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Doe

v.

bargain; that it was not what it was represented 1818. to be by the deed, a purchase of the premises, but a mere cloak for usurious interest upon a loan. The contract, which was collateral to the purchase- BROWN deed, must be taken with it, as explanatory of the and Others. whole transaction : Wilson expressly covenants to re-purchase the premises at an advance of 2001. within fifteen months. It was plain what was meant. The conveyance, notwithstanding it had the formality of a bargain and sale, was a mere colour to secure an advance of money, to be repaid with exorbitant interest. 2. If Bromley had no good title, by reason of usury, Metcalf, who derived from Bromley, had likewise none. The usury, indeed, had propagated itself; and deeply affected both transactions.

Best and Vaughan, serjeants, contrà, contended, I. With respect to Bromley, there was no usury. The 8801. was not to be paid back at all events: the lender had put his principal in jeopardy, and was only to receive the proceeds of the sale :-non constat, if the premises had been sold at the end of six months, that they would have produced 8801.; and, if the premises sold for less money, Wilson was not to make up the difference. 2. With regard to the 1,2001, advanced by Metealf, it was gone for ever : he was not to have his principal back. The contract to re-purchase was not uncommon, and could not of itself change the nature of the transaction from a bargain and sale to a loan of money.

GIBBS, C. J. The deeds on the outside have

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Vol. I.

Doe

0. BROWN

1816. the face and character of absolute conveyances ;

they give no intimation of a loan. The defendants contend that they are mere machinery for the ad

vance of money; and that, although they have and Others, the form and complexion of a sale, they are in fact

mortgages, and that the sole design of the parties was a loan of money; Wilson not intending to part with the premises ; Bromley and Metcalf not contemplating a purchase. With respect to the objection to the contract between Wilson and Metcalf, that the former should re-purchase, and the latter reconvey by a given day, I am of opinion that this is not usury. Wilson sells for 1,2001., and is to re-purchase at a large advance : this is a circumstance to raise a suspicion whether the whole transaction be not colourable ; but it is not an usurious contract upon that account merely. If a sale were intended, it is a valid contract : if nothing were meant but a loan of money, it is yoid.The question is, whether it be a loan, or a sale, of the premises. The agreement by Wilson to re-purchase at all events for 1,4001, looks like a loan. But it is a question for the Jury as to the real intention of the parties.

Verdict for the plaintiff.

Best and Vaughan, serjeants, and Lawes, for the plaintiff.

Lens, serjeant, and Marryatt/ for the defend

ants.

1816.

WYATT v. GORE.

July 11.

THI

THIS was an action for a libel. The declara- 1. Commu.

nications tion stated, that the defendant was Lieut.- which take Governor of Upper Canada, and the plaintiff Sur- the governor

place between veyor General of that province. That defendant of a distant

province and had power to suspend any officer for good cause. bisa

his attorney

general ara That the defendant, wrongfully, maliciously, and confidential; without probable cause, suspended plaintiff from dess is interhis office, until the king's pleasure should be known; their sub

rogated as to and that plaintiff was so suspended for two years. Court of Jus

tice, he is not

bound to anThe second count stated, that the defendant, with- swer any

questions reout probable cause, and without legal authority, specting them.

2. In an ac ruspended the plaintiff from his office.

tion on a libel, to which the

general is. The third count stated, amongst other matters, sue is pleaded,

and where that the defendant (to cause plaintiff to be deprived there is no of his office, and induce the king to confirm the sus- the defendant pension,) wrote and sent to the secretary of state majesive in certain false letters, representing that plaintiff had in miligation been generally hostile to his Majesty's represent- not only that atives, and was engaged with disaffected persons : mours and re

poris (of the same tenor as the libel) previously carrent, but that the substance of the livellous matters had been published in a pewspaper; and he is not required to lay a basis for this evidence, by producing such newspaper at the trial,

3. The delivery of a pamphlet by the governor of a distant province to his attorney. general, not for any public purpose, but in order that he might peruse it, is such a pube fication as will make him responsible in an action. if the pamphiet be a livel.

4. In an action against a governor of a colony by the surveyor-general, who held that appointment in the colony, (such office being an office at will,) for suspending him, mapicionsly, and without probable cause, it is necessary for the piaiņtiti to prove express and positive malice.

1816.

WYATT

v. GORE.

that the plaintiff, moreover, had erased the name of a person from the plans in the office of surveyorgeneral, who was settled, and had made improvements in a favourable location of land; and had declared the lot to be vacant; and had obtained a grant of it for himself. That, by means of the said letters, the king confirmed the suspension, and revoked his appointment ; that plaintiff was thereby prevented from enjoying another office; namely, the office of receiver-general of the said province. That the defendant falsely represented plaintiff to the secretary of state, as an ill-disposed person, who had been guilty of arbitrary and improper conduct.

The fourth count stated, thąt the defendant falsely composed a certain false libel, in the form of a letter, or address, to Lord Castlereagh, without any signature, imputing to the plaintiff criminality, and arbitrary and gross misconduct in his said office.

The fifth count stated; that the defendant composed a certain false libel, imputing to the plaintiff treasonable and seditious conduct.

The defendant pleaded first, not guilty. Secondly, as to the letters written to the secretary of state, representing that the plaintiff, whilst surveyorgeneral, had erased the name of a person from the plan in the office, and had reported the lot to be vacant, and had obtained a deed or grant of it for himself,-he pleaded that the plaintiff, whilst surveyor: general, did erase the name of a person from the plan

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1816.

in the office ; wherefore the defendant sent such letters for the king's information as it was lawful for him to do, and for the causes aforesaid.

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Replication to the second plea, de injuriâ sua propriá.

The circumstances were these :- The plaintiff was appointed surveyor-general of Upper Canada, in 1807, at which time the defendant was lieutenantgovernor of that province: the office of surveyorgeneral was holden at the will of the crown ; and the defendant, without assigning any cause, suspended the plaintiff from his employment. Mr. Wyatt left the island, to make application to government ; but the suspension was not taken off ; and he was finally removed from the office. General Gore continued in Canada, and the present action was brought; 1. For suspending Mr. Wyatt, maliciously, and without probable causę: 2. For false representations to the government, injurious to Mr. Wyatt, and which prevented his restoration. 3. For a libel, charging Mr. Wyatt with disaffection to the government, and general misconduct in his office of surveyor-general in Upper Canada.

In the course of the cause, the attorney-general of the province was called as a witness, and asked as to the nature of some communications made to him by the defendant relative to Mr. Wyatt's conduct.

Lens, serjeant, for the defendant, objected to

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