The plaintiff's counsel answered: First. That, admitting the general rule to be as contended by the defendants' counsel, it did not apply to this case, because Young having confessed the judgment in a suit against him and Baker jointly, was estopped from denying that Baker was his partner; and that, as the defendants gave the bond in suit as agents of Baker, if they paid the debt, they could recover the amount they paid against Young, including costs, etc., and hence Young's interest was against the plaintiff.

Second. That the accounts between Young & Baker showed that, though they were partners as to third persons in their joint operations, as between themselves, Young was to pay all the debts, and allow Baker for all his capital and profits; and consequently, if Baker should be obliged to pay this debt of the house, he could recover the whole amount, including costs, against Young's representatives. The judge said if the question were open, he should find it difficult to reject this deposition; but, with the express authorities above cited before him, he must exclude it.

Annexed to this deposition, was a letter-press copy of an account, signed by Young, dated December 31, 1832, which contained an account of operations for 1832, including commission business, and credited Mr. Baker $2,014 5, the exact sum charged Young by Baker, at the foot of his account current of same date. The plaintiff proved that Young gave this paper to his attorney at the time of confessing the judgment in October, 1834, and that the signature was genuine. The account was then offered in evidence on the grounds

First. That Young was the only ostensible partner in the joint operations confessedly carried on by Young & Baker; and his acts and entries while the relation subsisted between him and Baker, were equivalent to the acts of both, had both been ostensible partners.

Second. That it was admissible as an entry by a deceased person against his interest at the time.

Third. That as the other accounts showed that detailed accounts similar to this were rendered to Baker with the accounts current, and Baker had not produced the one which he did receive at the date in question, it was sufficient to authorize a jury to find that the original, from which this impression was taken, was actually sent to and received by Baker.

The judge held, that the date of the account was not evidence that it existed in 1832; that the coincidence in the amount between this account and the charge by Baker to Young was of little moment, and excluded the evidence.

The plaintiff also offered to prove, that in the fall of 1845, a commission was issued to three persons at Trinidad, one named by defendants, to examine several witnesses on the part of the plaintiff, and take sworn copies of the record of the failure of Young, and particularly of Baker's account against him, in the bankrupt court; and also of all accounts between Young & Baker in Young's books deposited in that court; that letters rogatory accompanied the commission, by which any court in Trinidad was prayed to aid in the execution of the commission; that the name of H. P. Hastings was subscribed to the paper as counsel for the plaintiff'; that said Hastings went to Trinidad, and endeavored to execute the commission; that the commissioners all declined to act; that the public officers refused to allow the inspection of the books of Young, or record of his failure; that a proceeding was instituted before the proper court, having cognizance of the matter, to enforce the execution of the commission; that Baker appeared on the record by his attorney, and opposed the application on the ground, amongst others, that said Hastings was not duly authorized to appear for the plaintiff; that after a motion to set aside said Baker's appearance as a party litigant, which was denied, thereby creating an open litigation which might last for years, said Hastings took copies of said proceedings, official copies being refused; and to show this interference of Baker, the said copies were offered in evidence, on proof that they were true copies.

The plaintiff insisted that this was competent evidence, as showing Baker's design to conceal the truth from the plaintiff, and would authorize an unfavorable inference against him in weighing the other circumstantial evidence.

The defendants objected to this evidence, and it was excluded.

The plaintiff having rested, the defendants' counsel moved for a nonsuit, on the grounds

First. That if the partnership existed, it was dissolved by Young's bankruptcy, and after dissolution, Young could not confess a judgment so as to give it any effect, as against Baker.

Second. That the judgment under the joint debtor act was of no effect whatever, as a judgment against Baker, who was not served with process; and therefore, such a judgment did not support the claim of the plaintiff as an attaching creditor, which was on the judgment, and not on the original demand, which must be proved before he can be charged.

The judge held that the statute extended to all joint debtors, and therefore the dissolution was immaterial; and that a joint debtor served with process could confess judgment with the same eflect as if he had let judgment go by default; that the statute did not exclude any mode of recovering judgment

That the case of Merwin vs. Kumbel, 22 Wend., settled the law that such a judgment was to be declared upon like any other, but must be supported by proof aliunde of the joint liability of the defendants not served with process, and consequently the plaintiff was right in proceeding upon the judgment; and on proof of a joint liability of Baker, the demand on the judgment would be established against both Young & Baker.

The motion for a nonsuit was overruled, and the defendants excepted.

The defendants went into their defence on the merits-i. e., on the question of partnership, but gave no evidence to show the account stated by Young on confessing judgment incorrect.

They gave in evidence a stipulation signed by the attorneys of the parties, dated Feb. 19th, 1816, reciting that, after the plaintiff had brought his cause on ready for trial in February term, 1846, the defendants had obtained a commission, with stay of proceedings, to examine a witness at Trinidad de Cuba; that by way of compromise, and to avoid expense and delay, the plaintiff had agreed to deduct from the judgment, as of the day of its rendition, the sum of $9,687, and the defendants waived their commission, and agreed that no evidence should be given on the trial, as to the seizure, confiscation, or restoration of the plaintiff's ship Marmion, and her cargo, on her second voyage, in May, 1828; and it was agreed "that this stipulation as to deduction, shall not bind the plaintiff, if the defendants shall further postpone the trial of the cause beyond the first week of March term, 1846."

The cause was tried in the first week of March term, 1846, but the verdict for the defendants was set aside in February, 1847, and then at March term; and again, at April term, 1817, the defendants again postponed the trial for a witness from Trinidad; and after the second trial, in June term, they again postponed the trial from July to September term.

The amount depending upon the construction of this stipulation, was nearly $19,000, including interest. The plaintiff refused to deduct, on the ground that the condition of the stipulation was broken by putting off the cause, as above stated. The defendants insisted that the condition applied only to the first trial in March term, 1846, and that as the defendants then went to trial, they complied with the condition, and there was an end of it; and so Oakley, J., held on the second trial.

The plaintiff's counsel now cited the following cases: Elton vs. Larkin, 1 Mo., and R., 196, and Doe vs. Bird, 7 Car., and Payne 6, showing that stipulations respecting the trial of the cause applied to every trial the court might order, and did not end with the first; and the court held that the plaintiff was not bound to make the deduction.

The cause was fully summed up by each of the counsel.

The defendants' counsel contended: First. That the plaintiff held the burthen of proof, and must make out his case clearly, as he gave credit to Young alone. Second. That the entering into a partnership without a written and registered contract, would have subjected Baker to all the liabilities, and gave him none of the rights of a partner, according to the code of commerce; and besides, have subjected him to a large penalty; therefore, strong proof should be required to establish such illegal partnership.

Third. That the accounts of Baker, and letters of Young, given in evidence by the plaintiff, were evidence in Baker's favor, as well as against him; and that they showed Baker a creditor, and not a partner, and that the profit he charged Young, was on " certain transactions" not embracing the commission business, nor Young's business in general.

Mr. Hastings, in closing the case on the part of the plaintiff, laying out of view all the circumstantial evidence properly belonging to a jury, which had been fully presented by Mr. Spencer, submitted the following views of the case as matter of law:

First. In establishing the co-partnership of defendants, the same strictness of proof is not required as in respect to the co-partnership of plaintiffs, for the reason that every member of a firm has the means of proving who his partners are, and what is the agreement between them; whereas, strangers are ignorant upon the subject, and must make proof by the acts and admissions of the persons sought to be charged. As against defendants, therefore, presumptive or prima facie evidence is sufficient to call upon them to show the real relation between themselves. Whitney vs. Sterling, 14 John. R., 215; 2d vol. Star. Ev., 804, 807; 22 Wend., 276; Carey on Part., 136.

Second. In case of dormant partners, who studiously conceal their interest, less evidence is required, than as against those who make no effort to conceal; as evidence is to be weighed according to what it was in the power of one party to have proved, or the other to have explained. 2 Cow. and Hill, Phil., p. 293, 310, 311; 3d vol. Star. Ev., 7 American Ed., 937.

Third. Where it is obvious that the defendant sought to be charged, has destroyed, or suppressed, or withheld evidence which would have completely exonerated him, if not justly chargeable, the court and jury are bound to draw a strong presumption against him, in weighing the evidence which the plaintiff has been able to produce. Id., and also 7 Wend., 31; Owen vs. Fisk; 2 Sim. and Stuart, 606.

Fourth. When prima facie evidence of co-partnership, sufficient to carry a cause to a jury, has been given, and the defendants fail to rebut it by evidence which they might have produced, if not liable, the prima facie evidence becomes morally conclusive.

Fifth. Where the defendants do attempt to explain, and even give evidence of the original agreement between them, to show them not co-partners, it is still competent for the jury to find a partnership from all the circumstances, contrary to the express agreement. 2 Hall, 351; Pr. Oakley, Justice.

Sixth. The facts of this case, with the application of the foregoing undeniable principles, entitle the plaintiff to recover, beyond all controversy.

The plaintiff does not claim that Baker held himself out as a partner, or that he ever gave credit to him. The case turns, then, upon proof of the actual relation between Young & Baker.

The plaintiff has given evidence of the most satisfactory character, as against Mr. Baker-i. e., his own accounts-that in May, 1828, when Young was poor, he put into his hands $5,000 capital, and shortly after $2,900 more, to be invested in business, for profit, under Baker's advice, as to the business; with a right, on his part, to inspect the books, and to be secured, whenever Young's affairs were found in a bad state

That up to January, 1829, upwards of $4,000 profits were made in the business carried on with this capital, on account of both, which was divided between them, share and share alike

That a similar sum was made every year, and divided in the same manner, until 1832 inclusive, when Baker gave notice of his intention of withdrawing his capital, and closing the accounts at the end of 1833

That in 1833, there was no general account of profits, but several particular adventures on joint account; and Young found his affairs in a bad state, and failed, indebted to Baker, including profits, in about $18,000—

That during all this time, Young's house was engaged in commission business, and there is no evidence of any other.

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 $4,000 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 en la commandite and anonymous, for which provision is made in the Co

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