The ufe of
the pledge is
determined
by -the
pawner’s
mode of
keeping or
wearing it.
"The expences
-ofconfervation
[of the
pledge] reft
upon the
fa v u n e e ; and
thofe of fu b -
JiJience upon
the p aw n e r ;
I f a perfon pledge a ring, and the receiver put it on his little
finger, and it be afterwards loft or ddtroyed, he is refponfible, as he
has tranfgrefled in making ufe of the pledge inftead of ufing means for
its prefervation;— and, in this cafe, the right or left hand is' indifferent,
there being no uniform cuftom of wearing a ring invariably upon
either.— If, on the contrary, the pawnee wear the ring upon any
■ other than his Tittle finger, this is not confidered as an enjoyment of
ufe, but as a means of prefervation, as it. is contrary to the cuftomary
mode of wearing a ring.— So likewife, if the pawnee wear a ftieet
(which he has received in pledge) after the cuftomary mode, he is
refponfible for i t ; whereas, i f he Ipread it over his fhoulders, he is
not refponfible.
If a perfon pawn two or three fwords, and the pawnee fling them
over his fhoulder, then, provided there be only two, he becomes refponfible
for their value in cafe of their lofs, but not if there be three;
the reafon o f which is, that amongft warriors it is a frequent
cuftom to fling two fwords on their fhoulders in battle, but never to
fling three.
If a perfon pawn two rings, and the pawnee put them both on
his little finger, and it appear that he was accuftomed to adorn himfelf
in this manner, he is liable to make compenfation in cafe they be by
any means deftroyed; but if the contrary be proved,'he is exempt
from any refponfibility.
T he rent of the houfe wherein the pledge is kept, as well as the
wages of the keeper, reft upon the pawnee :— but i f the pledge be a
living animal, and require a keeper and maintenance, the expence of
thefe mull be defrayed by the pawner.— It is to be obferved that the
wants o f a pledge are of two kinds; I. fuch as are requifite towards
the fupport o f the pledge and the continuance of its exiftence;—
II. fuch as may be neceflary towards its prefervation or fafety,
8 whether
whether wholly or partly. Now, as the abfolute property of the
pledge appertains to the pawner, the expences o f the firft clafs muft
therefore be defrayed by him ; and as he has, moreover, a property in
the ufufruB of the pledge, its fupport and the continuance o f its exiftence
for this reafon àlfo reft upon him, being an expence attendant
upon his property;— in the fame manner asholds in the cafe of a trujl.
(O f this clafs are the maintenance of a pledge in meat and drink, including
wages to Jhepherds, and fo forth ; and the clothing o f a flave,
the wages of a nurfe for the child of a pledge, the watering of a garden,
the grafting of fig-trees, thp collefting of fruits, &c.) T h e expences
of the fécond clafs, on the contrary, are incumbent on thé pawnee ;
bec-aufe it is his part to, detain the pledge; and as the prefervation of it
therefore refts upon, him, he is confequently to defray the expence o f
fuch prefervation. (O f the fécond clafs is the hire o f the keeper o f
the pledge ; and fo likewife the-rent of the houfe wherein the pledge
is depofited, whether the debt exceed or fall fhort of the value o f the
pledge.)— All that is here advanced is according to the Zâhir Rawâyet.
It is recorded, from Ahoo Yoofaf, that the rent of the houfe is defrayed
by thepalwner, in the fame manner as maintenance, it being
his duty to ufe every poffible means towards fecuring the exiftence of
the pledge : but that a Judl, or reward for reftoring a fugitive flave,
Is of the fécond clafs ; for as the pawnee is neceflitated to ufe every
poffible expedient to recover the pofleffion of the flave, the reward, as
being connected with prefervation, muft be defrayed by him. This,
however, holds only with refpeâ to fuch pledges as do not exceed the
amount of the debt ; for where the value of the pledge exceeds the
amount of the debt, the pawnee muft not be taxed with the payment
of the whole, but with fuch fhare of it only as is proportionate to the
value of the pledge ; whilft the remaining part, in proportion to the
furplus, falls on the pawner ; for the excefs not being held by the
pawnee in pledge, but in tru f, the reftitution o f the flave, in regard
to the excefs, is, as it were, made to the abfolute owner, to whom,
therefore, the furplus muft be charged.
V ol. IV . D d T he