58.

NÁREDA:-An open purchaser is clear of imputation, but a purchase in secret is a theft.

After this text, inserting the text of VRIHASPATI (57), he subjoins the text of NÁREDA (38) as expounding the sense of the preceding text. If the text of VRIHASPATI (57) relate to sale without ownership, the sense is this; "delivered by a person pretending to be the owner." The term (adhyacsha) signifies one capable of such transactions as sale and the like. Civil contract is among the senses of acsha in the Dictionary of AMERA. According to this interpretation, "from a man not known to be honest" (asatah), so expounded by CHANDESWARA, is pertinent in the literal sense of the terms. It is mentioned to intimate that there is no offence, if the man, though in fact a thief, have the appearance of being no thief. But, according to the opinion of MISRA, it means, from a person not praised or revered, that is, from an infant or the like. AMERA mentions praised among the senses of sat. Or fraudulent purchase is here described generally.

59.

YÁJNYAWALCYA:-He who shall receive from the hand of a stranger, what had been taken from him, or what he had lost, without giving notice to the king, shall be fined ninety-six panás of copper. He who receives it, without giving notice to the king that his property had been taken away by that person, shall be fined ninety-six panás; for he is guilty of concealing a thief. The Retnácara.

He shall be fined, because he deprives the king of his due, MISRA. A fine is due from the thief to the king. Thus both glosses agree. A fine has been declared in the case of a sale of lost property by a stranger; consequently there is nothing incongruous.

Is there no offence in selling a waif? There is if it be sold within the space of three years, but not if it be sold after that term; for it is proper that another should observe the same rule which is prescribed to the king.

60.

MENU :-Three years let the king detain the property, of which no owner appears, after a distinct proclamation: the owner, appearing within the three years, may take it; but, after that term, the king may confiscate it.

2. He who says, "this is mine," must be duly examined; and if, before he inspect it, he declare its form, number, and other circumstances, the owner must have his property;

3. But if he show not at what place and time it was lost, and specify not its colour, shape, and dimensions, he ought to be amerced.

It must be noticed, that if the owner, showing the time and place, and so forth, claim the thing even after three years, be may recover it, provided he had not neglected it. However, by the text of MENU, there is no offence in selling it after that term, if it be not claimed. Accordingly, since a waif is to be taken by the king, a man shall be punished if he appropriate it without acquainting the king.

61.

MENU :-One commodity, mixed with another, shall never be sold as unmixed; nor a bad commodity, as good; nor less than agreed on; nor anything kept at a distance, or concealed.

Goods dyed with saffron and the like, mixed with goods dyed with safflower and similar drugs, shall not be sold as unmixed, nor a bad commodity as good; nor less than the weight agreed on; nor a thing which is at a distance; nor goods which have lost their colour: this being similar to a sale without ownership, the punishment shall be the same.

CULLÚCABHATTA.

What quantity shall be taken to determine the proportion of punishment similar to that of larceny? It is said, so much as is the proportion of the inferior commodity mixed with another; or, computing the price of good and bad commodities, so much as is the gain by selling a bad commodity at the price of a good one, and similarly in other cases: for there is no theft in regard to the other portion of the sale.

The law of sale without ownership being extended to this case, the fine for a kinsman is six hundred panás. It must be considered, in the case of sale without ownership, that if a trifle be sold by a kinsman, the fine should not be six hundred panás: for this would be disproportionate. Where the fine for theft be six hundred panás, he should pay the same; and it is the limit of his amercement: but where the fine for theft would be less, he should pay the same fine as a thief: and let it not be objected, that there is no argument whence to deduce whether six hundred panás be intended as a less or greater amercement than the fine for theft; it is proper that the fine be less, since a kinsman is entitled to the use of the property.

CHAP. III.

ON CONCERNS AMONG PARTNERS.

SECT. I.-On Partnership in Trade and Adventure.

1.

NÁREDA:-When traders, or others, jointly carry on business, it is called a Concern among Partners, a title of judicial procedure. "Jointly," on a joint stock.

The Retnácara.

The word signifies mixed' or 'united;' for the verb bhú, compounded with the prefix sam, signifies mix. That union is formed by means of a joint stock, or by means of united personal efforts. Thus five traders, uniting their capital, carry on trade by purchase and sale of commodities; or five men, receiving wages, undertake jointly to assist the business of some rich person. The exposition of the Retnácara must be understood as illustrative of a general sense. The meaning of the text is subjoined: the expression "and others" comprehends officiating priests receiving a stipend and the like. The union of capital, or exertion, for work, for commerce, for effecting some business, for a sacrifice or the like, or the same work performed by several persons on a joint stock, or with united labour, is a concern among partners, or is a common exertion by partners; the inflection of one case being substituted for another. Consequently the performance of the same work by two or more persons uniting by means of joint capital and so forth, is a concern or common exertion of partners (sambhúya samutt'hána); sť'há, preceded by samut, signifies performance of work. Or the relative is employed in the seventh case with the sense of refuge or prop, as in the example "resides with his preceptor:" consequently that agreement or rule, on which business is jointly conducted, is a title of law called Concerns among Partners. The pronoun is used in the masculine gender, as in the text of VYÁSA (Chapter II, v. 4).

With what persons should partnership be contracted; and with what persons should it not be contracted? This question is answered in the subjoined text:

2.

VRIHASPATI :-Prudent men should not carry on trade, or the like, jointly with persons deficient in capacity or industry, afflicted by disease, ill-fated, or destitute of friend and home:

2.

Let a man carry on business jointly with persons of high birth, able, diligent and sensible, skilled in coins, in purchase and in sale, honest and persevering.

In all affairs, an incapable man should be excluded. An indolent man, who neglects business, though able to perform it, should in general be excluded in some instances, however, as in the duties of an officiating priest, the exclusion is not essential. The exception of a person afflicted by a distemper, which disqualifies him for business, is proper, for he is incapable: it is repeated, because the exclusion of a person, in whom disease has made its first appearance, is necessary on some occasions; and a person afflicted by a disease indicating a taint of sin, must be excluded from the performance of sacrifice, though otherwise capable; for, even pure persons, jointly performing a religious rite with him, would be dishonoured, since no benefit would arise from it. Outcastes and the like should also be excluded from the performance of a sacrifice or other ceremony; for the term is illustrative of a general meaning. "Ill-fated" not destined to acquire wealth, gain, honour, and the like it may be known from his horoscope, or from the visible result of his actions: he must be shunned in the concerns of traders and the rest. "Destitute of friend" or protector; such a man is excepted in concerns of trade and the like; for, should a disposition to knavery or wickedness arise, it would not be repressed: or, "destitute of home;" excepted in the apprehension that such a person might abscond with the property.

"Persons of high birth;" a person sprung from an honourable family will not be disposed to break his engagements, even though his life be endangered. "Able;" skilled in business. "Diligent ;" attentive to business without considering his own case: such a person is superior to men in general. "Sensible;" capable of contriving expedients when distress occurs: even in the performance of religious rites, the ceremony miscarrying, a person acquainted with the modes of expiation or the like may be required; other cases are obvious. "Skilled in coins;" explained in the Mitacshará stamped money, gold nishcas and the like, conversant with these, and with silver coins and the rest, and skilled in distinguishing coins which contain copper or the like: in commerce his excellence is obvious; in other affairs he is also useful. "Skilled in purchase and in sale;" in commerce, he who is conversant with purchase and sale, knows the profit to be made in other instances, it must be explained according to circumstances. Honest, or pure;" is referred to constant, occasional, or voluntary rites, or to concerns in general.

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Is not the direct precept superfluous, since partnership is of course permitted with persons different from those excepted; or the exceptive text superfluous, since persons, different from those with whom partnership is directed, are of course excepted: and thus, is not the repetition superfluous ? No: the exceptive text is necessary to exclude the persons therein described; and the direct precept is necessary to denote, that the persons described in it should be sought for. All persons different from those described in the second verse, are not to be excluded: persons not of high birth, nor yet deficient in capacity, and so forth, may be admitted: but if a person of high birth, and so forth, be found, he should be preferred. This sense is inferrible. The text is a precept of ethicks, showing present good and evil: therefore, should the precept be not observed, present evil, as loss, strife, or the like, ensues but it is no breach of duty; on the contrary, anyhow to maintain a person afflicted by disease is a duty and there is no offence in sometimes admitting an indolent person into partnership, on an agreement for conducting commerce upon the stock of one by the labour of another. It must be considered, that, if all exclude incapable persons and the rest, it follows that all partners must be capable: consequently, a partnership of capable with

:

incapable persons is forbidden. In some instances, a partnership may exist, of persons all deficient in capacity; for none of them are incapable, compared to each other: but if, among persons of similar rank, one be superior, respect should be shown to him.

3.

NÁREDA:-The junction of stock is the cause of men carrying on business in partnership with a view to gain; therefore each should contribute his share to the common exertion.

"Junction of stock;" union of capital. "Is the cause;" is the efficient means. Therefore," that is, for this reason, they shold make exertions in proportion to their shares. The text is so expounded by CHANDÉSWARA. Without a capital, or stock, trade cannot be carried on; therefore, let all contribute wealth, and supply what is required for trade, as the hire of boats, oxen, and other carriage. "In proportion to their shares ;" that is, let not one furnish the whole, as appears from a text which will be cited.

4.

NÁREDA:-As the share of a partner, in the common stock, or in work, is equal, or more, or less, in the same proportion shall his charges, loss, and profit, be equal, increased, or diminished.

As the share of each partner in the whole capital is less, more, or equal, so shall be his "loss" on the capital, by the sinking of a boat or the like: the loss shall be settled in proportion to the share of stock.

"Charges;" necessary charges; the king's taxes, and the hire of boats and the like. "Profit;" gain. If trade be again carried on upon the profit added to the original stock, the loss and profit is shared, as abovementioned. Both texts may be applied to agriculture and the like, unless more be expended by one of the partners, of his own authority. In directing that the charges, loss, and so forth, be increased or diminished in proportion to the share of a partner in the common stock, the same is understood of labour; as is clearly expressed in the following text :—

5.

VRŤHASPATI :-As his share of the outlay is equal greater, or less, in the same proportion, unless there be a special agreement, shall each partner pay charges, perform labour, and receive profit. "Charges;" loss by the sinking of a boat or the like; and disbursement for the payment of the king's taxes, and so forth. All this supposes that there is no special agreement.

6.

YÁJNYAWALCYA:-In a partnership among traders who carry on business with a view to gain, let the profit and loss be distributed to each according to his share in the stock, or according to special agreement.

If there be no special agreement, the distribution must be regulated by the shares in the stock; if there be a special agreement concerning profit and loss, let the profit and loss be distributed accordingly. The Chintámeni.