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A CASE OF CASUISTRY.

TO THE PRINTER OF THE GAZETTE.

ACCORDING to the request of your correspondent, T. P., I send you my thoughts on the following case by him proposed, viz.

A man bargains for the keeping of his horse six months, whilst he is making a voyage to Barbadoes. The horse strays or is stolen soon after the keeper has him in possession. When the owner demands the value of his horse in money, may not the other as justly demand so much deducted as the keeping of the horse six months amounts to ?

It does not appear that they had any dispute about the value of the horse; whence we may conclude there was no reason for such dispute, but it was well known how much he cost, and that he could not honestly have been sold again for more. But the value of the horse is not expressed in the case, nor the sum agreed for keeping him six months; wherefore, in order to our more clear apprehension of the thing, let ten pounds represent the horse's value, and three pounds the sum agreed for his keeping.

Now the sole foundation, on which the keeper can found his demand of a deduction for keeping a horse he did not keep, is this. “Your horse,” he may say, “ which I was to restore to you at the end of six months, was worth ten pounds; if I now give you ten pounds, it is an equivalent for your horse, and equal to returning the horse itself. Had I returned your horse (value ten pounds), you would have paid me three pounds for his keeping, and therefore would have received in fact but seven pounds clear. You then suffer VOL. II.

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no injury, if I now pay you seven pounds; and consequently you ought in reason to allow me the remaining three pounds, according to our agreement.” But the owner of the horse may possibly insist upon being paid the whole sum of ten pounds, without allowing any deduction for his keeping after he was lost, and that for these reasons. 1. It is always supposed, unless an express agreement be made to the contrary, when horses are put out to keep, that the keeper is at the risk of them; unavoidable accidents only excepted, wherein no care of the keeper can be supposed sufficient to preserve them, such as their being slain by lightening or the like. This you yourself tacitly allow, when you offer to restore me the value of my horse. Were it otherwise, people, having no security against a keeper's neglect or mismanagement, would never put horses out to keep. 2. Keepers, considering the risk they run, always demand such a price for keeping horses, that, if they were to follow the business twenty years, they may have a living profit, though they now and then pay for a horse they have lost; and, if they were to be at no risk, they might afford to keep horses for less than they usually have. So that what a man pays for his horse's keeping, more than the keeper could afford to take if he ran no risk, is in the nature of a premium for the insurance of his horse. If I then pay you for the few days you kept my horse, you should restore me his full value. 3. You acknowledge, that my horse eat of your hay and oats but a few days. It is unjust then to charge me for all the hay and oats, that he only might have eat in the remainder of the six months, and which you have now still good in your stable. If, as the proverb says, it is unreasonable to expect a horse should void oats, which never eat any, it is certainly as unreasonable to expect payment for those oats. 4. If men in such cases as this are to be paid for keeping horses when they were not kept, then they have a great opportunity of wronging the owners of horses. For by privately selling my horse for his value (ten pounds) soon after you had him in possession, and returning me, at the expiration of the time, only seven pounds, demanding three pounds as a deduction agreed for his keeping, you get that three pounds clear into your pocket, besides the use of my money six months for nothing. 5. But, you say, the value of my horse being ten pounds, if you deduct three for his keeping and return me seven, it is all I would in fact have received had you returned my horse; therefore, as I am no loser, I ought to be satisfied. This argument, were there any weight in it, might serve to justify a man in selling, as above, as many of the horses he takes to keep as he conveniently can, putting clear into his own pocket that charge their owners must have been at for their keeping; for, this being no loss to the owners, he may say, “Where no man is a loser, why should not I be a gainer?” I need only answer to this, that I allow the horse cost me but ten pounds, nor could I have sold him for more, had I been disposed to part with him; but this can be no reason why you should buy him of me at that price, whether I will sell him or not. For it is plain I valued him at thirteen pounds, otherwise I should not have paid ten pounds for him, and agreed to give you three pounds more for his keeping, till I had occasion to use him. Thus, though you pay me the whole ten pounds which he cost me, (deducting only for his keeping those few days,) I am still a loser;

I lose the charge of those days' keeping; I lose the three pounds at which I valued him above what he cost me, and I lose the advantage I might have made of my money in six months, either by the interest, or by joining it to my stock in trade in my voyage to Barbadoes.

6. Lastly, whenever a horse is put to keep, the agreement naturally runs thus. The keeper says, “I will feed your horse six months on good hay and oats, if, at the end of that time, you will pay me three pounds." The owner says, “If you will feed my horse six months on good hay and oats, I will pay you three pounds at the end of that time.” Now we may plainly see, the keeper's performance of his part of the agreement must be antecedent to that of the owner; and, the agreement being wholly conditional, the owner's part is not in force till the keeper has performed his. You, then, not having fed my horse six months, as you agreed to do, there lies no obligation on me to pay for so much feeding.

Thus we have heard what can be said on both sides. Upon the whole, I am of opinion, that no deduction should be allowed for the keeping of the horse after the time of his straying.

I am yours, &c.

THE CASuist.

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MISCELLANEOUS OBSERVATIONS.

WHENCE does it proceed, that the proselytes to any sect, or persuasion, generally appear more zealous than those that are bred up in it?

...Answer. I suppose that people bred in different persuasions are nearly zealous alike. Then, he that changes his party is either sincere or not sincere; that is, he either does it for the sake of the opinions merely, or with a view of interest. If he is sincere, and has no view of interest, and considers, before he declares himself, how much ill will he shall have from those he leaves, and that those he is about to go among will be apt to suspect his sincerity; if he is not really zealous, he will not declare; and, therefore, must be zealous if he does declare.

If he is not sincere, he is obliged at least to put on an appearance of great zeal, to convince the better his new friends, that he is heartily in earnest; for his old ones, he knows, dislike him. And, as few acts of zeal will be more taken notice of, than such as are done against the party he has left, he is inclined to injure or malign them, because he knows they contemn and despise him. Hence, as the proverb says, One renegado is worse than ten Turks.

SIR, It is strange, that among men, who are born for society and mutual solace, there should be any who take pleasure in speaking disagreeable things to their acquaintance. But such there are, I assure you; and I should be glad if a little public chastisement might be

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