'the son or other heir to the depositor; they are not to be made good by the depositary. Consequently, if they be delivered to the heir, there is danger that the heir may die, and that the deposit must be made good; there'fore, neither sort of deposit should ever be re-delivered to the heir."

CULLÚCA BHATTA.

He supposes this case; the heir dies after receiving back the deposit, and long afterwards the owner says, "the deposit was not delivered to my heir, but remains with you, give it me." It cannot be said, that, since the same may occur in the case of a debt, the delivery to a son and the like is improper even in that case; and therefore the text, which directs payment to one of the family in default of the lender, is unmeaning. In that case, the delivery may be ascertained by attestation. It cannot be said that here also it may be so ascertained; for the attested recovery of an unattested deposit is forbidden (17): and, even in the case of such re-delivery of an attested deposit, the depositor's claim remains. Thus the owner might say, "on what consideration did you relinquish the deposit in my absence ?" but, in the case of a debt, the creditor cannot say so. The text is not unmeaning, for there is a purpose in making the payment; namely, the recovery of a pledge when interest has ceased; but, in the case of a loan unsecured by a pledge, upon which the highest interest has been received, the debtor may not repay it to the son or the like. In fact, there is no offence in repaying it to the son or other representative, on the consideration, that body is not immortal, and to remove the sin of debt; for the debtor incurred the debt under the pressure of indigence. But, under the authority of the text, a deposit, voluntarily received, must be kept until the depositor return.

Again; this should now be remarked: we perceive no offence in re-delivering a deposit to the heirs of the depositor before witnesses, under the apprehension of ill-treatment from those heirs, even before the expiration of the period for which it was deposited.

If a son or other representative should die after receiving back the deposit while the depositor was alive, and it have not reached the depositor, having been expended by the heir; and this be proved by witnesses and the like; must the depositary make good the deposit or not? To this it is answered, that, according to CULLÚCABHATTA, it shall not be made good : for he says, both sorts of deposits shall not be made good, if there be no doubt; and even sometimes, though the heir be not dead, they are not lost. Thus, if the heir be living, the depositary is justified by proof of the delivery to the heir: this is clearly expressed. What difference is there, if the heir be dead? After the death of the heir there may be suspicion, if proof be defi cient. It should be remarked on the term "heir apparent or presumptive" (pratyanantara v. 20.), that the word prati denotes similarity, as in the example" ABHIMANYU like ARJUNA." The word anantara signifies proximate without an interval. Consequently a deposit can be legally received back by the nearest heir alone.

But CHANDESWARA, without employing the word 'even,' says: sometimes the depositor shall recover it, though the heir be not dead: it follows, that sometimes the deposit is extinct, though the heir be not dead; that is, when the heir dissipates it without permission. Consequently, even in that case, it must necessarily be made good by the depositary; otherwise, the expression "but not unless he die," would be unmeaning. In such a case it must certainly be made good. This is CHANDESWARA'S meaning, and is

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proper; for, a son having no dominion over the paternal wealth while the father lives, his receipt of the thing deposited is not valid; as is declared by HARITA, (Book V, v. 8). Thus the son's receipt of it is similar to a stranger's receipt. But when it is anyhow received by the owner, the delivery becomes valid. Consequently, if it anyhow fail of reaching the owner, it must be made good. But if the son conduct all the affairs while the father lives, there is no offence in a re-delivery to him. However, a deposit, expressly bailed to deceive a son, must on no account be delivered to that son while the father lives, without his directions: but, with his permission, there is no offence in re-delivering the deposit to the son; and, after the death of the depositor, there is no harm in the re-delivery of it to the heir.

21.

MENU:-But if a depositary, by his own free act, shall deliver a deposit to the heir of a deceased bailer, he must not be harassed either by the king or by the kinsmen of the deceased.

The expression "by his own free act," implies, that while the bailer lives, it shall not be delivered, though demanded by the heir; but after the bailer's death, it should be delivered, even without a demand. CHANDESWARA.

He must not be harassed by the king, on the ground of its being the bailer's property. CULLÚCABHATTA.

By the kinsmen" of the bailer; by his father's sister's sous, his mother's sister's sous, and the rest. The meaning is, that after the bailer's death, his sons, or other heirs, have dominion over the effects deposited; and if a son be living, it must not be delivered to a grandson whose father is alive. If a deposit, though carefully kept, be taken away by thieves or the like, there is no fault in the depositary.

22.

NAREDA:-What is lost, together with the property of the bailee, is lost to the bailer; so if it be lost by the act of GOD or of the king, unless there was a fraudulent act on the part of the depositary. "Lost, together with the property of the bailee;" meaning generally, if there be no fraudulent act on the part of the depositary. Thus, if the deposit only be lost, and not even a trifle belonging to the depositary, yet, if it were kept with care, and consumed by time only, there is no fault in him. If it be lost by the act of GOD (broken by a wall falling down), or be lost by the act of the king (plundered by the forces of a foreign king; or oppressively sold, or the like, by the king of the country;) then, as in the case of consumption by time, there is no fault in the depositary. But he is criminal if fraudulently he place the thing deposited near an old wall or the like, while he places his own property elsewhere; or if, concealing his own property, he show the deposit to the king. The principle of this rule is, that the depositary must make good the deposit if he be in fault, and not unless he be in fault. But if the depositary say it is lost, though it be not lost ; then, on failure of evidence, it shall be tried by ordeal.

23.

VRĬHSAPATI :—If it be destroyed by the act of GOD or of the king,

together with the goods of the bailee, there is no fault in him.

"Together with the goods of the bailee;" to denote that there is no fraudulent act on the part of the depositary. It is to be remembered, that if he deliver the deposit to the king, together with his own goods, without mentioning that it belongs to another, even in that case the depositary is criminal and if it were kept with care, then, even though the deposit alone be seized by thieves or the like, there is no fault in the depositary. Herein the Retnácara and the rest concur.

24.

CÁTYÁYANA:-If a thing deposited be lost, together with the goods of the bailee, though not by the act of GOD or the king, it is declared to be lost to the bailer.

The loss of the bailee's goods, everywhere mentioned, is intended as a general exception to all fault in the bailee. It is therefore inferred, that even if the deposit alone be lost, but without any fault in the depositary, it shall not be made good; but if lost by a fraudulent act on the part of the depositary, it must be made good. The Retnácara.

25.

YÁJNYAWALCYA:-But he shall not be compelled to replace that deposit lost by the act of GOD or the king, or seized by robbers. He shall not be compelled to make good a sealed deposit, lost with the vessel in which it was contained, (being seized by the king, or washed away by water or the like, or stolen by thieves,) if there be no fraudulent act on his part. The Mitácsharú.

A similar exposition is delivered by SÚLAPÁNI, who reads the text daivata instead of daivica (but the sense is unchanged). If it be lost by a fraudulent act on the part of the depositary, or by his fault, he shall be compelled to make good the deposit, and shall be amerced. This will be declared. A distinction is mentioned in the following text :

26.

MENU :-If a deposit be seized by thieves, or destroyed by vermin, or washed away by water, or consumed by fire, the bailee shall not be compelled to make it good, unless he took part of it himself. If a person receiving a deposit consume a part of it, and afterwards the remainder be seized by thieves or the like; some hold, that, under the authority of the text, the depositary shall in that case make good the whole deposit. But others say, that the depositary shall make good the whole if he accidentally receive any part of the deposit which has been seized by thieves or the like. This is denied, because it is not fit that the loss should be his, without any fault in him: but if he do not make it known that he has received the thing, he is criminal, and shall make good the deposit, as in the preceding.case. Since he is criminal, if he consume any part of it, whether before or after it was seized by thieves or the like, he shall make good the whole deposit. This is the full meaning of the text. In that case he shall make it good with interest, if he consume a part of the deposit ; but without interest, if he merely omit to make it known that he has received a part of it. If he take a part of it, and deposit the remainder elsewhere; or neglect it, thinking that he will not be liable to make good the whole; in that case, the whole must be made good. MISRA.

When the deposit is lost by the depositary's fault, he shall make it good; but when it is lost by the fault of the person through whom it was deposited, then this person shall make it good.

27.

CÁTYÁYANA:-What is lost by the fault of the depositary, is lost to him.

2. He by whose fault anything is lost or taken away, shall be compelled to make it good, with interest, unless it be lost by the act of GOD or the king.

But even if the depositary have shown a probable cause of its destruction, if the thing deposited appear to have been lost by any fault on his part, other than neglect, he shall make it good.

The Retnácara.

A man addressing some person, says, "let my property remain in deposit with thee;" he replies, "my house is infested by rats and other vermin, place it not there;" the other rejoins, "be it so, what can vermin do? and he accordingly deposits the goods. It follows, that in that case there is no fault in the depositary, if it be lost by neglect. But if he place it out of the house, or in another place, and in consequence it be seized by thieves, or spoiled by rain; or if, from anger or some other motive, he cast it of his own accord into the water; or if he deliver it to the king, who causes his household effects to be sold on account of some fault; if the thing deposited be lost by these or other faults on the part of the depositary, he shall make it good. This is intended by the first hemistich (27).

When, addressing some person, a man says, "bail this grain to DEVADATTA;" and he, going to DEVADATTA, says, "this grain is bailed to thee, by CHAITRA, through me;" and DÉVADATTA answers, "place it in the house;" and he places the grain in the middle of the house, but in a damp spot; and the grain is destroyed by the damp: in this case, the grain shall be recovered from the messenger. This is intended by the second verse (22, 2): for, otherwise, it would be superfluous. Thus, if the depositary be understood in the words "he by whose fault," the sense is the same as in the preceding hemistich; and if the depositor be understood, then the receiver and giver would be the same; it is therefore properly applied to an intermediate person and, according to the Dipacalica, when the deposit is destroyed by the fault of the person who causes it to be placed, he shall make it good. But when the owner bails effects notwithstanding the depositary's objections, and those effects, being neglected, are lost, but without any other fault on the part of the depositary, in that case no blame shall be imputed to the depositary.

28.

CÁTYÁYANA :—If the depositor, though apprised of its danger, nevertheless bail the thing, and it be destroyed by any injury, the depositary shall not be compelled to make it good.

If the depositor know the loss of his effects to be probable, (having been forewarned by the depositary, that the king would force the house, and therefore he ought not to place his effects there ;) if he nevertheless bail those effects, there is no fault in the depositary, should they be lost by any

cause, whether it be the occurrence which was previously apprehended, or some accident which was not apprehended. In this exposition, the Retnácara and the rest concur.

Is this text applicable or not, when, in such a case, the deposit is lost by negligence? Here it is said, that the text does apply in the case of a loss occasioned merely by negligence, without any other fault for another text (24) already shows, that there is no fault in the bailee, if the deposit be lost without neglect or other fault; and it is declared, that the depositary is criminal, if it be lost by his fault. It cannot be said that the former text (24) intends the case of a deposit lost, together with the goods of the bailee; but that this text (28) intends a deposit consumed by time, though not neglected, and without a concurrent loss of the bailee's own effects. For, according to CHANDESWARA, it is not limited to the case of the bailee's goods being lost with the deposit; the loss of his goods, everywhere mentioned, is intended as an exception to other faults also;' and the text (24) is taken only in the sense so inferred: this corresponds with what CHANDESWARA has said in explaining another text (27).

29.

GÓTAMA:-The necessity of making good a deposit, a thing bailed for delivery to a third person, a pledge, a thing borrowed or hired, and the like, if destroyed by the fault of the bailee, shall not fall upon any of his heirs, if they were free from blame; but it falls on the bailee, by whose fault the thing is destroyed.

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Deposit," &c. in a general sense. Whatever has been mentioned by any Sage or Author as partaking of the nature of a deposit, must be understood. "Heirs;" sons, grandsons, and the rest. "Free from blame ;" not in fault. Consequently, should the depositary die, the owner recovers the thing deposited from the heirs of the bailee, if it be lost by their fault : thus is the law settled. But if it be lost without any fault, by accident or the like, he does not recover it from the heirs. This exposition is founded on the gloss of the Retnácara.

Is not this gloss (" heirs ;" sons, grandsons, and the rest) unmeaning? for the depositary himself is free from blame, if the deposit be lost without any fault on his part. It must be understood, that this text is intended to obviate the doubt, whether, in case of the depositary dying after having occasioned the loss of the deposit by his own fault, the owner may recover it from his sons, because it was lost by their father's fault but if it be lost by their fault, it must be made good by them (27, 2).

SECT. II.-On the Recovery of a Deposit.

It has been said, that the depositary shall be compelled to make good a deposit destroyed by his fault; shall he be compelled to make it good with, or without, interest?

30.

VYÁSA:-For a thing voluntarily wasted, the bailee shall be forced to pay the price with interest; for a thing neglected, the value only; for a thing lost through slight inattention, something less.