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the jury have found as a fact that this was a bonâ fide partnership. Hammett v. Yea (a), Masterman v. Cowrie (b), Barclay v. Walmesley (c), Doe d. Metcalf v. Brown (d), Yeoman v. Barstow (e), are authorities to shew that there must be an actual loan of money to constitute usury, and that there may be cases where more than 51. per cent. is taken for the use of money, and where the principal is not even put in hazard, where the offence of usury is not committed. The case of Morse v. Wilson is distinguishable, because there, there was an actual loan of money. Here there was no loan, but an advance of money for the purpose of carrying on the trade.

Campbell in reply. In the cases cited, no money passed from one party to the other. In Yeoman v. Barstow the contract did not appear upon the face of the declaration to be usurious; for it was a contract for old hammered silver, which cannot be considered money. Besides, the authority of that case is much shaken by what fell from Lord Alvanley in Marsh v. Martindale (f), and Mr. Comyn in his Treatise on Usury, p. 101, states that case to be at variance with all the other decisions.

Cur, adv. vult.

ABBOTT C. J. now delivered the judgment of the Court. This case was argued before us a few days ago. It is a writ of error, brought on a judgment of the

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1822.

GILPIN

against

ENDERERY,

1822.

GILFIN against .ENDERBEY.

Court of Common Pleas, in an action of covenant on an indenture, bearing date the 24th of September, 1807. To this action Gilpin, the defendant below, pleaded several pleas of the statute of usury, upon which issues were joined, and found against him, and judgment given for Enderbey, the plaintiff below. The indenture is set forth at large upon the record, and the ground of the writ of error was, that this indenture manifestly exhibits a case of usury within the statute, and ought, consequently, to be pronounced void in law. The particulars of the deed were so recently adverted to in the argument that a very concise notice of them will be sufficient. The indenture professes to be a deed of partnership between these parties for ten years. The counsel on both sides agreed that, by the effect of this deed, Gilpin covenants absolutely that Enderbey shall, at the expiration of the ten years, receive the 20,000%. therein said to have been advanced by Enderbey for carrying on the trade, whether the stock and capital of the partnership may at that time be sufficient or insufficient for that purpose. The Court adopts this construction thus agreed upon for the purpose of its present judg ment. Indeed the plaintiff below cannot maintain this action upon any other supposition, because he has not averred a sufficiency of stock or capital to answer the whole or any part of the 20,000l. claimed, and the defendant below builds his argument of usury mainly on this foundation. According to the contents of this deed, Gilpin was carrying on the business of an armyclothier, &c. The parties agree to become partners in that business for ten years. Enderbey advances 20,000l., as part of the capital for carrying on the business, and Gilpin covenants that the residue of the capital shall be

provided

:

provided by him to the amount of at least 20,000%. Gilpin is to conduct the trade in his own name, and Enderbey is not to be required to interfere. Enderbey, during the continuance of the partnership, is to take out of the profits, or, if they be insufficient, then out of the capital 2000l. per annum, as and for his share of the profits. Gilpin is to pay into the partnership stock all such losses as may arise in carrying on the trade, and to guarantee the payment of all debts that may be owing to the partnership; and at the end of the ten years, if he be then living, Enderbey is to have back his 20,000l. as before mentioned. If the partnership effects, stock, debts, and credits, be at any time reduced to 20,000l., the partnership may be dissolved.

There are clauses for keeping and exhibiting regular accounts, for referring disputes to arbitration, and several others usual in partnership deeds.

By the execution of this deed, Enderbey undoubtedly made himself answerable as a partner to all strangers, though he might not be answerable as between himself and Gilpin. And if the deed discloses the real facts, and the intention of the parties to it, this is not the case of a loan of money by Enderbey to Gilpin, but a contract of partnership between them of a peculiar kind. If the deed does not disclose the real facts and the intention of the parties, but was executed only as a contrivance to cover a loan of 20,000l. for ten years, at 10%. per cent., the deed was undoubtedly void; but this is a fact that ought to have been found affirmatively by a jury, to enable the Court thereupon to declare the deed void. No such fact has been found, and, in the absence of such a finding, we must consider the deed as speaking the language of truth. And, so considering it, we 3 R 2

cannot

1822.

GILPIN

against

ENDERBEY.

1822.

GILPIN against ENDERBEY

cannot pronounce it to be void. The partnership, as constituted by this deed, may be, and probably is, of an unusual kind: but that circumstance will not authorise us to say that there was in truth no partnership; and if there was a partnership, there is no loan of money by Enderbey to Gilpin, and no usury. Unusual as such a partnership may be, it is by no means impossible. A man man carrying on trade with a capital of 20,000l. might have made a profit of 3000l. a-year, and might really think and expect, (though I cannot say that, in my opinion, such an expectation was likely to be realized,) that if the capital were doubled, the clear profits would be doubled also, and might, on such an expectation, engage that any person who would bring 20,000l. should receive 2000l. per annum, which would leave 4000%. for himself; and so be, in his estimation, a very good bargain. Some such opinion may have produced the contract between these parties. We must take their contract from the deed, and so taking it, we cannot pronounce it to be usurious. The judgment, therefore, must be affirmed.

Judgment affirmed.

PHILIPS against SHAW.

N this case, Vol. IV. p. 435., it ought to have been

IN

stated that there were two counts in the declaration; in the latter of which the pro ut patet per recordum was omitted; and that the verdict was taken upon the latter count only.

END OF TRINITY TERM.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

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which he indorses specially to his
principal; the latter, at the time
of the indorsement, was dead, but
that fact was not known to the
agent: Held, that the property in
the bill passed to the administra-
tor of the principal, and that he
might, therefore, sue upon
the bill in
that character: Held, also, that the
administrator was only entitled to
recover interest upon bills accepted
after the death of the testator from
the time of demand of payment
made by the administrator, &c. not
from the time the bills became
due.

Where the declaration stated the
drawing of certain bills of ex-
change, and their acceptance after
the death of the intestate, the
granting of the letters of adminis-
tration to the plaintiff, the defend-
ants' liability, &c.; and the de-
fendants pleaded that the cause of
action did not accrue within six
years, to which the plaintiff replied
generally, that it did accrue within
six years: It was held that the re-
plication was good. Murray, Ad-
ministrator, v. The East India
Company, M.2 G. 4.

3 R 3

Page 204

ADVOW.

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