4

4. A special plea is when the defendant admits a fact, but quali- fies or explains it so as not to allow it to be matter of accusation. A plea of former judgment is when the defendant pleads that the very same cause has been previously tried at the tribunal of this or that judge, and that his adversary has been cast. A.

6. This paragraph, says A., occurs in the original work, and has therefore been inserted in this place, though it is difficult of explanation and a mere paraphrase of the preceding paragraph. It has been rendered in accordance with his interpretation. * The reverse ' means confession. * A retort ' means a special plea. ' A friendly counsel ' means plea of former judgment. A.

7. The plaintiff may go on altering and improving his written declaration, till the defendant gives in his answer. When, however, the plaint has been answered, he is no longer at liberty to make any further amendments. A.

* 8. These are called the defects of a plaint: (i) if it relates to a different subject; (2) if it is unmeaning; (3) if the amount (of the sum claimed) has not been properly stated; (4) if it is wanting in propriety; (5) if the writing is deficient; (6) or redundant; (7) if it has been damagfed.

9. By whomsoever a claim is raised, whatever and from whomsoever it may have been claimed: from that very person must the claimant receive that very thing, and it must not be (claimed) mutually, or (claimed) from a stranger. Thus * a claim relating to a different subject' may be of three kinds.

10. Thy friend here has thought in his mind, that I am his enemy. On account of this great intoler- ance I have impeached thee here.

11. If he omits to state the amount of the thing (claimed), and forgets to aim at brevity(?): this fault of a plaint is called omission of the amount (claimed), and it should be avoided.

12. Let him avoid improper statements in the plaint (e. g. an accusation which is raised) by a plurality of persons against one single-handed; or

8. A. does not explain the rather obscure terms occurring in several of the following paragraphs. He confines himself to stating that they contain an accurate definition of the ' seven defects of a plaint,' as enumerated in paragraph 8, to which the defect de- scribed in paragraphs 15, 16 has to be added as an eighth.

9. The three kinds of ' a claim relating to a different subject ' appear, therefore, to be these: where it proceeds from a different person than the creditor; where the amount of the sum claimed has not been stated correctly; and where the plaint has been addressed to a wrong person.

10. This is an instance of an unmeaning or frivolous ac- cusation. A.

11. The reading of this paragraph is uncertain.

(a cause which) is opposed to (the interests of) the city or kingdom (in which he Hves).

13. A plaint in which a mere dot is omitted, or where a word or a syllable has been obliterated, or where too little or too much has been written, or which is absurd; such a plaint should be carefully avoided.

14. He should (equally) avoid a plaint which has been destroyed or damaged (by an accident), or which has been soiled by water, oil, or other (liquids), even though the purport and meaning of the plaint be quite plain.

* 15. A plaint, though otherwise established, is not correct, if it is contrary to established law and usage.

16. A claim which is proffered in this form — 'I gave this to him while he was in a state of intoxica- tion with fragrance (through a smell of perfume) ' — cannot succeed, because it is contrary to established usage.

* 1 7. Where different words are (subsequently) in- serted (in the plaint), and where the sense becomes different (in consequence), there the judicial investi- gation becomes confused, and the evidence itself is thrown into confusion.

^'' 18. When the claimant, in a passion, and actuated

17. A. illustrates this rule by the following example. The claim- ant has claimed a certain sum. At the time of the trial he names a larger sum than he did before. Thus the judicial investigation becomes confused.

18. If a man actuated by one of the three passions, sexual desire, wrath, and covetousness, mentions some special (important) circum- stance at the trial, the scribe shall enter it at once in writing on a board, or leaf, or Bhfir^a-bark, or box, or wall. A. This rule seems to relate to incidental statements, which escape one of the parties through inadvertency. Thus in the well-known drama Mrz'y^^^aka/ika, the wicked prince Sa;wsthanaka, when informing the

by one of the immoral motives, such as partiality, makes some special statement, it shall at once be completely reduced to writing on a board or other (writing material).

19. Other statements than those (taken down at first) regarding the plaintiff on a board or other (writing material) shall be removed, after careful considera- tion, by persons versed in law, (when reporting on the trial) for the information of the king's judge.

20. Let such persons reduce to writing the state- ments of each party, and whatever else has been written on the board, together with the names of the

judge that Vasantasena has been murdered, adds, * not by myself.' The judge pounces upon the latter statement, suspicious as it looks, and causes the scribe to put it down in writing on the floor. The prince, perceiving that he has committed himself, effaces the writing with his foot. The custom of writing the statements of the parties on the floor is repeatedly referred to in the Indian dramas. From what Bnliaspati says, it would seem that in the time of this law-writer the statements of the parties had first to be written on a board, and then on a leaf, after all the required corrections had been entered. Narada seems to refer to the same custom in paragraphs 19 and 20.

According to Dr. Burnell, the boards referred to in the law-books must have been a sort of black wooden boards. See Burnell, South Indian Palaeography, 2nd ed., p. 87.

20. In translating this paragraph, the obscurity of which is only surpassed by the preceding paragraph, I have deviated from the interpretation proposed by the commentator.

A. takes this paragraph as containing four independent clauses: I. what has been stated or admitted by both parties; 2. whatever else has been written on the board; 3. the depositions of the witnesses; 4. what each party has conceded to the other. These four things should be reduced to writing by the persons entrusted with the judicial investigation. ' Whatever else has been written on the board,' i. e. whatever the plaintiff amends or adds, while the plaint is being reduced to writing. Such statements, as shown in the next paragraph, are called Pratyakalita.

Witnesses, as well as those statements in which both parties concur.

21. Additional statements of the plaintiff (or de- fendant), which are not contained in the writings of both parties, shall be (subsequently) entered into his (their) declaration. They are called Pratyakalita (' what is interposed').

■^^ 22. If one deputed by the claimant, or chosen as his representative by the defendant, speaks for his client in court, the victory or defeat concerns the party (himself and not the representative).

^^ 23. He deserves punishment who speaks in behalf of another, without being either the brother, the father, the son, or the appointed agent; and so does he who contradicts himself at the trial.

* 24. He who forsakes his original claim and pro- duces a new one, loses his suit, because he confounds two plaints with one another.

* 25. A verbal error does not annul the claim in

2 1. A. infers from the use of the term ' both parties ' that a Pratyakalita statement may proceed from the defendant as well as from the plaintiff, though the plaintiff alone is specially mentioned. A. adds that this rule applies equally to all those kinds of statements, which are mentioned in paragraph 20.

22. This rule applies equally where a party is prevented from appearing before the court by illness, and where the party is not a good speaker, and has appointed an agent or attorney for that reason. A.

23. This prohibition relates to those who, from love, anger, or avarice, meddle with the affairs of strangers, and pretend to act in their behalf at court. A.

24. If a claimant, on finding himself unable to prove his claim at the trial, proffers a different claim, he must be pronounced the losing party, on account of the confusion caused by him. A.

25. An erroneous statement does not necessarily cause the defeat

actions of any kind. So if the case relates to cattle, or to a woman, or to land, or to a debt, he is liable to punishment, but his claim is not annulled.

26. Where the defendant denies the charge, the claimant has to prove his accusation, unless the denial should have been in the form called Pratya- vaskandana.

*2 7. What the claimant has fully declared word for word in the plaint that he must substantiate by adducing evidence at the third stage of the trial.

* 28. Proof is said to be of two kinds, human and divine. Human proof consists of documentary and oral evidence. By divine proof is meant the ordeal by balance and the other (modes of divine test).

29. Where a transaction has taken place by day,

of the plaintiff. This is particularly the case in one of the following important actions: a case relating to a cow, female buffalo, or other cattle; a case relating to a woman; a case relating to landed property, i.e. a house, field, &c.; and a case relating to one of the twenty-five subdivisions of the law of debt. In any case he is not defeated, merely on account of an erroneous statement contained in the suit. He does not lose the suit instituted by him, though he is liable to punishment. A. The Mitakshara (p. 23) has a long gloss on this rule of Narada, from which it appears that the ' erroneous statements' here referred to are statements made through inadvertency, and that this rule applies to civil, as opposed to criminal actions. Read vak^^ale in the Sanskrit text.

26. An answer in the form called Pratyavaskandana is where the defendant admits the facts adduced by the plaintiff, but explains them so as not to be matter of accusation.

27. The claimant must prove, at the judicial investigation, what- ever he has committed to writing in the plaint. A.

29. The divers kinds of divine test will be declared below. In the case of all those transactions which take place during day-time eye- and ear-witnesses are present. Documentary evidence, like- wise, is generally available in such cases. Therefore, divine proof should not be resorted to. Where a transaction is known to have

in a village or town, or in the presence of witnesses, divine test is not applicable.

^'^ 30. Divine test is applicable (where the transac- tion has taken place) in a solitary forest, at night, or in the interior of a house, and in cases of violence, or of denial of a deposit.

31. Where the defendant has evaded the plaint by means of a special plea, it becomes incumbent on him to prove his assertion, and he is placed in the position of a claimant.

* 32. One who takes to flight after having received the summons; one who remains silent; one who is convicted (of untruth) by (the deposition of) the wit- nesses; and one who makes a confession himself: these are the four kinds of Avasannas (losers of their suit).

* S3. One who alters his former statements; one

taken place in the presence of witnesses, divine proof is also not applicable. A.

30. In all the places and occasions mentioned in this paragraph human proof is not applicable, wherefore divine test has to be resorted to. A.

31. Where the defendant has recourse to the mode of defence called Pratyavaskandana, i.e. where he admits the charge, but adduces a special circumstance to exonerate himself, the plaint becomes purposeless. To the defendant, however, belongs the onus probandi in regard to the special circumstance mentioned by him. He is, therefore, reduced to the position of a claimant, in that it is incumbent on him to prove his assertion at the time of the judicial investigation (kriya). A.

32. One who, though summoned by the king's officers, absconds through fear of the accusation brought against him; one who stands mute in the assembly when he is asked to make his declara- tion; one who is cast by the depositions of the witnesses; and one who confesses to be in the wrong himself: these four persons are non-suited. A. Ya^wavalkya II, 16; Manu VIII, 55-58.

33. Two out of the four ' losers of their suit,' who are referred

who shuns the judicial investigation; one who does not make his appearance (before the tribunal); one who makes no reply; and one who absconds after receiving the summons: these five kinds of persons are called Hina (cast in their present suit).

34. Precious stones, such as rubies, golden orna- ments, such as Dinaras, pearls, coral, shells, and other (jewels and precious metals) shall be returned

to in the preceding paragraph, may be said to have lost their cause for once and all, viz. one who is convicted of untruth by the deposi- tion of the witnesses, and one who confesses his wrong himself. The two others, viz. one who remains silent and one who absconds, are liable to punishment, but they do not entirely lose their suit, as their cause may be tried anew. Similarly, the five persons mentioned in par. 33, though non-suited in the case in hand, may have their cause tried anew. 'One who alters his statements,' i.e. one who, from forgetfulness, says something different from what he had stated before. * One who shuns the judicial investigation,' i. e. one who, from repugnance against judicial investigation, throws the proceed- ings into confusion. ' One who does not make his appearance before the tribunal,' i.e. on account of a calamity which has befallen him through the king or through fate, &c. * One who makes no reply,' i.e. one who does not give in his answer at once, and asks for delay to prepare it. 'One who absconds' from fear of an enemy. A. This interpretation has evidently been called forth by a desire to reconcile par. 33 with the preceding paragraph, as the persons called Hina are partly identical with those designed as Avasannas. It may be doubted, however, whether par. 32 belongs to the original work of Narada, as the identical rule is elsewhere attributed to Bnhaspati (see Viram., p. 102), and as it is certainly difficult to reconcile the two paragraphs with one another.

34. If the owner of the articles mentioned in this rule sells them for genuine, and the purchaser, putting belief in his statements, accepts them as such, and pays for them, but finds out afterwards that they are not genuine, the seller must take them back, and must give other articles in exchange for them which are really valuable, or he must make good their value to the purchaser. A. As for the meaning of the term Dinara, which corresponds to the Latin denarius, see the Introduction.

to their owner, in case they turn out to be imitations only.

35. If a man seizes perfumes, or garlands — other than those which have been given to him — or orna- ments, or clothes, or shoes, which belong to the king, he deserves to be corporally punished.

^ 36. The price or value of a commodity, wages, a deposit, a fine, what has been abandoned (by one and found by another), what has been idly promised, and what has been won at play; none of these articles yields interest, except under a special agreement to the purpose.

37. Men of the ^'tidra caste, who proffer a false accusation against a member of a twice-born (Aryan) caste, shall have their tongue slit by (the officers of) the king, and he shall cause them to be put on stakes.

38. A royal edict, a (private) document, a written

35. One who, from pride, seizes (or uses) one of the above articles, shall be corporally punished, if they belong to the king. A. The reading of this paragraph is quite uncertain.

36. ' The price of a commodity,' the price paid for a saleable commodity which has been sold. *A deposit,' a trust. *A fine,' an amercement which has been inflicted by the king's judges. ' What has been abandoned,' what has been seized after its dere- liction (by the original owner). * What has been idly promised ' to bards or other worthless persons.

37. If the A^^idras, by whom this crime has been committed, are punished by the king, he becomes free from blame. Otherwise, the blame falls on him, as it is his duty to reward the honest, and to punish evil-doers. A.

38: The divers forms in which a plaint is instituted in each of these several cases (excepting a single case, a transaction of sale) are stated as follows by A.: * i. This man has not taken notice of a certain royal edict. 2. This man has (unduly) availed himself of a certain document relating to its owner. 3. This man, by virtue of a certain written title, has appropriated a slave girl belonging to

title, a grant, a pledge, a (promise reduced to) writing, a sale, or purchase: one who brings a claim in regard to any one of these before the king is known as defendant among those conversant with the rules (of legal pleading).

* 39. Where the deposition of the witnesses has been objected to, it becomes necessary first of all to clear the witnesses from suspicion. When the wit- nesses themselves have been cleared from suspicion, he may undertake to remove the doubts which have been raised against their deposition.

^^ 40. When a man has lost his cause through the dishonesty of witnesses or judges, the cause may be tried anew. When, however, a man has been cast through his own conduct, the trial cannot be re- newed.

41. One convicted by his own confession, one

myself. 4. This man raises the revenue of a certain village which has been granted to myself. The grant relates to myself only. 5. This property has first been pledged to me by the debtor. How can any one else enjoy it? 6. Why does not this man deliver this chattel to me, which has been promised to me in writing? 7. I have purchased this commodity from him, and paid for it. He does not make the commodity over to me.' — Read 2ignL

39. Where the defendant raises groundless objections against the trustworthiness of the depositions of witnesses, he is liable to punish- ment, like one who shuns the judicial investigation, and loses his suit in consequence. After the witnesses have been cleared from suspicion, their statements have to be examined in order to remove what looks suspicious in them. A.

40. Those who have lost their cause, either through the state- ments of their own witnesses, or through the decision of the judges, may have their cause tried anew, according to a rule previously laid down. If, however, a man has been convicted by his own conduct, or if the witnesses adduced by him should turn out to have been corrupted by him, the case cannot again be opened. A.

41. I. One who pleads guilty; 2. one convicted by his own

cast through his own conduct, and one whom the judicial investigation has proved to be in the wrong: (these three) deserve to have their final defeat declared at the hand of the judges.

42. Whenever the (false) assertions have been removed, the judges shall pass a decree. If they pass a judgment, before the false statements have been removed, they will cause evil in the next world and in this.

43. One condemned by the judges shall be pun- ished by the king according to law. The victorious party shall receive a document recording his victory, and couched in appropriate language.

44. This has been formerly declared by the self- existent Being to be the mouth of a lawsuit. If the mouth of a lawsuit is in order, the whole suit is in order, but not otherwise.

conduct, as e.g. by adducing false witnesses or forged documents; 3. one convicted by the witnesses: those three shall not be punished till they have been condemned by the judges. A.

42. When the time for passing a decree has arrived, the judges shall carefully remove all mere assertions of either party. Should they omit to do so, they would be in danger of condemning an innocent man, and might produce evil in this world by causing loss of money, and in the next world by barring the way to paradise to themselves, as it is the duty of kings to restrain evil-doers and to protect the righteous. A.

43. According to Bnliaspati, the document of victory which has to be given to the victorious party shall contain an accurate record of the plaint, of the answer, and of the judicial investigation.

44. The general rules regarding judicial proceedings, which have been laid down in the preceding section, are declared to be the mouth of a lawsuit, because they are applicable to the trial of every suit. 'The self-exislent Being,' i.e. Brahman. A.

* I. One who has not been authorized must not speak on any account at the trial. But authorized persons must deliver their opinion in an unbiassed spirit.

* 2. Whether unauthorized or authorized, one acquainted with the law shall give his opinion. He passes a divine sentence who acts up to the dictates of law.

3. If he delivers a fair opinion, a member of the court will incur neither hatred nor sin. But if he speaks otherwise he at once incurs both.

''' 4. Let the king appoint, as members of a court

III, I. Courts of justice are generally thronged by a large atten- dance. Some of the persons present are intelligent, others are not, and others are wise in their own estimation only. Such persons, if unrestrained, would disturb the judges by interpreting idle speeches between the legal proceedings, and by quarrelling amongst them- selves. Therefore, the first half of this paragraph relates to the punishment ordained for those who speak without authorization. Authorized persons, i.e. the judges who sit on the seat of judgment, shall strive to be just, i.e. they shall deliver a judgment in accord- ance with justice, and shall not show partiality for either of the parties. A.

2. Where all the assessors of the court pass an unjust sentence, from ignorance of the law, or from interested motives, there a Brahman versed in the sacred law and acquainted with legal pro- ceedings, who happens to be present, shall point out the law to them, and restrain the judges from their sinful course. He shall speak, though he has not been appointed to deliver judgment. Law is called the voice of the deity. A.

3. That is called ' a fair opinion' which is not contrary to written law and to custom. A judge who delivers a sentence of this kind incurs neither enmity nor sin, i.e. he does not become unhappy either in this world or in the next. A.

4. As young bulls are able to carry a heavy burden, even so

of justice, honourable men, of tried integrity, who are able to bear, like good bulls, the burden of the administration of justice.

* 5. The members of a royal court of justice must be acquainted with the sacred law and with rules of prudence, noble, veracious, and impartial towards friend and foe.

6. Justice is said to depend on them, and the king is the fountain head of justice. Therefore the king should try causes properly, attended by good assessors.

7. When lawsuits are decided properly, the mem- bers of the court are cleared from guilt. Their purity depends on the justice (of the sentences passed by them). Therefore one must deliver a fair judgment.

8. Where justice is slain by injustice, and truth by falsehood, the members of the court, who look on with indifference, are doomed to destruction themselves.

competent judges are able to discharge the onerous duties of their responsible office. They must be men of ripe wisdom, acquainted with sacred law and with the ways of the world, and the king must have tested their qualifications. A. Vishwu III, 74, &c.