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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 afterwards 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 commission 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 everything 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 bankbill in two, to send by the post at different times.
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.
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 sixtysix 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 authorised agent for the rest.
In many offices, as schools, fellowships of colleges, professorships of the universities, and the like, there is a twofold 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,
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 a 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 meantime, 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 signalised 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.
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 further 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.
LI E S.
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.
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 denying his master, a prisoner's pleading not guilty, an