The People v. The Attorney General. any such application, he canvassed the case, and unless he found strong ground for questioning the defendant's title, he, and the court sitting with him, always refused to let the information go. Ever since that period it has been the practice of the English judges to exercise a discretionary power in granting or withholding an information, according to the particular circumstances of the case." The same discretionary power was vested in the supreme court of this state upon the organization of our state government. By the fourth section of the act for rendering the proceedings upon writs of mandamus and information, in the nature of quo warranto, more speedy and effectual, passed February 6, 1788, it was provided that "in case any person or persons shall usurp, intrude into, or unlawfully hold and execute any office or franchise within this state, it shall and may be lawful to and for the attorney general, with the leave of the supreme court, to exhibit one or more informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, who shall be mentioned in such information or informations as the relator or relators." (1 R. L. 100.) Under this statute the court exercised the right of determining whether an information should be filed or not. In The People v. Sweeting, (2 John. 184,) leave was refused merely upon the ground that the term of the office in dispute would expire before the right could be tried. By the revised statutes of 1830 this discretionary power was withdrawn from the court, and vested in the attorney general. It is provided that an information, in the nature of a quo warranto, may be filed in the supreme court of this state, by the attorney general, against individuals, upon his own relation, or upon the relation of any private party, and without applying to such court for leave, when any person shall usurp, intrude into, or unlawfully hold or exercise any public office, &c. (2 R. S. 582, 28.) The same provision is re-enacted in the 432d section of the code. It is now for the attorney general, and not the court, to determine whether, in any particular case, it is proper that an action to try the right to an office should be brought or not. The People v. The Attorney General. That it was the intention of the legislature to transfer the exercise of this discretion from the court to the attorney general, and thus reinvest him with the power he had at the common law, is evident, I think, from the fact that, while thus authorizing the attorney general to file an information to try the right to a public office, without applying for leave, it still required such leave to be obtained before filing an information against a corporation. (2 R. S. 583, 39. Code, 430.) In the latter case it is expressly declared to be his duty to institute proceedings upon leave being granted by the supreme court, or a judge thereof. There is nothing in the language of the statute which indicates an intention on the part of the legislature, when dispensing with the necessity of applying to the court for leave to commence the action, to surrender all control over the proceeding. On the contrary, it is plain, I think, that it was intended that the attorney general should, upon the circumstances of each case, as it should be presented to him, determine whether the public interest requires that a suit should be prosecuted. Although private rights are always more or less involved in the action, yet it is, in substance as well as in form, an action on behalf of the people. It must be prosecuted in their name, and by the officer whose duty it is to protect their rights. The language of the statute, too, is guarded. An action may be brought by the attorney general. It is permissive. The power merely is conferred: it is for him to determine whether a fit case is presented. As to every thing but the form, the proceeding stands now as it did at the common law. The usurpation of an office, though it frequently involves little else than private rights, is, in the eye of the law, a public offense. The only remedy is by an action in the name of the people. It is a public prosecution, instituted and conducted by the public prosecutor under his official obligation and responsibility. It is not the province of the court to control his discretion, or to authorize a private prosecutor to assume his office, and in his name to wield the power of public prosecutor. I know it may be said, perhaps in this very case, that with a Pomeroy v. Ainsworth. fair show of right to an office, a party may be entirely remediless against an intruder. This may be so. It is quite possible that cases may arise in which the disturbing influence of party feeling may so affect the action of the attorney general as to result in great injustice to individuals. But this is a question for the consideration of the legislature, not for the court. The power of determining whether the action shall be commenced must exist somewhere. As we have seen, it has sometimes been vested in the court, and sometimes in the public prosecutor. Our legislature have seen fit to invest the attorney general with this discretion. His office is a public trust. It is a legal presumption that he will do his duty; that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is, in its nature, a judicial act, from which there is no appeal, and over which courts have no control. must, therefore, be denied. The motion for a mandamus [ALBANY SPECIAL TERM, July 29, 1856. Harris, Justice.] POMEROY vs. AINSWORTH and others. county, By a written agreement, between P. of the first part and A. & H. of the second part, P. agreed to cut 50,000 pine logs from townships 22 and 25 in F. and to deliver them to A. & H. on certain lakes and ponds, and on the Racket river, and to drive them down such river to the saw mill pond of P., and to saw out such logs for A. & H. In consideration whereof A. & H. agreed to pay and advance to P., at the execution of the agreement, $3000, and thereafter, at different times, in the whole, 50 cents for each log driven into said pond; and also the further sum of $1.25 for every 1000 feet for all boards and lumber sawed by P. A. & H. were to retain 10 cents so to be advanced, for each log, until the deduction should amount to the $3000 so advanced by them to P.; and all payments and advances were to be made by A. & H. in the bills of the Bank of C., so long as said bank continued to redeem in Boston or New York; and P. was to exchange such bills for funds current in Boston or New York, after they had been returned to the bank and were pre Pomeroy v. Ainsworth. sented to him, &c. A. & H. were to use their best skill in selling the lumber at the highest prices, &c., and all proceeds of the sales were to be applied, in the first instance, towards repayment of all advances of A. & H., with interest, and of the expenses of the sale; and the balance was to be paid by A. & H. to the bank of C. upon P.'s prior indebtedness to that bank. A. & H. also agreed to bestow their time and services in the business, either in measuring the logs, &c. or in the sale of the lumber, for which they were to be paid by P. $1000 each, for the year, &c. Concurrently with this agreement P. conveyed to A. & H. his interest in said townships 22 and 25, being about 4000 acres of timber lands, from which the 50,000 pine logs were to be cut. Held, that this transaction was not in form an agreement for a loan of money. And A. & H. having denied, in their answers, that P. applied to them for a loan of money, or that they agreed or proposed to loan him any money, and that denial being confirmed by the affidavits of three witnesses who were present during the negotiation and at the execution of the agreement; it was further held, that the agreement was not void as being for the loan or forbearance of money, within the meaning of the statute of usury. And it appearing from the pleadings and affidavits that the agreement was negotiated, made and executed in Vermont, where A. & H. resided, and where the Bank of C. was located; that $3000 was advanced to P. by A. & H. in that state; that at the time of the execution of the agreement it was intended that the lumber, or a greater portion thereof, should be sent to Boston, and other places in New England, for market; that it was intended and understood by the parties that the interest which A. & H. would receive, if any, for their advances, under the agreement, should be computed according to the laws of Vermont, at the rate of six per cent per annum, it was also held, that the agreement, at least so far as respected the amount of interest to be paid to A. & H. for their advances to P., was made in reference to the laws of Vermont, which must govern its construction, and determine its validity. That such agreement must be presumed to be legal, by the laws of that state, inasmuch as the contrary had not been shown. And if legal by the laws of Vermont, that it was protected from the operation of the usury laws of this state. Held further, that the agreement being silent as to the place where the advances made by A. & H. were to be repaid, such advances were to be repaid to them in Vermont, that being their place of residence. To constitute a usurious contract there must be-1, a loan, and 2, an agreement to pay illegal interest. And it is essential to the nature of a loan that the thing borrowed is at all events to be returned. Where the principal is bona fide put in hazard it is no loan; and it is no usury to take more than legal interest. It is also essential to the nature of usury that a certain gain, exceeding the legal rate of interest, is to accrue to the lender as a consideration for the loan. If the gain to the lender, beyond the legal rate of interest, is made dependant on the will of the borrower, as where he may discharge himself from it by the punctual payment of the principal, the contract is not usurious. Pomeroy v. Ainsworth. As a general rule, the law of the place where contracts purely personal are made must govern as to their construction and validity, unless they are to be performed in another state or country, and were made in reference to the laws of such state or country, in which case their construction and validity depend upon the law of the place of performance. If no place of performance is expressly stated, or implied from the terms of the contract, the law of the place where it was made will govern. If a contract is to be performed partly in one country and partly in another, cach portion is to be interpreted according to the laws of the country where it is to be performed. Where a contract for the payment of money is made in one place, and payment in another, and no interest is expressed in the contract, the interest is to be governed by the law of the place where it is payable. A party alleging that an agreement is invalid, under the usury laws of another state, must show what are the laws of that state in relation to usury. In the absence of such proof, the presumption is that the agreement is valid, under those laws. MOTION OTION by the defendants, Ainsworth & Hunt, to vacate an injunction order. The facts appear in the opinion of the court. W. A. Dart, for the plaintiff. H. L. Knowles and J. Mullin, for the defendants. PAIGE, J. The injunction order in this case enjoins the defendants, Ainsworth & Hunt, from selling, removing, disposing of, or in any way interfering with, the saw logs and lumber mentioned in the complaint, and cut and manufactured under the agreement set forth therein. This injunction order is sought to be sustained upon the following grounds, viz: 1. That such agreement, as well as the mortgage executed by the plaintiff to the Bank of Castleton, and the deed from the plaintiff to the defendants, Ainsworth & Hunt, of the of 931,800 acres in townships 22 and 25 Franklin county, from which the logs were cut, were usurious. 2. That Ainsworth & Hunt have threatened to sell the logs without consulting the plaintiff, in violation of the agreement. The agreement provides that in case the plaintiff shall neglect or refuse to exchange, for funds current in Boston |