the reward of any crime, after the crime is com- | of mine, for a relation or friend of his; then A is mitted; ought, if promised, to be paid. For the the promisee, whose consent I must obtain, to be sin and mischief, by this supposition, are over; released from the engagement. and will be neither more nor less for the performance of the promise.

If I promise a place or vote to B by A, that is, if A be a messenger to convey the promise, as if I should say, "You may tell B that he shall have this place, or may depend upon my vote;” or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it: then B is the promisee.

In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the lifetime of his wife, who was then sick, had paid his addresses, and promised marriage, to another woman;-the wife died; and the woman demanded Promises to one person, for the benefit of performance of the promise. The man, who, it another, are not released by the death of the proseems, had changed his mind, either felt or pre-misee; for, his death neither makes the perfortended doubts concerning the obligation of such a mance impracticable, nor implies any consent to promise, and referred his case to Bishop Sander- release the promiser from it. son, the most eminent, in this kind of knowledge, of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void. In which, however, upon our principles, he was wrong; for, however criminal the affection might be, which induced the promise, the performance, when it was demanded, was lawful; which is the only lawfulness required.

6. Erroneous promises are not binding in certain cases; as

1. Where the error proceeds from the mistake or misrepresentation of the promisee.

Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity, by a story of the most pitiable distress; you promise to A promise cannot be deemed unlawful, where relieve him, if he will call again:-In the interval it produces, when performed, no effect, beyond you discover his story to be made up of lies;-this what would have taken place had the promise discovery, no doubt, releases you from your pronever been made. And this is the single case, in mise. One who wants your service, describes the which the obligation of a promise will justify a business or office for which he would engage you; conduct, which, unless it had been promised,-you promise to undertake it;-when you come would be unjust. A captive may lawfully recover to enter upon it, you find the profits less, the his liberty, by a promise of neutrality; for his labour more, or some material circumstance difconqueror takes nothing by the promise, which he ferent from the account he gave you:-In such might not have secured by his death or confine-case, you are not bound by your promise. ment; and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion, can extend no further than to passive compliance; for coercion itself could compel no more. Upon the same principle, promises of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them, to destroy their obligation: for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise, which they would have gained without it.

3. Promises are not binding, where they contradict a former promise.

2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son;-soon after which, he promises his fortune to his nephew.The account turns out to be false.-The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the case,-for that alone will not do;-but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least his uncle thought he so understood it; and could not 4. Promises are not binding before acceptance; think otherwise. The promise proceeded upon that is, before notice given to the promisee; for, this supposition in the promiser's own apprehenwhere the promise is beneficial, if notice be given, sion, and, as he believed, in the apprehension of acceptance may be presumed. Until the promise both parties; and this belief of his, is the precise be communicated to the promisee, it is the same circumstance which sets him free. The foundaonly as a resolution in the mind of the promiser, tion of the rule is plainly this: a man is bound which may be altered at pleasure. For no ex-only to satisfy the expectation which he intended pectation has been excited, therefore none can be disappointed.

Because the performance is then unlawful; which resolves this case into the last.

But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee; is that such a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the essence of a promise ;-I have not voluntarily excited expectation.

5. Promises are not binding which are released by the promisee.

This is evident: but it may be sometimes doubted who the promisee is. If I give a promise to A, of a place or vote for B; as to a father for his son; to an uncle for his nephew; to a friend

to excite; whatever condition therefore he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. promise a candidate my vote;-presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out.--But the promisee did not know this;-he did not receive the promise, subject to any such condition, or as proceeding from any such supposition; nor did 1

and produce the same effects; it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but not to conceal its faults.

the particular construction of the contract. If the seller, either expressly, or by implication, or by custom, engage to deliver the goods; as if I buy a set of china, and the china-man ask me to what It adds to the value of this kind of honesty, that place he shall bring or send them, and they be the faults of many things are of a nature not to be broken in the conveyance, the seller must abide known by any, but by the persons who have used by the loss. If the thing sold, remain with the them; so that the buyer has no security from im-seller, at the instance, or for the conveniency of position, but in the ingenuousness and integrity the buyer, then the buyer undertakes the risk; as if I buy a horse, and mention, that I will send for it on such a day (which is in effect desiring that it may continue with the seller till I do send for it,) then, whatever misfortune befalls the horse in the meantime, must be at my cost.

of the seller.

And here, once for all, I would observe, that

There is one exception, however, to this rule; namely, where the silence of the seller implies some fault in the thing to be sold, and where the buyer has a compensation in the price for the risk which he runs: as where a horse, in a London repository, is sold by public auction, without war-innumerable questions of this sort are determined ranty; the want of warranty is notice of some unsoundness, and produces a proportionable abatement in the price.

To this of concealing the faults of what we want to put off, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one, who had been robbed upon the highway, should allege that he had a right to reimburse himself out of the pocket of the first traveller he met; the justice of which reasoning, the traveller possibly may not comprehend.

solely by custom; not that custom possesses any proper authority to alter or ascertain the nature of right or wrong; but because the contracting parties are presumed to include in their stipulation, all the conditions which custom has annexed to contracts of the same sort: and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact.*

If I order a pipe of port from a wine-merchant abroad; at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto; upon the arrival of the ship in England at its destined port; Where there exists no monopoly or combination, or not till the wine be committed to my servants, the market-price is always a fair price; because or deposited in my cellar; are all questions it will always be proportionable to the use and which admit of no decision, but what custom scarcity of the article. Hence, there need be no points out. Whence, in justice, as well as law, scruple about demanding or taking the market-what is called the custom of merchants, regulates price; and all those expressions, "provisions are the construction of mercantile concerns. extravagantly dear," "corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.

If your tailor or your draper charge, or even ask of you, more for a suit of clothes, than the marketprice, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge, dishonest; although, as the man's goods were his own, and he had a right to prescribe the terms upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deal with his customers at a market-price; because it is upon the faith and opinion of such an engagement, that any one comes within his shop doors, or offers to treat with him. This is expected by the buyer; is known to be so expected by the seller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a syllable be said about it. The breach of this implied contract constitutes the fraud inquired after.

Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fancy or conveniency, and that you will not turn yourself out of it, under such a price; the price fixed may be double of what the house cost, or would fetch at a public sale, without any imputation of injustice or extortion upon you.

If the thing sold, be damaged, or perish, between the sale and the delivery, ought the buyer to bear the loss, or the seller? This will depend upon

CHAPTER VIII.

Contracts of Hazard.

insurance.
By Contracts of Hazard, I mean gaming and

It is

What some say of this kind of contracts, "that one side ought not to have any advantage over the other," is neither practicable nor true. and judgment, which this rule requires, is seldom not practicable; for that perfect equality of skill to be met with. I might not have it in my power, to play with fairness a game at cards, billiards, or tennis; lay a wager at a horse-race; or underwrite a policy of insurance, once in a twelvemonth, if I must wait till I meet with a person, whose art, skill, and judgment in these matters, is neither greater nor less than my own. Nor is this equality requisite to the justice of the contract. One party may give to the other the whole of the stake, if he please, and the other party may justly accept it, if it be given him; much more therefore may is exactly the same thing, an advantage in the one give to the other a part of the stake; or, what chance of winning the whole.

*It happens here, as in many cases, that what the parties ought to do, and what a judge or arbitrator would award to be done, may be very different. What the parties ought to do by virtue of their contract, depends upon their consciousness at the time of making it; whereas a third person finds it necessary to found his be false, although the most probable that he could projudgment upon presumptions, which presumptions may ceed by.

When the relative value of coin is altered by an act of the state, if the alteration would have extended to the identical pieces which were lent, it is enough to return an equal number of pieces of the same denomination, or their present value in any other. As, if guineas were reduced by act of parliament to twenty shillings, so many twenty shillings, as I borrowed guineas, would be a just repayment. It would be otherwise, if the reduction was owing to a debasement of the coin; for then respect ought to be had to the comparative value of the old guinea and the new.

this head, and upon the foundation of which, the I now had, in the place of them, so many one-and`receiving of interest or usury (for they formerly twenty shillings; and the question supposes that meant the same thing) was once prohibited in al- he neither intended, nor ought to be a sufferer, by most all Christian countries,* arose from a pas-parting with the possession of his money to me. sage in the law of Moses, Deuteronomy, xxiii. 19, 20: "Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury; unto a stranger thou mayest lend upon usury; but unto thy brother thou shalt not lend upon usury." This prohibition is now generally understood to have been intended for the Jews alone, as part of the civil or political law of that nation, and calculated to preserve amongst themselves that distribution of property, to which many of their institutions were subservient; as the marriage of an heiress within her own tribe; of a widow who was left childless, to her husband's brother; the year of jubilee, when alienated estates reverted to the family of the original proprietor:-regulations which were never thought to be binding upon any but the commonwealth of Israel.

This interpretation is confirmed, I think, beyond all controversy, by the distinction made in the law, between a Jew and a foreigner:-"unto a stranger thou mayest lend upon usury, but unto thy brother thou mayest not lend upon usury;" a distinction which could hardly have been admitted into a law, which the Divine Author intended to be of moral and of universal obligation.

Whoever borrows money, is bound in conscience to repay it. This, every man can see; but every man cannot see, or does not however reflect, that he is, in consequence, also bound to to use the means necessary to enable himself to repay it. "If he pay the money when he has it, or has it to spare, he does all that an honest man can do," and all, he imagines, that is required of him; whilst the previous measures, which are necessary to furnish him with that money, he makes no part of his care, nor observes to be as much his duty as the other; such as selling a familyseat or a family estate, contracting his plan of expense, laying down his equipage, reducing the number of his servants, or any of those humiliating sacrifices, which justice requires of a man in debt, the moment he perceives that he has no reasonable prospect of paying his debts without them. An expectation which depends upon the continuance of his own life, will not satisfy an honest man, if a better provision be in his power; for it is a breach of faith to subject a creditor; when we can help it, to the risk of our life, be the event what it will; that not being the security to which credit was given.

The rate of interest has in most countries been regulated by law. The Roman law allowed of twelve pounds per cent. which Justinian reduced at one stroke to four pounds. A statute of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of interest in England at all, restrained it to ten pounds per cent.; a statute of James the first, to eight pounds; of Charles the Second, to six pounds; of Queen Anne, to five pounds, on pain of forfeiture of treble the value of the money lent: at which rate and penalty the matter now stands. The policy I know few subjects which have been more misof these regulations is, to check the power of ac- understood, than the law which authorises the cumulating wealth without industry; to give en-imprisonment of insolvent debtors. It has been couragement to trade, by enabling adventurers in it to borrow money at a moderate price; and of late years to enable the state to borrow the subject's money itself.

represented as a gratuitous cruelty, which contributed nothing to the reparation of the creditor's loss, or to the advantage of the community. This prejudice arises principally from considering the Compound interest, though forbidden by the sending of a debtor to gaol, as an act of private law of England, is agreeable enough to natural satisfaction to the creditor, instead of a public punequity; for interest detained after it is due, be-ishment. As an act of satisfaction or revenge, it comes, to all intents and purposes, part of the sum dent.

is always wrong in the motive, and often intemperate and undistinguishing in the exercise. ConIt is a question which sometimes occurs, how sider it as a public punishment; founded upon money borrowed in one country ought to be paid the same reason, and subject to the same rules, as in another, where the relative value of the pre-other punishments; and the justice of it, together cious metals is not the same. For example, suppose I borrow a hundred guineas in London, where each guinea is worth one-and-twenty shillings, and meet my creditor in the East Indies where a guinea is worth no more perhaps than nineteen; is it a satisfaction of the debt to return a hundred guineas, or must I make up so many times one-and-twenty shillings? I should think the latter; for it must be presumed, that my creditor, had he not lent me his guineas, would have disposed of them in such a manner, as to have

with the degree to which it should be extended, and the objects upon whom it may be inflicted, will be apparent. There are frauds relating to insolvency, against which it is as necessary to provide punishment, as for any public crimes whatever: as where a man gets your money into his possession, and forthwith runs away with it; or, what is little better, squanders it in vicious expenses; or stakes it at the gaming-table; in the Alley; or upon wild adventures in trade; or is conscious at the time he borrows it, that he can never repay it; or wilfully puts it out of his pow * By a statute of JAMES the First, interest above eight er, by profuse living; or conceals his effects, or pounds per cent. was prohibited, (and consequently untransfers them by collusion to another: not to der that rate allowed,) with this sage provision: That this statute shall not be construed or expounded to allow mention the obstinacy of some debtors, who had the practice of usury in point of religion or conscience. rather rot in a gaol, than deliver up their estates;