#### THE SURVIVING PARTNERS OF MASSEY, M’KESSON & CO. *v.*JAMES M’DOWELL.

Dec. 1838.

^here> uPon the endorsement of a note, the endorsee took more than six *per centum per*aromm by way of discount, but the excess was small and was allowed by the endorser *expressly*for the trouble the endorsee would be at in travelling to make a demand upon the maker of the note, *it was held,*that the transaction on its face was.not so unreasonable as to warrant, the Court in declaring the endorsement to be usurious, but that it ought to have *been left to the*jury as a question of fact to say whether the allowance to the endorsee was intended *bona fide*as a remuneration for trouble, or was designed as a cover to hide an agreement for excessive discount.

Assumpsit brought by the plaintiffs as endorsees against the defendant as endorser of the following bond of one James Allen: “ On the third day of November next I promise to pay William Suttle the sum of one hundred and thirty five dollars for the hire of two negroes Gabriel and Alfred, w’hich slaves I am to feed and clothe well, pay their taxes, and return them well clothed at the expiration of said time. Witness my hand and seal this the 11th day of February 1827, James Allen. (Seal.) The bond was endorsed by Suttle, the payee, to the defendant, and by him to the plaintiffs. The defendant pleaded the *General issue, Statute of limitations*and *the Statute against usury,*and the cause was tried at Burke on the last circuit before his Honor Judge Dick.

The plaintiffs proved the endorsement of the defendant on the 9th of February 1831, and further that the defendant requested the agent of the plaintiffs to present the bond to Allen, and request payment, which was, done, and the defendant notified thereof; that the defendant then requested the plaintiffs to bring suit against Allen, which they did in September 1831, and obtained judgment in January 1833; that a *fi. fa.*was issued upon the judgment and about $25 of the money collected, which was all that could be made out of Allen. This suit was brought in September 1834.

The defendant proved on the cross-examination of John Reynolds, a witness for the plaintiffs, that he, Reynolds, was a clerk in the store of the plaintiffs and was their agent in purchasing the bond in question from the defendant; that defendant proposed selling the bond to him, saying that Al*121len was good and was at that time engaged in mining in the county ; witness at first objected to buying, alleging that he would be at the trouble of going to see Allen a distance of eighteen miles ; but after a short time witness and the defendant made a calculation of the interest due on the bond, and found that there was then due for principal and interest *‡*161-jVo, when the defendant proposed that if witness would take the bond he might have, it for $159 a03-0-, and remarked that the balance due on the bond, he might have as a compensation for his trouble in going to see Allen. To this proposal of the defendant witness assented, and the endorsement was made upon those terms. The defendant contended that the plaintiffs were not entitled to recover, 1st, because their right of action was barred by the statute of limitations ; 2dly, because the endorsement of the defendant to the plaintiffs was usurious.

His Honor charged the jury that the plaintiff’s right of action was not barred by the statute of limitations, for that the defendant by his endorsement of the bond became the surety of Allen. On the second ground he charged, that if Reynolds gave a correct account of the transaction between the defendant and himself, the endorsement was usurious, and the plaintiffs could not recover on it. The jury found a verdict for the plaintiffs upon the two first issues, and for the defendant upon the last. A new trial was moved for and refused, and the plaintiffs appealed.

No counsel appeared for the plaintiffs in this Court.

*D. F. Caldwell,*for the defendant.

Gaston, Judge.

The Court is of opinion that there was error in the instruction to the jury on the question of usury. To render a contract usurious, there must be an agreement to take for forbearance of payment upon a loan of money or other commodities, a greater sum than at the rate of six *-per centum per annum*by way of discount or interest; and where in truth there is such a corrupt agreement, no color, contrivance or device, shall save the usurious contract from the visitation of the law. The trifling sum which in this case was deducted from the amount of Allen’s note when passed to the agent of the plaintiffs, was allowed *expressly*as a re-*122numeration for the "trouble of travelling to make a demand on Allen. It is not on its face so unreasonable as to warrant the Court in declaring that the parties did not mean what they expressed. Whether the allowance was intended *bona fide*as a remuneration for trouble, or was designed as a cover to hide an agreement for excessive discount, was a question of fact, and should have been submitted as such to the consideration of the jury. *Carstairs*v. *Stein,*4 Man. and Sel. 192.

Where *ge.ne.rai fnd°usury*andPthe hi ry find for tiff upon", the two and for the upon the* which'he1 has judg-favor the !Pu-eal’ preme Court cannot, if there were error in the charge of the Judge on the last plea, refuse to reverse the judg-tbentj-ouhd that the jury ought to have found differently on the two first pleas, because the Court cannot ju-that tie866 *123finding *%*wrong, if they verdict conclusive which it ^®¿aj'ees’ power to alter R.°r

*122It has been insisted, however, by the counsel for the defendant, that notwithstanding this error the judgment should reversed, for that the defendant was entitled to a ver-diet in his favor upon .the pleas of the *genet al issue*and *of limitations.*This however we cannot judicially see> ar)d if we could we cannot give him such a verdict. A verc^ct ^as been rendered for the plaintiffs on all these pleas, This while it stands must be conclusive of the facts which it declares, and it is not in our power to modify or alter *it*Upon a second trial the defendant will be at liberty to i'n-sist that the bond not being an obligation simply for the payment of money was not in law negotiable, and therefore ^at ^ plaintiff is not an indorsee nor the defendant an in-dorser in the proper sense of those terms,

The judgment is to be reversed and cause remanded for a veTM'e de novo.

Pee Ctjbiam. Judgment reversed.