It is often attempted to apply the same principle to the law of partnership, and to protect contracts in which money has been loaned from the imputation of usury, by the defence, that the person advancing the money becomes a partner with the person receiving it, and liable as such for the debts of the partnership, and that, therefore, there is a substantial risk, which protects the transaction from being usurious, although by the terms of the agreement, the party is to receive more than legal interest for his money.

In reference to this question, it seems in general clear, that where a contract of partnership is expressly entered into by the parties, or where money is advanced, and the party advancing it reserves, instead of interest, a certain proportion of the profits of a certain business, so that, in the construction of law, a partnership may fairly be presumed to be intended, and the contract is in neither case intended as a device to cover a usurious loan, then the contract lacks that essential element of the crime of usury, - a loan of money, - and therefore no usury is committed; although the partner advancing the money may and * probably will receive mure than would amount to legal interest upon it.(p)1

And if it be clear that a partnership was bond fide intended, and that there was no contrivance to cover a loan, there is no usury, although one of the partners covenants that he will bear all the losses, and pay the other, as his share of the profits, a certain sum, which amounts to more than legal interest on that other share in the capital; for here is still no loan of money. (q)

(p) Fereday v. Hordern, 1 Jacob, 144; Morrisset v. King, 2 Burr. 891.

(q) Enderby v. Gilpin, 5 J. B. Moore, 572,1 Dowl. & R 570, 5 B. & Ald. 954; Fereday v. Hordern, 1 Jacob, 144.

1 Where partners agree to pay a rate in excess of legal interest on their overdrafts during the continuance of the firm, the transaction is not usurious, but merely that a partner withdrawing firm funds should contribute to profits an amount equal to the estimated earning power of the capital withdrawn. Payne v. Freer, 91 N. Y. 43. Sharing profits by a lender in an adventure to an extent greater than the legal rate of interest, does not make the transaction usurious, if he at the same time shares the losses. Goodrich v. Rogers, 101 III. 523. - K.

But where the contract is for a loan of money, in the form or under the disguise of a partnership, and for its use the borrower contracts to pay legal interest, and also a certain proportion of the profits of a trade or business, this is usurious, although the lender may be made liable, as a partner, for the debts incurred by the borrower in the course of the trade or business; because, if he is so compelled to pay, he still has his remedy over against the borrower, and therefore runs no ultimate risk, except that of the borrower's insolvency, which, as we have seen, is not enough. (r)