depreciated in the market, may be worth intrinsically the nominal value, and full payment might be enforced. It may have been received by the lender, bona fide, in the course of business for the apparent value, and be as available to the borrower as gold and silver; or it might have been an accommodation to him, and at his desire, that the loan was advanced in such funds. All circumstances of this kind would show the real intention of the parties, and characterize the nature of the transaction.

It does not seem necessary, in order to bring a case within the statute, that the usurious excess should be agreed to be paid absolutely, or that it should be any certain amount; as where the borrower of money gives a bond for principal, with lawful interest, and covenants, at the same time, to pay the lender a certain portion of the profits of a trade carried on by him. Here there is no promise of any definite sum above legal interest, and no certainty that anything beyond that will be received; as it is a matter depending entirely on the contingencies of trade. Yet such a transaction is held to be usurious, and the obligation void.

Where the repayment of borrowed money, with more than lawful interest, is conditional, the established test, as to whether the contract is usurious not, appears to be this:-If the whole sum, principal and interest, depends on a contingency, then the agreement is not usurious, although more than legal interest may be received. But if the principal is secured, at all events, and yet more than legal interest may be obtained by the terms of the contract, it is usurious and void. In the language of Justice Doddridge :—“ If I lend a hundred pounds, to have a hundred and twenty pounds at the year's end, upon a casualty; if the casualty goes to the interest only, and not to the principal, it is usury; for the party is sure to have the principal again, come what will come; but if the interest and principal are both in hazard, it is not then usury." In the one case, the whole sum is risked in the adventure; in the other, the amount of interest only is at stake.

If a note, or other obligation, founded on good consideration, and valid in its inception, be disposed of at a discount greater than legal interest, yet the transaction is lawful and binding. But if the instrument is made for the purpose of raising money, and is discounted at a usurious rate of interest, before it has been used bona fide in the course of business, it is illegal and void, and no subsequent transfer can make it valid.

The brief limits of a magazine article forbid an extended view of a subject upon which many volumes have been written; and if the writer has succeeded in stating intelligibly a few general principles, which may be useful to those who have not opportunity or leisure to examine the numerous works of authority for themselves, his whole object has been accomplished. ROCHESTER, December, 1850.

J. C. C.

Art. VII. THE FIRST PLANK ROAD MOVEMENT.

In the list of the great improvements which have given to this age the character which it will bear in history above all others-the age of happiness to the people the plank road will bear a prominent place, and it deserves it. It changes the condition of the farmer wherever it is found. It gives a thoroughfare, second only to the railway; and, in this respect, superior to it, that it may be used by all, without being subjected to the rules and regulations of others, as to the time, speed, or equipage in which they may choose to travel. It annihilates one of the sorest evils known to our rural life-an evil which has hitherto made a farm in some-in many parts of our country an involuntary hermitage, secluded, and attainable only by a weary pilgrimage over-no, not over, but through roads which seemed to have concentrated all the evils that could embarrass the traveler. A bad road is no longer known where there is a plank road. The farmer is brought in the vicinity of the village and city, enjoying its benefits, and exempt from its inconveniences. The plank road finds its way to the forests, first, building itself from them, and then placing the wood treasure into active use. It allures the settler to redeem lands hitherto set down as desperate real estate; unreal as to income, and real only as to taxation. It goes up into wild lands and civilizes them. It threads the environs of a city with pleasant drives. It magnifies the means used by the farmer in taking his products to market. It is the road of the people-open to all, and, like the nation, in whose energies it has grown into such favor, it is every year increasing its range and extending its benefits.

It is a curious and an interesting pursuit to ascertain authentically what had been the first movements in the origin of any great system of internal improvement. Who would not be delighted now to have some faithful view of the scene which took place when Clinton and his associates stood around the commencing labors of the Erie Canal? We are but a few years removed from the introduction of the railway system, and yet, in all its historians, who can tell us when the very first attempt was made to build a railway? The plank road is of the class of canals and railways. They are the three great inscriptions graven on the earth by the hand of modern science, never to be obliterated, but to grow deeper and deeper, as channels of comfort and prosperity. I am fortunately able to place on record in the pages of the Merchants' Magazine, a statement, drawn from a source entirely accurate, of the manner in which the first plank road enterprise originated-the first within the limits of the United States. Such a structure, though an imperfect one, had been in use in Canada; and I cannot but remark that this record is appropriately placed in a publication devoted to the interests of commerce. For the merchants of the Great City-to their trade -to fill and unlade their ships-to lighten and to burden their warehouses, all our canals are dug, our railways builded; and not less for them, does the farmer find in his new highway, accessible and usable at every season in year, the readiest avenue to sell to the merchant, and to buy from him. They are all springs feeding the great River of Commerce, and the ebb and the flow of the tide of prosperity reaches them all.

the

It was some time in the summer of 1844 that a meeting was called and held in the village of Salina, which, since that time, has become a part of the important and prosperous city of Syracuse, to confer in relation to fitting

up the stock for a plank road from Salina to Central Square, a locality not far distant, and by the travel on it, presenting a desirable opportunity to illustrate the advantage or defects of the proposed new system. A charter had been obtained in the previous winter, it being much easier for the Legislature to enact the privilege than to explain the construction-not of the statute, but of the road. The gentlemen assembled were desirous of having a good road built; but, unfortunately, none of them had, as yet, ever seen a plank road, and had a very indefinite idea of the manner in which it was to be builtt—or if built, what would be the probable duration, and, most important of all, what would be the cost.

A gentleman of Onondaga County (Hon. GEORGE GEDDES) now representing the twenty-second senatorial district in the Senate of New York, attended the meeting, and became so interested in its proceedings, foreseeing the great advantages and benefits which must result from such highways, if they could be cheaply made, and permanently constructed, determined to proceed to Canada, where the experiment had been already tried, and to whose wealth of timber such a system was appropriate.

Mr. GEDDES went to Canada, and made a thorough practical investigation of the subject. The Canada roads were made by government, and, consequently, in the item of expense, were not likely to be a pattern which could be implicitly followed.

The gates were sold every year to the highest bidder, and the receipts were only known to the gate-keepers. Such a system it was necessary to remodel before adopting it to the use of the people of the States. The information required it was not easy to acquire. As it was a government affair, it was specially and particularly the business of everybody and nobody. Road commissioners, road-makers, and gate-keepers were all to be consulted; and by finding out something from each of these services, the details of the Canadian plank road system was at length obtained, and reduced into a comprehensible shape.

Mr. GEDDES, with the information thus obtained, applied his facts to the road, concerning which the movement had been made. He stationed men at several points on the proposed line, so that the amount of travel on the ordinary road could be ascertained, and the result determined; with the Canadian theory and practice and his own, he made an estimate of the cost and the avails, and asserted that the road would realize twenty per cent per annum; and to give assurance of the sincerity of his opinion, he made a liberal subscription to the stock. But the fall and the winter passed over and nothing more was done. The work was resumed in the next summer, but it went heavily. At last a committee went around the town and levied, rather than raised subscriptions from the business men, (always those who foster and sustain enterprises which, in the end, benefit all classes,) to the amount of about $20,000.

Another visit to Canada was made, Mr. GEDDES being accompanied by the Hon. THOMAS G. ALVORD, who had been in the Legislature (of which he was one of the ablest members) when the charter was obtained.

It was finally determined to begin with a single track, and let further action be governed by the results of time and experience. Mr. GEDDES estimated the cost of laying out the road at one dollar per rod, and the whole cost of a single track at a hundred dollars per mile. At an early period of the next spring, (1846,) he, accompanied by a few laborers, commenced by aying down about forty rods in the village of Cicero, which was the first

plank road in the United States. How little did the eloquent old Roman imagine this practical association with his name in the future.

The road has fully and completely succeeded. The estimates were so accurate that the cost was just about three dollars less per mile than was computed. The revenue justifies the prediction which was made by its builder.

And thus it was that the first plank road in the United States was made. It did not meet the usual fate of a pioneer undertaking, but, new and experimental as it was, had the success of a safe and well matured enterprise. It is a vivid contrast with the preliminary essays in canals and railways.

Begun in Russia-introduced into Canada by Lord SYDENHAM-established in this Union by the enterprise of citizens of Onondaga County, they are rapidly becoming the great general medium of communication, free and open to all vehicles-between the producer and the market. Every year adds to their number; so that a map of this State, which should designate each road of the class, would be found to present a curious interlacing of highways.

Subsequently, Mr. GEDDES drafted a general plank road law, which, after being elaborately debated, was enacted. In the discussions which accompanied its passing the great question of the right of eminent domain-of vesting in any other tribunal than the legislature, the power to take private property for the uses of a private corporation having public purposes, was fully considered; and the record of the debate in the Senate will always be an important portion of the legislative archieves. That eminent Counsellor, JOSHUA A. SPENCER, then a senator from the Fifth Senatorial District, examined and illustrated the question with great ability.

The interest evinced in the success of plank roads has not been confined to the State of New York. The attention of eminent men throughout the Union has been given to it. Among the great number of letters addressed to Mr. GEDDES, who is justly considered as the author of the plank road system in the States, was one from Mr. CALHOUN, who appreciated the inestimable value of a thorough reform and improvement in the condition of the roads in our country, and brought his statesmanlike energies to its consideration.

Railways, with all their value, and they are of priceless worth to man, are yet the thoroughfare for the citizen away from his home-for the journey, the travel, the tour; but the plank road is for the home use-for the transit which is begun and ended in a day, or its fraction-which gives to him who uses it a double value or occupation for the hours of the day-which increases the happiness and comfort and profit of the farm, that foundation of all the institutions of society. It cannot but be of interest thus to place on record the history of its first introduction into the State-great link as it is in our chain of internal improvement.

JOURNAL OF MERCANTILE LAW.

SPECIAL PARTNERSHIP-A SPECIAL PARTNERSHIP IS DISSOLVED BY THE DEATH OF THE SPECIAL PARTNER.

The point considered in the able and learned opinion which we give below, is of the first importance in the jurisprudence of New York. No case has arisen, that we are aware of-no case, at least, has been decided turning upon the topic discussed, since the statute of New York, allowing special, or "Limited Partnerships," as they are termed in the act, was passed in 1822. The propriety and wisdom of the conclusion arrived at by the learned judge, in this lucid opinion, must strike every merchant, and the skill with which the light of foreign jurisprudence and legislation is thrown upon the subject, must be obvious to every lawyer. SURROGATE'S COURT OF NEW YORK CITY: BEFORE THE HON. ALEXANDER W. BRADFORD, SURROGATE.

In the matter of the final accounting of the Executors of the last will and teslament of George Downing, deceased.

After disposing of one or two minor topics, the Surrogate proceeds:—

The testator, at the time of his decease, was a special partner of Mr. Hicks, the executor, in business in this city; and the position has been taken by the couusel for the executors, that the firm was not dissolved, but, notwithstanding the testator's decease, continued till the expiration of the term limited for its duration. The idea at first impression is apt to win attention, if not favor, but, on closer scrutiny cannot, I think, be upheld. The legislation which brought into existence among us this form of partnership, had for its main object the encouragement of commerce, by permitting the investment of capital in trade, without danger to the public, or risk to the special partner beyond the extent of the amount invested; and in determining the legal consequences incidental to the introduction of such an institution, there seems to me no reason for departing from the rules of the common law, any further than is fairly and naturally requisite to give full effect to the intent of the statute; resting upon the presumption that the legislature having expressed the points in which the common law was intended to be abrogated, that line should not by judicial construction be extended, except by way of reasonable and necessary inference to effectuate the general objects of the statute. The special partnership is by no means a complete anomaly. By the stat ute it is termed a partnership, and both as to the rights of the parties to the contract, and as to the world, it is in itself a proper partnership, except as it limits the liability of the special partner, and restricts his control over the business of the firm. The members are partners, and by slight irregularities may easily be turned into general partners. The statute terms them partners; except for the statute they woutd be general partners, and from participating in the profits, it would seem to be a just consequence that they are partners in every sense, subject to liabilities, and enjoying privileges as partners in every particular, except as otherwise specially provided. The common law regulates the mutual rights, and duties, and liabilities of partners, and governs these limited partnerships in every respect, not excepted out of the general rule by this statute. The 12th section provides that every alteration which shall be made in the names of the partners shall be deemed a dissolution of the partnership, and the necessary effect of an assignment by a special partner of his interest in the firm, would be to alter the name of the special partner, and thus to work a dissolution. Such would likewise seem to be the consequence of the death of the special partner, which effects an alteration in the name, by operation of law, through the medium of an administrator. The 18th section declares also, that the general partners shall be