CHAPTER XII.

CONTRACTS OF LABOUR.

COMMISSIONS.

WHOEVER undertakes another man's business, makes it his own, that is, promises to employ upon it the same care, attention, and diligence, that he would do if it were actually his own: for he knows that the business was committed to him with that expectation. And he promises nothing more than this. Therefore an agent is not obliged to wait, inquire, solicit, ride about the country, toil, or study, whilst there remains a possibility of benefiting his employer. If he exert so much of his activity, and use such caution, as the value of the business, in his judgment, deserves; that is, as he would have thought sufficient if the same interest of his own had been at stake, he has discharged his duty, although it should afterward turn out, that by more activity, and longer perseverance, he might have concluded the business with greater advantage.

This rule defines the duty of factors, stewards, attorneys and advocates.

One of the chief difficulties of an agent's situation is, to know how far he may depart from his instructions, when, from some change or discovery in the circumstances of his commission, he sees reason to believe that his employer, if he were present, would alter his intention. The latitude allowed to agents in this respect, will be different, according as the commisison was confidential or ministerial; and according as the general rule and nature of the service require a prompt and precise obedience to orders, or not. An attorney, sent to treat for an estate, if he found out a flaw in the title, would desist from proposing the price he was directed to propose; and very properly. On the other hand, if the commander-in-chief of an army detach an officer under him upon a particular service, which service turns out more difficult, or less expedient, than was supposed; insomuch that the officer is convinced, that his commander, if he were acquainted with the true state in which the affair is found, would recall his orders; yet must this officer, if he cannot wait for fresh directions without prejudice to the expedition he is sent upon, pursue, at all hazards, those which he brought out with him.

What is trusted to an agent, may be lost or damaged in his hands by misfortune. An agent who acts without pay, is clearly not answerable for the loss; for, if he give his labour for nothing, it cannot be presumed that he gave also security for the success of it. If the agent be hired to the business, the question will depend upon the apprehension of the parties at the time of making the contract; which apprehension of theirs must be collected chiefly from custom, by which probably it was guided. Whether a public carrier ought to account for goods sent by him; the owner or master of a ship for the cargo; the post-office for letters, or bills enclosed in letters, where the loss is not imputed to any fault or neglect of theirs are questions of this sort. Any expression which by implication amounts to a promise, will be binding upon the agent, without custom; as where the proprietors of a stagecoach advertise that they will not be accountable for money, plate, or jewels, this makes them accountable for every thing else; or where the price is too much for the labour, part of it may be considered as a premium for insurance. On the other hand, any caution on the part of the owner to guard against danger, is evidence that he considers the risk to be his: : as cutting a bank bill in two, to send by the post at different times

In the case of Whitfield v. Lord le Despencer, it was clearly laid down, that the postmaster-general is not liable for money lost during its transmission by the general post. Paley, who was always fond of law proceedings, seems to have had in his mind an observation of Lord Mansfield's, made when giving judgment in the above case, "What do

merchants do," said his Lordship, "as a caution against loss? They cut their bills and notes into two or three parts, and send them at different times. This shews the sense of mankind as to their remedy." (Cowper's Reports, 766.)—Ed.

Universally, unless a promise, either express or tacit, can be proved against the agent, the loss must fall upon the owner.

The agent may be a sufferer in his own person or property by the business which he undertakes; as where one goes a journey for another, and lames his horse, or is hurt himself by a fall upon the road; can the agent in such case claim a compensation for the misfortune? Unless the same be provided for by express stipulation, the agent is not entitled to any compensation from his employer on that account for where the danger is not foreseen, there can be no reason to believe that the employer engaged to indemnify the agent against it; still less where it is foreseen: for whoever knowingly undertakes a dangerous employment, in common construction, takes upon himself the danger and the consequences; as where a fireman undertakes for a reward to rescue a box of writings from the flames; or a sailor to bring off a passenger from a ship in a storm.

CHAPTER XIII.

CONTRACTS OF LABOUR.

PARTNERSHIP.

I KNOW nothing upon the subject of partnership that requires explanation, but in what manner the profits are to be divided, where one partner contributes money and the other labour; which is a common case.

Rule. From the stock of the partnership deduct the sum advanced, and divide the remainder between the moneyed partner and the labouring partner, in the proportion of the interest of the money to the wages of the labourer, allowing such a rate of interest as money might be borrowed for upon the same security, and such wages as a journeyman would require for the same labour and trust.

Example. A advances a thousand pounds, but knows nothing of the business; B produces no money, but has been brought up to the business, and undertakes to conduct it. At the end of the year, the stock and the effects of the partnership amount to twelve hundred pounds: consequently there are two hundred pounds to be divided. Now, nobody would lend money upon the event of the business succeeding, which is A's security, under six per cent. ;-therefore A must be allowed sixty pounds for the interest of his money. B, before he engaged in the partnership, earned thirty pounds a year in the same employment; his labour therefore ought to be valued at thirty pounds: and the two hundred pounds must be divided between the partners in the proportion of sixty to thirty; that is, A must receive one hundred and thirty-three pounds six shillings and eight-pence, and B sixty-six pounds thirteen shillings and four-pence.

If there be nothing gained, A loses his interest, and B his labour; which is right. If the original stock be diminished, by this rule B loses only his labour, as before; whereas A loses his interest, and part of the principal; for which eventual disadvantage A is compensated by having the interest of his money computed at six per cent. in the division of the profits, when there are any.

It is true that the division of the profit is seldom forgotten in the constitution of the partnership, and is therefore commonly settled by express agreements; but these agreements, to be equitable, should pursue the principle of the rule here laid down.

All the partners are bound to what any one of them does in the course of the business; for, quoad hoc, each partner is considered as an authorized agent for the rest.

CHAPTER XIV.

CONTRACTS OF LABOUR.

OFFICES.

In many offices, as schools, fellowships of colleges, professorships of the universities, and the like, there is a two-fold contract; one with the founder, the other with the electors. The contract with the founder obliges the incumbent of the office to discharge every duty appointed by the charter, statutes, deed of gift, or will, of the founder; because the endowment was given, and consequently accepted, for that purpose, and upon those conditions.

The contract with the electors extends this obligation to all duties that have been customarily connected with and reckoned a part of the office, though not prescribed by the founder; for the electors expect, from the person they choose, all the duties which his predecessors have discharged; and as the person elected cannot be ignorant of their expectation, if he meant to have refused this condition, he ought to have apprised them of his objection.

And here let it be observed, that the electors can excuse the conscience of the person elected, from this last class of duties alone; because this class results from a contract to which the electors and the person elected are the only parties. The other class of duties results from a different contract.

It is a question of some magnitude and difficulty, what offices may be conscientiously supplied by deputy.

We will state the several objections to the substitution of a deputy; and then it will be understood, that a deputy may be allowed in all cases to which these objections do not apply.

An office may not be discharged by deputy,

1. Where a particular confidence is reposed in the judgment and conduct of the person appointed to it; as the office of a steward, guardian, judge, commander-in-chief by land

or sea.

2. Where the custom hinders; as in the case of schoolmasters, tutors, and of commissions in the army or navy.

3. Where the duty cannot, from its nature, be so well performed by a deputy; as the deputy-governor of a province may not possess the legal authority, or the actual influence, of his principal.

4. When some inconveniency would result to the service in general from the permission of deputies in such cases: for example, it is probable that military merit would be much discouraged, if the duties belonging to commissions in the army were generally allowed to be executed by substitutes.

The non-residence of the parochial clergy, who supply the duty of their benefices by curates, is worthy of a more distinct consideration. And in order to draw the question upon this case to a point, we will suppose the officiating curate to discharge every duty which his principal, were he present, would be bound to discharge, and in a manner equally beneficial to the parish: under which circumstances, the only objection to the absence of the principal, at least the only one of the foregoing objections, is the last.

And, in my judgment, the force of this objection will be much diminished, if the absent rector or vicar be, in the mean time, engaged in any function or employment of equal, or of greater, importance to the general interest of religion. For the whole revenue of the national church may properly enough be considered as a common fund for the support of the national religion; and if a clergyman be serving the cause of Christianity and Protestantism, it can make little difference, out of what particular portion of this fund, that is, by the tithes and glebe of what particular parish, his service be requited; any more than it

can prejudice the king's service that an officer who has signalized his merit in America, should be rewarded with the government of a fort or castle in Ireland, which he never saw; but for the custody of which, proper provision is made, and care taken *.

Upon the principle thus explained, this indulgence is due to none more than to those who are occupied in cultivating or communicating religious knowledge, or the sciences subsidiary to religion.

This way of considering the revenues of the church as a common fund for the same purpose, is the more equitable, as the value of particular preferments bears no proportion to the particular charge or labour.

But when a man draws upon this fund, whose studies and employments bear no relation to the object of it, and who is no farther a minister of the Christian religion than as a cockade makes a soldier, it seems a misapplication little better than a robbery.

And to those who have the management of such matters I submit this question, whether the impoverishment of the fund, by converting the best share of it into annuities for the gay and illiterate youth of great families, threatens not to starve and stifle the little clerical merit that is left amongst us.

All legal dispensations from residence proceed upon the supposition, that the absentee is detained from his living by some engagement of equal or of greater public importance. Therefore, if, in a case where no such reason can with truth be pleaded, it be said that this question regards a right of property, and that all right of property awaits the disposition of law; that therefore, if the law, which gives a man the emoluments of a living, excuse him from residing upon it, he is excused in conscience; we answer that the law does not excuse him by intention, and that all other excuses are fraudulent.

CHAPTER XV.

LIES.

A LIE is a breach of promise: for whoever seriously addresses his discourse to another, tacitly promises to speak the truth, because he knows that the truth is expected t.

Or the obligation of veracity may be made out from the direct ill consequences of lying to social happiness. Which consequences consist, either in some specific injury to particular individuals, or in the destruction of that confidence which is essential to the intercourse of human life; for which latter reason, a lie may be pernicious in its general tendency, and therefore criminal, though it produce no particular or visible mischief to any one. There are falsehoods which are not lies; that is, which are not criminal: as,

1. Where no one is deceived; which is the case in parables, fables, novels, jests, tales to create mirth, ludicrous embellishments of a story, where the declared design of the speaker is not to inform, but to divert; compliments in the subscription of a letter, a servant's

This is defending one abuse by shewing that there is another existing quite as objectionable. Let merit always be duly rewarded; but let not one take the stipend whilst another is doing the labour for which it is the return.-ED.

+ The laws of England punish lies with the most unrelenting severity; its great and glorious common law follows the utterer of falsehoods, attended with wilful injury to a second person, with uncompromising justice. The seller of a horse, for instance, is not obliged to tell any of its defects; but if he says the horse is sound and quiet, and receives a price adequate to the value of a sound horse, the law calls this a warranty, and makes the fraudulent dealer refund-2 Carrington & Payne's R. 540-and if goods are supplied for any particular purpose, the law im

plies a warranty-5 Bingham's Reports; and makes the seller pay any damages which may be in consequence incurred; or if the vendor sells a picture, falsely saying, for instance, that it is a Rembrandt, he must return the money and take back his picture, if the purchaser wishes 5 Car. & Payne's R. 343; and if any person advises another, for any interested motives, to trust another person with goods, this renders him personally liable to pay the debt thus fraudulently incurred; but if he makes bona fide even a false representation, he is not liable to the damage incurred by his ignorance-5 Barnewall & Adolph. R. 797: for in these cases the common law looks always to the intention of the partics. - ED.

denying his master, a prisoner's pleading not guilty, an advocate asserting the justice, or his belief of the justice, of his client's cause. In such instances, no confidence is destroyed, because none was reposed; no promise to speak the truth is violated, because none was given, or understood to be given.

2. Where the person to whom you speak has no right to know the truth, or, more properly, where little or no inconveniency results from the want of confidence in such cases; as where you tell a falsehood to a madman, for his own advantage; to a robber, to conceal your property; to an assassin, to defeat or divert him from his purpose. The particular consequence is by the supposition beneficial; and, as to the general consequence, the worst that can happen is, that the madman, the robber, the assassin, will not trust you again; which (beside that the first is incapable of deducing regular conclusions from having been once deceived, and the last two not likely to come a second time in your way) is sufficiently compensated by the immediate benefit which you propose by the falsehood.

It is upon this principle, that, by the laws of war, it is allowed to deceive an enemy by feints, false colours, spies, false intelligence, and the like; but by no means in treaties, truces, signals of capitulation or surrender: and the difference is, that the former suppose hostilities to continue, the latter are calculated to terminate or suspend them. In the conduct of war, and whilst the war continues, there is no use, or rather no place, for confidence betwixt the contending parties; but in whatever relates to the termination of war, the most religious fidelity is expected, because without it wars could not cease, nor the victors be secure, but by the entire destruction of the vanquished.

Many people indulge, in serious discourse, a habit of fiction and exaggeration, in the accounts they give of themselves, of their acquaintance, or of the extraordinary things which they have seen or heard: and so long as the facts they relate are indifferent, and their narratives, though false, are inoffensive, it may seem a superstitious regard to truth to censure them merely for truth's sake.

In the first place, it is almost impossible to pronounce beforehand, with certainty, concerning any lie, that it is inoffensive. Volat irrevocabile; and collects sometimes accretions in its flight, which entirely change its nature. It may owe possibly its mischief to the officiousness or misrepresentation of those who circulate it; but the mischief is, nevertheless, in some degree chargeable upon the original editor.

In the next place, this liberty in conversation defeats its own end. Much of the pleasure, and all the benefit, of conversation, depend upon our opinion of the speaker's veracity: for which this rule leaves no foundation. The faith indeed of a hearer must be extremely perplexed, who considers the speaker, or believes that the speaker considers himself, as under no obligation to adhere to truth, but according to the particular importance of what he relates.

But beside and above both these reasons, white lies always introduce others of a darker complexion. I have seldom known any one who deserted truth in trifles, that could be trusted in matters of importance. Nice distinctions are out of the question, upon occasions which, like those of speech, return every hour. The habit, therefore, of lying, when once formed, is easily extended, to serve the designs of malice or interest;-like all habits, it spreads indeed of itself.

Pious frauds, as they are improperly enough called, pretended inspirations, forged books, counterfeit miracles, are impositions of a more serious nature. It is possible that they may sometimes, though seldom, have been set up and encouraged, with a design to do good: but the good they aim at, requires that the belief of them should be perpetual, which is hardly possible; and the detection of the fraud is sure to disparage the credit of all pretensions of the same nature. Christianity has suffered more injury from this cause, than from all other causes put together.

As there may be falsehoods which are not There have been two or three instances of late, of English ships decoying an enemy into their power, by counterfeiting signals of distress; an artifice which ought to be reprobated by the common indignation of mankind! for, a few examples of captures effected by this stratagem,

lies, so there may be lies without literal or would put an end to that promptitude in affording assistance to ships in distress, which is the best virtue in a scafaring character, and by which the perils of navigation are diminished to all.-A. D. 1775.