monyof the midwife alone is fufficient with refpedto birth, lince thé
objedt of the teftimony is merely to afcertain that the child in queftion
is the identical child which the faid woman brought forth; whilft parentage,
on the other hand, is eftablifhed on the ground of the mother
■ of the child being the wife of the hufband:— it, is, moreover, recorded,
in the Nakl Saheeh, that the prophet accepted the teftimony
or (if fte be of a midwife, in a cafe of birth.)— If, however, the woman in quef-
meZaxtni t*otl *n ^er e^lt frorn a complete divorce, the teftioiony of the mid-
two -wtmm: wife alone does not fuffice with refped to the b i r t h o n the contrary,
• that of two men, or of one man and two women, is requifite.—
(This is the dodrine according to the opinion of Haneefa, as has been
already mentioned in treating of divorce.)
If the woman be neither married, nor in her edit from divorce*
in this cafe lawyers have- aiierted that the parentage of the child is
eftablifhed by herfelf; her own affertion on this head being admitted ;
fince, in this cafe, it does not operate upon, or affed, any other per-'
Ion.— But if, being married, the fhould fay, “ this is my fon, begotten
by this my hufband,” and the hufband verify the fame* there
is in this cafe no oecafion for one witnefs to provfe-the birth, fac e the
but if her acknowledgment of the hufband renders it unneceflary.— I f the boy
hufband ve- J ■ '
rify her be in the joint pofleffion of the wife and her hufband, and the hufisnooccafion
band fhould fay “ this boy is my fon, begotten not oil this woman
den«* CVI" “ but: on another,” and the woman fhould fay “ this ismy fon, be-
“ gotten by another hufbandf in this cafe the boy is decreed to be
their fon, becaufe of the probability of the thing founded upon their
joint pofleffion of the boy, and their connection with each other as
hufband and wife. Befides:, the aflertion of each has a tendency to
deftroy the right of the other, and therefore that of neither ought to be
adopted.— This cafe refemhles that where each of two men, havin°-
jointly the pofleffion of a piece of cloth, aflerts that it is the joint property
of hirofelf and feme other perfon, in which cafe the cloth is adjudged
to be the property of the two pofleflors.— There is, however,
this
this difference between thefe two cafes,—that, in the cafe of the
elothy the other perfons, in favour1 of whom the parties have rcfpec-
tively made an acknowledgment, are admitted to a participation in the
fhares-of their refpedive acknowledgers, becaufe of the' fubjed of
contention (namely,, the cloth) being'capable Of divifion;—whereas,
In the cafe in queftion, the perfons referred' to* are not- ad'mitfed1 to a
participation in the right of the acknowledgers, lince parentage (which
is the fubjed o f it) does- not admit of participation.
I f a perfon purchafe a female flave, and' beget a child upon her, Cafe of a per;
atid' claim it, after its birth, as his iffue, and it afterwards appear that achnfupl"5
the flave had not been the property of the feller, in this cafe the pur-
chafer muft give, to the rightful mafter of. the flave, the value which an erroneous
the child may bear at the time of contention,— and tbe'eMldisfree}, P°ffeffion'
firfi,, becaufe he is.the.offspringof a Magroor; for a Mbgroor is defined
to b,e a perfon who begets a child upon a. woman,, on the belief
of her Being His property,— (of'whom he has in that belief married')__
and who afterwards proves, to be the property.of another; and this,
definition of a-Magropr is exadlly applicable to the perfon in queftion ;.
the ifl'ue of a Magroor is therefore free for. an equivalent, according to
all the companions;— in tht fecond place, a regard muff be had-to the
light of both parties.' T h e laid child is therefore completely fr e e , in
behalf of h h fa t her, and a flave in behalf o f the plaintiff, namely, the
proprietor of his mother.— Now, lince the child remains in the pof-
feffion of the father without any tranfgreffion or unwarrantable,ad on
the. part of the father, the father is therefore not refponfible for itun-
lefs he become ,a bar to the feizimof it by the proprietor,; (in-the fame
manner as. is decreed in the cafe of the child of an ufurped female
wave;) and he is a bar only where, the plaintiff having demanded the
child, he [the father] refufes.to furrender. him^ whence it is that the
value of the child is eftimated from the day of contention, as it is them
that the bar begins to operate. If, therefore, the child fhould die in
t e pofleffion,of the father, without any contention having happened,
the