These are the bold, undeniable facts; and what evidence has each party given, in respect to what the business was which produced the profits divided with Baker? Mr. Baker has proved, by three witnesses, that they did not know any joint business between Young & Baker. This does not begin to prove anything for him on this point.

Mr. Baker is entitled, I concede, to the benefit of the entries in his own accounts, and the expressions in his own letters, (if any,) given in evidence in his own favor; but what expressions are there in his favor, on this point?

The facts stated in the note at the foot of the account of May, 1828, that $5,000 is to be invested by Young, and that $1,000 profits flowed from the investment, in eight months, and was divided between them, as stated in the next account, are not qualified at all by the statement in the former, that Baker should approve of the business, and that he should be secured promptly in case of difficulty, except to show that, inter se, Baker was to be a creditor, though they were partners, as to third persons. Nor do the qualifying words added to the charge of profits in the next account, tend to show anything inconsistent with partnership. If the charge had been only "to half profits," or "to half profits of business," there could be no doubt it would, of itself, prove partnership of Baker in Young's business. Would the substitution of “transactions" for business, have shown anything different? Not at all. Does the addition of the word "certain,” make it any more evidence that special adventures, and not the ordinary business of Young's house, were intended? Not at all. That word “certain," is often used in a very uncertain and indefinite sense, as every lawyer knows. It is never used as synonymous with special, or particular. These words, therefore, prove nothing for Baker, except a disposition to mystify.

The whole expression is just as applicable to Young's business as a commission merchant, as to anything else; and, therefore, is no qualification of the plain admission of participation in the profits of Young's business.

The same may be said of all the similar debits in the accounts of Baker.

Baker has given not one word of evidence that the business in which he was interested, was not all the business of the house of John Young.

But what has the plaintiff shown? By Baker's own letters, after all these transactions, that these profits "corresponded" to Baker "for the transactions of that year;" that if anything appeared in Young's books in regard to the notes of these transactions at the foot of the accounts, and the creditors presented themselves, Baker could not be secured; that the accounts should be made without mention of "transactions," because the creditors would demand them; and finally, not only that Baker was interested in Young's transactions, (not certain or special transactions,) but it would probably appear in Young's books. Can any stronger proof than this be given, to show that these transactions were the business in general, and not particular operations, or adventures?

If there can, is it not found in the fact, that the accounts current constantly specify particular transactions?

What might Baker have proved, and what was he called upon to prove, to answer this charge?

First. The suit has been pending ten years, during all which time Baker has been at Trinidad, where were, and are, the books and papers of Young, and had full opportunity to find and procure, as well as to keep and preserve, all the evidence, to rebut the allegation of partnership.

Second. From 1828 to 1833, he was interested with Young, had access to, and actually often examined his books.

Third. At the end of each year, he received from Young detailed accounts of the transactions which gave him his profits, besides the amount of profits credited in general account current; and on the receipt of the last one containing a general credit-i. e., 31st December, 1832, he intended to wind up the business at the end of 1833, and therefore had every motive to preserve all evidence which would explain or answer the credits of profits, so as not to show his participation in Young's business generally.

Fourth. He destroyed the detailed accounts, and has refused to produce Young's

',

general accounts current for 1832-33, and has failed to prove a single special adventure not contained in the accounts already produced, by any evidence; whereas, if any took place, the proof was easy, independent of the detailed ac

counts.

Fifth. Why destroy, and why not prove, except from the motive which the law presumes, that both accounts and proofs would be directly against him, if produced? Sixth. Again, he has not proved that these same detailed accounts which he destroyed, are not in Young's letter-books, or amongst his papers; and the regular books would show the special adventures, if there be any, and the nett profits of each.

This proves the case in law stronger than the possession of stolen goods convicts the possessor, who fails to prove how he came by them, of larceny.

SANDFORD, J.-By the law of this State, and, as I understand it, by the law merchant recognized and acted upon throughout the commercial world, a participation in the uncertain profits of trade, renders one a co-partner, in respect of the liabilities of the concern to third persons. And when money is advanced to a merchant, and the premium or profit for its use is not fixed and certain, but is dependent upon the accidents of trade, the person making the advance, will be liable as a partner to such merchant's creditors; although he is not to risk any part of his advance, or share in the losses of the trade.

There are exceptions to this rule in many countries, but they are to be found in the enactments of statutes and codes. Such are the special or limited partnerships in this State, the partnership en commandite and anonymous, allowed by the Code de Commerce in France, and the similar special partnership and anonymous, for which provision is made in the Co

en la commandite

digo de Commercio of Spain. In respect of these limited partnerships, the laws of the countries authorizing these, require the observance of certain forms and acts of publication and registry, to make them complete. The Spanish code requires similar acts, in the formation of general partnerships. It does not, however, appear, by the testimony before me, that there was any law in force in Cuba, requiring the observance of these acts, when the partnership is alleged to have been entered into between Baker & Young; or until May, 1829, when the Codigo de Commercio was promulgated. The Ordinanzas de Bilbao, ordained in 1737, so far as the fact is proved, were local in their operations; and I have no historical information that they extended beyond the province of Biscay, and the adjacent regions of Old Castile and New Leon.

sue.

If it had been shown that the laws of Cuba in 1828 were the same as they appear to have been after May, 1829, it would not have affected the question in isA violation of the regulations prescribed, would have been visited upon the offending partners, and not upon merchants trading with them. Thus, by the 28th article of the Codigo, if the partners neglect to register the instrument of partnership, it shall be of no effect between the parties thereto to demand any rights under it; but it shall not thereby be rendered ineffectual in favor of third parties who may have contracted with the partnership. The same rule prevails in France. (Code de Commerce, Art. 39 to 44.) Such being the law, the liability of Mr. Baker does not depend upon proof of the formation of a registered partnership, or of any written instrument. If the plaintiff has shown by evidence, that Baker participated in the profits of the commission business conducted by Young, at the city and port of Trinidad de Cuba, and where Young received the plaintiff's consignment, the law merchant fixed upon him the liability of a partner, in respect of that consignment. The case is then narrowed to the simple question, whether Mr. Baker did, or did not, participate in those profits at the time designated. This, of course, must be determined by the evidence. It appears that prior to 1828, Young was transacting business as a commission merchant at Casilda, the port of Trinidad de Cuba, and also in the city of Trinidad; and he had had dealings of various kinds with Mr. Baker, by means of which, he was Baker's debtor in the sum of $1,336 21 at the close of the year 1827. One of these transactions was a speculation in a cargo of boards, for which Baker advanced over $3,000 to

Young, in April, 1827, and he was credited in December with $492 50 for half the profits on the adventure. In January, 1828, Young became the partner of Hector Kennedy, in the same commercial business. Mr. Baker furnished $5,000 to Kennedy, which was entered by him in his account as a loan to Kennedy, and constituting Kennedy's capital; the balance due from Young formed a part of this $5,000. Kennedy died in April, or early in May, 1838; but in the meantime, Baker's account with Kennedy & Young had so far extended, that there was a balance due to him of $12,384 03, including the loan of Kennedy's capital. With a trifling exception, the charges against the firm were for sugar and coffee furnished Baker. Young continued the business in his own name from Kennedy's death, until his own failure, in the fall of 1838. The first consignment of the plaintiff' was made in February, 1828, and nearly the whole cargo remained in Young's hands after the death of Kennedy. The second cargo was consigned to Young, in May, 1828; the third, at the close of the year, and the last in the spring of 1829.

Mr. Baker, after the death of Kennedy, continued to advance to Young large sums in money, and extensive invoices of property. He appears to have been a man of very extensive means, and enjoying a high pecuniary, as well as personal reputation. During the era of the plaintiff's shipments, he was in habits of close business intimacy with Young, visiting his counting-room, often examining his books, and advising about his business.

From the accounts produced by Baker, it appears that as often as once a year, Young rendered to him detailed accounts of the transactions between them. Those of Baker against Young, contained charges for the money advanced and property delivered by Baker to Young, sundry small items of debit, and for the gains on several adventures, which are designated; and in every instance, down to the close of 1832, there is, at the end of each periodical account, a charge slightly varying in its phraseology, in different years, but substantially as follows: "To half the profits coming to me from certain transactions in which Young interested me, the nett proceeds amounting to $- (the amount stated;) and referring, in several instances, to a liquidated or detailed account furnished to him by Young. The sums charged to Young for these profits, range from $2,014 054 to $2,344 04, in the five periodical balances to which my observation applies. The corresponding accounts by Young against Baker, were produced under orders for discovery, except that of December 31st, 1832, which was withheld, and contained a corresponding credit for profits, as per detailed accounts rendered.

Here are entries made by Mr. Baker himself, showing a regular interest in the profits of certain transactions of Young, continuing for a period of five years. During all that time. Young's regular business was that of a commission merchant. There is no evidence that he was engaged in other transactions to any considerable extent, save those designated in the accounts produced. Indeed, I do not remember but one, (independent of his house in town, and his purchase of land from Mr. Baker at Casilda,) which is not specially entered, and the profits charged in Mr. Baker's accounts. During the whole period, Baker was advancing money and valuable plantation produce to Young, without any charge for interest, and he was advising him in business, a frequent inmate of his countingroom, and frequently inspecting his books of account. What were those "certain transactions" of Young from which Baker was deriving a constant profit, unless they were his mercantile transactions? If they were not, was it not incumbent on Baker to have proved the fact by the production of Young's detailed accounts furnished to him, or by the books of Young, containing all his business transactions? Baker was apprised as long ago as 1837, that the plaintiff was attempting to charge him as the secret partner of Young. His letters in 1833, to which I will presently refer, show that he understood perfectly well that the books and papers of Young would be resorted to as proof of his partnership; and this assurance was made doubly sure, by the plaintiff's application in this suit for a discovery of the accounts and correspondence in Baker's possession. Why, then, did he not produce Young's books and detailed accounts, to explain the hidden meaning of the entries of the profits in his own accounts? It is answered, that the detailed accounts were destroyed after Baker had established his demand in the

bankrupt court at Trinidad. The reason assigned is, that he no longer considered them of any consequence. The documents before me show that Mr. Baker is a man of business, of abundant intelligence, very exact and methodical in his transactions, and it is difficult to avoid an unfavorable inference from an act so unusual, as the destruction of the accounts rendered of extensive operations of a mercantile character, within a year after they are closed. (1 Greenleaf Ev., § 37.) But where are the books of Young? The testimony shows that on his failure, all his books and papers were seized, and remained thenceforth in the court of bankruptcy. They are at Mr. Baker's place of residence, and he might, by a commission of otherwise, have produced on the trial conclusive evidence from those books and papers showing to what transactions Young's detailed accounts crediting him with these profits, actually referred.

It is said that a resort to those documents was equally open to the plaintiff'; and his possession of some original letters of Baker to Young, shows that he might have produced more testimony of the same character, if it would have answered his purpose.

To this it may be answered, that the production of two or three papers is not any warrant for me to believe that the plaintiff could have abstracted from the files of the bankrupt court in Cuba, all the documents that he thought proper. Nor is it so clear that a resident of New York can obtain evidence from the records of a civil law tribunal under the Spanish government, to use against a Spanish resident at the place where they are kept, with the same facility that the latter might obtain it, if he thought proper. But it is sufficient to say, that the plaintiff, after proving the entries under consideration, had a right to rely on the inferences which result from them, and to call on the adverse party to rebut those inferences, if the facts would enable him to overcome their force. See Whitney rs. Sterling, 14 Johns.; 1 Greenleaf Ev., ss. 78 to 80; Thompson vs. Kalbach, 12 Serg., and R., 238. Has Mr. Baker produced evidence which repels the inferences drawn from the entries in his accounts, or has he explained these entries satisfactorily? Instead of exhibiting to the court Young's books and papers, he has called three witnesses, residents of Trinidad, and two of them intimate with Young, who testify in effect that they knew nothing of any partnership between Young and Baker. This testimony, wholly negative in its character, is not such as the case demanded from Baker, and is of very little weight.

On the part of the plaintiff, there is other testimony strongly corroborating the inference which he claims from the charge made by Baker for half the profits of "certain transactions." Of this description is the entry in Mr. Baker's accounts at the foot of the balance-sheet of Kennedy & Young. Baker there says, he has agreed with Young to leave $5,000 of the balance then due to him in Young's hands for two or three years, or as long as convenient, on condition that it should be invested only in transactions which Baker should approve; that Baker was to have access to his books whenever he pleased, and in the event of any embarrassment in Young's individual affairs, he should secure Baker in due season, for all the funds of his then in Young's hands, so that Baker should not suffer loss.

This entry contained every element of an agreement to furnish capital, with a participation in the profits, and without any risk of loss, except the expression of the division of profits; and this element was proved to have existed by the actual division of profits made every year in the form heretofore stated. Such is the argument of the plaintiff, and it is one to which, on the testimony in the case, I can find no satisfactory answer. The next entry of cash to Young's debit, of any magnitude, is $2,970, on the 31st of November, 1829, "delivered to him to be invested in certain transactions which offered profit." This certainly looks like a further advance of capital on the terms and for the purposes stated in the entry, upon which I have just commented; with the addition of a direct avowal of the intended participation in the offered profits.

Further proof is furnished by Mr. Baker's letters. These reflect light upon the acts of the parties in 1828 and 1829, as well as subsequently; for the books show that there was no intervening charge. In one dated January 29, 1833, in which he comments upon Young's account rendered for 1832, he insists on being cred

ited for the price of the lots in Casilda, which was not yet due, and requests Young to make a sequel of the account current, "with the introduction of the items omitted, as well as the amount which may correspond to me (him) for the transactions of the year." He adds, " he would prefer our closing all our accounts at the end of this year."

On the 2d of November, 1833, Young wrote to Baker respecting his difficulties, and urging an extension of time from his creditors. This letter undoubtedly treats Baker as a creditor, and all the accounts show he was such creditor to a large amount. But it is in perfect harmony with the conclusion that he had been interested in the profits of Young's house, though not liable for losses.

In his answer to this letter, or a similar one, in which Young proposed to give him some security, Baker, on the 30th of November, suspending his decision as to Young's proposal, made use of some remarkable expressions. He said, "Should anything appear in your books relative to a note at the foot of your account current, in case your creditors present themselves against you, any security in my favor would not, in my opinion, be valid. You can, however, should this not be the case, secure me on your house in town, and in any other manner you think best, the amount you may suppose from my observations to be due to me." The only note at the foot of Young's account to which this letter could have referred, is the one showing the terms upon which the $5,000 was left with Young in May, 1828.

A note without date, but evidently following the one of 30th of November, is still plainer in its import. Mr. Baker says, "on reflection, would advise that our accounts be made out without any mention of transactions, as I am certain, in the event of your securing me, it will be demanded by the creditors;" and after his signature, he added, “your books may probably express my having had interest in your transactions."

It is scarcely possible to account for all this solicitude as to the contents of Young's books, the desire to avoid affording to Young's creditors any clue to a knowledge of those entries, on the supposition that Baker's interest in his affairs had been limited to a few occasional speculations in specific and distinct transactions. It is the natural language of a man who was conscious that he had incurred a serious legal liability by his implication in the affairs of a failing house, and who was attempting to forestall the means by which that liability might be established against him.

I have now brought together the leading circumstances and arguments bearing upon the great point of the case. I have considered them with the care and deliberation due to the importance of the cause, and with no little anxiety on account of the peculiar manner in which it has become my duty to decide upon the facts in issue. The absence of proof by Mr. Baker of the true meaning of the statedly recurring entries of the profits made by Young on transactions not designated, when it is so apparent such proof was in his power, has borne on my mind with great force; and, connecting those entries and the want of evidence in explanation of their meaning with the other sections upon which I have commented, the situation and conduct of the parties, and the letters from Baker to Young, I cannot resist the conclusion, that during the whole period, from the death of Kennedy, to the failure of Young, Mr. Baker participated in the profits of the house of Young. And while this rendered him liable as a partner to the commercial creditors of Young, I am equally clear, that, as between himself and Young, he was to have all his capital restored to him without any division by the losses of the concern.

The plaintiff having established the joint indebtedness of Baker & Young, for which the judgment was recovered in 1834, the statute fixes the amount of the liability. It is neither more nor less than the amount of the judgment. 2 R. S., 377: S. L., 23 Wend., 293.

The sum due on the judgment recovered in 1834, exceeds the penalty of the defendants' bond. My judgment will therefore be entered in the usual form, for the penalty, $44,985 78.