I f the real
owner of the
houfe foe unknown,
i t 13
impofed on
■ the A k ila s of
the pojfejfar.
tion is in confequenceof adtual pofleffion, not of mere right of property;
for the perfon in immediate pofleffion is enabled to take a proper care,
although he be not the proprietor,— whereas the proprietor, if he be
not in pofleffion, has not this in his power. Now where a perfon
fells his houfe, fo long as the purchafer does ’ hot take pofleffion, the
feller ftill continues feized of it, whether there be a condition of option
in the fale, or n o t; and hence, in this cafe, the fine falls upon
the Akilas o f the feller. If, on the contrary, the purchafer have
taken pofleffion*, and there be no referve of.option to either party,
the fine evidently falls upon him. I f a right of option be alfo ftipu-
lated to the feller, the houfe is infured in the hands of the purchafer,
to the amount of its value ; (in other words, it it be deftroyed in his
hands, he is accountable to the feller for the value;) in the fame
manner as holds in a cafe of ufurpation ; whence regard is paid to his
pofleffion, and he is accordingly enabled to ufe circumfpection ■— or
if, on the other hand, a right of option he referved to the purchafer,
he is in that cafe exclufively entitled to aft with refpedt to the houfe;
(in other words, he may do as he pleafes with it, but no other perfon
;)— from all which it follows that the fine falls upon the purchafer,
where he has taken pofleffion o f the houfe.
If a man he found flain in a houfe in the pofleffion of any perfon,
the real proprietor being unknown, the fine is not impofed on the
Akilas of the pofleflor until evidence be adduced to prove his being the
proprietor, in cafe his Akilas ffiould difpute, and deny his being fo,
alleging that the houfe is merely a depofit in his hands ;—becaufe the
pofleflor’ s having a property in the houfe is an eflential condition to his
Akilas being liable to the fine ; and although pofleffion be an argu-
' ment of property, yet ftill it is poffible that this perfon may not be
the proprietor. T h e bare circumftance of pojfejfon, therefore, does
not
* Previous to the body being found in the houfe *
not fuffice to fubject to the fine, in the fame manner as it does not
fuffice to eftablilh a right of Shajfa.
If a perfon be found flain in a lhip or boat, the oath and fine are
impofed upon the failors, boatmen, or other perfons who may be on
board, or are employed in tracking it up the fide of a river, whether
they be the proprietors, or otherwife, becaufe the veflel is in their
hands;— and the fame rule alfo obtains with refpeö tp carts,, or other
carriages.. This perfectly accords' with the dodtrine o f Aboo Toofqf,
as he holds that the oath is impofed on the refidents,. whether they
be proprietors or not. Haneefa and Mohammed, on the contrary,
hold that it is impofed on the proprietors only, not on thofe who are
merely r e f dents:— but the difference they make between a houfe or
place and a veflel or carriage is, that the latter are moveable from
place to place, and therefore, with refpedt to them, regard is paid to
tojfefjion, <not to property, in the fame manner as in the cafe of animals;—
whereas a houfe, or place, is not moveable, and therefore,
with refpedt to them, regard is paid to property, not to p o f
If a perfon be found flain in the mofque o f a divifion [o f a city,]
the oath and fine are impofed on the inhabitants of that divifion;
becaufe the care and regulation of the mofque reft particularly
upon them. If, on the contrary, a perfon be found flain in the
Jama mofque, or in the highway,, or on a bridge, the oath is not
adminiftered to any one; but the fine is paid from- the public
treafury; becaufe the Jama mofque, the highway, and bridges are
for the ufe of the community at large , and as the property of the
public treafury alfo belongs to them, the fine is therefore payable
from it..
A perfon being
found
flain in a carriage
of any
kind, the oath
and fine are
impofed on"
thofe in whole
hands it is at
the time.
A perfon be*
ing found
/lain in
a mofque,
the oath and
fine are impofed
upon
the inhabitants
of that
divifion.
&