peace depends upon the property people have in the place; with
refpedt to which all the proprietors are on an equal footing. The
arguments of Haneefa and Mohammed on this point are twofold.—
F i r s t , the original proprietors are the more immediate guardians of
the place, as is univerfally admitted.— S e c o n d l y , the original proprietors
are the old eftablifhed relidents, whereas the more recent
proprietors are merely new. comers, and the power of regulation and
of preferving the peace therefore particularly belong to the former.—
(Some fay that this doctrine of Haneefa is founded on what he faw of
the people of Koofa ; for there the original, proprietors had the guard
of places, not the recent proprietors.)«
Ip there be none o f the original proprietors concerned in the place,
having entirely parted with it by fale or otherwife, the oath and fine
are iinpofed on the purchafers, or other prefent pofleflors, according
to all authorities..
If a perfon be found flain in any man’s houfe, the oath is adminiftered,
not only to the matter of the houfe, hut alfo to his Akilas.
Thofe, however, are included in the fwearihg on the condition only
of their being prefent; for i f they be abfent, the oath is adminiftered
to the matter fifty times repeatedly, fo as to complete the number of
fifty depofitions. This is according to Haneefa and Mohammed.-—
Aboo Tbofaf fays that the Akilas are not required to fwear. T h e argument
of Haneefa and Moh'ammed is that, where the Akilas are upon
the fpot, the regulation of the place is as much an obligation upon
them as upon the immediate proprietor; and confequently they are
affociated with him in taking the.oath..
If a perfon be found flain in a houfe held unequally in partnerfliip
among three, one half of it (for inftance). appertaining to Zeyd, a
tenth of it to Athroo, and the remainder to Bikker, yet the oath is
adminiftered
adminiftered according to the number o f thé perfons, not according
to the amount or value of their refpective (hares;— becaufe the pof-
feffor of the fmalleft (hare is at liberty to obftruft him who poflefles a
larger (hare; and fuch being the cafe, all are upon an equal footing
with refpedt to the regulation of the houfe and the prefervation of the
peace within it, and are confequently alike involved in the charge of
remiffnefs. _
If a-man purchafea houfe, and, before he takes pofleflion of it;
a perfon be found (lain in it, the fine is impofed on the Akilas of the
feller, whether a referve of option have been ftipulated to either party
in the fale or not;— whereas, if the purchafer firft take pofleflion of
the houfe,. and the man be-then found flain in it, the fine is.impofed
on, the purchafer. T h e two difciples maintain that i f there be no
option in the fale, the fine is impoled on the purchafer * jj but i f there
be a condition of option,, it is impofed on the Akilas of that party to
whom the houfe in the end belongs -j-; for as the fine is impofed folely
on account of the negleft o£ circumfpedtion, it therefore falls only on
him who poflefled. the power to exert fuch circumfpeftion ; and as
this power belongs only to.the proprietor,, on him alone is. the fine incumbent
;— whence it is that, where a perlon is found flain in a depo-
Jitedhoufe, the fine falls upon the owner, not on the truflee. Where,,
moreover, there is.an option in fale,. the purchafer becomes the proprietor,
and the fine is confequently due from him: but where, on
the contrary, there is a condition of.option, the afeertainment of the
property becomes necefiary; in other words, in whomfoever the property
of the • houfe is ultimately eftablilhed, upon him the fine falls..
The argument of Haneefa is,, that the ability of exerting circumlpec-
* Whether he h ave taken pofleflion o f the houfe or n o t ; .
+ Tounderftand the reafoning upon this cafe, the reader muft fljfer to conditions o f op*-
tion w.SALEt ( S e e V o l. I I . p. 3?Q.)
A perfon be ing
found
flain in a fold
houfe, thefine
is impofed on
the A k ila s of
the f e l l t r .
tioru