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SITTINGS AFTER TRINITY TERM, 56 GEO. III.
AT WESTMINSTER.

1816.

DOE, on demise of METCALF, v. BROWN and Others.

T

HIS was an action of ejectment, brought
against the defendants, who were the as-

signees of Wilson, a bankrupt,

July 11.

brought

[blocks in formation]

A person of

It

the

a

of money, conveys premises to B.; and, at the same time,

that A. shall

mises, within

the same pre

fifteen months, at a consider

upon the origi

nal purchase

money; and B.

agrees to sell at such ad

and re-convey

the name of Emmins, being possessed of a term of years, in some land set apart for building, an agreement assigned a portion of his term to Robert Metcalf, between them, by whom it was sold to the bankrupt Wilson. Wilson built several carcases of houses on the ground, and began others; when, wanting money to complete the buildings, he applied to an auctioneer, able advance of the name of Bromley, for a loan of 800l. was agreed, that Bromley was to have 801. for advance of the 800l. for six months; and, in order to be secure in the loan, a regular conveyance, by deed, was drawn up, by which Wilson transferred the interest in the land and houses to Bromley, for the consideration mentioned in the deed. And in case the money was not repaid in six months, Bromley was to sell the houses, and to repay himself the money advanced, and the 80l. premium, facts for the out of the proceeds. The 80l. was not to include his commission on the sale; and he was to put up the premises to auction for that sum. This con

that, in point of law, such

vance: Held,

contract was

not usurious, meant as a

unless it were

loan of money, which was a

cover for a

question of

Jury.

1816.

DOE

veyance which appeared, on the face of it, a common transaction of bargain and sale, was dated the 15th of April, 1811. Notwithstanding this conveyance, Wilson remained in possession of the and Others. premises, and carried on the buildings; but after

v.

BROWN

wards, wanting more money, he applied to Metcalf, from whom the ground had originally been taken, to advance him 1,200l. 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 Bromley to Metcalf, in June, 1811. Metcalf, who paid Bromley 845l., and made up the difference to Wilson between that sum and the 1,2007. The purchase-deed, and all the expences of the conveyance, were paid for in both instances by Wilson. At the time of the latter conveyance, an agreement was entered into between Wilson and Metcalf, that Wilson should have the liberty of re-purchasing the premises for the sum of 1,4007. provided the purchase was made before September, 1812. This agreement, which was by an independent instrument, contained an express covenant on the part of Wilson to re-purchase for that sum by the day mentioned, and Metcalf covenanted on his part to sell. Wilson continued in possession till lie became a bankrupt, when his assignees entered upon the premises, and the present action was brought to dispossess them.

Lens, serjeant, and Marryatt, for the defendants, contended-1. That this was an usuriou's

1816.

DOE

v.

BROWN

bargain; that it was not what it was represented 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 purchasedeed, 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 880l. 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 SSOL.; and, if the premises sold for less money, Wilson was not to make up the difference. 2. With regard to the 1,200, 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.

X

1816.

DOE

บ.

BROWN

the face and character of absolute conveyances; they give no intimation of a loan. The defendants contend that they are mere machinery for the advance 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 1,200l., 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 1,400. 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.

THE

WYATT V. GORE.

July 11.

1. Communications

place between the governor

of a distant

province and his attorneygeneral are

HIS was an action for a libel. The declaration stated, that the defendant was Lieut.- which take Governor of Upper Canada, and the plaintiff Sur- the veyor General of that province. That defendant had power to suspend any officer for good cause. That the defendant, wrongfully, maliciously, and without probable cause, suspended plaintiff from his office, until the king's pleasure should be known; and that plaintiff was so suspended for two years.

The second count stated, that the defendant, without probable cause, and without legal authority, suspended the plaintiff from his office.

The third count stated, amongst other matters,

confidential; ness is intertheir subCourt of Jus

and if a wit

rogated as to

stance in a

tice, he is not bound to an

swer any specting them.

questions re

2. In an action on a libel, to which the general is

sue is pleaded,

there is no

justification,

may give in

that the defendant (to cause plaintiff to be deprived of his office, and induce the king to confirm the sus- the defendant pension,) wrote and sent to the secretary of state certain false letters, representing that plaintiff had been generally hostile to his Majesty's represent- not only that atives, and was engaged with disaffected persons: mours and re

in mitigation

of damages,

there were ru

ports (of the same tenor as the libel) previously current, but that the substance of the libellous matters had been published in a newspaper; aud 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 attorneygeneral, not for any public purpose, but in order that he might peruse it, is such a publication as will make him responsible in an action if the pamphlet be a libel.

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, maliciously, and without probable cause, it is necessary for the plaintiff to prove express and positive malice.

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