that they were doing his will, and were to look to him for their reward, was new; and affords a greater security to the master than any inferior principle, because it tends to produce a steady and cordial obedience, in the place of that constrained service which can never be trusted out of sight, and which is justly enough called eye-service. The exhortation to masters, to keep in view their own subjection and accountableness, was no less seasonable.

CHAP. XII.

CONTRACTS OF LABour.

COMMISSION.

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, enquire, 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 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 implica

tion, amounts to a promise, will be binding upon the agent, without custom; as where the proprietors of a stage-coach 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 bank-bill 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.

CHAP. 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 monied 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 thirtythree pounds six shillings and eight-pence, and B sixty-six pounds thirteen shillings and four-pence.

If their 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.

CHAP. XIV.

IN

CONTRACTS OF LABOUR.

OFFICES.

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, 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