But others expound the phrase, on its loss or destruction," which occurs in the text of NÁREDA (81, 3), 'should the lender neglect the preservation of the pledge' consequently, should the care of the pledge be neglected by the creditor, and the pledge nevertheless be fortunately uninjured, still the interest is forfeited. For example; a cow is pledged to a Yavana by a foolish debtor, and that ill disposed creditor of the Yavana race neither uses the cow, nor feeds her at his own house; but that cow grazes night and day in the forest, and, being destined to a long life, survives; not being bitten by a snake or the like, or being bitten but cured by some traveller: in such a case, the interest is forfeited.

VIJNYANESWARA considers the text of MENU (v. 91) as relating to a pledge delivered for use; and the text of YAJNYAWALCYA (84), and another text of MENU (v. 88), as relating to a pledge not delivered for use. But if a pledge delivered for use be damaged, interest shall be forfeited, under the precept of YAJNYAWALCYA, nor any interest, if a pledge for use be damaged" (84). "A pledge spoiled shall be made good;" if a pledge not delivered for use be damaged in a small degree or the like, it must be repaired, and thus restored in its former condition; should it have been used, interest shall be forfeited. If a pledge delivered for use be damaged in a small degree or the like, it must be repaired, and restored in its former condition; if it bore interest, that interest shall be forfeited. Should a pledge be utterly spoiled or destroyed, an equivalent must be given, or the price of the pledge must be paid, or the principal sum shall be forfeited.

CHAP. IV.

ON

SURETIES.

139.

CÁTYÁYANA:-Neither the master of the lender, nor his professed enemy, nor an agent of his master, nor a prisoner, nor a criminal amerced, nor one whose character is ambiguous.

2. Nor a coheir or joint-tenant with either party, nor an intimate friend, nor a pupil, nor a servant of the king, nor a religious anchoret.

3. Nor a man reputed unable to pay the sum to the creditor, or a fine of equal amount to the king, nor one whose father is living, nor one who is guided solely by his own froward will.

4. Nor a man who is not well known, should ever be accepted as a surety for any purpose.(49)

A man confined by the king for some offence, becoming surety for another, might afterwards plead, "how can I enforce payment of the debt ?" Or, it may be objected, how could he attend to that matter when contested? A prisoner therefore should not be accepted as a surety. "A criminal amerced" that is, one on whom punishment impends: else, since almost every person may casually become liable to punishment, none could be accepted as sureties: but this criminal is refused because the fine impoverishes him, and he is therefore unable to make good the debt. Thus some interpret the text; but that is wrong, for the same sense is also conveyed by the words a man unable to pay the sum to the creditor." Some again hold, that a criminal amerced is refused as a surety, through apprehension

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(49) In the above text KÁTVÁYANA exonerates a variety of persons, who, it is declared, should never be accepted as sureties. These exceptions involve, as observed by SIR THOMAS STRANGE, (H. L., vol. I, p. 300) either some inconsistency with prior engagements, or some incompatibility with subsisting connexions;-if not an evident risk of the object failing, from the character, or description of the person produced, in the event of his being selected, as the intended surety. In a system, however, like that of the Hindus, not restricted to positive ordinance, they may be considered perhaps; for the most part, as affording matter of prudential caution, rather than of legal disqualification; though the rejection of one undivided brother, as a surety for another, respecting a common interest, would indeed be consonant to the strictest law.-EDITOR.

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of his sinful misconduct. But, in fact, future impoverishment is suggested by the term explained a criminal liable to amercement" since he is not at present reduced to indigence, there is no vain repetition.

"One whose character is ambiguous;" so explained in the Retnácara : that is, a man of ambiguous character. That gloss intends one whom honest men suspect to be ill disposed. If his evil disposition be ascertained, surely he cannot be accepted as a sponsor. Others expound the term, 'accused' they suppose one whom any person arraigns in a public assembly, alleging that he is addicted to the use of intoxicating liquors.

"A coheir ;" a joint-tenant with the creditor or debtor.

The Retnácara.

The notion is this; if the creditor accept his own coparcener as a surety, does he not make himself surety? If he accept the debtor's coparcener as a surety, does he not make the debtor surety for himself? A text of YAJNYÁWALCYA to the same purport will be cited. "A friend" of the creditor

must not be accepted, lest friendship be violated.

The reason is, lest affection be diverted. But the author of the Mitácshará reads atyantavásinah instead of anténivásinah, and expounds it 'perpetual students in theology.'

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"A servant of the king," one employed by the king, his minister, and the rest. On the reading, nor the king, nor one employed in his affairs," king is illustrative of a general sense: it would be superfluous for the king or his minister to become a surety; because the king, by the nature of his trust is an universal surety; and his deputed minister or other officer is certainly so likewise; and a servant of the king's should not be accepted as surety, lest he avail himself of his superior power. "Religious anchorets" should not be accepted as sureties, because they are venerable, and are not capable of civil transactions. The want of independent property is the objection against one whose father is living.

"One who is guided by his own will;" who is solely guided by his own. froward will, and not by any consideration of circumstances: consequently his incapacity for civil affairs is the objection against him.

"A man reputed unable to pay the sum to the creditor;" if he be unable to pay the sum to the creditor, for what purpose should he be accepted as a surety ? "Or a fine of equal amount to the king;" if the creditor accept as a surety a man able to pay the sum to him, but unable also to pay a fine to the king; then, should he become liable for a fine to the king in consequence of some offence, and be therefore unable to pay both sums, the creditor could not recover the whole sum from him: for this reason he should be refused. Thus some expound the text; but in fact this text is not restricted to loans, for it expresses generally "for any purpose.' Consequently, when a surety is required by the king, he should not accept one who is unable to pay a fine and that is merely illustrative; a man unable to produce the party, should not be accepted as surety for appearance and so forth. If a creditor accept as a surety one who is not well known," then, after a lapse of a few days, when he has gone to another place, and the debtor has absconded, from whom could the creditor recover the sum? The creditor should therefore accept, as a surety, none but a man who is well known.

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He who becomes a substitute for another (pratibhavati), is a surety (pratibhú) or bondsman. By parity of reasoning, similar sureties should be required in other cases. Consequently, from the full sense of the law, he only should be accepted as a surety for any purpose, from whose suretiship no breach of respect, natural affection, or tender regard, need be apprehended; and from whom, or from the debtor, the sum may be subsequently recovered. 140.

YÁJNYAWALCYA:-It is declared, that brethren, husband and wife, father and son, cannot become sureties for each other before partition, nor reciprocally lend their joint property, nor give evidence for each other in matters relating to the common stock.(50)

Brothers and the rest cannot, before partition, become bound to, or for each other, and so forth. Before partition, a man should not make a loan, taking as a surety his own brother, or the brother of the debtor: nor should he make a loan to his own undivided brother; for all that belongs to him belongs to his brother: how then can it be a debt? It will be declared, that his brother has no title to what is acquired by the man himself: may not therefore his own acquired wealth be lent to his brother? The answer is, why should his brother borrow money from him, since his food and other wants may be supplied from the joint estate? If he need it for religious occasions, why should he not use the joint property? If he wish to adventure it for increase of wealth, why should he not improve the joint estate? If he require it for the enjoyment of wreaths, sanders wood, fine cloth, and the like, that may be supplied out of joint property; for the law has not forbidden any use of common property.

But if any one resolve in his own mind, "I will perform a religious act on my own separate funds, and I alone shall obtain the benefit of it;" or if his brother forbid such expenditure of the paternal wealth; in such cases, a man intending to dig a pond, or to perform a solemn sacrifice, or the like, out of property acquired by himself, but finding some part of his own several property unavailable, may borrow from his brother money acquired by that brother himself: why is a loan forbidden before partition? It should not be objected, that a religious act, even though performed by one brother on funds acquired by himself, is the act of both undivided brothers, under a text which will be quoted (Book V, v. 388); and therefore money received for that purpose from a brother, even though it were acquired by himself, is no debt, and shall not therefore be repaid. Another text* declares the participation of all brethren in that religious act only which is performed, with the assent of all, on funds common to all; and the former text has virtually the same import. That a debt may be contracted with an undivided brother, cannot therefore be disputed.

(50) In Thyutes Ram Misser v. Rajah Mhypal Sing (2 S. D. A. Rep., 316) a security bond, executed by one member of a joint undivided Hindu family, was held to be binding on the other members of the same family, it appearing to the Court that the separation pleaded in bar to the claim was not established, and moreover deeming it to have been fraudulently alleged in order to evade payment of the debt. 1 MOR: Digest, Tit: Surety, case, 1 a.-EDITOK. A text of MARICHI is incorrectly cited in this place. After consulting the Dwaita parisishta of CESAVA MISRA, and Suddhi viveca of RUDRADHARA, I thus translate the text with the preceding verse: "The father being dead, his obsequies must be carefully performed by his son; but if there be many sons of the father residing in the same place, what is done by the eldest alone, with the assent of all, and out of the common stock, shall be considered as the act of all."

U

Again a man reflecting, "if I obtain profit on joint property, another brother will also have a title to that profit," only lends at interest his own property acquired by himself, or he conducts commerce on that capital; in such a case, a small part of his several property being then unavailable, he borrows from his undivided brother money acquired by that brother himself: here, also, what should prevent him? So if another brother tell one who dissipates the joint property for the enjoyment of wreaths, sanders wood, fine cloth, and the like, "gratify thy wish for enjoyment in proportion only to thy share of the wealth," and if he, being thereby restrained, supplies his enjoyments out of wealth acquired by himself; but, some part of his several property being theu unavailable, borrows from an undivided brother money acquired by that brother himself: here, again, what is there incongruous? Consequently a debt contracted with an undivided brother for the three purposes of spiritual benefit, of wealth, and of gratification, is in reason valid.

Yet YAJNYAWALCYA forbids it. Can such a rule be demonstratively true, that, under the text of YAJNYAWALCYA, a debt may not be contracted with an undivided brother, though in reason such a debt be valid ? There is no objection to explain "while undivided," while the property lent is undivided for the sense must be this; paternal wealth and the like, and what has been gained by a common exertion, may not be borrowed from undivided brethren.

:

So, if a religious act or the like be undertaken on a man's own several property, and if a small sum be deficient, and a debt be therefore contracted with another person, an undivided brother may be his surety or his witness: but if he contract a debt for the maintenance of the united family, an undivided brother can neither be surety nor witness; for he also is liable to the payment of the debt and if this text be adduced by authors to guide the decision when a doubt arises whether a partition have been made, still that supposes either paternal wealth of property acquired in common. This will be discussed in the fifth book, On INHERITANCE, under the head of Ascertainment of Partition: and this text has the same import with that of CÁTYÁYANA (139, 2.) "Nor a coheir or joint tenant," as has been already noticed.

There can be no partition between husband and wife (Book V, v. 89.) The text of YAJNYAWALCYA (Book V, v. 83) intends only a provision for subsistence, not partition: were there partition, wives would become independent, and it would contradict the text of ÁPASTAMBA (Book V, v. 89). Property therefore being common to husband and wife (Book V, v. 415), suretiship and the rest are forbidden, so far as concerns the general estate of the husband; but a contract of debt or suretiship may exist in respect of other wealth, such as the several property of a woman: for example, the husband may borrow from his wife her own several property. So if the wife desire to support her own brother or other kinsman out of her several property, and no part of that property be then available, a debt must be contracted; when that debt is therefore contracted with another person, her husband may become either surety or witness: for YAJNYAWALCYA (207) denies the absolute necessity of a husband paying such a debt. By the husband only, can no loan be made to his wife; for the text above cited (Book V, v. 415) declares the wife's property in the husband's wealth only. Such is the interpretation according to ancient authors.