CCLXXXIX.

YÁJNYAWALCYA :-In a disputed case the document must be proved by the handwriting of the party or the like, by reasonable inference, by evidence of the contract which the instrument records, by a peculiar mark, by connexion and dealings of the parties, by the contents of the document, or by previous recourse to measures for

recovery.

This document is not admitted by both parties; and it is questioned whether it have, or have not, been lately written by one party on paper to which the appearance of antiquity has been given by the application of mustard-seed or the like: in this case proof must be deduced from the handwriting of the party or the like. But if it were written by another person, it must be proved by the handwriting of him who wrote it. In the Dipacalicá "reasonable inference" is explained what seems reasonable in respect of that man, at this time, and in this place.' "The contract," such as the devesture of property or the like, proved by witnesses. "A mark," not generally used. Connexion;" previous dealings of receipt and the like between the giver and receiver. "The document;" probably authentick for such a sum lent by this man. "Measures;" modes of recovery. By these proofs, namely, by the handwriting of the party, and the rest, let a contested document be justified. Under the term "or the like" is comprehended the handwriting of the witnesses or scribe."

66

CCXC.

CÁTYÁYANA:-Should the handwriting of the debtor, whether living or dead, be questioned, the document must be collated with other instruments in his own handwriting.

"Reasonable inference," according to the preceding gloss, may be thus exemplified. This man's father deceased at that time; he needed a loan for his father's funeral rites, but obtained it from no other person; it is therefore reasonable to conclude that he contracted a debt with this creditor alone. This and similar points should be also argued in the case of gift and the like. It is affirmed by this man, that he sold a cow for the purpose of lending this money; "that is probable, says a witness, for I know that he did sell a cow at that very time.

;

"An uncommon mark;" the practice of using such a mark in writing may be evidence against the individual person, not against any other. Or the mark may be a plough, usually designed as a signature by husbandmen a wheel, by a potter; a particular weapon, by those who bear such weapons; and a hand and arm, a type of the thunderbolt, by certain persons, and so forth. "Connexion and dealings" are obvious. "Contents of the documents;" by the term here used, the written document is signified: it is probable that four suvernas may have been lent by this wealthy person to that indigent man; hence this document is probably authentick. "Modes of recovery;" for instance, if he were not indebted to this man, why did he promise, when formerly brought before the king, that he would pay after the lapse of seven days? Consequently, the previous recourse to measures for recovery, such as the mode of moral duty and the rest, removes the doubt concerning the writing.

"With other instruments in his own handwriting" (CCXC); if the scribe say, "this was not written by me," he should be told to write another paper, and the document should be collated therewith, and that of course when the scribe is living; but if he be dead, it should be thoroughly examined by comparison with a former writing produced. Whether alive or dead, it is proper to collate it with his handwriting in a former document. This has been sufficiently discussed.

If by chance the writing be carried elsewhere before the debt be discharged, what shall be done? To this incidental question YAJNYAWALCYA replies:

CCXCI.

YÁJNYAWALCYA :-If the instrument be inaccessible in another country, or written in a wrong form, or destroyed, or illegible, or stolen, or gnawed by vermin, or burned, or torn, the debtor must give another writing.

If the instrument exist in another country, whence it cannot be brought back, the debtor must give another writing. The recital should be thus ; "having received a loan of such a sum, I gave a writing, and now give another document, because that has been carried to another country."

"Written in a wrong form;" being at first written, through ignorance, in a form contrary to law. "Destroyed;" by moisture or the like. "Illegible;" from the defect of the ink, and so forth. "Stolen," by robbers or others. Gnawed," by insects or any vermin. Torn," rent in two. In these cases another writing should be executed with the consent of both parties. The Dipacalicá.

A decision should be grounded on any one of the proofs mentioned; namely, evidence of the handwriting, and the rest; or on two or more arguments. If no such proof can be adduced, oath or ordeal must determine the contest. Consequently, on failure of documents, when a decision cannot be grounded on written evidence or similar proof, the legislator admits the oath of the party. The Dipacalicá.

And this must also be understood in the case of a bill of sale, or the like; for it is mentioned generally. All this is ordained when the debtor is living; but, if the debtor have deceased, what shall be done? To this VRIHASPATI replies (CXXI).

"Has absconded" (CXXI 2); is absolutely not to be found, having absconded or the like. "Notice having been given to the paternal or mater nal kinsmen of the debtor, the creditor may seize and obtain his due" (CXXI 3; the last portion of which text is read, tad bandhu jnyáti viditam pratigrihann avápnuyját, notice having been given for the assurance of that debtor's relations). The Retnácara.

But MISRA reads, tad dhanam jnyátri viditam pragrihan náparádhnvyát, and thus comments on it; 'the creditor, recovering his due by violence or the like, shall not be punished by the king.'

"He must relinquish the balance" (CXXI 2); he must deliver it to the heir of the debtor, or to the king; but the property of Bráhmanas, on failure of heirs, he must cast into the waters. These texts are otherwise expounded as relating to the title of Redemption of Pledges,

But if the creditor be dead, to whom should the debt be delivered? NÁREDA (CCXXXI) replies to this question. That text has been already expounded.

"Those who are distant" (CCXXXI); kinsmen, other than his offspring, and near kinsmen of the same race, but allied to, his father or mother. "A creditor of the priestly class;" illustrative of every class.

The Retnácara.

It should be here noticed, that the precept for casting the sum into the waters regards the priestly class only; the king may take the property of others on failure of all heirs. If there be any legal heir, why should he cast it into the waters? In this exposition MISRA and others concur. "Bestow it on priests" (CCXXX); on learned and worthy priests: for it coincides with the text of DEVALA above quoted.

An observation may be here made. If a man became surety for a debtor from whom he has received a pledge, should that surety die leaving no son, in whose possession ought the pledge to remain ? To this question it is answered, if the receipt of the pledge by the surety be proved, it shall be delivered to the creditor; for the debtor was not trusted: and from that day the debt becomes one secured by a pledge; it shall therefore only bear interest at the rate of an eightieth part or the like. This and other points may be argued.

YÁJNYAWALCYA:-If a husband, in a famine, or for the performance of some indispensable duty, or during extreme illness, or while a creditor keeps him confined, should appropriate the wealth of his wife, he shall never, while his distress lasts, be compelled to restore it. "Or while a creditor keeps him confined," while a creditor or other person becomes the occasion of his nourishment being suspended or the like. The Dipacalicá.

From the mention of "husband" in this text, it follows, that the wealth of a woman, borrowed by any other person, must necessarily be repaid.*

The twenty topicks, comprised under the forensick title of Loans and Payment, have been thus briefly discussed.

* Some remarks on the subject of pledges, which were subjoined in this place, I have transferred to the chapter on Pledges,

269

BOOK II.

ON DEPOSITS, SALE WITHOUT OWNERSHIP,
CONCERNS AMONG PARTNERS,

AND

SUBTRACTION OF WHAT HAS BEEN GIVEN.

CHAP. I.

ON DEPOSITS

AND OTHER BAILMENTS.

SECT. I.-On the several Sorts of Bailment.

I.

VRIHASPATI :-Under the title of Loans and Payment, the law has been declared, from the delivery of the loan, and so forth, to the recovery of the debt: Now hear the complete rules for Deposits and

other bailments.

"Delivery," or advance; delivery to a borrower asking a loan in these words, "lend me money:" of course it means the delivery of money thus becoming a loan. Beginning with this, and ending with compulsory payment, that is, with the recovery of the debt, the title of law, called Loans and Payment, has been promulged. The proper order of the subject is thus imitated; for MENU, enumerating the eighteen titles of law, has first mentioned Loans, and next Deposits: the pupil, therefore, is first required to study the law of Loans, and next that of Deposits, because it is next in order.

:

II.

MENU Of those titles, the first is debt on loans for consumption; the second, deposits, and loans for use; the third, sale without ownership; the fourth, concerns among partners; the fifth, subtraction of what has been given ;