doctors assign as a reason for denying the right of representation, that a person has not even an inchoate right to the property of his ancestor, until the death of such ancestor, and that, consequently, there can be no claim through a deceased person, in whom no right could by possibility have been vested.

I have met with a passage in a learned author already quoted, which seems so apposite to the present subject, that I may be pardoned for transcribing it here: "On the proposition which we before advanced, That parents are obliged to afford sustenance to their children, not only of the first, but of farther degrees, in case their proper parents, who ought to perform this office, are extinct, is chiefly founded the equity of that right termed the right of representation; by virtue of which, children are supposed to fill the place of their deceased father, so as to be allowed the same share in the family inheritance as their father, were he now living, would receive; and, consequently, to succeed on the level with those who stand in their father's degree. And it would indeed be a lamentable misfortune, if, besides the untimely loss of their father, they would farther be deprived of those possessions which either the rule of the Law, or the design of their progenitors, had given their parents just hopes of enjoying. But if in any place the civil constitutions will not admit of this representative right, the children, who have been so unhappily bereaved of their father and of their hopes, must endeavour to bear the calamity as an affliction which Providence hath laid upon them.'

obtain in the succession of moveables, except in the single case of a competition between the full blood and half blood.-Erskine's Principles, page 414.

Puffendorf on the Law of Nature and Nations.-Book IV, ch. xi, §§ 12.

b

The rules of inheritance prescribed by this Code differ from those of any other with which I am acquainted. It would be a useless task to point out its peculiarities, as they are obvious. Perhaps the system to which it bears the nearest resemblance, is that of our own Law in distributing the personal property of an intestate, according to which, "when relations are found who are distant from the intestate by an equal number of degrees they will share the personal property equally, although they are relations to the intestate of very different denominations, and perhaps not relations to each other. As if the next of kin of the intestate are great uncles or aunts, first cousins, and great nephews or nieces, these being all related to the intestate in the fourth degree, will all be admitted to an equal distributive share of his personal property." But to this system "But even the resemblance must be admitted to be very faint.†

Blackst. Comm. vol. II, page 515, Note.

+ There is a remarkable degree of similarity between the provisions of the English Law relative to the mode of disposing of an intestate's personal estate and the rules of the Moohummudan Law for administering to the property of a person deceased. In the Commentaries, treating of the duty of an executor or administrator, it is enjoined, "He must bury the deceased in a manner suitable to the estate which he leaves behind him, necessary funeral expences are allowed previous to all other debts and charges." The Sirajyah, treating of the successive duties to be performed with regard to the property of a person deceased, commences, "first his funeral ceremony and burial without superfluity of expence, yet without deficiency." The commentaries," the executor or administrator must pay the debts of the deceased." The Sirajyah, “then the discharge of his just debts from the whole of his remaining effects." Again, the Commentaries," when the debts are discharged, the legacies claim the next regard." And the Sirajyah," then the payment of his legacies out of a third of what remains." Lastly, the Commentaries,

The Moohummudan lawyers have divided heirs* into three different classes, first, legal sharers; secondly, resi duaries, and those are either by relation or by special cause; and thirdly, distant kindred. The legal sharers are the husband and wife, the father and mother, the grandfather and grandmother, the brother by the same mother, the sister by the same mother, the uterine sister, the sister by the same father, the daughter, and the son's daughter. The residuaries by relation are the sons and their descendants, the father and his descendants, the paternal grandfather in any stage of ascent and his descendants, and in some cases sisters and daughters. Those by special cause are the manumittors of slaves and their heirs. The distant kindred comprise all those relations who are neither legal sharers nor residuaries; and, in their default, the property goes to the successor by contract, and to persons of acknowledged, though not proved, consanguinity. It will be seen, on reference to the principles of inheritance, that many of the persons above enumerated have the privilege of simultaneous succession, whether the property be real or personal; which circumstance is the chief peculiarity of the Moohummudan Code.

The rules agreeably to which distributions are made would, at first sight, appear rather complex and intricate; but they may be speedily acquired by a very moderate

"when all the debts and particular legacies are discharged, the surplus or residuum must be paid (where it is not left to the executor) to the next of kin: and the Sirajyah, “and lastly, the distribution of the residue among his successors."

• Throughout this work I use the term "Heir" in its broadest sense, to signify any person who has a right of inheriting any species of property.

b 2

share of attention, and, when once known, there can arise no legal problem, relative to successions, which would not, by their means, admit of easy and satisfactory solution. It must, at the same time, be admitted, that the heterodox Code, or that which is observed by the Schias (commonly called the Imameeya sect, as they follow the doctrines of the twelve Imams) can boast of much greater simplicity. This Code has hitherto had no weight in India, and even at Lucknow, the seat of heterodox majesty itself, the tenets of the Soonees are adhered to. I have however given a compendium of their law of inheritance, extracted from the "Shuraya ool Islam," a work of the highest authority among them. This I was induced to do, as no account has ever been rendered, to my knowledge, of the doctrine of the sect in question, on the law of inheritance; and as I have reason to believe that our courts of justice have passed decisions avowedly in conformity to its principles. Considering the universal toleration that prevails throughout the British dominions in India, it is perhaps but equitable, that the Law should be administered to the sectaries, in question, agreeably to their own notions of jurisprudence, especially in matters affecting the succession to property, in which cases both parties are of course always of the same persuasion.

Where the Law expressly prohibits the receipt of interest on money, and all usurious contracts, it is natural to find the provisions regarding purchase, sale, and similar transactions, extremely simple and certain in their nature. Such is accordingly the case in the Moohummudan Law. There is no distinction made between sale and permutation; a barter of one commodity for another

being designated a sale. Even according to our own Law, the distinction is merely nominal, and there is no difference as to the legal provisions relative to sales and exchanges. The principal points of difference seem to be, the absence of any discrimination in the Moohummudan Law of sales of real and personal property, and its recognizing verbal contracts as of equal validity with written ones. Another essential point of difference is, that the maxim of caveat emptor finds no place in this code.

The most efficient safeguards against the effects of improvidence in purchasers are established, so much so, as almost to exclude the possibility of circumvention. A warranty is implied in every sale and a reasonable period of option may be stipulated, during which it is lawful to annul the contract. Where property has been purchased unseen it may be returned, if it does not fully answer the description, and the seller may at any time be compelled to receive back the property and refund the purchase money, on the discovery of a blemish or defect, the existence of which, when in the possession of the seller, may be susceptible of proof.

In exchange, where the articles opposed to each other are of the nature of similars, equality in point of quantity is an essential condition to the validity of the contract, and no term of credit, on either side, is admissible, which would be advantageous to one of the parties, and savour therefore of usury; but where goods are sold for money, or money is advanced for goods, a term may be stipulated for the payment of the money, or for the delivery of the goods. So tenacious however is the Law, of certainty, that it will not admit of any, the least,