History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.841

v4.c63.841

*Svāmipālavivāda* (disputes between the owner of cattle and herdsman who is engaged to look after them). In ancient times this must have been a prominent source of litigation in a predominantly agricultural country like India. Nār. appears to have included this title under *vetanasyānapākarma*. Yāj. II. 164, Nār. IX. 11 provide that the cowherd has to bring back to the owner in the evening the cows (and other domestic animals) handed over to him in the morning by the owner, after grazing them in the pastures and making them drink water. Manu VIII. 230 says that during the day the responsibility for the safety of the cattle rests on the herdsman and during the night on the owner provided they are in the latter's house. When there is no express agreement as to wages Nār. IX. 10 and Bṛ. (S. B. E. 33 p. 346 verse 19) prescribe that a cowherd⁸⁸³ will get as his wages all the milk of the cows tended by him on every eighth day plus a heifer (two years old) every year out of every one hundred cows tended by him or a milch cow with her calf every year for every two hundred cows looked after by him. Manu VIII. 231 provides another method when no wages are fixed by agreement viz. a hired herdsman, who is paid with milk, may milk as hire the best cow out of ten with the consent of the owner. It is the duty of the cowherd to struggle as much as in him lies to protect the cows from accidents and if he is unable to do so he must quickly inform the owner (Nār. IX. 12). Bṛ. (S. B. E. 33 p. 346 verse 20) states⁸⁸⁴ that the cowherd shall save cattle from the danger of worms (or reptiles), robbers, tigers and from caverns and pits and that he should try to protect them to the best of his ability, should call out for help or inform his master. If the herdsman does not struggle to protect the cows, nor raise a hue and cry nor inform his master he must make good the value of the cow lost and must pay a fine to the king (Nār. IX. 13). Manu VIII. 232 and 235, Yāj. II. 164-165, Viṣṇu Dh. S. V.⁸⁸⁵ 137-138, Nār. (IX. 14-15) provide that if a cow or other domestic animal strays or is killed by worms (or reptiles) or slain by dogs (and wild animals) or dies by falling into a pit or by any negligent act of the herdsman, he himself shall make good the loss, if he did not exert himself to prevent this happening or if goats and sheep are surrounded by wolves and carried away while the herdsman does not hasten to their help he shall bear the responsibility for the loss. In these cases the herdsman has also to pay a fine of 12½ paṇas⁸⁸⁶ to the king (Yāj. II. 165). Āp. Dh. S. II. 11. 28. 6 makes⁸⁸⁷ the herdsman liable to pay the price if an animal in his charge dies or is lost (by theft &c.). Manu VIII. 233, 236, Nār. IX. 16, Vyāsa state exceptions to the above viz. where an animal is carried away⁸⁸⁸ by robbers though the herdsman raised a cry, he would not be liable to make good the loss provided he gave information to his master at the proper time (immediately after the animal is carried away) and proper place; or when the herdsman himself is seized or the village is attacked or the country is invaded, the herdsman would not be liable for loss or seizure of any animal under his charge; and also where, while the herd is grazing in a proper order near a forest, a wolf suddenly kills an animal. Manu VIII. 234, Nār. IX. 17 state that when cattle die through act of God or king or die without any fault of his while in charge of a herdsman, he has to free himself from liability or from the suspicion of himself having⁸⁸⁹ carried away surreptitiously the animal by producing before his master their ears, skin, tails, bladders, tendons and yellow bile or by showing their limbs (viz. their characteristic marks). Vyāsa states that if a herdsman, who has received his wages, abandons cattle in an untenanted forest and moves about in the village he should be fined by the king.⁸⁹⁰