without the provifo? Certainly not. This was not a loan, but a fair purchase of an annuity; so the judgment ought to stand in force. Serjeant Glynn for the plaintiff-The judgment ought to ftand; it feems problematic whether the plaintiff had a good or a bad bargain, and hard to fay on which fide the advantage was in this cafe; although there was fome talk, at first, between Markham the plaintiff's agent and Harding the defendant about a loan, yet a loan was never carried into execution to be repaid in all events, this appears to be a bonâ fide sale of an annuity, and it was only in the defendant's option to repay the principal in five years, not in the plaintiff's power to oblige him fo to do. Serjeant Hill for the defendant-That the rule ought to be abfolute; it seems to be admitted by my Brothers, that if this was a loan, the contract was ufurious.-It plainly appears to be a loan; for the deed recites, that whereas R. Harding had occafion to borrow, &c. and that Mrs. Murray had agreed to lend, &c. and actually did lend the money upon an annuity;" I will "not lend you the money unless you will grant me an annuity "of 20l. during your life:" fhe tells him in the deed, he fhall have the liberty of redeeming it at the end of five years; fo, it is objected, that it is at his option whether he will redeem or not; and therefore is not a loan to be repaid in all events.—In anfwer to this objection; this is plainly a mortgage, and every mortgage implies a loan, although there be no covenant to repay the money; the perfonal estate is firft liable to pay off a mortgage, fo it is a loan.-There is also a bond recited, in the penalty of 240l. for fecuring the payments in this indenture, and if he did not pay the principal money at the end of five years, that bond would reach the principal, therefore it is grofs ufury. In the cafe of King verfus Drury, 2 Lev. 7, there was no converfation about a loan, if there had, it would have been ufury in that cafe; and in Fuller's cafe, 4 Leon. 208, it is faid but care must be taken that there be no communication of borrow ing money-In the present case there was such communication, Markham the attorney procured the money to be lent, the defendant paid him, for his trouble in procuring the loan, two guincas, and feven pounds for making the deed of indenture, bond, warrant of attorney, and entering up the judgment. In the cafe of Lord Chesterfield and Janfen, 1 Wilfon 295. Lord Hardwicke fays a man may purchase an annuity as low as poffible, but if the treaty be about borrowing and lending, and the the annuity only colourable, the contract may be ufurious, how. ever disguised. Lawley verfus Hooper, 3 Atkins 278. is a strong cafe for the defendant.-Lord Hardwicke there faid, that he believed ninetynine out of an hundred of thefe grants of annuities were only colourable to evade the ftatute of ufury. It is faid, this is not a mortgage, because there is no covenant in the deed for repayment; I anfwer, fuch covenant is not neceffary; all Welch mortgages, and moft copyhold mortgages are fo, but here is an exprefs power of redeeming in five years. Curia. The ground of this application to the court to fet Hilary term, afide the whole, is, that it is an ufurious contract. 66 13 Geo. 3. to the interest ufury. To make a contract ufurious, there mufl be a loan of money, wares, merchandize or other commodity, to be repaid and reftored to the lender with higher intereft than the statute allows; it is effential that the thing lent is to be returned, for it cannot be a loan unless the money or thing borrowed is to be restored; the making illegal intereft precarious, if the loan of the principal money or thing is to be restored, will not take it out of the ftatute; nor will any other fhift or contrivance whatever. In the cafe If the of Roberts verfus Trenayne," Juftice Dodderidge took thefe dif- cafualty goes "ferences in cases of cafual ufury. First, if I lend 100l. to have only, and not "120l. at the year's end upon a cafualty; if the cafualty goes to the prin "to the intereft only, and not to the principal, it is ufury: for cipal, it is "the party is fure to have the principal again, come what will come; but if the interest and principal are both in hazard, it " is not then ufury: and it was therefore adjudged in C. B. in "Dartmouth's cafe, where one went to Newfoundland, and an"other lent him 100l. for a year to victual his fhip, and if he "returned with the fhip, he would have fo many thousand of fifh; and expreffes at what rate, which exceeded the interest "which the ftatute allows; and if he did not return, that then "he would lofe his principal; it was adjudged to be no ufury. Secondly, If I fecure both intereft and principal, if it be at the "will of the party who is the party to pay it, it is no ufury; as "if I lend to one 100/. for two years to pay for the loan thereof 30l. and if he pay the principal at the year's end, he fhall pay nothing for intereft, this is not ufury: for the party hath his election, and may pay it at the first year's end, and fo difcharge "himself."No inequality of price, merely as fuch, can make a contract ufurious; if there be a wager betwixt two to have 40l. for 20l. if one be alive at fuch a day, that is not any Carth. 67. 66 64 66 ufury: Noy 151. ufury: for the bargain was bonâ fide; and not for a loan. Cro. Eliz. 642, 643. In the prefent cafe, the attorney for the defendant goes to market to borrow this money, the party lending the money knows nothing of the matter until the propofal made to her by the attorney, that the defendant would grant her an annuity, upon the terms men. tioned; whereupon a contingent purchase thereof is made; the price is not material, whether it be a good pennyworth or not if it be a purchase and not a loan. It appears from the affidavits read, the deed, &c. that the defendant was in want of money, that the attorney advised him to fell an annuity, that the plaintiff doubted about buying, that the attorney fettled the terms, not for a loan but for a purchase, that the plaintiff was not spoken to about lending, but about buying and felling; the power to redeem in five years inferted in the deed, was the act of the attorney; we are fatisfied that the plaintiff only treated for an annuity, and not about a loan, and that the ought not to fuffer for the mistake of the fcrivener in the recital in the deed about a loan; we are fatisfied from the affidavit of Markham that both the principal and intereft were in great hazard, and that it doth not appear to be that colourable kind of contract or hazard that will make it usury, Refolved, that the plaintiff must be paid out of the money in the fheriff's hand, what is due upon the annuity, and the rest of the money be reftored to the defendant, deducting the charges of poundage, &c. and the judgment must fland and remain in force, with liberty to the plaintiff to apply to the court from time to time to take out execution, if the annuity be not duly paid. 2 Black. Rep. 869. S. C. dered to be ratrix, Barker Adminiftratrix, &c. verfus Braham. C. B. A judgment THE plaintiff Barker having recovered a judgment for in B. R. or- 106/. in this cause, and being intitled to execution thereof fet off against against the defendant Mrs. Braham; and Braham having rea judgment in covered a judgment for io2l. in the court of King's Bench, and C. B. and the being intitled to execution thereof against [the now plaintiff] Barker; Braham moved this court that execution might be ftaid in this caufe upon her being ready and willing to fet off her judgment for 102/. in B. R. against the plaintiff Barker's judgment here for 106/. and to pay to Barker 4. the ba Jance. balance due to the plain- C. B. Curia. If A. owed B. 100l. and B. owed A. 100/. stoppage was no payment at law, nor in equity unless under fpecial circumftances and in case of mutual demands where the balance only was the debt, and then equity interpofed to make stoppage a payment, to prevent circuity of action, and multiplicity of fuits, which is not favoured at law, much lefs in equity. 2 Williams 128. By the Roman law a fet-off might be, but not by our law. By the ftat. 4 & 5 Ann. chap. 17. Ject. 11. and 5 Geo. 1. chap. 24. fect. 11. and 5 Geo. 2. concerning bankrupts, where it fhall appear to the commiffioners that there hath been mutual credit given by the bankrupt and any other perfon, or mutual debts between the bankrupt and any other perfon at any time before fuch perfon became bankrupt, the commiffioners or the affignees fhall ftate the account between them, and one debt may be fet against another, and what fhall appear to be due on either fide on the balance of fuch account (and on fetting fuch debts against one another) and no more shall be claimed or paid on either fide respectively. By the ftat. 2 Geo. 2. chap. 22. where there are mutual debts between the plaintiff and defendant, or if either party fue or be fued as executor or adminiftrator where there are mutual debts between the teftator or inteftate and either party, one debt may be fet against the other; and by the ftat. 8 Geo. 2. chap. 24. the claufe relating to mutual debts is made perpetual, and mutual debts may be fet against each other, notwithstanding such debts are deemed in law to be of a different nature, unless in cafes where either of the faid debts fhall accrue by reafon of a penalty in a bond or specialty; and in all actions where either the debt for which the action hath been or fhall be brought, or the debt intended to be fet against the fame hath accrued or fhall accrue by reafon of any fuch penalty, the debt intended to be fet off, fhall be pleaded in bar, in which plea fhall be fhewn how much is truly and juftly due on either fide; and in cafe the plaintiff fhall recover in any fuch action or fuit, judgment fhall be entered for no more than fhall appear to be truly and justly due to the plaintiff after one debt being fet against the other, as aforefaid; thefe laws are taken from the civil law and founded in juftice. In a late cafe in this court, where the plaintiff had a right to Trin. 12 Geo. debt and cofts against the defendant [in one caufe] and the de- 3. in C. B. fendant had a right to cofts only against the plaintiff [in another caufe] the court narrowed the plaintiff's execution for the balance due to him. We are all of opinion that this application to the court to narrow it's own execution, is very reasonable, and that there can be no real and folid objection to it in point of law, A ftranger to has no right law, juftice or equity. Therefore let one judgment be fet off against the other, and the rule be made abfolute for that purpose, and for the defendant to pay the balance of 41. due to the plaintiff. Hodges verfus Atkis. C. B. a corporation TRESPASS for taking the plaintiff's goods; the defendant, as fervant to the corporation of Shrewsbury, juftifies taking to a rule to the plaintiff's goods as a diftrefs for toll through the ftreets of inspect the Shrewsbury, which the plaintiff refused to pay. books thereof, as it feems. [See Talbot ▼. Vilieboys, 3 Term Rep. K. B. 142. n. and Rex v. Allgood, 7 T. R. K. B.746.] [Such Infpec- And before the plaintiff had replied, or any iffue was joined, tion fhail not Serjeant Burland moved on the behalf of the plaintiff for a rule be granted, at to have liberty to infpect the public books and records of the ifue is joined corporation of Shrewsbury. all events, till 2 Black. Rep. 877. S. C.] Serjeant Walker for the defendant objected, that the plaintiff being a stranger to the corporation, has no right to inspect the books thereof, that iffue not being joined, it is not known what will be the point to be tried, that the plaintiff has not yet applied to the corporation and been refused the liberty of infpecting the books, therefore this motion is premature, and is the first of the kind, for it is a motion to furnish the plaintiff with matter for his reply to the defendant's plea. Serjeant Burland for the plaintiff anfwered. That there are cafes where ftrangers have had rules for liberty to inspect the books of the adverse party, and cited 2 Barnes 194. the Brewers' Company verfus Benfon, which was an action brought on bye-laws against the defendant exercifing the trade of a Brewer, but no member of the company. Per Curiam, bye-laws affecting ftrangers inStran. 1223. tereft them therein; the rule, there, was made abfolute for the defendant to inspect the company's books and take copies. See 1 Wilfon 239. the King verfus Lord Chief Justice Do you lay it down in general that a ftranger has a right to inspect the books of a corporation? How has a stranger to a corporation more right to inspect their books, than the books of a private perfon? While Lord Camden fat here, there was the like motion, in the like action of trespass where the defendant juftified (under the corporation of Ipfunch) for diftraining for a toll for repairing the Quay there, and the motion was refused, the plaintiff there, being a stranger to the corporation; and I am fure, in many cafes like the prefent, the motion has been refufed; however, I fhall give no abfolute opinion upon the present motion because iffue is not yet joined, |