"Carrying her riches;" possessing considerable wealth. "Her husband ;” her wedded lord. Or, to avoid the payment of the debt, he must abandon such a woman, who brings her offspring and her wealth.

227.

The Retnácara.

CÁTYÁYANA:—If a woman, having an infant son and much wealth, seek another protector, he whose protection is taken, must pay the debt of her husband: this law is declared in respect of women who have infant sons.

Here the term employed (bhartri) signifies one who maintains her, not one who marries her. "Seek," or recur to 'for support:' the text should be so supplied. Consequently the guardian to whom the mother of an infant son, but possessing much wealth, recurs for the support of her son and herself, must, if he accept the trust, pay the debt of her husband out of her property; or, paying it out of his own property, he shall afterwards obtain re-imbursement. Such is the sense of the text: and he must also maintain both the mother and son. There is no vain repetition of the preceding text (173). And in this case, the guardian does not take the assets; for the woman alone has the care of the goods. Thus we explain the law.

When the debtor is living, but is mad, has been long absent in a foreign country, is an idiot or the like; in a word, is incapable of discharging debts: in that case, his debt shall be paid by his son alone, as has been already mentioned. But if he have no offspring, what should be ruled? On this point the same legislator propounds a law :

228.

CÁTYÁYANA:-The debts of men long absent in a foreign country, of idiots, madmen, and the like, who have no male kindred, and of religious anchorets, must be paid, even during their lives, but without interest, by such as have the care of the debtor's wife and goods. By such as have taken the wife and the goods appertaining to a man long absent in a foreign country, and so forth: and this must be understood, according to circumstances, as intending also outcastes and the like.

Many Sages have declared generally, that the debt must be discharged by him who takes the wife of the debtor; a special rule is here propounded. A man has two wives; one, taking her offspring and her wealth, gives herself to another man, saying, "I am thine ;" and the other, who possesses no wealth, takes the protection of a guardian; what is the rule of decision in this case? It is answered, since he who takes the wife with effects in fact holds assets, the debt must be discharged by him; but if both be in the same situation, it must be paid in equal proportions by both. This is the import of the former text (226). But if the receipt of effects were previously unknown, and the creditor exacted immediate payment from hin who had the care of his debtor's wife, after which the receipt of effects is discovered, then indeed the payment made by the guardian of the wife is not legal, because it was exacted from a person not justly liable; he may there

fore recover his money from the creditor, and the creditor shall obtain his due from him alone who holds assets: the holder of assets may be compelled to reimburse the guardian of the wife. Such is the proper mode of adjustment in forensick practice.

A case may be here stated. A certain dishonest surety for payment asked a loan of a money-lender, in the name of a certain borrower; and the lender, fixing stipulated interest at the rate of two panás, sent the loan to the borrower through the hands of the surety. Bringing the sum borrowed, the surety told the borrower, "he will not lend the money without stipulated interest at the rate of four panás." Urged by distress, the borrower agreed to that interest, and accepted the loan. At the time of payment, the debtor delivered to the surety the sum due on a computation of interest at the rate of four panás; but the surety paid the creditor at the rate of two panás. After a few days the whole circumstances were discovered. The creditor therefore demands the greater interest from the surety; the debtor also claims the excess from the surety; and the surety refuses to pay it to either of them. What should be the rule of decision in this case? The answer is, the creditor can have no right to receive greater interest than such as he stipulated when he made the loan; the surety is not entitled to obtain interest on another's money; it is, therefore, reasonable that the debtor should recover the sum erroneously paid.

It should not be asked objectively, why should not the debtor pay the interest stipulated by him, for the sake of preserving uprightness in his dealings? Deceived by the surety's words, the debtor made the promise before the surety, not before the creditor. That promise only, which was made by the surety, as his representative, in the presence of the creditor, is efficient; not the promise originating in error caused by the surety's fallacy. Again; the creditor may have accepted less interest through tenderness excited by the appearance of distress in the debtor; in that case, the remainder shall benefit the debtor alone, for it was in a manner relinquished to him. Yet, if the debtor voluntarily pay it, the other shall receive it by his voluntary act. But, when an intermediate person himself borrows money, and lends it to the ultimate debtor, he is not a surety, but debtor to one and creditor of another in such a case, therefore, he is entitled to the interest at the rate of four panás.

If a debtor had no son born to him, and leave no widow, nor assets, by whom shall his debt be paid? By no one. But if the debtor gave a pledge on contracting the debt, and his great-grandson be living, the debt should be paid by that great-grandson.

229.

YÁJNYAWALCYA:-A debt, secured merely by a written contract, shall be discharged, from a moral and religious obligation, only by three persons, the debtor, his son, and his son's son ; but a pledge shall be enjoyed until actual payment of the debt by any heir in any degree.* But if the great-grandson do not wish to redeem the pledge, those who would be entitled to inherit on failure of great-grandsons, may, in the order

* Already cited at v. 38, 2, and partially at v. 111.

of succession, pay the debt and take the mortgaged property. If no one choose to redeem it, the pledgee may continue to enjoy it after acquainting the king; the sum cannot be forcibly exacted from the great-grandson or remoter heir, because, not having yet taken the assets, he is not liable for the debt.

This doubt here occurs: if the debtor contracted the debt, giving a pledge for custody only, and he, his son, and his son's son die, but a greatgrandson survive; in that case the debt need not be paid by the greatgrandson; for he does not enjoy the mortgaged property, and the pledgee is permitted to enjoy property pledged so long as the debt shall remain unpaid (229): but the great-grandson alone can take the pledge, because it is the chattel of his great-grandfather. The apparent difficulty may be thus reconciled: "but property pledged shall be enjoyed" is an expression merely illustrative of a general sense; in the case supposed, the payment of the debt is alone requisite. Or the word pledge may there signify a pledge given in lieu of interest, as well as a pledge not to be used; and the word" enjoy" suggests occupancy as well as fruition: hence there is no difficulty. Else it would be inconsistent with reason, that after advancing his own property and safely keeping the pledge for a long time, the creditor should be obliged to restore it to the great-grandson of his debtor without receiving his due. Since the great-grandson or remoter heir holds assets when he has received the pledge, he is bound to pay the debt.

230.

VRIHASPATI :-He who, having received a sum lent or the like, does not repay it to the owner, will be born hereafter in his creditor's house, a slave, a servant, a woman, or a quadruped.

The term here employed signifies a loan. "Or the like" comprehends deposits and so forth. The Retnácara.

"To the owner;" to the former master of the sum, that is, to the creditor and so forth. Therefore a debt must necessarily be paid by a son or other descendant, lest his father or ancestor become a slave, otherwise hell awaits him; because he has not followed the conduct prescribed. Thus may the law be concisely stated.

When the creditor is dead, or has become a religious anchoret or the like, the debtor should pay the sum to his son or other heir; on failure of the nearest, to the remoter heir successively down to the learned priest. But if there be no heir, nor any learned priest in that country, or if he refuse the payment tendered, NÁREDA propounds the rule to be observed in that case.

231.

NÁREDA :—If a creditor of the priestly class die, leaving issue, the king shall cause the debt to be paid to them; if he leave no issue, to his near kinsman; if he leave none who are near, to those who are distant, paternal or maternal:

2. If he leave no heirs near or distant, nor persons connected by sacred studies, the king shall bestow it on worthy priests; but if none such

are present, let him cast it into the waters: the debts of other classes, in similar circumstances, he may seize for himself.

What is due to a priest, whether it be a gratuity or similar claim, or the like, must, on failure of him, be paid to his son, or other descendant in the regular order of succession. That is intimated by the phrase "leaving issue." On failure of issue, to his near kinsmen; on failure of them, to distant kinsmen, allied to himself, to his father, or to his mother: this will be explained under the title of Inheritance. On failure of these, it should be given to learned priests; or on failure of them, "let him cast it into the waters." What is due to men of the military and other classes, the debtor should, by parity of reasoning, pay to the heirs in regular succession, delivering it, on failure of nearer heirs, to the next remoter heir down to distant kinsmen : but on failure of these, it must be paid to the king, under the rule of VISHNU concerning hereditable property, "the wealth of all but priests who die without heirs, goes to the king (Book V, v. 417)." But the property of priests may, on no account, be taken by the king. In this MISBA, BHAVADEVA, and others concur; and BAUDHAYANA, quoted in the Retnácara under the title of Inheritance, forbids the sacrilege. That text (Book V, v. 444) is expounded, "the property of Brahmanas is the most exalted poison to him who seizes it." From the word "never" it appears, that the property of Bráhmanas must not even be received in the form of a tax. Accordingly, in his gloss on the institutes of PARÁSARA, MÁDHAVA cites the following texts of MENU.

232.

MENU :-A king, even though dying with want, must not receive any tax from a Brahmana learned in the Védas.

MENU :-The king, having ascertained his knowledge of scripture and good morals, must allot him a suitable maintenance, and protect him on all sides, as a father protects his own son.

The king must allot him (that is, the priest) a suitable maintenance, or the means of subsistence; and protect him on all sides, from robbers, rogues, and the like. However, the direction in the text of NÁREDA, "he shall bestow it on worthy priests, or cast it into the waters," is a law respecting the payment of debts.

CHAP. VI.

ON

REDRESS FOR NON-PAYMENT.

This, according to the author of the Mitácshará, may be also considered as the rule for receipt of debts by the creditor.

MENU :-What has been practised by learned and virtuous men of twice-born tribes, if it be not inconsistent with the legal customs of provinces or districts, of classes or families, let the king establish.* "Learned" well read: AMERA interprets it, wise or intelligent. "Virtuous;" endued with honesty; not deceivers. "Twice-born ;” Bráhmanas, Cshatriyas, and Vaisyas: what has been practised by such men ; if it be not inconsistent with the legal customs of that country, of families and classes, let the king establish or confirm the practice, adopting it as unseen or unrecorded law. The text must be so supplied. CULLÚCABHATTA,

In that gloss the meaning of the expression "confirm the practice" is, that he should decide, according to that practice, a doubtful case, for which no seen or recorded law provides.

233.

MENU: When a creditor sues before him for the recovery of his right from a debtor, let him cause the debtor to pay what the creditor shall prove due.

"For the recovery of his right from a debtor;" to obtain the sum lent. The king, on application from the owner of the sum for the recovery of it, shall compel the debtor to pay to the creditor what he shall prove due by written or oral evidence or the like. CULLÚCABHATTA.

On application from the creditor for the recovery of what is due by the debtor, the king shall, by various means, compel the debtor to pay the creditor's right, or the sum which he proves by evidence to be due from the debtor. CHANDESWARA,

In what mode payment should be enforced, MENU declares.

234.

MENU-By whatever lawful means a creditor may have gotten possession of his own property, let the king ratify such payment by the debtor, though obtained even by compulsory means.

'By compulsory means;" by seizure or distress.

CHANDESWARA and CULLÚCABHATTA,

Already cited at v. 50.