majority">Buchanan, J.

I perfectly agree in opinion, on both of the bills of exceptions, with the judges before whom this cause was tried in the court below.

On a question of usury it is the view, the intention of the parties, which gives character to the transaction, and no matter what the form, where the real truth and substance *114is a loan of money — a lending on one side, and a borrow» ing on the other, at more than an interest of six per centum per annum-, no shift or device can take it out of the act of assembly.

In the investigation ofsiich questions the original intention of the parties must often be come at by matter de hors the particular instrument of writing ésecuted between them, otherwise the' act of assembly would be a dead letter; and in this case Í think the court below did right in leaving it to the jury to dedide upon the whole of the evidence, whether in the true contemplation of the' parties, the transaction in question was a real sale by one, and a purchase by the other; or whether it was only colourable to hide an usurious loan; and in directing them to give a verdict for the plaintiff below, if they found it to be the intention of Tyson and Belton, the one to lend, and the other to borrow — the amount of the rent reserved being equal to an interest offifleenper centum per annum.

As to the second bill of exceptions. A stipulation to repay the principal in money is not necessary to constitute a loan; it is enough if the principal is secured, and not bona fide put in hazard; and it matters not what the nature of the security is, if it is sufficient. As if aman borrows ¿020 to pay ¿010 For interest for one year, and pawns goods to the lender of the value of ¿0100, on astipulation in writing by the lender, to return the goods on payment bjr the borrower of. ¿030, with interest thereon — this is an usurious lending, though there is no undertaking by the borrower to repay the principal. So in this case the principal sum advanced by Tyson was secured by the deed from Belton„ The true ground is, not that there must be a stipulation to repay the principal at all events in money, but that it must in some way be secured, as distinguished from being put in hazard; but whether it is secured by pawn or pledge, or a conveyance of land, or is by agreement to be returned in lands, goods or money, is not material. If the principal is secured, and the interest reserved is more than the law allows, it is usury.

The position contended for, “that whenever it is in the power of a borrower of money to pay the principal within a limited time without interest, it is not usury,” I conceive has no bearing upon this casé; but is only applicable to cases in which the increased sum is stipulated for *115nominse pense, and there is no immediate reservation of interest, as in the case of a man lending £20, to receive £40 at the end of two years, or only ¡620 if paid at the end of one year, in which the payment of the smaller or larger sum is intentionally and expressly by the pontract placed at the option of the borrower.

Every case of usury must depend on its own circumstances, and the intention of the parties, when it can be come at, and not the words used, must govern. [The judge here stated the facts, and then continued.]

The intention to negotiate a loan has been found by the jury, whose province it was to inquire into the meaning of the parties; and so far from the rent being reserved nommai pense, or its appearing to have been the intention of the parties that Belton might discharge himself of all rent .by payment of the principal before any rent bad accrued, that is, before the end of the first quarter, it seems clearly to have been their understanding and intention that he should not; for the stipulation in the lease is to re-convey on payment of the principal, together with all arrearages of rent, which shows that they contemplated an accrual of rent, and that the money was not to be paid before such accrual.

No matter, therefor?, w'hat the strict legal construction of the lease from Tyson to Belton is, that cannot regulate the case, if it was not the intention of the parties, that Belton might, by paying the principal air any time before the expiration pf the first quarter, discharge himself from the rent up to the time of such payment; and fhat intention was matter for the jury.

With respect to the matter in arrest of judgment — The. not joining issue on the first and second replications was healed after verdict, and the motion properly overruled.

Gantt and Ea£le, J. concurred.Chase, Ch. J.

As I differ from my brethren of the court, I arn induced, from respect for their opinion, tp communicate the reasons which impelled me to dissent from their judgment.

1 concur ¡r: opinion generally, that every case of usury must be decided on its own circumstances.

To make a contract usurious there must be a loan of money, wares, merchandize, or other commodity, to be *116paid or restored to the lender at a higher rate of interest than the act of assembly allows. To constitute usury it is essential that the thing lent is to be restored. ^

In this case it was a conditional sale of land and houses. A power was given to the vendor to avoid the sale, by the payment of the consideration money at any time within five years. A lease was made of the same property by the vendee to the vendor, reserving a sum of money equal to, fifteen per centum on the sum for which the property was sold. The rent was payable quarterly. It was optional in the vendor to return the money or not; and it he had returned it within three months, he would have defeated xhe sale, and exempted himself from the payment of interest, or making aqy remuneration; so that, whether the, money was to be returned or not, depended on the vendor, ajad on his opinion whether it would be most for his benefit to avoid the safe or note; it depended on the vendor whether any rent was to be paid. The inequality of price merely as such, cannot render the contract or sale usurious. The purchase was contingent, and defeasible by the vendor. The money was not to be repaid certainly, and at nU events, nor was any rent or interest to be certainly paid. These ingredients are indispensably necessary to constitute usury.

It is the exclusive province of the jury to find, facts; and ft belongs to the court exclusively to, decide the law arising on the facts found. If is necessary for the administration of justice, that the boundaries between the juris» diction of the court, and the province of the jury, should be fixed. It appertains to the court to determine on the If gal sufficiency of evidence to prove a fact in issue. As fpr instance, in an action of trover and conversion, conversion is the material fact to be found by the jury. Proof of a demand and refusal is evidence legally sufficient on which the jury may find conversion. To constitute a valid feoffment, livqry is indispensably necessary. The pro,of of a deed of feoffment, and possession under it for a length of time, is legally sufficient for the jury to find livery. But proof of a demand would not authorise the jury to find the fact of conversion, ^o the proof of a deed of feoffment would not authorise the jury to infer livery, and find a feoffment, because the evidence is not legally sufficient. These are adduced as familiar instances, and of (Vequepf, *117Bccnrrencp, to elucidate the subject. A lending is one of the ingredients to constitute usury, and the jury must find that fact, and that fact cannot, he found without evidence legally suflicient to find it. The facts stated, negative a lending. Tyson, when applied to, refused to lend money'op mortgage, but sqid he would purchase the property, and give a lease of it on a rent equivalent to the interest, at the riite offifteen per, centum on the purchase money. If a bona fid? transaction, and there appears no evidence in the case to impeach it, the inequality of price cannot contqroinate it; if it would, many of the purchases in and about Baltimore wou{<| be rendered suspicious. The rent to be paid being firp-d, a certain per centum, with reference to the purchase money, cannot pollute it. Some of the wit-; nesses prove the property worth SfS.OP, others g6500, and qthers 84500. The aggregate amount of these sums, divided \}j three, will leave the sum of 86166, the price at which the property may be fairly estimated, which sum? at nine per centum, would produce 8551. Ten per cent, is the lowest rate at which the rent of houses and lots is fixed. There must be some evidence to prove the fact of lending, and that what was dene was a mere device to colour and disguise the transaction, which in itself was usurious, There is pu evidence stated, legally sufficient, from whence the jury could infer a lending, and that the several conveyances were colourable, and devised to conceal a contract which was usurious. The jury cannot arbitrarily find facts, but there must be evidence in the case legally sufficient to warrant the deductions and finding of the jury.

Tor these reasons I am of opinion that the judgment of the court below ought to be reversed.

JUDGMENT AFTniKEB-

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