36* F I N E S . BookL.
T h e difference between thefe two cafes is, that as the bufinefs of the
carrier is to take care of his parcel or load, the circumftance of re-
ftriaing his liberty of carrying it to the condition of fafety does not
operate as a hardlhip upon him ;— whereas, the bufinefs of the wearer
is not merely the taking care of his garment, but the wearing of it;
and therefore, as the reftriâing his liberty of ufe to the condition of
fafety would operate as a hardlhip, his ufe of it is not reftriaed to any
particular conditions, but is allowed to him generally.
A firanger I f a perfon hang up a lamp, or fpread a carpet, or ftrew «-ravel in
lamp, or a molque appropriated to any particular tribe or people, and any perfon
ve7,W& I S aâ Peri{h in confequence, nothing is incurred, provided the perfon who
rpofque.isre. hungup the lamp, or fo forth, be one of that p e o p lew h e r e a s , if a
iponlible for e , a
any accidents Granger do any of thefe adls, he is refponfible. In the fame manner,
arifehth” re. i f one of the PeoPle of a mofque fit in that mofque, and any perfon
from; perifh in confequence, he is not refponfible, provided he be, at the
time, engaged in prayer : but if he be engaged in reading the K oran,
or teaching, or be waiting for the time of prayer, or fleeping (either
during prayer or at any other time,) or converting, he is refponfible.
T h e reafon for the law in the former inflance is, that as all the re«u-
lations of a mofque, fuch as the appointment of a prieft or a fuper-
vifor, the opening and fhutting o f the doors, and fo forth, appertain
folely to the people to whom the mofque belongs, and not to any
others, their a£ts are therefore of a neutral nature, and are not reftriaed
to the condition of fafety; whereas the afts o f all others with
refpea to it are either tranfgreffive, or permitted under the condition
o f fafety; and a pious intention does not prevent refpoufibility where
the perfon errs in the manner of his piety. The reafon for the law in
the fécond inftance is, that a mofque is conftruaed particularly for
the purpofe of prayer, to which leading the K or an, teaching, or fo
forth, are only (as it were) appendages ; and as it is indifpenfable that
a diftinaion be made between the original and the branch, or dependant,
the a a of prayer (which is the original) is therefore permitted
generally,
Chap. II. F I N E S . 367
generally, without any reftriaion to the condition o f fafety, whereas
all other aas or employments are fo reftriaed.
If a ftranger to the people of the mofque be at prayers in it, and a.
perfon fall over him, and die in confequence, the ftranger is no way
refponfible; becaufe (as has been already obferved) a mofque is conftruaed
for the purpofe o f prayer; and although the right of public
prayer appertain folely to the people of that mofque, yet any perfon is
entitled to pray there alone.
S E C T I O N .
O f Buildings which are in danger o f falling.
If a wall belonging to any perfon lean towards the public hi«h-
way, and a perfon require the owner to pull it down, and call people
to witnefs his requifition, and the owner neglea taking it down, until
at length it fall and deftroy either man or property, the owner is
refponfible for the damage fo occafioned, on a favourable conftruaion.
Analogy would fuggeft that he is not refponfible; (and fuch is the
doftrine of Shafei;) for he has neither perpetrated the deftruaion
himfelf, nor done any thing tranfgreffively to occafion it, as he built
the wall in his own right, and its tottering, or the wind fhakin«- it,
were not his aas, whence the cafe is the fame in effea as i f the wall
had fallen previous to the requifition, and calling of witnefles, as
aforefaid. T h e reafons, however, for a more favourable conftruaion
“ the l a w in this particular are twofold.— F i r s t , upon a wall leaning
but he is not
refponfible
for accidents
occafioned by
his own perfon.
T h e owner o f
a ruinous
wall is refponfible
for
any accident
occafioned by
it after having
received due
warning, and
requifition ta
pull it down*.
over: