Page:Harvard Law Review Volume 10.djvu/443

THE PLEDGE-IDEA. 417 the pledgee's right to claim the debt ; ' and though no one passage distinctly exhibits the primitive rule,^ they all evidently represent a state of opinion which is just getting away from it and feeling the necessity of disposing of it. (2) A second hypothec is not per- mitted.^ (3) The pledge with creditor's use is open to unlimited redemption ; but the deposit-pledge is forfeited when the accrued and unpaid interest equals the principal, or when at maturity of the term, if there is one, a default occurs; * and there is a proceeding for forfeiture, like the Germanic one, consisting of a summons to the pledgor,^ while in the same text the very next section but one, evidently interpolated,^ provides in such a case for a sale or appraisal and the handing over of the surplus to the pledgor. (4) The pledgee, in some Sutras, does not account for profits except by express agreement,^ while in another the profits per se, when they have paid off double the principal, redeem the res.^ John H, Wigmore, Northwestern University Law School, Chicago. ( To be continued?) the modern scholars, not looking at it from the legal point of view, may choose an in- ferior hypothesis ; thus, in Manu, VIII, 145, the statement that a pledge cannot be for- feited by lapse of time should probably read, as a collation of passages shows, " a pledge cannot be acquired in ownership by adverse possession," — a principle often enunciated in other systems ; and numerous other examples may be cited. 1 Gautama, XII, 42; Vishnu, VI, 6; Narada, I, 126; Brfhaspati, XI, 19, 20, 21; Yajnavalkya, II, 59. Moreover, the rule which indicates the first step towards a deficit-liability of the pledgor — that if the res perishes or deteriorates he must replace it — is to be found : Narada, I, 130; Vyavahara, c. V. s. 2, i ; Yajnavalkya, II, 60. 2 Singularly enough, one mediaeval commentary expressly says : " If pledged cows, etc. be accidentally destroyed, the principal shall be lost ; this is according to the prac- tice among persons of good manners " : Vivada, c. i. 8 Vishnu, V, 18 r ; Vyavahara, c. V, s. i, i : " As long as I fail to clear off thy debt, so long will I not alienate either in gift, sale, pledge, or any other mode, this house, field, or other thing." 4 Yajnavalkya, II, 58 ; Brihaspati, XI, 25-27. 6 Brihaspati, ib. • As the editor suggests. T Vishnu, VI, 8 ; Brihaspati, XI, 23, 24. 8 Yajnavalkya, II, 64 ; so for movables : Vishnu, VI, 7. Hindu law of the classical period (before 600 A.D.) is of course to be distinguished from the modern customs of the living Indian peoples, largely non-Aryan. Their cus- toms, however, contain much valuable evidence ; for instance, in no community are two features of the primitive pledge, indefinite right of redemption and pledgor's non- responsibility for the original debt, better shown (Tupper, Punjab Customary Law, III, 217).