128 C L A I M S .
A claim made
by the original
Jeller, after a
Jecond fale, is
valid; and
that fale is
mull.
A claim ♦
eftabliihed
with refjpeö
cipation in regard to the mother; bat a mere right to a thing cannot
be oppofed to the adhial thing itfelf.— It is alfo to be obferved that the
purchafer’s creating the child a Modabbir is, in this -refpedt, equivalent
to the complete emancipation of him, as that alfo is incapable of annulment,
and is, moreover, followed by certain of the effedts of
emancipation,— fuch, for inftancc, as preventing yi/r.
If a perfon fell a Have, that has been born of a female Have, who
was his property at the time o f the birth * , and the purchafer afterwards
fell him to another perfon, and the firft feller then claim him,
in that cafe the Have in queftion is his child, and the fale is n u ll; be-
caufe fale is capable of annulment, whereas the right of this perfon to
claim the parentage of the Have is incapable of it; the fale is accordingly
annulled.— In the fame manner, if the buyer, after the purchafe
of the mother and fon, Ihould make a Mokatib of the former, or
pledge him, or let him out to hire,— Or, if he Ihould make a Mokdtiba
of the mother, or pledge her, or give her in marriage to fome perfon,
and the feller afterwards claim the child,— in any of thefe cafes his
-claim muft be admitted; and all the feveral contracts mentioned are
annulled, as they are all capable of annulment.— It is otherwife where
the purchafer emancipates or makes a Modabbir of the child,— as has
been already explained;— and it is alfo otherwife where the purchafer
firft claims him as his child, and afterwards the feller,— becaufe the
parentage, after having been eftabliihed in the purchafer, cannot again
be eftabliihed in the feller, as it is a right which is incapable of annulment,
and hence the cafe is the fame as if the purchafer had emancipated
him.
I f a female Have bring forth twins, and the proprietor claim the
parentage of one of them, in this cafe the eftablilhment of parentage
* T h is cafe fuppofes the child and the mother to be fold' together, as appears by the
context a little further on.
in
CHAP. V. C L A I M S . 129
in him, with refpefl to one of them, neceflarily involves the fame to»»«twin
with refpedt to the other-, becaufe they muft both have been conceived w^h'refpea
from one feed; for- this reafon, that by twins is underftood two chil- 10 the cthtr
dren born of the fame mother, and between the birth of whom a period
of lefs than fix months has intervened,— and it is therefore impof-
fible that the conception of the other child Ihould have been fupervenient
m&feparate, as pregnancy * cannot be Ihort offix months._It is
related, in the JamaSagheer, that if a perfon be poflefled of two Haves-,
twins, who had been born his property, and he Ihould fell one of
them, and the purchafer emancipate him, and the feller afterwards
■ avow, as his iffiie, the one who remains in his hands, in this cafe
both the twins are his children, and the emancipation of the purchafer
is null f ; becaufe, upon the parentage being eftabliihed of the one in
his pofleffion, by which he becomes free, the parentage and confe-
quent freedom of the other are neceflarily involved, as they are twins.
I Hence, as it appears that the purchafer bought a perfon who was ori- I ginally free, it follows that his purchafe, and confequently his emancipation
of him, is null.— It is otherwife where there is only one Have,
for in this cafe the buyer’ s purchafe and confequent emancipation are
^ not liable to be annulled upon the feller eftablilhing his claim;
whereas, in the cafe now under confideration, the emancipation of
I the purchafer is rendered null dependantly; in other words, freedom
■ is firft eftabliihed in the Have who remained in the claimant’ s hands,
I and is then, dependantly, eftabliihed in him who was fold and
I afterwards emancipated. There is therefore a material difference be- I tween the cafes J.
* Meaning the pregnancy requifite to produce a perfect child.
t One e ffe fl o f which is to deftroy his right o f With, which he would otherwife have
■ enjoyed.
t T h is cafe has been fomewhat abridged in the tranflation, and in particular the latter
I .part o f it is entirely omitted, as being a mere repetition, Vol. ml § If