actually living in another country, it is merely intrusted to the heir, or to the king; but if he be dead, the creditor should give it to the heir, or, on failure of heirs, to the king. This is reasonable: a debtor having delivered a pledge to a creditor, has property in the pledged chattel so long as he lives; afterwards, his property being devested by death, property vests in his heir; it is therefore proper to give his chattel to him. On failure of heirs, property vests in the king; but under the rule of VISHNU (Book V, v. 417) the failure of heirs signifies the failure of fellow-students. Accordingly CHANDESWARA, in expounding the text of CÁTYÁYANA (122), delivers this gloss, "when the pawnor is not living, nor any person entitled to inherit from him." But the escheated pledge of a Brahmana must be given to learned men, or to priests, under the text of DEVALA (Book V, v. 445). All this will be discussed under the title of Inheritance.

124.

YÁJNYAWALCYA:-A debtor shall be compelled to pay, with interest, a debt contracted on the pledge of religious merit; and he shall be compelled to repay two-fold a debt contracted on a chattel of small value delivered with a solemn asseveration,

"Religious merit ;" the use of sacrificial fire, ablutions in the Ganges, and the like: what is received on such a pledge must be repaid with interest. What has been lent on a pawn of small value, delivered with a solemn asseveration, in this form, "it shall certainly be redeemed by me," must be repaid two-fold, if the debt remain long due; the pledge shall not be sold by the pledgee.

It is noticed in the Dipacalica, that the text is read in the Viswarûpa, "charitra" instead of " cháritra." The commentator's opinion is this: charitra signifies act or practice; charitra has the same signification; the meaning therefore is, what is borrowed on the pledge of ablutions in the Ganges or the like.

Ablutions in the Ganges, and other religious acts, are pledged when the debtor, on contracting the debt, says, "until I repay thy loan I will not bathe in the Ganges." The term "use of sacrificial fire," relates to the voluntary use of it on special occasions, not the continual use of it by those who maintain a perpetual fire. Here ablutions in the Ganges and the like constitute a beneficial pledge to be kept only, not a pledge to be used; since the debt therefore is not discharged by the use of it, how shall it be discharged? The Sage therefore ordains, that he (the king) shall compel the debtor to pay the debt with interest. The meaning consequently is, that payment shall be enforced by the king.

CHANDESWARA delivers a similar gloss, but he reads the text (as in the Dipacalicá) charitra bandhaca critam, and expounds it, " for if ablutions in the Ganges be not performed, the king shall compel the debtor to pay the debt with interest."

"When ablutions are not performed;" they are hypothecated, and therefore not performed. We explain charitra, ablutions in the Ganges and the like; charitra, the benefit arising from such ablutions. When that is pledged "the debtor shall be compelled, &c. ;" for instance, when a debt is contracted with an agreement in this form, "if I do not repay thy loan, the benefit of my ablutions in the Ganges shall accrue to thee." But this can

only be a pledge for custody, for it would be lost to the debtor were it enjoyed by the creditor; the debt must therefore be discharged as in the case of pledges for custody: the pledge is not forfeited. The author of the Mitacshará delivers a similar exposition.

"A pawn of small value;" a pledge, of which the value does not exceed twice the amount of the debt. This half of the text (124) restrains a creditor who might attempt to sell the pledge, on this reflection; " twice the amount of the debt is receivable by me, what objection therefore can the debtor have to the sale of this pledge ?" The meaning is, since no agreement was made, when the debt was contracted, to authorize a sale, how should the pledge be sold? This must be understood when the pledge is not redeemed after the principal is doubled. However, there is no offence in a sale made, after application to the king, with the king's permission.

We hold, that, when no pledge is delivered by the debtor, but he solemnly promises, at the time of receiving the loan, "I will assuredly repay thee thy loan," then conscientiousness is in reality his surety. In that case, on proof of the debt, he shall be compelled by the king to pay twice the amount. To enlarge on this subject would be superfluous.

On this text the author of the Mitácshará thus comments: "A pledge by the act of the parties is charitra bandhaca. Consequently, when a pledge of greater or less value is taken with the free consent of the debtor or creditor, the double sum only shall in that case be received by the creditor; that is, the pledge shall not be forfeited. At the period when the principal is doubled, the double sum only shall be paid; there shall be no forfeiture of the pledge. In the case of earnest also, there is no forfeiture of a pledge." This is only suitable on his interpretation. He expounds the terms of the text otherwise ("earnest delivered," instead of " solemn asseveration"); this other subject is incidentally introduced under the title of Pledges. He adds, when the merchant who buys a commodity, giving earnest to the merchant who sells it, concludes a bargain for the purchase of goods amounting to a thousand mudras, if the buyer break the agreement, the earnest shall be forfeited; if the seller break the agreement, it shall be repaid two-fold.

SECT. III. On the Validity of Hypothecation and Mortgage.

125.

VYÁSA:-Pledges are declared to be of two sorts, immoveable and moveable; both are valid when there is actual enjoyment, and not otherwise.

And this concerns a pledge delivered for use.

126.

VRIHASPATI :-Of him who does not enjoy a pledge, nor possess it, nor claim it on evidence, the written contract for that pledge is nugatory, like a bond when the debtor and witnesses have deceased. Here, terms of comparison, as and so, must be assumed. "When the debtor and witnesses have deceased;" when neither the debtor nor the

witnesses exist. Hence, as a writing executed by the debtor and attested by witnesses is nugatory unless the debtor or witnesses be living, so of him who enjoys not a pledge, nor makes it his own, nor shows to others that the pledge was actually received, the writing, though complete, is no evidence so far as concerns the pledge. The Retnácara.

Even after the death of the witnesses and debtor, if the creditor actually enjoy the pledge, that pledge is valid; how can it be asserted that the writing is nugatory? To this it is answered, some person comes and makes a demand upon another in these words, "thy father is my debtor," inspect this bond; all those "who witnessed it are dead, and thy father also is dead:" as in this case, so, if there be no other proof of a pledge, a mere writing is nugatory, because it is unavailing. That is mentioned by way of example. Or, it may be thus explained; if a chattel belonging to some person have been enjoyed for a few days only by another, or be contested, and the possessor, sued by the owner before the king, allege, "his father received a loan from me, and the bond is forthcoming;" then, if the witnesses be dead, the writing is nugatory, even though there be actual occupancy. Such being the case, there is no difficulty in explaining the text without assuming the terms of comparison as and so; for the sense would be, he who does not actually possess nor enjoy the pledge may not claim it; and a writing is nugatory when the witnesses and debtor are deceased: and in this case, undisputed possession, and a term fixed for the restoration of the pledge, must be understood. It may therefore be affirmed, that when possession has been interrupted, but witnesses are living, the pledge is valid; yet, in the case of uninterrupted possession, the pledge is valid even though the witnesses be dead.

'Nor shows to others, &c.' to others besides those named in the writing, that is, for the purpose of evidence. Consequently the affirmation of it to another should only be made in the presence of the defendant. Or "claim" may signify sue before the king. The writing, though complete is no evidence, even though correctly drawn, in the form already described, with all its conditions, "first inserting the lender's name and so forth." Hence a writing in this or other similar forms, "I borrow one hundred suvernas from DÉVADATTA," is certainly unavailing.

"It is no evidence so far as concerns the pledge it follows, that the writing may be good evidence so far as concerns the debt. Consequently the sense is this; if there be a writing, payment of the debt proved by that writing shall be enforced; but, without actual occupancy, a pledge, though proved by that writing, shall not be obtained. Why does he not actually enjoy or occupy it? Has it been restored on receipt of another pledge, or has it been released on a solemn promise of payment or the like? Or the sense may be this; if the loan have been actually received from the creditor by the debtor, for what fault should the creditor lose it? But a pledge long unenjoyed cannot be seized. As a man's own effects, being neglected by him and long possessed by a stranger, become the absolute property of the possessor; surely, if a pledge, which is the property of another, be not possessed by the pledgee, it is the absolute property of the owner who does possess it.

What then is suggested by the word "claim ?" for those to whom the claim is shown become witnesses only; but if the thing be unpossessed through neglect, of what use are witnesses? The answer is, he should fully

S

show, in an assembly of people, the reason why he has not possession. For instance, "executing a mortgage deed to me, he has received a loan, why does he not deliver the pledge?" Such a dispute is supposed. But if a contest do subsist, as possession is not then valid without proof of right, neither is an unenjoyed pledge valid. This is one case. "This ornament

is pledged to me but his daughter's nuptials will be celebrated two months hence; his wife may wear it for that period, afterwards it must be delivered to me." This is another case. On these and similar occasions, if the recorded witnesses be alive, they can depose these circumstances. There is not consequently any contradiction between the first and last case.

Here the expression "does not enjoy" concerns a pledge for use; possess" concerns a pledge for custody; nor claim" concerns both.

66

nor

The Retnácara.

But this text does not concern a pledge for custody consisting of ablutions in the Ganges, or other observances producing religious purity; for it is not applicable to such pledges.

And this is nearly, but not strictly true; for a pledge, whether for use or custody, may be confirmed, although it be not ascertained whether it have been actually possessed or not. The Retnácara.

This meaning is intimated; although he have not himself shown his claim to other men, yet if they know and depose the whole circumstances, even in that case also the pledge is confirmed.

A text of law, cited in the Retnácara, expressly declares the nullity of a pledge in a case of neglect.

127.

Smriti-A house, a reservoir of water, a market place, grain, women, beasts of burden, and the like, are destroyed or spoiled by neglect.

"A market place;" a place where commodities are sold.

The Retnácara. "Water," preserved for his own use. "A reservoir of water;" a well or the like. "Beasts of Burden" are expressed in the plural number, to signify "and the like." Consequently a garden, a field, and the like, are comprehended by the text; in short, all kinds of pledges are destroyed by neglect. If the pledgee neglect it, a house is destroyed or spoiled for want of thatching; a well or the like, for want of extracting earth by which it is choked; a market, for want of concourse of buyers and sellers through fear of ill-disposed persons; grain, by robbery or the like; cattle, women, and beasts of burden, for want of food or care: so in other instances according to the circumstances of each case.

"They are destroyed," and utterly lost; or they remain, but are spoiled and become unfit for use. By this mention of things destroyed or spoiled, neglect is shown blameable; and it is a fault on the part of the creditor. Consequently, if the pawnor preserve them, they would be possessed by the debtor: but if he do not preserve them, they are lost; and why should another pledge be delivered to the creditor? The debt therefore remains unsecured by a pledge.

CHANDESWARA remarks; "when mortgaged houses and the rest are destroyed or spoiled by the fault of the pledgee, the mortgage is annulled. It is therefore implied, that another pawn shall not be given by the pawnor in consequence of the pawnee's fault." It is consequently evident, that the same opinion has been entertained by CHANDÉSWARA.

"By the actual possession of a pledge, the validity of the contract is maintained" (96). The sense is, by actual possession only of a pledge is the validity of the contract maintained; for the text coincides with those of VYASA and VRIHASPATI. Consequently, if it be neglected, there is no possession of the pledge, as already explained. Hence, if a creditor having lost one pledge demand another; or if he attempt to seize a pledge saved by the debtor, who interfered when loss impended through the creditor's neglect; in such cases the creditor shall not obtain the pledge. So much is declared. Yet, if the creditor did not neglect the pledge, but it be spoiled by the act of GOD, another pledge should be delivered. This the Sage declares; "if it be spoiled, though carefully kept, &c.," (96). Spoiled is there illustrative of detriment.

128.

CÁTYÁYANA:-Should a man hypothecate the same thing to two creditors, what must be decided? The first hypothecation shall be established; and the debtor shall be punished as for theft.

"Decided;" ruled.

The Retnácara.

Consequently the last hypothecation is not valid and this supposes that both mortgagees have obtained possession; if either or both have not obtained possession, the hypothecation to him who obtains not possession is invalid, as above mentioned. Both may have obtained possession of the same thing: for instance, one has had possession for a few days; afterwards the other, disseising him by force or fraud, possesses the thing a few days. Again; the thing is possessed by one through force or the like, but the other disseises him; in this case, the attempt to take possession on the part of him who disseises the other, is well argued to be a sufficient act of occupancy: where neglect is declared a cause of invalidating the mortgage, there, if the claimant, long attempting but not obtaining possession, has been content, it is considered as neglect.

"The debtor shall be punished as for theft:" for pledging the same thing to two persons, the pledgor shall be punishsd as for theft. VISHNU expressly declares it.

129.

VISHNU-He who has mortgaged even a bull's hide of land to one creditor, and, without having redeemed it, mortgages it to another, shall be corporally punished by whipping or imprisonment; if the quantity be less, he shall pay a fine of sixteen suvernas.

"Even a bull's hide of land;" land to the quantity of a bull's hide. The definition of a bull's hide will be cited further on. If he twice mortgage a less quantity than that, he shall be fined in sixteen suvernas.

On a