¶1I cannot concur with the referee in his finding, that the transaction in question was a sale of railroad bonds, and not a loan. The application was for a loan. The demand was urgent for money. The bonds were received as a substitute for money, and this fact was known to plaintiff. The bonds were not worth par. It is quite clear that $375 was added to the mortgage, for the prospective taxes on the bond and mortgage. The plaintiff agreed to carry the loan, procured by Sayer at 80 on the bonds for three months, for a year; a fact totally inconsistent with a bona fide sale.
¶2Upon the whole case, I think a loan was intended under the form of a sale, and that the judgment should be reversed, and a new trial granted at special term, costs to abide event.
¶3Judgment reversed and new trial granted.