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Doe, on demise of METCALF, v. Brown and Others.

July 11.

at a consider

THIS was an action of ejectment, brought 4., in conagainst the defendants, who were the as- a certain som

of money, consignees of Wilson, a bankrupt, A person of veys premises the name of Emmins, being possessed of a term the same time, of years, in some land set apart for building, i en gered into assigned a portion of his term to Robert Metcalf, between them, by whom it was sold to the bankrupt Wilson. re-purchase Wilson built several carcases of houses on the mises, within

fifteen months, ground, and began others; when, wanting money to complete the buildings, he applied to an auctioneer, able advance

upon the origiof the name of Bromley, for a loan of 8001. It nal purchase was agreed, that Bromley was to have 801. for the money and B. advance of the 8001. for six months ; and, in order at such adto be secure in the loan, a regular conveyance, by that, in point deed, was drawn up, by which Wilson transferred of law, such the interest in the land and houses to Bromley, not usurious, for the consideration mentioned in the deed. And meant as a in case the money was not repaid in six months, loan of money, Bromley was to sell the houses, and to repay bim- which was a self the money advanced, and the 801. premium, facts for the out of the proceeds. The 801. was not to include his commission on the sale ; and he was to put up the premises to auction for that sum.

This con

and re-convey

contract was




veyance which appeared, on the face of it, a com

mon transaction of bargain and sale, was dated DOE

the 15th of April, 1811. Notwithstanding this

conveyance, Wilson remained in possession of the and Others. premises, and carried on the buildings ; but after

wards, wanting more money, he applied to Metcalf, from whom the ground had originally been taken, to advance him 1,2001. He mentioned the conveyance to Bromley ; and Metcalf agreed to pay the 880l. to Bromley, and to take an assigment from him. Bromley, upon a remonstrance, remitted 331. from the sol. for which he had stipulated, and a regular assignment was made of the premises, from Bromitey to Metcalf, in June, 1811. Metcall , who

paid Bromley 8451., and made up the difference to Witson between that sum and the

1,2002. The purchase-deed, and all the expenicës of the conveyance, were paid for in both i'n'stances by I'ilson. At the time of the latter conveyance, an agreement wa's entered into between Wilson and Metcalf, that Wilson should have the liberty of re-purchasing the premises for the sum of 1,1001. provided the purchase was 'made before September, 1812. This agreeinent, which was by an independent instrument, contained an express covenant on the part of Wilson to re-purchase for that 'sum hy the day mentioned, and Metcalf covenanted on his part to sell. Wilson "continued in possession till lie became a bankrupt, when bis assignees entered upon the premises, and the present action was brought to dispossess them.

Lens, serjéant, and Marrijatt, for the defendants, 'contended-1. That this was an 'usurious


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bargain ; that it was not what it was represented to be by the deed, a purchase of the premises,

DOE 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,

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 jeopariy, 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 1,2002. advanced by Metcalf, 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
Vol. I.



the face and character of absolute conveyances ;

they give no intimation of a loan. The defendants DOE

contend that they are mere machinery for the adBROWN 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 void. 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 defendants.


WYATT v. Gore.

Jaty 11.

THIS was an action for a libel. The declara

1. Commu

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stance in a

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.

his attorney

general are That the defendant, wrongfully, maliciously, and confidential; without probable cause, suspended plaintiff from ness is interhis office, until the king's pleasure should be known ; theated bas to and that plaintiff was so suspended for two years. Court of Jus

tice, lie is not

bound to allThe second count stated, that the defendant, with- swer any out probable cause, and without legal authority, specting them.

2. In an acsuspended the plaintiff from his office.

tion on a libel, to which the

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

may give in certain false letters, representing that plaintiff had in migation been generally hostile to his Majesty's represent- not only that atives, and was engaged with disaffected persons : mours and re

ports (of the fame tenor as the libel) previously current, but that the substance of the libellous matters had been published in a newspaper ; aud le 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 goveruor of a distant province to his attorney. general, not for any public purpose, but in order that he might peruse it, is such a pub. lication as will make him responsible in an action if the pamphlét be a libel.

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

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