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whose daughters went forth arrayed in purple and fine linen, and whose house was furnished like unto the palace of a king.
There is a sad lack of manly honor and integrity among commercial men. They set up for themselves a strange standard of morality--a conbination of a punctuality which must pay a debt the very hour in which it becomes due, and a license which sanctions any ss that brings gain, whether by flattering the vanity of women, by gratifying the appetites of men, or by rasping gold from the dry bones of poverty. Almost all merchants and bankers who fail, know beforehand that their business is very
unsafe. Most of them foresee that failure is inevitable; but instead of bowing at once, they continue to borrow money, try to make a show of wealth by increasing their business, stake the money of others on a desperate cast where success would simply postpone the ruin, miserably fail, and, in their fall, drag down hundreds of honest men who placed implicit confidence in their honor and business capacity. To this method of transacting business there are noble exceptions; but they are distinguished for their singularity.
We never believed that there was, necessarily, more hazard in the mercantile or the banking business than in farming. Farmers rarely become bankrupt, simply because they keep their expenditures below their incomes, and do not try suddenly to get rich by borrowing money and engaging in bazardous speculations. Suppose a man should attempt to borrow a hundred thousand dollars in order to bet at a horse race or at a faro bank-would any prudent man furnish him with the means ! would any upright man give him money for such a purpose ? Gamblers can borrow money only from gamblers or from fools. And if borrowing money to speculate in sugars, for example, be not gambling, by what name shall we call it? The principle is just the same, whether we stake money on the swiftness of a horse, the turning of a card, or the failure of a crop. Suppose a man should borrow money for the ostensible purpose of buying a vast quantity of sugar and awaiting an expected rise in its price, and should, without consulting his creditors, bet the whole sum on a decrease in the next sugar crop-would not the lenders charge lim with a violation of faith, a reckless misuse of their money, and appeal to the law for restitution? And yet there would be scarcely a shade of dirference between the morality of the two transactions. The one would be like buying the horse to win money on his speed, the other would be simply betting on the race. In truth, the most striking difference between the commercial gambler and the horse jockey gambler is this—the one cheat scoundrels like himself, the other cheats honest men. And it is this cheating and overreaching, this unmanly impatience that will not wait for the reward of honest industry, this eagerness for sudden and unmerited wealth, this reckless bazard of borrowed money, which strews all the paths of commercial life with the bleaching bones of bankruptcy, and robs the unsuspecting poor man of his small but well-earned substance.
A young man just liberated from the apprenticeship of a common clerk conceives the idea of becoming immensely rich in a few years, and resolves to open a wholesale dry goods store, or perhaps a large banking house. From his late employers lie receives flattering letters of recommendation, just as quack medicines receive puffs from newspapers; and from bis mercantile acquaintances he begs testimonials, just as bad actors beg applause from the galleries of theatres. Armed thus with both the sword
and shield of the commercial impostor, he obtains credit; borrows money; opens a splendid establishment; employs a dozen dashing clerks; marries a belle who must be attended by a train of liveried menials; rents a firstclass house on the most fashionable avenue ; receives on deposit the earnings of laborers and seamstresses ; drives a splendid span of blooded horses; gives dinners, evening parties, and birthday balls; buys box tickets at the theatre; heads the list whenever a complimentary benefit is tendered to a favorite actress ; occupies a front pew at church ; never offers less than a hundred dollars at a donation party; spends the summer at Newport or Saratoga; announces his intention to visit Paris and London the ensuing spring; borrows, and borrows, and borrows, till he can borrow no more—and then there is a startling rumor that a failure has occurred involving in ruin hundreds of industrious and economical people. The telegraph sends the astounding intelligence all over the country, editors consult their dictionaries for words to utter their regret and astonishment, commercial men tender their sympathy and express renewed confidence in the integrity of their unfortunate brother, and the cheated poor again commence their weary journey at the bottom of their steep and rugged path of life. The author of all this wasteful extravagance, and all this glittering falsehood, and all this pompous liberality, and all this snobbish admiration, and all this undeserved synupathy, and all this piteously abused confidence, absents himself from public assemblies till the nine days' tempest has blown over, and then comes forth to seek some new field of operation and play the same game over again.
The shivering beggar who steals a web of flannel is promptly arrested and punished. No sympathising crowd follows him to the grim entrance of the solitary and dreaded abode of counterfeits, thieves, and assassins. No sorrowful paragraph reluctantly tells how, in an evil hour, he committed the unfortunate deed. And yet how small does his poor offense seem alongside of the enormous crimes of the wicked and reckless vagabond who steals the value of many thousand webs of fannel; who, though he never earned the daily food of a starveling dog, yet often squandered in a single night's licentious riot more than a whole year's wages of an industrious man; who beggared hundreds of families whose humble dwellings he was not worthy to enter; and who, a bankrupt debtor, yet wasting the substance of others with the most shameful extravagance, and covered all over with the recent stains of treachery, falsehool, fraud, and extortion-goes off the stage which he disgraced, not only unpunished, but with the sympathy of most whom he did not rob?
Every principle of honor tells us that no man should peril another when ruin is even probable. He should pause at once, and brave the danger which his own folly has brought upon
him. The plain rules of common justice exempt the innocent from the punishment of the guilty. When a man wilfully invites ruin which he might otherwise avert, and treacherously involves unsuspecting men in it, the public conscience must be sin-hardened if it does not pronounce him an infamous criminal, and the law which does not treat him as such must lack justice as much as he lacks virtue. Why should a merchant or a banker every day do with impunity what would forever ruin the reputation of a farmer or a mechanic? It is good that disgraces should constantly attend upon bad conduct in a farmer; but why should it not also constantly attend upon bad conduct in a merchant? When a farmer, through extravagance or mismanagement, be
comes bankrupt, he is called a swindler and a cheat; but when a merchant, through even worse conduct, fails in business, his bankruptcy is charged to the account of financial embarrassment. How strange that broadcloth or homespun should so change the complection of crime!
The merchant is constantly exposed to loss by uncurrent bank notes; so is the farmer. He may be ruined by a reduction in the price of produce; so may the farmer. He may be hard pressed by his creditors; so may the farmer. He may be cheated by his debtors; so may the farmer. He may be reduced to poverty by sickness, by fire, by flood; so may the farmer. On the right hand and on the left, before and behind, he is exposed to evils; and the farmer is exposed to the worst effects of rain and drought, and to the ravages of untimely frosts and destroying insects. After summing up the whole matter, we find that for every danger to which the one is subject, an equal danger besets the other. We insist, therefore, upon the right to try them both by the same standard, and the conduct which, in a farmer, would be disgraceful, cannot be overlooked in a merchant. Let business men, as they call themselves, imitate the plain simplicity and the honest prudence of farmers, and there will be an end to the disheartening list of assignments and failures. It is no part of their duty to imitate the manners of the simpering fops of London and Paris, to squander the annual products of a farm at the benefit of a lewd actress, to sleep all day and spend the night amid riot and debauchery, to frequent the assemblies of men bloated with gluttony, dropping with wine, and reeling in obscene dances. No man has a right to spend more money than his ordinary income; and he who squanders the earnings of others, should be set down in the catalogue of thieves. Until the law ceases to make distinctions without a difference, the confiding poor man will hold his bank deposits by the precarious tenure of commercial conscience, and the defaulter will mock at the indignation of public opinion.
Art. VIII.—THE LAW MERCHANT.
It is a wise and beneficent maxim of the law that “ While Man is Mortal Controversies shall not be Immortal.” In the early days of our system of judicial proceedure, it was felt to be an evil that old and long forgotten claims should be allowed to demand the strong sanction afforded by well organized and efficient courts of justice. It was felt to be an evil that transactions so ancient as to be traditionary were permitted to be ransacked to furnish materials for litigation. Judges, therefore, very early attempted to set some limits to the life of causes of action. These efforts, although neither very uniform nor very authoritative, led to the enactment of the statute of limitations. This statute originated in England in the reign of James I. It became of course the law of this country, while this country was an English colony; and since our independence it has been adopted in substance by every State. There are few rules of
law so universally accepted, so uniformly enforced, as the rules of limitations.
By the English statute it was enacted that all actions to recover personal property, or to recover damages for its wrongful conversion, or damages for trespass," and all actions of account and upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, must be brought within six years after the cause of such action and not after.”'
The statute contains other provisions respecting actions to recover possession of real property, and actions for slander, assault and battery, and such causes; but these are not material here.
The reader will notice two points in the clause quoted. First. The statute does not enact that after six years from its inception a debt shall cease. It simply provides that no suit shall be brought upon it. The debt still exists, but the law will not enforce its payment. It is not canceled; it is merely outlawed. In England in 1800, a man brought suit against a wharfinger, to recover certain goods of his, which the wharfinger had in possession and refused to deliver up. The wharfinger set up as his defense, that the plaintiff owed him a balance of account, and that he was not bound to part with the goods until the debt was paid. The balance had been due since 1790, and the plaintiff insisted that it was barred by the statute. But Lord Eldon decided that the debt had not been discharged, though the remedy to enforce it by action had been taken away. “Though the statute bad run against the demand," he said, “if the creditor has possession of the goods on which he has a lien for a general balance, he may hold them for that demand by virtue of his lien." In any case of a security held for a debt, though the debt may be barred by the statute, it may perhaps still be collected through the security.
The other point is that mercantile accounts are excepted. This exception is omitted in the statutes of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, New York, Delaware, Ohio, Michigan, Missouri, and Arkansas. It exists in the statutes of the remaining States. The exception is merely remarked here: its scope and operation will be more fully considered in a following page.
It has been held that a debt barred by the statute, cannot be allowed as & set off counter-claim to an action on a cross debt; for claiming to recover it as a ground of defense, is considered equivalent to claiming to recover it as a cause of action.
Two merchants, in settling up the account of an adventure in which they had been engaged, disagreed about the mode of settlement. One of them claimed a balance due hiin of over one thousand dollars; the other conceded a balance of two hundred to be due, but denied that anything more was due. He offered the two hundred that he thought due. The first refused to receive what he considered but a part of his claim. would have, he said, the whole or none. The dispute hung a long time unsettled. Some months afterwards, the creditor not having yet been paid, purchased from his debtor a quantity of goods nearly equaling the amount of the unsettled claim. When the bill was sent in, the creditor reminded the other of the old claim, and demanded that that should be allowed in the settlement. The debtor renewed his offer to pay what he thought he owed, and asked for payment of his bill. The first creditor VOL. XXXVIII.-NO. I.
finally said, “I will pay you when you pay me, and not till then.” The two claims nearly balanced each other, and the first creditor thought he would as lief they should be settled in that way as any other. This sort of settlement was a very convenient one for a time, but in the end through the statute of limitations it proved to be no settlement at all. The debtor made no further claim on his bill of goods, but waited until a time more than six years from the date of the first transaction, but a little less than six years after the date of the second; and then he brought a suit to recover the price of the goods he bad sold. The balance of account bad been outlawed; the bill of goods, being a transaction of a few months later date, had not yet been outlawed ; so that the debtor recovered his claim, while the creditor was left without remedy.
There has been much difference of opinion among courts and lawyers as to what is called the theory of this statute. Some have thought that the reason of its rule was that the mere fact that a long time had elapsed since a debt accrued, made it more than probable, that the debt had been paid or satisfied in some way; while the evidence of such satisfaction might have been lost. Others have thought, that the reason of its rule was just the reverse—that debts, although undoubtedtly unpaid, should not be collected after the creditor had suffered a long time to elapse over them. The reader may think this only a theoretical question, but in fact it became a very practical question, and one that is important for business men to understand. And in this way. One class of authorities held that, if a debtor, whose debt was outlawed should say, or do anything acknowl. edging that it was sill existing, the creditor might maintain a suit upon it; " for” said the court, in such a case, “the reason of the statute is, that after six years there is a presumption that the debt has been paid ; and if the debtor admits it has not been paid, this presumption is effectively rebutted, so that the reason of the statute failing, the statute ought not to govern the case." The other class of authorities would
precisely the same circumstances. “The debtor admits, that this old debt was never paid ; but according to the statute, it is too late to make bim pay it now.
The statue was not meant to prevent litigation of old debts that had been paid, but of old debts that had not been paid; and if it were ever so clearly proved that this debt had never been paid, that would be the strongest reason for dismissing the action now. The statute is a statute of repose. If a creditor claims money, he ought in all fairness and honor so assert and establish his claim in a reasonable time, and not let it sleep when the transaction is fresh, to be awakened in after years when the transaction is long forgotten. If the debt has been paid, the debtor does not need a statute to protect bim; he can very likely prove the payment. If it has not been paid he is the very man for whose protection the statute was framed."
The one theory thus operated to enforce the debt, where the defendant did not deny that the debt was unpaid ; the other theory operated to refuse to enforce the debt, unless, indeed, the debtor had within six years made some definite promise, either expressly or by implication. Such a new promise, if he had made one, was as good as a new cause of action against hiin. After such a discussion, and much conflict of authorities, it has now become generally settled that the latter is the correct view, and that no simple recognition by the debtor of his indebtedness ouglit to be of any effect to revive the debt against him. This theory has been ef