since the highest accumulation of interest on clothes and other commodities is declared to extend to three times the principal and so forth, it is wrong to censure the receipt of three times the principal in such cases.

A Brahmana asks a loan from another Brahmana, and the lender, exacting a stipulation for interest at the monthly rate of a pana in a purána, delivers the loan, and the other pays the debt within the year; is the receipt of such interest in this case reprehensible or not? It is said, the receipt of such interest is evidently immoral, since (cáritá) stipulated interest itself is immoral, according to the gloss of CULLÚCABHATTA on the words "any interest which is unapproved" (41); and it is held so by MISRA, because the borrower is oppressed by the exaction of excessive stipulated interest and the like.

Periodical interest and corporal interest are also termed immoral by CULLÚCABHATTA: how does that apply; for if the borrower discharge the debt within the year and pay suitable interest, there is nothing blameable in the receipt of that interest? The answer is, under the authority of the text only; but it is not deemed immoral if received from time to time; and the text of VRIHASPATI is adduced to connect the sense, showing the immorality of periodical interest and the rest, in certain circumstances; not of stipulated interest, which is universally censured. Accordingly CULLÚCABHATTA says, " stipulated interest is immoral, even though it have been freely settled by the debtor in a time of extreme distress, and by the creditor through kindness." It is consequently an improper proceeding of a lender wilfully to violate the law and exact a promise of more than legal interest. On other expositions also, since the rate of an eightieth part and so forth is alone legal as the primary rate, the receipt of stipulated interest at any other rate is not laudable.

If a debt be contracted with an agreement in this form: "At the end of three months I will repay oue coin and a quarter, lend me now one coin ;" the interest amounting to a quarter of the debt is (cáritá) stipulated interest, for the rate of interest and period of the loan are settled by the debtor. In the case proposed by CHANDESWARA, interest on a loan advanced with a previous stipulation in this form, " if thou wilt pay interest during one year, or half a year, or the like, then only will I advance the loan," is also a sort of stipulated interest; for, in this case, there is a promise of paying a certain amount of interest at the rate of an eightieth part and so forth. But in fact reason shows, that, excepting the regular method of receiving the principal with suitable interest, every disingenuous proceeding is immoral.

VIII. On the Assignment of Bonds, &c.

In some instances, a creditor has demanded his money from his debtor in these words, "Pay the debt of a hundred suvernas, which is due to me" but the debtor has not been able to discharge it; afterwards, the creditor, reduced to poverty by the circumstances of the times, or even without necessity, of his own accord, sells the written contract for that debt to some other person: this practice is not immoral; for it is not forbidden by the law, nor does it distress the debtor.

To the question, what is sold in the case supposed? the answer is this: not the mere written leaf, for it could not bear so high a price; nor would the purchaser, on a purchase of the written leaf only, be entitled to receive the sum stated in the writing. Nor is the debtor sold; for the creditor has no property in the person of his debtor. Nor is the money which

has been lent by the creditor sold; for his property in that money is already devested; or even though it be not wholly devested, the seller has not at that time an indisputable property therein. Nor is the money which will be subsequently paid, and which is receivable by the creditor, sold; for it cannot in such a case be money receivable by the creditor, since the purchaser, not the seller, will have property in the money, which will be paid by the present user or debtor. It is therefore held by some lawyers, that the money which will be paid by the debtor, is acknowledged as the transitory property of the lender; but, in consequence of the price now received, and of the agreement made to that effect, that property will be devested and transferred to the purchaser accordingly a sale, consisting in the receipt of a price, is now established from the consequences which are to follow, by means of taking into consideration past events:* and the seller has property in the price received; for, in consequence of his present expectation of a future receipt, the buyer assents to the transfer of property in the price to the seller. But that is wrong; for, should the debt be never actually paid, in consequence of the debtor's decease or the like, such a transitory property could not be established: since the money payable by the debtor is become null, the sale of it is also null, and the receipt of the price would be therefore invalid.

We think that this is a secondary sale of the promise of payment, like a gift or sale of moral purity. Thus, after the receipt of a loan, the lender's property being devested, and property vested in the borrower, the promise of payment is the only ground for the repaymeut of the loan when its period has elapsed; and that promise disposes the debtor to give effect to the creditor's revivable property, through fear of incurring guilt by withholding payment of the money due to the creditor, or in consequence of a complaint preferred before the king, or the like: in the case supposed, that promise bought by any person would induce guilt in the debtor, if he withheld payment of the debt from the person who had purchased the promise; and, exciting his apprehensions of incurring such guilt, or by means of a suit preferred before the king, or the like, it disposes the debtor to give effect to the purchaser's contingent property.

It should not be objected, that payment made to the purchaser would be a violation of promise on the part of the debtor, who had said to the creditor, "I will pay the money unto thee." It is a rule, that the reason of the law extends to the representative. There is no breach of promise in his paying the money to the purchaser, who is the representative of the creditor; as there is none on the part of him who has promised to give jewels and the like, and who pays their value.

When a field or the like is sold, an interest of the nature of property, similar to the former owner's property, is vested by the sale in the other party; but in this case, by what secondary notion of a vested interest does it become a secondary sale? From the secondary notion of something producing a lien on the guilt of the debtor if he withhold payment of the money, it is shown to be a secondary sale. Consequently, should the debtor and his offspring happen to die without paying the debt, the loss falls on the purchaser, as it would ha fallen on a creditor who had not sold

The philosophical opinion to which I conceive this alludes, is more expressly stated in other places. A past event, that is, its completion, exists metaphysically as a cause of future events. Strict logicians do not admit this metaphysical existence, and are therefore at a loss to connect causes and effects not immediately consecutive. To solve the difficulty, they have recourse to the relation between cause and effect, which they place in philosophical arrangements under the category quality.

the demand; but if a thing sold, yet remaining with the seller, be destroyed by the act of GOD, the price must be refunded by the seller.

In this assignment of bonds, one form is a sale made with a written contract previously executed; another is a sale made in the debtor's presence, or with his knowledge; another again is a sale before witnesses: these, and many other forms regulated by the custom of the country, such as a sale authenticated by an unattested instrument in the handwriting of the party, or his own recovery of the debt and payment of it to the purchaser, may be understood by a simple exertion of intellect. The form is also similar in the case of hypothecating a written contract of debt: but with this difference, that if the debtor happen not to pay the sum borrowed by him, the intermediate user or debtor must make good the debt out of his own funds to the ultimate creditor; and the promise of payment concerns the lender only, but is in the power of the ultimate creditor; consequently the debt cannot be received by the lender, without the assent of the ultimate creditor.

Some person applying to a merchant who lives by money-lending, says, "deliver me cloth to the value of a thousand suvernas, and let that value remain a debt due from me;" on those terms, giving a writing, he takes the cloth what does the value of it become, for no money has been paid ? On this doubt it is said, the price of the commodity which was sold, is a debt mentally contracted; interest must therefore be paid on the price of the commodity.

Is not the sense of the word (rina) debt, money or goods delivered, and producing gain to the lender, in consideration of its remaining for a time with a debtor ?' But, in this case, since the price of the cloth was not then paid, it could not be delivered, and the requisites of a debt cannot therefore exist. The objection is not well founded; by fiction there may be a delivery of the price of the cloth, as there may be a fictitious delivery of gold or the like, given by way of gratuity, though it be not actually produced.

In the parallel case proposed, there is, on the part of the votary, a present act of volition to annul his own property, and vest property in another, which amounts to gift, and is not imaginary; but here, since there is no such money as that in consideration of which property shall be vested in the buyer, after the property of the seller has been devested, the buyer's property is null; and, the intended delivery being imaginary, is it not actually invalid? Admitting the objection, "deliver" is secondary in the definition of debt: and, in the case stated, the thing lent becomes the property of the buyer, whether it be the price or value of the cloth which is lent, or only the cloth sold; as in the case of compound interest. This subject has been further treated by me (JAGANNAT'HA) in the Rinavádártha. In the case proposed, there is a mixed transaction of loan and sale.

Form of a Writing for a Debt sold.

After writing on the assignment the name of the lender, and so forth, it is usual to write, "this sale of a written contract of debt:" and that is proper; for, by selling the written leaf with the letters inscribed on it, the Bale of the thing written is also valid, as the approach of horns is denoted when it is said a horned animal approaches. Thus, since letters must extend to the words, the sale of the words, constituting a promise, is certainly valid. Or it may be written, "this bill of sale of a debt;" by this the sale

of an unwritten debt may also be affected and it is equally proper in the present case.

On the reasoning above stated, although the thing promised might not be sold, the promise may be sold, and here the meaning of debt is, money received after such previous promise. The debt belongs to the purchaser alone; hence, if it happen to remain unpaid, the sin consists in not paying the debt due to the purchaser, not in withholding a debt due to the seller. But such interest only as had been promised should be paid; not interest at the rate of an eightieth part, and so forth, when stipulated interest had been previously promised, and no express declaration was made concerning interest at the time of the sale. If a debt be sold by a Brahmana creditor to a S'údra, interest must be received at two in the hundred, the regular rate in the order of classes; not at five in the hundred for interest is settled by the agreement made when the debt is contracted. Nor should the purchaser then exact a promise of greater interest, for that loan had been already advanced by another person. But, after the lapse of the period stipulated, should the debtor be unable to discharge the debt, the purchaser, who is become the creditor, may, according to some opinions, exact a promise for stipulated interest, or for the cáyicá of NAREDA, as explained by CHANDESWARA, at the rate of a pana, or half or other fraction of a pana; for that is the proper time for a stipulation of such interest, and the debtor is then in the power of him who purchased the debt.

Although there be no express text of Sages on the present subject, this and other rules for contracts valid by usage are deduced from the authority of reason copying sacred law for the sake of legal decision in cases of doubt. A portion of the subject has been inserted by way of illustration; other points may be similarly reasoned by the wise,

Form of a Writing for a Debt pledged.

After writing the name of the lender, and so forth, and subjoining "this contract of debt on the pledge of a debt;" it should be added, "a debt of so much is contracted by me, giving unto thee, as a pledge, a debt amounting to such a sum contracted by such a one, on an agreement for so much interest, in such a year, month and day, and in the presence of such and such persons," and so forth it should be further written, "if this debt be not discharged by me on such a day of such a year, then the debt due to me by such a person shall be thine," and so forth, according to circumstances. This and other forms, as suggested by common sense, are stated by way of example, to guard against defective writings.

In this case the first debt should not be recovered from the debtor, until the close of the period for which the second loan is made. But, if no more than half or other portion of the original debt were made over as a pledge, then a proportionate part may be recovered from the debtor; and it should be inserted in the instrument. However, it is not proper to fix a period for the second loan extending beyond that of the first loan. This and other points may be inferred from reasoning.

Form of a Writing for a Price lent, or Credit given in considera

tion of Interest.

It should be a document of the debt, not a document of sale only, because the sale is shown by the declaration of the debt; for the declaration in words runs thus, "I borrow the value of this commodity, so and so,

which is bought of you." It should not be affirmed, that it might be drawn conversely; and thus the instrument would be only a bill of sale. Were it so, the debt would not be the chief object of the writing, and the clause fixing the period of repayment, and so forth, could not be well arranged. But, should it be thought necessary to authenticate the purchase, a separate document would be proper. To expatiate in this place would be vain. Sales and the like may be similarly authenticated by bills of sale but that should be hereafter discussed under the head of Sales, and so forth.

IX. On Usage in general.

Doubts occurring on many subjects have been solved by reference to practice; a decision being therefore valid when founded on the practice observed to exist, is not law useless? Practice, which is founded on law, prevails; hence usage, inconsistent therewith, must be abrogated: but where no express law is found, one should be established on approved usage.(37)

(37) Thus ASVALAVANA in his Grihya-Sutras, (a treatise prescribing forms for religious ceremonies, &c.) declares :-" Now the customs of countries and places are certainly manifold. One must know them as far as marriage is concerned. But we shall explain what is the general custom." Upon this passage the commentator observes. "If there be contradiction between the customs of countries, &c., and those customs which we are going to describe, one must adopt the custom as laid down by us, not those of the country. What we shall say is the general law, this is our meaning. Amongst the Vaidehas, (a caste sprung from a Vaisya father and a Bráhmani mother) for instance, one sees at once that loose habits prevail. But in the domestic laws continence is prescribed; therefore there is no doubt that the domestic and not the national customs are to be observed."

In the Sutras of GAUTAMA, too, a similar line of conduct is traced out. After declaring that the highest authority by which a Government ought to be guided consists in the Védas, Védángas, and Sástras, and old tradition, it is added that in cases where the customs of countries, classes, and families are not expressly founded upon a passage of the Véda, they are, notwithstanding, to be observed, if they are not clearly against the principles of the sacred writings, such as would be, for instance, marrying the daughter of a maternal uncle.

In the verse (50) cited in the text, MANU, it will be noticed, prescribes for rules of conduct those forms and observances, which, though not expressly laid down in Codes of Law, should, nevertheless, be regarded in the light of ordinances; inasmuch as they have been practised and approved of by learned and virtuous Brahmans. With regard to the nature and authority of human agreement in general, the views of HARADATTA may be appositely quoted in this place.

According to this writer, human agreement (samaya) is of three kinds: vidhi, injunction; nyama, restriction; pratis hedha, prohibition. Rules founded upon samaya are called samayácháras. Dharma (virtue) or the quality of the individual-self, in the sutra terminology, signifies law, and has for its object dharma as well as adharma, things to be done and things to be avoided.

"It might be said, however," says HARADATTA, in his commentary on APASTAMBA'S Samayáchárika sutras, "that if samaya (human agreement) be the authority for the law, it would be difficult to deny the same authority to the Bauddhas and their laws, to worship the holy sepulchre," &c., and therefore APASTAMBA has added the next sutra:

'Those agreements are of authority which were made bg men who knew the law.'

"We do not say," HARADATTA remarks with reference to these words, "that every agreement becomes of authority, but those only made by men like MANU, &c., who knew the law. But then, it might be asked, how it can be found out that MANU knew the law, and BUDDHA did not? People answer, that BUDDHA could not have had a knowledge of the divine law. But the same might be said also of MANU; and if a knowledge of divine things be ascribed to MANU, on account of the excellence which he acquired by his virtue, then, again, it would be the same for BUDDHA. There is a known verse: (Sugathoyadi dharmagnya Kapilóneti kaprama: Thavubhoûyedi sarvagnya mathebheda kadam dayoh.) If BUDDHA know the law and KAPILA does not, what is truth? If they were both omniscient, how could there be difference of opinion between them? If this be not so, a distinction must be made; and this has been done by APASTAMBA in his next sutra: And the Védas (are of authority.)'