child’s freedom, therefore, is uneftabliffied, as well as-
the eventual freedom of the mother Suppofing, alfo, the child to
* Namely, her becoming an dm-Walid, which would have given her an eventual
‘ hup to freedom. (SeeVol.1. p.479.)
be