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 05 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 "cer

tain 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 or 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 vs. 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 de

liberation 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.

COMMERCIAL CHRONICLE AND REVIEW.

THE COMMERCIAL EMBARRASSMENT OF ENGLAND OWING TO THE UNSKILFULNESS OF HER MO

NIED INSTITUTIONS-IMPORTS AND EXPORTS OF THE UNITED STATES, IN 1847-INFLUENCE OF

EUROPEAN COMMERCIAL AFFAIRS ON THIS COUNTRY-COINAGE-CONDITION OF THE NEW YORK

CITY BANKS IN AUGUST AND NOVEMBER, 1847-THE COUNTRY BANKS-DIVIDENDS OF NEW YORK BANKS FOR SEVERAL YEARS-LIST OF FAILURES IN EUROPE TO 19TH NOVEMBER-MODE OF TRANSACTING BUSINESS BETWEEN ENGLAND AND THE UNITED STATES-RATES OF BILLS OF EXCHANGE, ETC., ETC.

THE past has been an eventful era in the history of commerce, and the last six months will be memorable for the discredit into which England has fallen in regard to the rest of the world. The continued difficulties in England, growing out of causes to which we have before alluded, have produced their effect to a greater or less extent upon the United States; and, in the midst of unexampled prosperity, the commercial community were suddenly deprived of their usual facilities, and the solvency of many firms jeopardized, while some few gave way to the pressure. After a year of such unparalleled trade as has been enjoyed, the condition of merchants generally was sound, and there was no valid reason why they should so suddenly have been cut off from the resources on which, unfortunately, they commonly rely to meet their obligations. If the merchants, as a body, are dependent upon corporate institutions for facilities in their business, it is certainly the province of those institutions to understand the general operation and effect of commerce, and to exercise great foresight and circumspection in the conduct of their affairs. It does not appear, however, that there has in any degree been exercised that skilfulness in the management of money affairs that the public have a right to expect at this day; and to this want of skill, to a very great extent, is to be ascribed the distress which the dealers have undergone in the last ninety days. The business of the Union, as we have remarked, has been of great magnitude during the past year, and uncommonly healthy. This is manifest in the official tables of the imports and exports of the Union, which give results as follows:—

This table gives the remarkable fact that the aggregate value of goods and specie imported was less than the exported value of domestic produce by four millions, and the aggregate exports exceeded the imports by the large sum of $12,102,984; which, were the import and export values the actual amounts realized from, and paid for goods, would, in addition to the very large earnings of the ships for freight, suppose serious losses to the national commerce. These returns were made up, however, to the close of June, to which time the prices in England had been well sustained, and the exports yielded doubtless considerable sums in excess of the valuation here. It is probable, however, that a much larger quantity than usual went forward on foreign account; by reason of which, the export value would represent more nearly the actual amount realized to the coun

try by the sale of the produce; yet, it would seem that, after the close of the fiscal year, a large sum was due the country-a supposition sustained by the low rates at which exchanges ruled at the close of the year. The amount of bills running upon England was very considerable; and, as the imports continued large, as the fall season progressed, the demand for them increased in a manner to raise their value as a remittance. Two circumstances, however, grew out of the revulsion in England, which tended to deprive the market of bills as a means of discharging the debts due England. These were the diminished prices and purchases of produce in England, and the discredit of the houses on which the bills were running. By these means, very considerable sums due the United States by England, ceased to be applicable to debts due England for goods. In the phrase of the stock market the "mutual contracts would not apply." If England, from any cause, faltered in her payments, the United States continued theirs. When British credits were no longer a reliable remittance, importers fell back upon specie, and the banks became immediately endangered. Their danger consisted in the extent to which specie would be substituted for discredited bills, until the maturity and payment of the latter should return the precious metals to the bank vaults. During the year, the movement of specie had been immense. The imports were, as seen above, $24,121,289; of this, $22,276,170 had been retained in the country, and nearly all coined into American money. The federal government, during the eleven months ending with November, has for loans and dues received $48,667,886 in specie, and disbursed it, making an amount of $97,335,772; of this amount, $23,000,000 was mostly in foreign coins, sent to the mint for coinage. While this immense movement of specie has taken place, the amount in the New York banks varied from $7,798,186, August, 1846, to $8,103,499, August, 1847; an increase of $305,313 only, although their loans had swollen much beyond the movement of last year. The specie held by the banks was not American coin, but mostly those foreign coins best adapted to exportation. Hence, when the packet of the 4th of August brought news of the English failures, and each succeeding boat brought more disastrous news, it became very evident that, in default of bills for remittance, the specie in the banks would be resorted to, and they had not increased their store during a year of large imports, nor had they protected themselves against an export demand, by changing their foreign coin into American money. Hence, it became probable that a serious drain would result, and it was their duty to prepare for it by a gradual curtailment of their extended loans. In our October number, in speaking of the returns of the city banks for August, as compared with the previous November, we remarked:

"The city banks have increased their loans nearly 20 per cent, while a diminution has taken place in those of the country; yet a great increase has taken place in the circulation of the latter. This large amount of city loans produces an extra demand for money, and causes tightness in the market whenever the banks loan less than they receive, and this is always the case when they have reached a maximum."

The line of discounts in August was immense, as compared with former experience; and, while the aspect of affairs was such as we have described it, it was the duty of far-seeing and sagacious bankers to have prepared for it by commencing a gradually stringent policy-simply by being less liberal than before. This appears not to have been attempted at all. The following is a table of the city bank returns, comparing the loans of each bank, August and November :