But it may, perhaps, be worth our while to be a little more particular in considering the several ways in which partnerships are dissolved.

First, partnerships are dissolved by the mutual consent of the parties concerned in them: for, as in all other contracts, so in these, an obligation arising from their mutual consent may be destroyed by the same cause that produced it.

Secondly, they are dissolved by the accomplishment of the business for which they were formed. If the partners consented to form a joint stock, and to give each other, by mutual consent, a common claim upon it, only for a certain purpose; this purpose limits their consent: and in consequence it limits the obligation arising from that consent. Whenever, therefore, the purposes are brought about, which led them thus to join together, the obligation of continuing so connected, is at

an end.

Thirdly, partnerships, if they were formed only for a certain time, cease at the expiration of that time. The partners, in their original agreement, limited their obligation to one another, and the mutual claims which each has upon the things of the other; and by so doing, by consenting to stand thus obliged for a certain time, they plainly showed that it was not their design, or that they did not consent to be obliged any longer.

The renunciation of one partner, without the consent of the other, when the purpose of the partnership is not accomplished, or when there either was no time limited, or that time is not expired, is not sufficient to dissolve the partnership. No obligation can, in its own nature, be destroyed, but by the same cause that produced it: an obligation arising from the concurrence of the wills of two or more persons cannot be set aside by the single will of one of them. Indeed, the partner who renounces, has it in his power to make it impossible, by his perverseness, for the partnership to go on: but still, though he has a natural power to do this, he has no right to do it; the obligation of the partnership is in force, and will obtain its effect. The only way in which it can obtain its effect, in these circumstances, is by giving the other partner a right to satisfaction for any damage which may follow from such a breach of contract.

Neither does the death of one of the partners naturally dissolve the partnership, as far as goods or money are concerned. The goods or money of the deceased, which were part of the common stock, were subject to the claim of the survivor: and the heir can receive them in no other condition than what his ancestor left them in: he can receive them only as part of such common stock, subject to such claim. In respect of labour indeed the case would be otherwise. Labour is a personal act, and consequently the obligation to perform it, being merely personal, cannot descend to the heir. Upon this account, as most contracts of partnership are so fixed, that labour, or some personal act of industry, knowledge, or fidelity have a share in them, it is most usual for partnerships to cease upon the death of one of the partners.

Contracts of XXXVII. I have already spoken of all contracts of chance, their na chance, such as wagers or gaming of any sort, as partnerture and obliga- ships; and such they undoubtedly are, though not partnerships for trade.

tions.

To preserve an equality in wagers, if the stakes are equal on each side, the knowledge which each party has of the uncertain event that the wager is laid upon, ought to be equal. Each, by what he stakes, purchases an equal interest in right to the common stock, which consists of their joint stakes. The chance which each of them has of winning that whole stock, is their respective interests in fact. But if their interests in right are equal, as they are, where they stake equal sums, it is unjust that their interests in fact should be unequal. And their claims in fact will be unequal, if one of them knows which way the event had fallen out, where they lay upon a past event, or which way it will fall out, where they lay upon a future one; whilst the other in the meantime is ignorant of the matter, and looks upon the event as uncertain.

In games that depend upon skill or upon strength, whatever advantage one of the parties has in point of skill or strength above the other, so much he ought to stake more in proportion than the other stakes. The interest which he has in fact in the common stock made up of both their stakes, exceeds the other's interest in it, in the same proportion that his skill or strength exceeds the skill or strength of his antagonist. And the interest, which in right he has in the same stock, is in like manner proportionable to his stake, when compared with the other's stake. If therefore his stake exceeds the stake of his antagonist, just as much as his skill or strength exceeds the skill or strength of his antagonist, their interest in fact will be respectively as their interest in right.

In general, in all such contracts as depend upon chance, where the stakes are a common stock and the chance is to adjudge that stock to one of the parties; each party ought to deposit as much, that is to pay as much for his chance, as that chance is worth: and since the value of each person's chance, when compared with the others, rises in proportion to his knowledge, skill, or strength; it follows, that each party's stake, which is the purchase of his chance, ought, when compared with the stake of the other, to rise in the same proportion.

XXXVIII. Those *contracts are void by which we Contracts with a engage to give money, or some other thing of value, or man to do or give to do some beneficial act, in consideration that he to what we might whom we so engage, shall give us, or shall do for us, claim, are void. what we might have claimed without any such contract.

Grotius considers this question under the head of promises, and determines such promises to be binding: because, says he, a promise is binding, though we make it of our own mere motion without any valuable consideration: and for this reason, though the promiser does not, properly speaking, receive any thing in return for what he is to give or to do, yet he is obliged to make good his engagement. He does not, properly speaking, receive any thing in return for what he is to give or to do; because what he receives was due to him, or was his own, without purchasing it, and cannot therefore be looked upon as a return for what he promises.

However, we should rather consider this as a contract than as a promise.-If you will let me have my goods, which you detain from me

Grot. Lib. II. Cap. XI. § X.

unjustly, or if you, being to set as judge in my cause, will give a sentence in my favour, where the right is clearly on my side; I will give you such a reward. Here is money to be given, in one case for goods, and in the other case for work. And such contracts are void, if each party does not receive his equivalent. But how have I received an equivalent, if all that I receive was my own before? There must, in fact, be some force or some fraud in the person with whom I have to do; since no man, who designed honestly, would be concerned in selling me what, without paying for it, I had a right to.

Contracts void XXXIX. *If money or any other valuable consiwhere the matter deration, is promised in order to hire a man to do an is unlawful. act of injustice, such promise is void.

Grotius determines very singularly upon this point. If, says he, I promise any thing, in order to obtain the doing a criminal act, as suppose I promise money to hire a man to commit murder; such a promise is vicious; because it is an enticement to the assassin to commit the crime. And since this viciousness continues till the crime is over; and since all acts which have a continued viciousness inherent in them, or connected with them, are void; it follows, that till the crime is committed, this promise cannot be binding. But as soon as the crime is over, this viciousness ceases: because the promise can be no longer considered as an enticement to the commission of the crime. The obligation therefore of this promise, till the crime was committed, was in suspense: but as soon as the crime is over, the obligation exerts itself: for the promise was in reality obligatory from the beginning, but its obligation was prevented from taking effect, by a viciousness which accidentally adhered to it: consequently as soon as this viciousness is removed by the commission of the crime, the promiser is bound to make good what he engaged for.

Now this whole matter may well be set in a different light. The act of engaging to give wages for the doing a crime is plainly a contract: something is to be given for something to be done: and such contract is void on both sides from the beginning. A contract, which is void on one part, cannot be binding on the other part: because if one party is released from his obligation, the other must be released of course, as having no equivalent for what he is to give or to do, but merely at the pleasure or bounty of the former. But on the part of the assassin, that we may use the same instance with Grotius, the contract is void from the beginning; because he has engaged for such an act as he has no moral power of performing. If there is any doubt of this, let us suppose that the assassin had promised to commit the crime without any promise on the other part, of wages to be given for committing it. His promise would, I think, be clearly void; and whatever reason would make such a promise void, if it had been a gratuitous one, affects it equally, when it is made for a valuable consideration. But if the promise, on the part of the criminal, is void from the beginning, the promise of him who hires such criminal to do the fact is void too. As the promises in this case are mutual, the assassin has a claim to his wages only in consideration and upon condition of the other party's having a claim upon him to do the work: but the other party has no claim upon

* Grot. Lib. II. Cap. XI. § IX.

The

him to do the work: he therefore has no claim to his wages. commission of the crime in this view of the case, can give him no claim: for if the contract was void from the beginning, and no other act passes in the meantime between him and his principal who hires him to do the work, his right to his wages will stand just where the contract left it; that is, it will be no right at all.

We may go one step farther. A promise of wages to do what is unlawful, though it is not an act of injustice, but only an act simply wrong, is a void promise. Here again the principal, who engages to give the wages, contracts with the accomplice to give them in consideration and upon condition that he, the accomplice, shall be bound to do what is not agreeable to the law. Now the accomplice cannot bind himself to this: not indeed because he has no moral power of doing what is simply wrong; since in cases of this sort the law does not take away the power of acting, but only directs the use of it: but he is however incapable or has no moral power of binding himself to such an act, because such obligation, if it was possible, would supersede the obligation of the law. If, then, the accomplice is not bound by his promise, neither is the principal bound by his. The accomplice therefore cannot pretend to have any claim grounded upon the promise of the principal: because this promise was void from the beginning.

how

XL. We have seen in what instances extorted or er- Obligation roneous promises, contracts for want of equality, and restored to void either promises or contracts made by persons under age contracts.

or out of their senses, are void. But when the fear is removed by means of which a promise was extorted, or when the mistake which occasioned a promise, is set right; when the minor comes to years of discretion, or the lunatic recovers his senses; or lastly, when the inequality in a contract is discovered; suppose the party whose obligation is void in any of these instances, is willing to abide by the obligation; what is required in order to bind him? Certainly his mere intention of binding himself is not sufficient; for a mere intention does not bind in any case: and from what has been proved already, his former act did not bind him. Some new declaration, therefore, or at least some outward, though tacit mark of this intention, is necessary. It does not indeed seem necessary, that he should go over the whole form of promising or contracting again. One would think, that he sufficiently shows his design either by acting in any instance, as if he looked upon himself to be still obliged, or even by neglecting, when any fair occasion offers itself, to declare that he does not acquiesce in the obligation.

19

CHAPTER XIV.

OF OATHS.

I. An oath what.-II. Obligation to fidelity.-III. Obligation to veracity.-IV. What concealments consistent with this obligation.-V. Assertory oaths confirm an implied promise.-VI. The nature of an oath.-VII. Oath where God is not mentioned, how to be understood.-VIII. What security an oath gives to the truth of what is sworn to.-IX. Credit due to an idolater's oath.-X. Oaths may be taken by proxy.-XI. Oaths and vows, how distinguished.XII. No effect of an oath, unless there are outward marks of an intention to swear.-XIII. Want of inward intention, where there is the outward mark of it, does not prevent the effect of an oath.XIV. Oath is void, when the pact is so, with which it is joined.— XV. Oath to a robber binding.-XVI. Effect of an oath does not extend to the juror's heirs.-XVII. Oaths to do harm, not binding

as vows.

An oath what.

I. *AN oath is a solemn act by which we renounce our hope of God's mercy, or devote ourselves to his displeasure, if we are guilty of falsehood. It is sometimes defined to be a religious act, by which God is called upon, as a witness, to confirm what might otherwise be doubtful.

The doubts, which an oath is made use of to remove, are either such as relate to our fidelity in what we promise, or such as relate to our veracity, in what we affirm or deny. And oaths are accordingly divided into two sorts, promissory and assertory: the former are designed to ascertain our fidelity in promises; the latter to ascertain the veracity of our assertions.

But, in fact, all oaths seem properly to be promissory ones: for when a person is sworn to tell the truth; in such an oath, a promise to tell the truth is implied, and this promise is in reality what he swears to. When a witness is sworn in a court of justice, that the evidence which he gives, shall be the whole truth and nothing but the truth; he, by consenting to swear under this form, plainly consents, or in effect, promises to speak the truth. If he is sworn to give true answers to all such questions as shall be asked of him; his agreeing thus to swear contains or implies a promise, that his answers shall be true.

The distinction between assertory and promissory oaths is usually placed in the different time of the fact sworn to. All facts are either past, present, or future. Those only are called promissory oaths which ascertain the existence of future facts: and those are called assertory oaths, which ascertain the existence of past or present facts.

But neither will this distinction preserve a difference between them: for when the juror engages that he will tell the truth, as far as he knows it, in relation either to past or to present facts; though the oath may be said indirectly to ascertain the existence of such facts, yet what it ascertains directly is the future fidelity of the juror in relating those facts.

• Grot. Lib. II. Cap. XIII. § I.