cles are to be re-delivered specifically, and therefore the owner must abide the loss if they perish through inevitable accident. Now the argument seems rather more specious than solid. Would it not be more equitable, as the specific things cannot be re-delivered, to cause their value to be restored? By the opposite doctrine this ap. parent anomaly is introduced, that a borrower for use, who has the entire and exclusive benefit of the articles borrowed, shall not be responsible for an accident, which, occurring with a pawnor (who is only a participator with the pawnee in the benefit of the transaction) would render him answerable. Suppose the case of a man who, having five pieces of money which (as being the gift of a relation, or from any other cause) he is unwilling to exchange, were to borrow five pieces from another individual and to leave his own five with the lender in pledge, and both the pawnor and pawnee were to be robbed of the money borrowed and the money pledged in the same night, does it not appear rather hard that the pawnor (who perhaps derived the least benefit from the transaction) should be subjected to the entire loss? The following case has been cited by Sir Wm. Jones; "Zaid had left with Amru divers goods in pledge for a certain sum of money, and some ruffians having entered the house of Amru took away his own goods. together with those pawned by Zaid. And the question was, whether, since the debt became extinct by the loss of the pledge, and since the goods pawned exceeded in value the amount of the debt, Zaid could legally demand the balance of Amru. To which question the great law officer of the Othman court answered, with the brevity usual on such occasions, Olmaz, it cannot be." Upon this Sir Wm. Jones observes, "we must necessarily suppose that the Turks

are wholly unacquainted with the imperial laws of Byzantium, and that their own rules are repugnant to natural justice." Now it is, obviously, to the question that the objection is made, and not to the answer, which is indubitably right, as far as it goes. But where is the repugnancy to natural justice in declaring the debt to be extinct on the loss of the pledge? Would it not be more repugnant to justice to make the borrower pay a debt for which he had already given more than ample satisfaction? And where is the hardship sustained by the lender? According to the doctrine contained in the law of bailments, if the lender had retained his money, and had derived no benefit from putting it out to interest on good security, he would have suffered damnum absque injuriâ; but having derived such benefit, he can come upon the borrower, who derived only equal, perhaps not so great benefit from the transaction. This would indeed be inconsistent, and, in my humble judgment, not easily reconcileable with natural justice.* I should apprehend

I find the following passage in the law of bailments, "It may be right also to mention that the distinction before taken, in regard to loans, between an obligation to restore the specific things, and a power or necessity of returning others equal in value, holds good likewise in the contracts of hiring and depositing: in the first case it is a regular bailment, in the second it becomes a debt. Thus, according to Alfenus in his famous law, on which the judicious Bynkershoek has learnedly commented, If an ingot of silver be delivered to a silversmith to make an urn, the whole property is transferred, and the employer is only a creditor of metal equally valuable, which the workman engages to pay in a certain shape: the smith may consequently apply it to his own use; but if it perish, even by unavoidable mischance or irresistible violence, he, as owner of it, must abide the loss, and the creditor must have his urn in due time: It would be otherwise, no doubt, if the same silver, on account of its peculiar fineness, or any uncommon metal, according to the whim of the owner,

it is not the usage in Turkey, as Sir Wm. Jones conjectures, to stipulate that "amissio pignoris liberet debitorem" such stipulation being expressly declared by the Moohummudan Law, null and void.*

As I undertook to furnish a brief outline of the Moohummudan law of bailments I could not have omitted that part of it which relates to pawnees. The doctrine in question militates with that laid down in the law of bailments as expounded by Sir Wm. Jones, and it is therefore not without considerable reluctance that I have treated of the subject; but my fondness (which I am not

were agreed to be specifically re-delivered in the form of a cup or a standish." Now I must confess that I am dull enough not to see the justice of this law. It is true, that if the specific thing perish it cannot be restored, but where is the reason why the value of it should not be made good. The loss to the bailor is equal, perhaps greater, when the thing bailed is to be returned specifically; and the culpability, if any, on the part of the bailee, is, in either case, the same.

* أَنْفَقَ الرَّاهِنُ وَالْمُرْتِهَن عَلَى أَنَّ الرهن ان ضاع ضاع بغيرِ شَمِي

لم يكُن كذلك و يضيع بالدِّينِ ولو رهن عِند انسانٍ شَيا فَقَالَ یکن

المرتهِ لِلرَّاهِنِ أَخَذَ تُهُ على أَنه إِن ضَاعَ ضَاعَ بِغَيرِ شبي

نعم الرهن جايز و الشرط باطل حماديه من الفتاوى السراجية

فقال

A pawnor and pawnee agree that if the pledge be lost, its loss shall not be attended with any responsibility; it shall not be so, but the debt becomes extinguished also. If a person give a thing in pledge to another, and the pawnee say to the pawnor; I receive this thing on condition that, if it be lost, the loss shall not be attended with responsibility; and the pawnee assent, the pledge is allowable, but the condition is void. Futawa-i-Hummadee. ·

ashamed to avow) for the Moosulmaun Law, induced me to become its humble advocate in the present instance.

In compiling the principles of law contained in this work, I have had recourse to none but the most approved authorities, and I have appended to this work extracts from the original Arabic, to vouch for the accuracy of the doctrines I have laid down.* I have taken care to note any material difference of opinion which I have discovered in these authorities. The precedents consist of legal expositions, which have been actually delivered in the several courts of justice. I have selected such as appeared to me of the greatest importance, and those which seemed to embrace doctrinal points most likely to recur. With a view to retain the sense, as far as practicable, I have left them in the original shape of question and reply; and none have been admitted but such as appeared to me

I should observe, however, that I purposely avoided consulting books in the first instance, and this I did with a view of avoiding technicalities as much as possible, and where my own knowledge or memory of the law failed me, I generally had recourse to living authorities, referring to books only for the purpose of verification. This will of course occasion considerable dissimilarity in the letter of the rules as they appear in the original and in my compilation, but their spirit I trust has been uniformly preserved. Another cause of dissimilarity is, that some of the principles here laid down are founded on the absence rather than the existence of rules. For instance, I have laid it down as a principle that there is no distinction between real and personal, nor between. ancestrel and acquired property in the Moohummudan law of inheritance, and this is deduced from the invariable use in the original Arabic of the word which includes all descriptions of property. The same observation is applicable to the doctrine laid down respecting primogeniture and a few other instances. I have moreover taken the liberty of introducing what I considered more apposite examples on the doctrine of successions, whenever I conceived that an improvement might be made to the illustrations adduced in the Sirajya or Shureefeea.

(assisted by all the legal talent I could procure) to admit of no doubt as to their accuracy.

By hazarding some of the preceding observations I am aware that, I may have subjected myself to the rigour of criticism, and, if inflicted, I shall have no reason perhaps to complain. My only defence is, that the active occupations of an official life in India leave but little leisure for literary research; that to cultivate the fields of science, or to mature the fruits of reflection, undisturbed retirement is necessary; and that no more than superficial knowledge and crude conceptions, on any subject unconnected with his immediate profession, can be expected from a man of ordinary capacity, whose time is perpetually absorbed in the dry and distracting details of ministerial duty.

I have no presentiment of fear, however, as to the reception which the following pages will meet with from the liberality and indulgence of the judicial officers for whose benefit they were chiefly intended; and if this book should prove the means of averting one atom of wrong from those who sue for justice, or one moment of anxiety from those who dispense the laws, I shall not consider unprofitable the time that has been occupied, and the labour that has been exerted.