•over towards the highway, the public communication becpmetiiutirrupted,
and the w a y * opcupiecl by the property of the owner o i that
wall. When, therefore, any perfon makes application to him, and
requires him to clear the way, it is. incumbent op him fo to- do; -and
he is eonfequently guilty of a tranigrefhon in neglecting i t , ' and therefore
remains refponfible for any damage it may ppcaf ionin ,thp fame
manner as .where a man. finds his garment upon another, and demands
i t of him; in which cafe, if. that other fefujfe tp deliver it, he is
guilty of .a tranfgreffion, and is eonfequently refponfible for the garment
if it fhould be loft whilft in his pofleffion.— Secondly, if the
owner o f the wall were not made refponfible for any damage its falling
might occafion, he would negledt to remove the nuifance, and
■ eonfequently paflengers would fuftain an injury, as'they would be deterred
from going by the place, for fear of the wall falling on them.
T h e removal, moreover, of any thing injurious to the community is
a duty incumbent upon the perfon 50 whom it belongs; and as the
owner of the wall is the perfon immediately concerned in the prefent
inftance, it is therefore incumbe.nt.Qp him t.p take it down, notwith-
ftanding his fo doing may be prejudicial to himfelf, fince private in-
tereft muft yield to public benefit. It is requifite, however, that fuch
a time be allowed as. may admit o f the owner taking down his wall, this
■ being indilpenfable to the eftablilhment of offence from negledt or delay.
I f (after the requifition for pulling it down) any perfon be deftroyed by
the wall falling, a fine is due from the Akilas of the owner, not from
the owner himfelf; for as the offence, in this inftance, is Hill
fhort g f horyicide by mifadventure, an, alleviation is admitted a fortiori,
left the owner fhould fuffer too feverely:— but if, on the contrary,
property (fuch as an animal, or houfehold goods) be deftroyed, the
compenfation for it mull be paid by the owner of- the wall, as the
.Akilas are not implicated in the relponfibility for property. It is to
* Arab. Uqwa ; literally, the air, or atmofphere; a phrafe generally uled where the
.nuifance or obftructionisnot immediately upon the ground. 7 be
be obferved that the application [that is, the rèqüifition For pulling
down the wall] is a condition of fefpoilfibility, but not the taking to
witnefs ; for the latter is called in aid merely .with a view to eftablilh
the former, in cafe, of the owner of the wall denying it, and is therefore
ufed only out of caution. T h e application is made by the claimant
faying to the owner of the wall, “ Your wall has become danger-
“ ous;— you muft therefore take it down, left it prove deftruttive ;”
and the taking to witnefs is effected by his .laying to the by Handers,
“ be ye witnefs that I have required this perfon to take down his
“ wall.”— It i proper, however, to remark that the taking to witnefs
before a wall has become ruinous or crooked is not valid, as tranff
greffion cannot.be eftablilhed previous thereto.
I f a perfon build a wall in the highway, leaning over . . . from the A perfon / V H ■ 0 ’ " building a
nrft, lawyers ..remark that he is refponfible for any thing-which may! .rroWwall is
be deftroyed by its falling, independant of the requifition before men-, foPthfdi-
tioned, as having been guilty of a tranfgreffion in the building of it, ?*a®e. ,occ.a'
in the fame manner as a perlon who couftructs a balcony or gallery falling,
projecting, over the highway.
T h e evidence of one man and two women fuffices to eftablilh T h e requifithe
application, above deferibed ; for it is not here requifite, as in biiibe'd upon
cafes of murder, that both the witneffes be males, the death occa- evidcncc
r ' . . °* 0ne man
iioned by the falling of a wall not amounting to murder. and two women.
A Mussulman and a Zimmee are upon an equal footing with re- A Zimme
fpe£t to the requifition for pulling down the wall,- as all mankind are ÏTwdi m***'
partners in the right of palling along. T h e application is therefore •
valid, by whomfoever it be taade,— whether a man-, a woman/ a freeman,
a Mokâtib, a Have, (provided his matter give him permiffion to
litigate the point,) or an infant, (with permiffion to litigate from his
guardian.)— It is alfo valid whether made by the Sultan or any other;
V ol. IV. . B b b for