cept it, if it be given him; much more therefore may one give to the other a part of the ftake; or, what is exactly the fame thing, an advantage in the chance of winning the whole.

The proper reftriction is, that neither fide have an advantage, by means of which the other is not aware; for this is an advantage taken, without being given. Although the event be ftill an uncertainty, your advantage in the chance. has a certain value; and fo much of the stake, as that value amounts to, is taken from your adversary without his knowledge, and therefore without his confent. If I fit down to a game at whift, and have an advantage over the adversary, by means of a better memory, closer attention, or a fuperior knowledge of the rules and chances. of the game, the advantage is fair; because it is obtained by means of which the adversary is aware; for he is aware, when he fits down with me, that I fhall exert the skill that I poffefs, to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adverfaries hands, or by concerted fignals with my partner, it is a dishonest advantage; because it depends upon means, which the adversary never suspects that I make use of,

The fame diftinction holds of all contracts,

into which chance enters. If I lay a wager at a horfe race, founded upon the conjecture I form from the appearance, and character, and breed of the horse, I am juftly entitled to any advantage which my judgment gives me; but, if I carry on a clandeftine correfpondence with the jockies, and find out from them, that a trial has been actually made, or that it is fettled before-hand which horfe fhall win the race; all fuch information is fo much fraud, because derived from fources, which the other did not fufpect, when he propofed or accepted the wager.

In fpeculations in trade, or in the stocks, if I exercise my judgment upon the general afpect and posture of public affairs, and deal with a perfon who conducts himself by the fame fort of judgment; the contract has all the equality in it which is neceffary: but, if I have access to fecrets of ftate at home, or private advice of some decifive measure or event abroad, I cannot avail myfelf of these advantages with juftice, because they are excluded by the contract, which proceeded upon the fuppofition, that I had no fuch advantage.

In

In insurances, in which the underwriter computes his risk entirely from the account given by the person insured, it is abfolutely neceffary to the justice and validity of the contract, that this account be exact and complete.

CHAP.

CHAP. IX.

CONTRACTS OF LENDING OF INCONSUMABLE

PROPERTY.

WHEN the identical loan is to be returned,

as a book, a horfe, a harpsichord, it is called inconfumable, in oppofition to corn, wine, money, and those things which perish, or are parted with in the use, and can therefore only be reftored in kind.

The questions under this head are few and fimple. The first is, if the thing lent be loft or damaged, who ought to bear the lofs or damage? If it be damaged by the ufe, or by accident in the ufe for which it was lent, the lender ought to bear it; as if I hire a jobcoach, the wear, tear, and foiling of the coach, muft belong to the lender; or a horse to go a particular journey, and in going the proposed journey, the horse die, or be lamed, the lofs must be the lender's: on the contrary, if the da

mage

mage be occafioned by the fault of the borrower, or by accident in fome use for which it was not lent, then the borrower muft make it good; as if the coach be overturned or broken to pieces by the careleffnefs of your coachman; or the horse be hired to take a morning's ride upon, and you go a hunting with him, or leap him over hedges, or put him into your cart, or carriage, and he be ftrained, or staked, or galled, or accidentally hurt, or drop down dead, whilst you are thus using him; you must make fatisfaction

to the owner.

The two cafes are diftinguished by this circumftance, that in one cafe, the owner forefees the damage or risk, and therefore confents to undertake it; in the other cafe, he does not.

It is poffible that an eftate or a house may, during the term of a leafe, be fo increased or diminished in its value, as to become worth much more, or much less, than the rent agreed to be paid for it. In fome of which cafes, it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: if the alteration might be expected by the parties, the hirer must take the confequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a

fishery,