
    CLARK v. THOMPSON.
    July 13, 1896. By two Justices.
    Bail-trover. Before Judge Bower. Dougherty superior court. October term, 1895.
    R. M. Thompson brought bail-trover against Jesse S. Clark for a lot of household and kitchen furniture. Defendant pleaded that the debt for which he gave a bill of sale to plaintiff was for money borrowed from plaintiff; that on June 27, 1893, he gave his note and mortgage to plaintiff for $100, and the plaintiff let him have $65 thereon, reserving $35 for the use of or interest on $65 for six months time as specified in the note, the amount so reserved being usury; that on March. 15, 1894, after the mortgage became due, the note and mortgage were taken up and plaintiff advanced him $50 more, taking a bill of sale to the property named in the mortgage; that the usury reserved in the mortgage entered into the bill of sale to the amount of $32.70, and that said bill of sale was only security for the money loaned defendant, and was not an absolute conveyance of the title, 'and is void on account of the usury therein contained. The testimony was directly conflict-mg -upon tbe issues set up by tbe plea. Tbe jury found for tbe plaintiff $138.43, and defendant’s motion for a new trial was overruled. Tbe motion alleges, tbat tbe verdict is contrary to law and evidence, and tbat it shows on its face tbat tbe jury did not find for tbe plaintiff tbe value of tbe property, but found tbe amount of tbe debt witb interest, wbicb defendant insists could not be done in a trover case; and further shows tbat tbe jury found tbe bill of sale was not absolute but only a security for tbe debt; and therefore tbe verdict was contrary to law. Also, tbat “the court erred in not allowing defendant’s attorney to open and conclude, be having claimed tbe right to do so.’’
   Simmons, C. J.

1. An absolute contract for tbe sale of personalty is not void although, a part of the consideration of the sale may be the payment of a debt infected with usury; and where such a contract is evidenced by a written bill of sale, the vendee may maintain thereon an action of trover against the vendor. Hicks v. Marshall, 67 Ga. 713; Harris v. Hull, ex’r, 70 Ga. 832; Barfield v. Jefferson, 78 Ga. 220.

2. The evidence in this case warranted a finding that the sale was absolute and not for the purpose of securing a debt; and it affords no cause, of complaint to the defendant that the money verdict in the plaintiff’s favor was for an amount less than that which the evidence authorized.

3. This court cannot sustain a ground of a motion for a new trial which merely alleges that the trial judge “erred in not allowing defendant’s attorney to open and conclude, he having claimed the right to do so.” Judgment affirmed.

tJesse W. Walters, for plaintiff in error.

8. J.. Jmes, contra.  