
    Bank of Lexington vs. J. M. Taylor, et al.
    Before final judgment, a cause cannot be removed, by appeal or writ of error, to this court, except in cases especially provided for.)
    ERROR to the circuit court of Holmes county.
    The facts of the case fully appear in the opinion of the court.
    Clement, for plaintiff in error.
    . Unless it be necessary for a jury, in a special verdict, to find facts, which do not exist, to find that everything did not happen, which might have taken place, the first error is well assigned. Because, it is clear that the transaction was not usury; there were none of the ingredients of usury found. The decision of this court, in the great case, Planters Bank v. Snodgrass, and the elaborate opinion of the supreme court of the United States, in the case of the United States Bank v. Wagonner, et als., have determined the criteria of usury so clearly, that he who runs may read. It is not the mere loaning of depreciated currency, that constitutes usury. It is the intention of the parties to the loan; it is the reciprocal benefit and injury — the corrupt agreement, between the borrower and lender — the gain to the latter, and the oppression to the former, which makes a transaction usurious. Bank notes are almost the only money loaned’ in modern times. They may be depreciated in the market, and be worth par to the borrower; they may not be worth dollar for dollar, in gold and silver; and yet, in payment of the borrower’s debts, his taxes, or the purchase of property, worth what they call for. Where the loan of depreciated currency is explained by such circumstances, it is not usury. See cases cited above.
    The jury, in their special verdict, found no corrupt agree, ment; no grasping at extraordinary gain, on the one part, or submission to unusual oppression on the other. Why 1 Because they did not exist, and they could not find negatives.
    
      Neither did the jury find the rate of interest, and why? Because none was proven in the trial of the cause. This is the inevitable presumption, for the jury found the facts, and not the evidence. It is true, that they did not find sufficient facts, to constitute usury, but they found enough for the court to found a judgment for the plaintiff upon.
    The second error is well assigned; because there is no such certainty as would justify a court in setting aside the verdict. Uncertainty, in a special verdict, means the finding of facts, from which the court may draw an inference either way, and, of course, give judgment either way. But in the present case, the facts found are such, as to admit of but one inference, and one judgment. If loaning Brandon money, when not equivalent to gold and silver, be usurious, the court ought to render judgment for the defendants; if not, it ought to render judgment for plaintiff. This is obviously the reasoning of the court, in 3 Rand. 577.
    The third error assigned is unimportant, if the two first be well-founded. A venire de novo is the customary award of the court, upon setting aside the special verdict; it being a matter purely of record. 2 H. & M. 327. 4 Rand. 517, 518.
   PeR CuRiam.

The action was on a promissory note, and the plea non assumpsit. The jury found a special verdict, to wit, that the consideration of the note was a loan of Brandon money, at par, and that Brandon money was not equivalent to gold and silver, but was below par; and if on these facts the court should be of opinion that the transaction was usurious, then they found for the defendants; otherwise, for the plaintiffs,' and assessed damages to $596 66.

On this verdict, the plaintiff’s attorney moved for judgment, but the court considering it too imperfect and uncertain, to justify a judgment, overruled the motion, and awarded a new trial, and the plaintiffs sued out a writ of error.

The verdict was uncertain, but it is not necessary to consider whether it presented a good foundation for the judgment moved for. There was no final judgment in the court below; and, before final judgment, a cause cannot be removed by appeal, or writ of error, except in cases specially provided for. How. & Hut. Dig. 538, sec. 40. By the act of 1830, (How. & Hut. Dig. 493, sec. 52,) either party may except to the granting, or refusal to grant, *a new trial, and assign the same as error in the appellate court; but this act does not profess to repeal the other, nor does it do so by implication. It seems to have been designed, only to change the common law, by which the granting or refusing a new trial is a matter of discretion, and cannot be assigned as error. It authorizes the party to assign it as error, only when the cause is in a proper condition to be removed. This writ of error was, therefore, premature, and must be dismissed, and the cause remanded.  