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the usurer. As it is originally in each case uncertain whether notes will be avoided, the innocent endorsee is in the worst situation, as he, without premium, is exposed to a risk, of which having no knowledge, he cannot guard against it, but for which, by the very terms of the contract, the usurer is indemnified; and to this he is exposed for the benefit of one who knowingly participated in, nay, who solicited and procured a violation for his own benefit. In cases in which notes void in the hands of an original payee or any one knowing of the illegality of the consideration, but valid in the hands of an innocent endorsee, may be seen what, if usury laws must exist, should be done in this
The effect of such laws on the moral character of the community is a subject of no inconsiderable importance. The standard of right and wrong will be in a great measure in conformity with the result of the laws, and the morals of the community will very much depend on that standard. Now were the legislature to give license to dishonesty, permission to fraud, and impunity to crime, knowing and perceiving this dishonesty, fraud, and crime, it would afford but little evidence that the rulers were competent for the discharge of the trust. But were the legislature to solicit, encourage, and reward treachery, ingratitude, and knavery, no language is adequate to express our abhorrence of this prostitution of the ends of justice. Such, if the reasoning already before the reader be valid, is the usury law. The loan is effected at the request of the borrower, and on such terms as at the time he is willing to accede to, because he then views them advantageous; but these terms not being approved of by the legislature, the borrower is invited by solicitations and rewards to come forward and swindle the lender out of his debt; and as if that were not enough, the lender is exposed to suffer once more to the extent of his debt, for the benefit of some informer. The execrations of the community, which should of right follow the dishonest and unprincipled, are perverted from their healthy and natural course, and the individual who has done no wrong, no fraud being supposed, is held up to public indignation. The conduct of the borrower, clothed with imputed righteousness, that of the law, and covered from observation by its broad mantle, has almost the appearance of virtue. The law, to the extent of its power, per
verts and confounds the distinctions of honesty and dishonesty, and gives to the swindler its countenance and protection, and the port and carriage of honesty. Who can object or say aught? He has done what the collective wisdom of the country approve. To show a spirit of indifference to moral conduct, argues a deficiency of either probity or intelligence; but still worse is it to laud dishonesty as praiseworthy, and to sanction and approve it by rewards. That the evil is not so great as might be expected, is owing to the fact that in this instance the morals of the people are above those of the law, and that conduct which the law looks on with approbation, would be viewed in its true light as an unblushing union of treachery, meanness, and knavery.'
Of this law what then are the effects? Evil and nothing but evil. Obeyed or disobeyed, still it is followed by evil. Good in no event arises. Oppression to the poor, protection to the guilty, punishment to the innocent-such are the bitter fruits of legislative imbecility.
I have gone thus minutely into the examination of the subject, not because the impolicy of the law was considered as a matter of doubt, but that every shadow of doubt on the subject might be removed. No pretence to originality is pretended. The views here offered will be found in the leading works on Political Economy. That these principles, so obvious, that to be believed, they would seem hardly to require more than to be announced, have been so long disregarded, is owing to the general ignorance of the subject of political economy among rulers and ruled, and to the fear that the doing what is right, will be followed by the loss of their seats, from their conduct thus conflicting with the prejudices of the community. Recently, however, attention has been called to the subject, and some meliorations of the law have been the result. A few years ago the subject was introduced in a message of Governor Lincoln of Massachusetts, and some partial improvements took place
1 I had originally intended to have entered into an examination of the two hundred decisions on this subject, but the article is already extended to an unexpected length. The decisions, as to the matter of evidence, as connected with this subject, are not undeserving of examination. I endeavored, but without success, to obtain the work of Bentham on this subject. It is extremely rare and cannot be obtained at any of our bookstores.
2 Even in the seats of legislation, among those who, from the advantages of a liberal and professional education, might be expected to be better ac
in that state. But the people of the West, on this as on many other topics of legislation, seem to have taken the lead. Gov. Johnston, of Louisiana, recommended the total abolition of all laws on the subject. In Indiana, all restraints are removed except as to banks; and it is believed that similar laws have been passed in other States. If the time has not arrived, it will arrive, when the ignorance of the past will cease to be the law of the present.
ART. IV.-QUESTION OF PARTNERSHIP.
If a person is entitled to a share of the profits of one partner in a firm, does he thereby become liable as a member of the partnership?
A and B are partners, and C advances money to A, to be employed in the partnership business, A agreeing to pay Ca certain proportion of A's share in the profits of the business. This agreement is not known to B. Is C liable to the creditors of A and B as a partner with them?
It is clear that as between themselves C is not a partner with A and B. A partnership can only be formed by the consent of all the partners. A could not introduce C as a partner into the concern without B's consent. C's agreement is personal with A alone. If A fails in performing it, C can only sue him. It is clear that C has no interest in the partnership property, that he cannot interfere with the business, and that he cannot call upon the partnership for an account, by any proceeding either at law or in equity. The conclusion that C, as it regards the partners themselves, is not a partner, however, does not rest merely on general principles; the Civil Law is explicit on the point. Qui admittitur socius, ei tantum socius. est, qui admisit, et recte: cum enim societas consensu con
quainted with the subject, we find the prejudices of ancient belief still lingering. The substance of these remarks were published some years ago, by way of comment on a protest of the minority to the passage of a bill in Massachusetts, which lessened the evil of the law; and in which protest were embodied and uttered to the world, all the worn out and detected fallacies on the subject, and the common appeals to the prejudices and passions of the ignorant.
VOL. VI.-NO. XII.
trahatur, socius mihi esse non protest, quem ego socium esse nolui. Quid ergo, si socius meus eum admisit? Ei soli socius est.' Dig. 17, 2, 19. 'Nam socii mei socius, meus socius non est.' Dig. 17, 2, 20. The French law is the same. 'Chacun des associés n'ayant le droit de disposer des effets de la societé que pour la part qu'il a dans cette société, c'est une conséquence qu'il peut bien, sans le consentement de ses associés, s'associer un tiers à la part qu'il a dans la société, mais qu'il ne peut pas, sans le consentement de ses associés, l'associer à la société. Poth. Cont. de Société, art. 91. This principle is adopted into the Code Civil in nearly the words of Pothier. Code Civ. art. 1860. Pothier continues, 'C'est pourquoi, si après avoir contracté avec vous une société, soit universelle, soit particulière, je juge à propos de m'associer un tiers, ce tiers sera mon associé à la part que j'ai dans la société que nous avons contractée ensemble; mais n'ayant pas eu le droit de l'associer sans votre consentemente à notre société, si ce n'est seulement pour la part que j'y ai, il ne sera pas votre associé.' Poth. art. 91.
But though there can be no doubt that C is not a partner with A and B as it regards themselves, have not the creditors of the partnership a right to consider him so? This is perhaps a question of some little difficulty. It certainly would be hard if one who had none of the rights and privileges of a partner should be subjected to its responsibilities. Many of the authorities, however, seem to say that a person who has a right to share in the profits of a business, is liable as a partner. If this principle is to be applied strictly and literally to all cases, certainly C is a partner with A and B so far as creditors are concerned. But this principle is only one of the criteria for determining whether a partnership do, in fact, exist between certain persons. Though it is true that a person interested in the profits of a business with others, is usually considered a partner, yet the rule is subject to many exceptions. For instance, many agreements, which give brokers and clerks direct interests in the profits of particular concerns, yet, it has been decided, do not make them partners.
It is often said by judges, and repeated by elementary writers, that a person was a partner as it regarded creditors, implying and sometimes expressing that he was not a partner as it regard
ed the parties themselves. The reason why this form of expression has come into use is sufficiently obvious. The question whether a partnership exists between two or more persons, seldom comes up in controversies between themselves, but frequently arises in cases in which partnership creditors attempt to charge persons as dormant partners. The only point for the court to consider in a case of this kind, is, whether the relation between certain persons as it regards the creditors who make the claim, be a partnership or not; the relation of these persons in other respects is not the subject of question. The judge who decides that the parties were partners as it respects creditors, at the same time intimates that they would not be considered partners as between themselves. Intimations of this kind, though entitled to respect, cannot be considered as establishing beyond controversy, the distinction which they imply, especially where, as in the present instance, they form no part of the reasoning which leads to the conclusion of the court; for it is evident that, to say that C is not a partner with A and B as it regards themselves, does not tend to prove that he is a partner as it regards creditors. Both propositions may be true, but one does not lead to the other.
Yet even in cases of dormant partners where these dicta are advanced, the decision always turns upon the point whether the parties were in fact partners or not. The cases in which persons who were not really partners in a firm, have been held liable to creditors, are of a different class. In such cases the parties have been charged as nominal partners, because they allowed their names to be used in partnership firms, or permitted themselves to be held out to the world as partners. No case is recollected, except those of nominal or apparent partners, in which it has been decided that a person, not in fact a partner as it regarded a partnership itself, has been held liable in that character to creditors. If then the first position, that as it regards the partnership of A and B, C is not a partner, be established, the conclusion seems inevitable that he cannot under the circumstances be liable to the creditors of the partnership.
This conclusion is not entirely unsupported by authority, though perhaps no English decision reaches it exactly. In 2 Rose Cas. in Bankr. 252, ex parte Barrow, is the nearest case which we have been able to find. Slyth and his son had been