then only shall the pledge be used; and interest is not thereby forfeited. If the debt were contracted with an agreement, "I will redeem the pledge when the principal is doubled;" then if the pledge be not redeemed although the debt be doubled, the pledge may be used after notice given to the debtor's kinsman. In that case also there is no further interest (119).

This use of a pledge is legal: but how can amicable enjoyment of a pledge which it is in the debtor's power to forbid, be justified by law? If a creditor use a pledge without the assent of the owner, before the stipulated period expire, and before interest cease on the debt, he forfeits the interest previously agreed on, and which had not been paid. But if the interest have been paid, a deduction must be made from the principal. This is deduced from the text of CÁTYÁYANA (89), and from common sense. If the owner, when the debt is contracted, amicably consent to the use of the pledge, interest is not forfeited: this is reasonable.

Does the text of VRIHASPATI (92) concern a pledge to be used, or a pledge to be kept only, or both? On the first supposition it would be wrong to say, that a pledge for custody may not be used when interest has ceased on becoming equal to the principal, and when the stipulated period has expired; for the use of a pledge given for custody is authorized after the debt is doubled (121, 2). On the second supposition, what is the rule in respect of a pledge for use? If it may be used from the date of hypothecation, there is a contradiction to reason in allowing both the use of a pledge and the receipt of interest independent thereof. If it may not be used, even when the period has expired and the debt has ceased to bear interest, it is inconsistent with reason that a pledge for custody may be used, but a pledge for use may not be used. On the third supposition, the distinction of pledges for custody and for use would be fruitless.

To this it is answered, the text concerns both; but the distinction bas its use. The unauthorized use of a pledge for custody only, even though not expressly forbidden by the owner, induces a forfeiture of interest (84). If an employable pledge be used without the consent of the owner, half the interest is forfeited; but against his consent, the whole interest (87 and 88). A pledge for custody only (84) signifies a pledge not delivered for use, and unlimited as to time. Such is the opinion of VÁCHESPATI MISRA. But, according to CULLÚCABHATTA, the same must be affirmed of a pledge for custody which is affirmed of a pledge for use; else it is a disparagement to him that he has not distinguished them.

If a pledge for use or custody be spoiled or altered, the interest is forfeited (81, 3); if it be lost or destroyed, the principal itself and the interest are forfeited (83, 81, 3, 87 and 86); for the term used in the text (81, 3) is explained in the Retnácara, "on the loss or destruction of the It is ordained in the rule of VISHNU pledge by the fault of the lender." (82) and text of YAJNYAWALCYA (84), that the loss of a pledge must be made good. An alternative is thus stated, the delivery of an equivalent in A third case lieu of the pledge, or the forfeiture of principal and interest. is stated; payment of the pecuniary value of the pledge (85). All this must be explained according to the fitness of the thing for use; since it is virtually the same, whether a thing be rendered wholly unfit for use, or be totally destroyed. But a pledge, though rendered unfit for use, becomes the property of the creditor; for that is reasonable. By the mere use

of a pledge for custody only, interest is forfeited, as appears from the term a pledge for custody" in the text of YAJNYAWALCYA (84): but it is proper to assert, that interest is not forfeited by the authorized use of a pledge which regularly should only be kept. In general, there is no forfeiture of interest by the authorized use of a pledge which regularly may be used. Interest is forfeited by the employment of a slave or the like against his will, though authorized by his master (89). Whether the employment of him be authorized or unauthorized, if an unwilling slave be beaten, a fine shall be paid (90). If an employable pledge be used without the consent of the owner, half the interest is forfeited (88). If it be used against his consent, the whole interest is forfeited (87).

In the gloss of CULLÚCABHATTA it is stated, that the text concerns a pledge for custody only. His meaning has been already explained. A pledge, whether such as should be kept only or such as may be used, must not be used before the stipulated period expire, or before interest reach its limit. If it be used, interest is not valid against the price of its use. The value of the use must be discharged out of the interest due. This is consistent with reason. If a pledge, either for custody or for use, be rendered partially unfit for use, interest is forfeited in proportion to the injury and damage (92 and 84). By stating forfeiture of interest in proportion to the injury or damage, the disparity of forfeiting the whole interest for trifling damage is removed. But those who follow the opinion of the author of the Mitácshara must affirm, that the whole interest is forfeited under the authority of the text, however inconsiderable the damage, as well by the use of a pledge to be used, as by that of a pledge for custody. This is liable to objections. Others say, if the use of the pledge be stipulated by way of interest, there shall be no other interest (91). Otherwise, interest is allowed at the rate of an eightieth part and so forth.

If the loss be caused by the act of GOD or of the king, what should be done? On this point,

93.

VRIHASPATI ordains :-If a pledge be destroyed by the act of GOD or of the king, the creditor shall either obtain another pledge, or receive the sum lent, together with interest.

"Be destroyed;" become altogether unfit for use.

The Retnácara.

If the debtor cannot immediately discharge the debt, he must deliver another pledge. If he cannot deliver another pledge, he must immediately discharge the debt for without supplying the word 'immediately,' the alternative of delivering another pledge or paying the debt would be ineffectual. But if he be utterly unable to do either, the debt is from that period unsecured by pledge or surety; and the creditor shall receive the proper interest on such debts.

94.

VYÁSA:-If the pledge be destroyed by the act of GOD or of the king, no fault is by any means imputable to the creditor; and immediately after the loss of that pledge, the debtor shall always be compelled to pay the debt with interest, or deliver another pledge,

"Shall be compelled to pay the debt;" with interest' and 'immediately' must be supplied. The particle has the sense of "or," since the text has the same import with that of VRIHASPATI (93).

"Shall be compelled to pay the debt ;" shall be required to pay the debt; for most correct speakers admit the causal passive for certain verbs only, such as go, use, know, and the like; and the verb give or pay could not otherwise be employed in the causal passive: it could not be said, the debtor shall be compelled to deliver another pledge. The same must be understood also in subsequent phrases of this sort used by authors.

95.

NÁREDA :-When a pledge, though carefully preserved, is spoiled in course of time, another pledge must be delivered, or the amount of principal and interest must be paid to the creditor.

"Spoiled;" totally unfit for use. "The amount;" the sum borrowed, with interest for the purport is the same with the preceding texts. If a pledged cow or the like in the course of time become old, or otherwise useless another pledge must be delivered.

96.

YÁJNYAWALCYA:-By the acceptance or actual possession of a pledge, the validity of the contract is maintained.(45) If it be spoiled, though carefully kept, another chattel must be pledged, or the creditor must receive the amount of principal and interest.

"By the acceptance alone;" by actual occupancy alone. By acceptance and use of a pledge, not by mere indication. The Dipacalicá. This will be ex

"By use;" alluding to a pledge delivered for use. plained under the head of the Validity of Pledges.

"By acceptance" of a pledge for use or custody; by actual possession or enjoyment, the hypothecation is rendered complete; not by the mere attestation or execution of a written contract and the like. The Retnácara.

97.

CÁTYÁYANA :—When a pledge becomes unfit for use, or perishes, without any fault on the part of the creditor, the debtor shall be compelled to deliver another pledge; for, he is not exonerated from the debt.

(45) It is evident from this text of YAJNYAWALCYA that among Hindus, a mortgage or pledge unaccompanied by possession confers no title:-nevertheless, JAGANNATHA argues that a symbolical delivery of possession is sufficient to constitute title in some instances. Vide infra, comments on v. 126. In cases where there is other evidence of transfer, possession is not necessary-Ibid., v. 134.

In the case of Sibchunder Ghose v. Russick Chunder Neoghy, decided by the Supreme Court at Calcutta, it was held (GRANT, J. dissent) that by long established custom, by reference to the maxim, that whilst the lex loci contractus governs the substance of the contract and its essential forms, the lex fori applies as to the forms of remedies and their consequences, a Bengálí mortgage, although unaccompanied by possession, gives a lien upon land. 1 FULTON, 36. The doctrine of an equitable mortgage is not applicable to the Hindu law (Dictum of PEEL, C. J. Ibid.)-EDITOR,

When a pledge becomes unfit for use, or perishes, provided that detriment or destruction be not caused by any fault on the part of the creditor, the debtor shall be compelled to deliver another pledge in this csae, the debt is not cancelled by the mere loss of the pledge. The Sage makes that evident. "Because" should be supplied. Because the debtor is not in such a case exonerated from the debt, therefore, another pledge must be delivered, or payment be made. A similar gloss is delivered in the Retnácara.

As for what some affirm, that if a pledged cow or the like die by accident, the creditor's money and the pledger's property are lost, that is only founded on approved usage, not inconsistent with divine law. The Retnácara.

A similar remark is made in the Chintámeni, and by BRAVADéva and others. The meaning is, that the creditor's loss, when a pledge is destroyed without any fault on his part, is not confirmed by any Sage. But local usage on this point should not be abolished.

98.

The Vámena purána, cited by the modern VÁCHESPATI and by RAGHUNANDANA :-A man should not neglect the approved customs of districts, the equitable rules of his family, or the particular laws of his race.

99.

In whatever country, whatever usage has passed through successive generations, let not a man there disregard it; such usage is law in that country.

Here it should be remarked, that if some Brahmana have borrowed money on a mortgage of his land situated near a river, and that land be afterwards washed away by the river, it is not seen in practice, that the creditor's money is lost. Accordingly it is said in the Retnácara, "a pledged cow or the like." This is founded on the following practice: A cow of small value dying, the debtor asserts, "he did not give sufficient attention to her cure," the creditor affirms, "I gave the properest remedies." On this question a decision could not be passed without minute investigation. Arbitrators, therefore, mediate and determine that the loss shall be borne by both parties. This practice appears to be the ground of the usage.

From the expression "perishes" or dies, it is evident that when a pledged cow or the like dies, and from the expression "becomes unfit for use," that when it becomes totally unserviceable, the debtor shall be compelled to deliver another pledge. Although a copper caldron or the like, and land or other immoveable property, cannot die, yet, as its total destruction is similar to the death of an animal, the same rule should be understood; for, although it be not expressly stated in the texts of VYASA and others, such is the import of the texts. As the principal is forfeited when the destruction of a pledge is caused by the fault of the creditor, because it is in effect the same with such a pledge vitiated; so, in this case also, another pledge must be given, because both are in effect the same. This may be inferred from reasoning.

Why is "destroyed," in the ' rendered totally unfit for use ?'

text of VRIHASPATI (93), expounded The answer is, to show that another

pledge must also be given, if the pledge be rendered totally unfit for use. If it be not destroyed by the creditor's fault, from what cause does the loss happen? It must be understood that the loss happens by the act of GOD, or of the king; for the purport is the same with the text of VYása (94), and with the text of VRIHASPATI (93).

The act of the king is meant of pillage by an army, and the like; the act of GOD intends the fall of a thunderbolt, or the like and this generally; comprehending the act of an enemy, the conflagration of a house or the like, the depredations of robbers and so forth. On this and other points the reader himself must deduce just inferences from reasoning. The Retnácara. 100.

YÁJNYAWALCYA :-Mortgaged land being carried away by a rapid stream, or being seized by the king, another pledge of land must be delivered, or the sum lent must be restored to the lender. This text is applicable to the case of a pledge destroyed or lost by fracture, theft, combustion, or the like.

"Or being seized by the king;" in some cases it may be legally seized by the king, to sell it for a fine imposed on the debtor, or because the king has not actually given the land which he had declared an intention of giving to the debtor, who is a soldier, or the like. Illegally it may happen in other cases also.

"Another pledge;" of land must be understood. If he do not deliver that, the sum borrowed must be repaid by the debtor, with interest.

:

"A

The Retnúcara. "Another," that is, other than the pledge originally delivered. pledge of land ;" this is reasonable but if other land cannot be delivered, any other pledge may be given. However, if the former pledge were delivered for enjoyment, he must now also give a pledge adapted to that purpose. Or, if that cannot be, he must give a pledge for confidence only, and pay a sum equal to the value of the usufruct of the former pledge, until the debt be discharged. But if separate interest be paid, and the use of the pledge be allowed through complacency, by these words, "you may use the pledge;" in that case the value of usufruct need not be paid.

It is thus evident, that if mortgaged land be destroyed, the loss falls on the debtor alone. "Land" is an instance only, suggesting also kine, gold, and the like. "Carried away by a rapid stream" is merely illustrative of a loss happening by the act of GOD; for it has the same import with the fol lowing text:

101.

CÁTYÁYANA:- Whatever pledge has been lost by the act of GOD or the king, the debt, for which it was given, shall be paid by the debtor to the creditor, with interest.

The sense suggested by this text is, "whatever pledge," whether for custody only, as gold or the like, or for use, as land or the like, has been lost "by the act of the king," or of his officers or the like; or by the act of GOD, as carried away by a rapid stream, or destroyed by fire, &c. Accordingly it is said in the Retnácara, “carried away by a rapid stream is illustrative of a