more entitled; because pick-up is the taking, not the seeing. If one of them says to his companion: "Hand him over to me," and the other takes him, we look [to his intention]. If he intended to take him for himself, he is more entitled, just as if the other had not ordered him to hand him over to him. If he intended to hand him over, then he belongs to the one who gave the order, because he did so with the intention of being a deputy on his behalf, so it is similar to if he had been commissioned by him to acquire something permissible.

Section: If they differ, and each one of them says: "I picked him up," and neither has evidence, but he is in the possession of one of them, then the statement is his along with his oath that he picked him up. Abu al-Khattab mentioned this, and this is the view of al-Shafi'i. The Qadi said: The analogy of the school is that he does not swear an oath, as in the case of divorce and marriage. Our evidence is the saying of the Prophet (peace and blessings of Allah be upon him): "If people were given based on their claims, a group would claim the blood and wealth of another people; but the oath is upon the defendant." Reported by Muslim. If he is in the possession of both of them, lots are drawn between them, and whoever the lot falls upon over his companion, he takes an oath and it is handed over to him. According to the Qadi's view, the oath is not legislated here, and it is handed over to him simply by virtue of the lot falling to him. If he is not in the possession of either of them, the Qadi and Abu al-Khattab said: The ruler hands him over to whomever he sees fit among them or others, because it is a right for them. The most appropriate is to draw lots between them, just as if he were in their possession, because they are disputing a right that is in the possession of another, so it is similar to if they were disputing a deposit held by someone else. If one of them describes him, such as saying: "There is a mole on his back" or "there is a mark on his body," and he mentions something hidden on his body, Abu al-Khattab said: He is prioritized by the description, and this is the view of Abu Hanifa. Al-Shafi'i said: He is not prioritized by the description, just as if the claimant were to describe it, his claim is not prioritized by that. Our evidence is that this is a type of found item (luqatah), so it is prioritized by its description, like the found item of property, and because that indicates the strength of his possession, so he is prioritized by it. And the analogy of the foundling is more appropriate to the found item than to anything else, because the foundling is also a found item.