
    *The Bank of the Valley v. Stribling’s Ex’or.
    January, 1836,
    Richmond.
    (Absent Tucker, P., and Brooke, J.)
    Usury — Sale of Stock at Exorbitant Price Coupled w ith Loan of Money — Case at Bar. — A proposition is made by S. to the directors of a bank, that he would purchase 100 shares of the stock of the bank (of $100 each) at par, and that the bank should discount for him a note of $8000, on a pledge of the stock at $80 the share, upon the faith of the expectation, that if the irroposition should be acceded to, the bank would discount for him another note for $8000 on the personal security of indorsers, so as to make up the sum of $10,000, which, he said, he was desirous to raise for his present exigencies, and upon condition, that the bank should not call upon him for the money for eighteen months —to which the directors of the bank answer, that they will sell him 100 shares of stock at par, for the price whereof they will receive and discount his note for $10.000, secured not by a pledge of the stock, but by other persons joining him in the note as makers and an indorser, the note to be regularly renewed every sixty days, and the discounts paid according to the custom of the bank, for and during the term of eighteen months; and also, thatS. should have a loan of $8500, for the same term of eighteen months, on the same terms — and to these terms of the bank S. assents, and the notes are accordingly made and discounted — S. and the directors both knowing, that the utmost value of the stock in the market, at the time, was but $80 the share; Held, this was a sale of stock at an exorbitant price coupled with a loan of money, arising out of a proposition to borrow money, the sale and the loan one entire contract, inseparably connected with each other, and the one made de-pendant on the other; and the transaction, and S.’s notes made and discounted by the bank in pursuance of the agreement, were usurious.
    This is the sequel of the case which was before this court in 1827, reported S Rand. 132. After the cause was sent back by this court to the circuit court of Frederick for a new trial, the venue was changed by an order of the general court, and the cause removed to the circuit court of Orange. A succinct state of the pleadings, as they stood at the final trial, and a full "state of the evidence then adduced, is necessary to a clear understanding of the case, as it was now presented.
    It was an action of debt brought by The Bank of the Valley, against the executor of Francis Stribling on a note for 8810 dollars, dated the 1st August 1823, payable sixty days after date, negotiable at the bank, and in fact discounted by it, made by Erasmus Stribling, and indorsed first by the defendant’s testator, and then by several successive indorsers to the bank; and the declaration was in the usual form, alleging the making of the note and the several indorsements, due presentation of the note for payment at its maturity, nonpayment, protest for non-payment, and due notice of dishonour to the first indorser.
    The defendant withdrew the plea of nil debet which he had originally put in, and rested his defence on two special pleas of usury. 1. The first plea alleged, in substance, that in February 1821, Erasmus Stribling applied to The Bank of the Valley for a loan of 10,000 dollars, which the bank refused to lend him wholly in money on the usual terms, but after a negotiation founded on the application for a loan, it was corruptly and contrary to the statutes &c. agreed between the bank and Stribling, that the bank would discount two notes for him, one for 10,000 and the other for 2500 dollars, and would give him eighteen months time to pay the money, provided Francis Stribling the defendant’s testator, and four other persons (named), would join him (as makers) in notes for the money, to be regularly renewed every sixty days, and the discounts paid in advance, and provided Erasmus Stribling would take in payment 100 shares of the stock of the bank at par, equal to 10,000 dollars, and the sum of 2500 dollars in money; the shares being then worth in the market only 90 per cent., that is, in the aggregate only 9000 dollars: and that, in pursuance of this corrupt and usurious *agreement, the bank discounted two sixty day notes for 10,000 and 2500 dollars, made by Erasmus Stribling the borrower, the defendant’s testator, and four other makers (as had been agreed), giving Erasmus Stribling the 100 shares of the stock of the bank at the price of 10,000 dollars, then worth in the market only 90<X> dollars, and the balance of the 2500 dollars (after deducting therefrom the discounts on the aggregate of 12,500 dollars) in money; that the notes were renewed from time to time until October 1822, when, the larger note for 10,000 dollars having been reduced by payments to 8810 dollars, the other note for 2500 dollars remaining unreduced, the forms of the securities were changed into two sixty day notes, one for 8810 dollars, and the other for 2500 dollars, of which Erasmus Stribling alone was the maker, and the defendant’s testator, and the other four persons, were the indorsers; which two notes were again discounted at bank, and renewed from time to time till the 1st August 1823, when the last two notes of the series were in like manner made and discounted; and the note for 8810 dollars so made and discounted in August 1823, was the same note mentioned in the declaration; all which transactions were in pursuance, continuation and execution, of the original corrupt and usurious agreement of February 1821; and that the difference between the actual value of the 100 shares of stock in the market, and the par value thereof which was exacted from Erasmus Stribling, exceeded the rate of six per centum per annum, and the rate of one half of one per centum for every thirty days, contrary to the statutes in such case made and provided; and so the note was void in law. 2. The other plea. differed from the first only in this, — that instead of alleging, as the first plea did, the particular market value of the bank stock given to Erasmus Stribling for the larger note of 10,000 dollars, this plea alleged, in general terms, that 'the stock was, at the time of the original ^transaction, worth in the market less than 10,000 dollars, which was well known to the plaintiffs; and that the difference between the actual value of the stock in the market, and the par value exacted from Stribling, exceeded the legal rate of interest, and this was well known to the plaintiffs.
    The bank put in general replications to these pleas, and issues were made up on them.
    On the trial'of these issues, several exceptions were taken to opinions of the court and instructions given by it to the jury.
    X. The defendant, to maintain his pleas of usury, offered in evidence — ■
    1. A letter of Erasmus Stribling to Charles Magill president of the bank, dated the 12th February 1821, in these words: ■“Will my friend Col. Magill pardon me for asking a meeting of the directors of The Valley Bank in the morning. My object is to submit to them a proposition for the purchase of bank stock, and an accommodation consequent upon it. The proposition would have been made at the last regular meeting, but some of my indorsers were then absent; and would now be delayed till the next meeting, but for the particulars attending my situation: I have been from home much longer than X expected, and not having heard from my family for some time, feel more than common solicitude to return. I hope these circumstances will excuse the trouble I ask of Col. Magill and .the gentlemen in the direction. I will be in town at ten o’clock, and will submit my proposition in writing to prevent misconception. (Signed) Erasmus Stribling.”
    2. A written proposition made by Strib-ling to the bank on the 13th February 1821, in the following words: “Proposition made by Erasmus Stribling to The Valley Bank for the purchase of 100 shares of the stock of said bank — 100 shares at par, is 10,000 dollars. To be paid for as follows; S. Stribling’s note indorsed by myself, *F. Stribling senior and F. Stribling junior, 5000 dollars; F. Stribling junior’s note indorsed by myself, S. Stribling and John Mackey, 3000dollars; my own note indorsed by J. Joliffe, G. W. Kiger, F. Stribling junior and S. Strib-ling, 2000 dollars; making 10,000 dollars. The notes to be put on the footing of accommodation, and not to be called in for eighteen months. The interest for the first six months to be paid in advance; for the next six months, at the expiration of twelve months; and afterwards, regularly at the expiration of every sixty days. This proposition is made upon the faith of the expectation, that, if acceded to, the bank will discount for me upon the stock, for the same length of time, a note of 80 dollars on each share, and 2000 dollars more, if I should require it, upon such personal security as will be satisfactory to them. To bring myself as near within the rules of the board as I can, so much of the stock may be transferred to me, as will justify the discount to me for 3000 dollars, which will then make my account at bank (adding to it the note drawn by myself before mentioned for 2000 dollars) 5000 dollars; S. Stribling’s note, 5000 dollars; F. Stribling’s note, 3000 dollars. The balance of the stock may then be transferred to a third person for my benefit, who will then draw thereon for 5000 dollars,leaving me afterwards to draw on the note with personal security for 2000 dollars. Although eighteen months is asked in the arrangement, my object being merely to anticipate collections of my money outstanding and well secured, which will rapidly proceed, the board may be assured the debt will be diminished as fast as money can be received, until wholly extinguished. I have every reason to believe I shall not need the accommodation six months, but would not accept it for a shorter period than the one proposed. I offer my brothers Francis and Sigismund Stribling as indorsers of the note for 2000 dollars, which together with the stock *make the 10,000 dollars I am to receive. (Signed) Erasmus Strib-ling.”
    3. A letter from Eewis Hoff, cashier of the bank, to Erasmus Stribling, written on the 13th February 1821, in the following words: “Sir, I am instructed by the board of directors to inform you, that they will discount for you two notes, the one for 10,000 dollars, the other for 2500 dollars, on accommodation for eighteen months, provided the following persons are made drawers, viz: Erasmus Stribling, F. Strib-ling senior, F. Stribling junior, J. Mackey, G. W. Kiger, and J. Jolliffe, indorsed by S. Stribling; the notes to be regularly renewed every sixty days, and the discount to be paid thereon; in payment for which discount, you will receive 100 shares of the stock of The Bank of the Valley at 10,000 dollars, and the balance in money. (Signed) Eewis Hoff, cashier &c.”
    4. The accounts between Stribling and the bank, taken from its books, touching this transaction, and the series of notes from February 1821 to August 1823; from which it plainly appeared, that the note of August 1823 for 8810 dollars, on which this action was brought, was given for the balance then due of the 10,000 dollars for which the 100 shares of stock was transferred to him.
    5. The testimony of witnesses, proving, that in February 1821, and for some time before and after, the fair market cash price of stock of The Bank of the Valley, was not more than eighty-one dollars per share, and for eighteen months afterwards, did not rise to more than ninety dollars; that the 100 shares transferred by the bank to Stribling in February 1821, had been purchased by it within the year preceding, at from seventy-five to eighty dollars, and some as late as January 1821, at seventy-five dollars; that on the 15th February 1821, Stribling pledged these 100 shares of stock to The Farmers Bank at Winchester, as security for a discount allowed him at that bank on this stock at seventy-five dollars per *share; that on the 3d September 1822, eighty-five of the shares so pledged, were offered for sale by The Farmers Bank, at auction, for cash, and brought from ninety to ninety and a quarter dollars per share.
    And the bank, on its part, offered in evidence—
    1. An extract from the minutes of the board of directors at a special meeting held on the 13th February 1821, in these words: “Erasmus Stribling having agreed to purchase 100 shares of the stock belonging to this institution for the sum of 10,000 dollars, Resolved, That the note of the said Erasmus Stribling, F. Stribling senior, J. Mackey, G. W. Kiger, F. Stribling junior and J. Jolliffe, as drawers, indorsed by S. Stribling, shall be received for the said money, and shall be regularly renewed, and the discount paid, at the expiration of every sixty days, for and during the term of eighteen months: also, that the said Erasmus Stribling shall have a loan of 2500 dollars from this institution for the same term of eighteen months, upon the same terms: and that the cashier shall transfer the stock, and in other respects conform to this resolution.”
    2. The testimony of witnesses, proving that at the time this transaction originated, and for a long time before and after, the price of the stock of The Bank of the Valley, and of other bank stocks, was fluctuating in the market; that the stock of The Bank of the Valley had been in 1818 above par; that it fell in 1819 to as low as seventy dollars the share; that it had risen in February 1821, to eighty dollars cash, was then on the rise, and rose in the latter part of that year to ninety-three dollars; that in Februarj' 1821, the bank had purchased a house, and paid for it in stock of its own, at par; that the bank had never, before the sale of the 100 shares to Stribling, sold any stock to any other person; and held at that time only 182 shares; that in Ifebruary 1821, such stock might have been sold at par, on a credit of eighteen months, though only to persons who wished to *raise money on it at a sacrifice, and one person bought ten shares of stock in December 1823 at par, on a credit of one, two and three years, and immediately sold it for sixty-seven dollars the share, in cash.
    3. It appeared, that it was a rule of The Bank of the Valley not to discount for any one person more than 5000 dollars, and that, in practice, the bank had not been in the habit of discounting for any one person more than 3000 dollars.
    So far, the evidence, on both sides, was precisely the same which was offered at the former trial; and the difference between the case as made out in evidence when it was before this court in 1827, and that presented by the evidence at the last trial, consisted in — ■
    4. The testimony of Lewis Hoff, the cashier of the bank, adduced for the plaintiffs': That he was present at the special meeting of the board of directors on the 13th February 1821, when E. Stribling’s written proposition of the same date (given in evidence by the defendant) was laid before the board; that that proposition was considered, and rejected; that the board then agreed, that it would sell Stribling 100 shares of their stock at par, on a credit of eighteen months, to be secured by notes indorsed, and renewed every sixty days, according to the custom of the bank; that after the board had agreed to this sale, one of the members proposed, that the board should discount a note for 5000 dollars for Stribling, to be renewed from time to time for eighteen months, which proposition was rejected; that the same member then proposed, and earnestly insisted, that a note for 2500 dollars should be discounted for Stribling, and to this the board agreed; and thereupon, the resolution of the 13th February 1821 (given in evidence for the plaintiffs) was entered by the cashier *on the minutes: that this was the only entry made on the minutes upon the subject, it not being usual to make any entry of propositions rejected, or of the rejection of them: that there was no other communication made by Stribling to the board, but his written proposition of the 13th February above mentioned, and no other answer given thereto by the board, but the resolution entered on the minutes; that there was no conversation between the members of the board, nor any remark made, before, at the time, or after, that proposition was acted on, indicating that the loan of the money should be offered to-Stribling as an inducement to him to purchase the stock, or should depend on his. agreeing to take the .stock: that, on the evening of the same day, after the board had adjourned, Stribling requested the witness to give him a memorandum in writing of what the board had done, that he might shew it to his indorsers, and have the notes prepared for discount, and thereupon the witness wrote the letter to Strib-ling which had been given in evidence for the defendant; that the witness wrote that letter, without having the minutes of the board before him, but he had no authority for writing it but the resolution, and his. general authority as cashier; that as cashier it was a duty, which he had habitually performed for years without objection or complaint, to receive the propositions of those who applied to the bank for accommodation, and to communicate to them the-answer of the bank; that he made no verbal explanation to Stribling, of what the board had done, nor did Stribling say he-had received any information thereof from any other person, nor (so far as the witness knew) was there any other communication made to Stribling of the proceedings at the board, but that contained in the witness’s letter to him; that it was usual for applicants to the bank for discounts or accommodation to get some friend on the-board of directors to advocate his application, and to attend to his interest, and the director, *who proposed the loans of money to Stribling, was his. intimate personal friend: that no other act ■was done by the board besides what the witness had above stated, till the next day, when the notes were presented by Stribling and discounted: that the 100 shares of stock were transferred by the witness to Stribling on the ISth February, when Stribling declared that it was not his purpose to sell the stock, but to keep it and draw the dividends: that the subsequent dividends on the stock, as long as Stribling owned it, were three per cent, half yearly; and he received three such dividends.
    And this being all the evidence in the cause, touching the question of usury, the court, at the instance of the defendant’s counsel, gave the following charge and instruction to the jury: That if the jury should find from the evidence, that E. Stribling wrote and sent to Magilt, then the president of the bank, the letter of the 12th February 1821, and on the 13th, submitted to the board of directors the written proposition of that date signed by him, which had been given in evidence by the defendant — that the board, on the same day, acted on that proposition in the manner stated in Hoff’s testimony, by first rejecting the same, then rejecting a proposition made by one of the board to discount a note for 5000 dollars for Stribling’s accommodation, afterwards agreeing to discount the note for 2500 dollars, and finally entering on their journal, as their answer to Stribling’s proposition, the resolution of the 13th February which had been given in evidence by the plaintiffs— that, afterwards on the same day, Hoff wrote and delivered to Stribling the letter signed by him, and given in evidence by the defendant, Hoff having no other authority for writing that letter than that stated by him in his testimony — that no other proposition was made by Stribling to the bank but the written proposition above mentioned, and no other answer given thereto but that contained in the said resolution of the board, and the said letter of *the cashier — that Stribling, on the 14th February, accepted the proposition evidenced by the resolution, the. letter, and other facts in evidence, and consummated the contract by making and procuring to be made and indorsed the two notes for 10,000 dollars and 2500. dollars— that, on the faith and in pursuance of the contract, those notes were discounted by the bank, and, after deducting the usual discount, the balance was paid to Stribling, by transferring to him 100 shares of the bank stock at the price of Í0.000 dollars, and the residue in cash — that at the time of making the contract and of transferring the 100 shares of stock, the same was worth at a fair market price in cash, not more at the utmost than ninety dollars per share, and that this was known to the directors of the bank when they made the contract and transferred the stock; then, the contract, and the notes so discounted in pursuance thereof, were usurious and void; and if the jury should find from the evidence, that the facts set forth in the foregoing hypothetical case were proved, there was an end of the question, and they must find for the defendant. To which opinion of the court the plaintiffs excepted.
    II.The court afterwards added, that its foregoing instruction to the jury had been given at the instance of the defendant’s counsel, upon a hypothetical case stated by them, which the court regarded as substantially the same with that which was before the court of appeals on the former appeal taken in the cause; the law of which case was decided by the court of appeals, and furnished the rule of decision for the circuit court upon the case as stated. Yet it was the province of the jury to ascertain from the evidence, what the case was. If they should find that the evidence proved the case so hypothetically stated by the defendant’s counsel, then the law was as the court had stated it, and as it had been declared to be by the court of appeals, and the jury should be implicitly governed by it. But if the *jury should find that a different case was proved by the evidence, thej ought to find a verdict according to the facts proved, and the law arising on those facts. And then the court, on the motion of the plaintiffs’ counsel, instructed the jury, that if they should find, that the sale of the bank stock and the loan of the 2500 dollars were separate transactions and not dependant one upon the other, that the bank was not induced by the sale of the stock to Stribling to lend him the 2500 dollars, and that that sale was not a condition of the loan, then the contract, and the notes discounted in pursuance thereof, were not usurious and void. To which opinion the defendant excepted.
    III. The defendant’s counsel then moved the court to instruct the jury, that upon the evidence in the cause (as stated in the first bill of exceptions) if the jury believed it to be true, they were bound to regard the contract'between the bank and E. Strib-ling, under which the notes of February 1821 were discounted, as one entire contract for the loan of money and sale of stock, and that the sale of stock was dependant upon the loan of money. The court refused to give”such instruction, because, it said, that would be in effect a decision on the sufficiency of the evidence, and on the weight and effect of the circumstances thereby proved; but it instructed the jury, that if, in their opinion, the evidence proved the facts supposed in the hypothetical statement contained in the first instruction, then they should regard the loan and sale of stock as dependant and connected, and forming one entire contract. To which opinion the plaintiffs excepted.
    IV. The plaintiffs’ counsel moved the court to instruct the jury, that if they should find that the transfer of the stock was a real sale, and not a device to cover an usurious loan of the cash value thereof, then, although the sale was inseparably connected with the loan of the 2500 dollars, and was at an unreasonable price, and ^therefore the transaction was usurious, yet these facts did not support either of the defendant’s pleas: which instruction the court refused to give, and the plaintiffs excepted.
    
      V. After the cashier Hoff had given the testimony stated in the first bill of exceptions, the plaintiffs’ counsel put the following questions to him — -“Whether the sale of stock and the loan of money, by the bank to Stribling, were dependant on each other, or separate and distinct? and Whether he, as cashier of the bank, would have let Stribling have the money although he should have declined to take the stock, or would have transferred the stock, if Strib-ling had declined to take the money which the bank agreed to lend him?” These questions were objected to by the defendant’s counsel, as being calculated to elicit, not evidence of facts, but only the opinions of the witness; and the court sustained the objection, and would not permit the witness to answer them. The plaintiffs’ counsel excepted.
    VI. The plaintiffs’ counsel moved for an instruction to the jury, that if they should find, that the stock sold by the bank to Stribling, was, under all the circumstances, reasonably worth par to Stribling and to the bank, at the time of the sale thereof, then the transaction was not usurious, notwithstanding that the loan of 2500 dollars might have been dependant on the sale of the stock. And the court gave the instruction with this modification, that in estimating the value of the stock, its cash price in the market at the time was the rule whereby it was to be estimated. To this qualification of the instruction asked, the plaintiffs excepted.
    There was a verdict and judgment for the defendant; from which the plaintiffs appealed to this court.
    Stanard and Heigh, for the appellants,
    contended, 1st, That the charge and instruction of the circuit court to *the jury, stated in the first exception, were erroneous. They referred to the report of the case, 5 Rand. 132, and shewed that this court had then decided, that in the trial of questions of usury, it was the province of the court to determine, upon a case found or stated, or upon a hypothetical state of facts put by counsel as fairly proved by the evidence, whether the contract in question was usurious or not; and that, if upon an application for a loan of monej', a sale of property at a price plainly exceeding its market value, should be connected with the loan, the loan and the sale made dependant upon each other, and the borrower’s purchase of the property at the excessive price made the condition of his obtaining the loan, such a contract would be usurious. The court decided too, that the case, as it was then presented, was such a case of a loan of money and sale of property at an excessive price, inseparably connected with and dependant upon each other. But in so deciding the particular case, the court took it up as it was propounded to the circuit court at the first trial, and as (of course) it was then presented to this court; which stated the letter of the cashier to Stribling, supposed to be written under the instructions of the directors, as the true and the only exponent of the terms and intent of the contract, and of the nature of the transaction, on the part of the bank; as appeared by the state of the case made by Green, J., 5 Rand. 156. Accordingly, Carr, J., rested his judgment, distinctly, on the strength of that letter alone; and it was obvious, that Cabell, J., though he did not say so in express terms, founded his opinion also upon that letter; Id. 147, 192. Judge Green indeed said, that “the letter of the cashier, and the order of the directors on their minutes, stated in substance the same terms; and if the order had been delivered to Stribling, instead of the letter, as the answer to his proposition, he must have understood it, as he could not help understanding the letter, that he could *not have the loan of the money unless he bought the stock.” But he was the only judge who expressed such an opinion, and, adverting to the then state of the case, the opinion, in this particular, was extrajudicial.
    This letter of the cashier, they said, must now be thrown out of the case, and the terms and intent of the contract on the part of the bank, must be ascertained by the proceedings of the directors, and the resolution entered on their minutes as their answer to Stribling’s proposition, which the cashier was instructed to carry into execution. Tfor it was now proved by the cashier, that he had no authority for his letter to Stribling, but the resolution of the board, and his general authority as cashier. His general official authority was only an authority to execute the particular resolution, not to alter its terms, or even to expound its meaning: the bank was bound, by its own acts and its own words only, not by any hasty, loose, mistaken interpretation put on them by its officer. Yet the circuit court, in its charge to the jury at the last trial, assumed that this letter of the cashier was an essential ingredient of the case, and so put it to the jury; for, after referring to the written proposition of Stribling, the resolution of the directors entered on their journal, and the cashier’s letter, the charge, in effect, instructed the jury, that the answer of the bank to Stribling’s proposition, was to be collected from the resolution and from the cashier’s letter; that the intent and terms of the contract were to be ascertained from the resolution, the letter, and the other facts in evidence. It would be found too, upon examination, that the charge assumed all the inferences of fact, which could be deduced from this as well as the other document. Now, if the letter was not authorized by the resolution, if it was not a just exposition of the act and language of the board, it ought to have been wholly discarded from the consideration of the jury; and to state it to them, as any part of the evidence from which they were *to ascertain the contract, and the intent and meaning of the bank in the transaction, was a fatal error in this charge of the court, for which alone the judgment ought to be reversed.
    And, they said, the cashier’s letter (taking its meaning as it had been expounded) was not authorized by the resolution of the board, and expressed a wholly different meaning. The resolution, after reciting that Stribling had agreed to purchase 100 shares of stock for 10,000 dollars, simply declared, that the bank would receive the note of Stribling' and others for the money, to be renewed every sixty days for eighteen months — also, that Stribling should have a loan of 2500 dollars, for the same time, on the same terms. The cashier’s letter stated, that he was instructed by the board to inform Stribling, that they would discount two notes for him, one for 10,000 and the other for 2500 dollars, on accommodation for eighteen months, provided he would give notes in which certain persons should join as makers, and provided (as this court had expounded the letter) Strib-ling would receive in payment 100 shares of stock at 10,000 dollars, and the balance in money. The letter made the purchase of the stock at par a condition precedent to the loan of the 2500 dollars. The resolution of the board contained no words of condition whatsoever: it agreed to make the sale of the stock, and to make the loan of the money; but it did not stipulate that Strib-ling should accept both or neither; nor was the sale any otherwise connected with the loan, than that the agreement to sell the stock, and the agreement to lend the money, were made at the same time. If the cashier, instead of writing his letter to Stribling, as he did without looking at the resolution of the board, had given him a copy of the resolution itself, he might have accepted the loan, and declined the purchase of the stock. Or, supposing the terms of the resolution ambiguous in that respect, he or the cashier *might have referred to the board for an explanation of its meaning. To say the worst of the resolution, it was ambiguous as to the connection between the sale and the loan, and the dependency of the one upon the other. It would have been the height of injustice to allow Stribling, without seeking any explanation, to accept the offer of the bank according to his own interpretation of its meaning, and such an interpretation as would make the contract usurious on the part of the bank, and thus, while he took the full benefit of it, exempt himself from the duty of performing it on his part. And, they insisted, it was not right, that the court should put upon this resolution the very harshest construction it would bear, and thereby subject the bank to the penalties of usury, which, question-less, the directors had no motive and no design to commit.
    Taking up the case upon the resolution of the board, as the answer of the bank to Stribling’s proposition, and the circumstances of the transaction — they remarked, that the charter of the bank authorized it to purchase its own stock, provided the shares it should purchase, should be sold out at par, or above it, whenever opportunity should offer to do so with convenience; 2 Rev. Code, ch. 201, | 10, art. 10, pp. 100, 101. Stribling, knowing that it was the duty of the bank to sell the stock it had acquired, when convenient opportunity occurred, and that it could not sell below par, proposed to purchase 100 shares at par, “upon the faith of the expectation, that, if acceded to, the bank would discount, for him 8000 dollars upon a pledge of the stock, and 2000 dollars more, if he should require it, upon personal security; stating, that his purpose was to raise money to anticipate the collection of debts due to him; but not stating, certainly not stating distinctly, and (as his subsequent conduct proved) not meaning, that he would not make the purchase of the stock, unless he could procure the loan of 10,000 dollars. Here was the opportunity *offered to the bank to sell the stock it held at par, which it was the official duty of the board to embrace ; and the board rejecting all the other terms proposed by Stribling, agreed to sell him the 100 shares of stock for 10,000-dollars, he securing the payment by a note with sureties, to be renewed every sixty days for eighteen months. Had the transaction stopped there, though the board was informed that Stribling’s object was to raise money, there would have been nothing usurious in the sale of the stock at par, when its market value was twenty per cent, below par; Selby v. Morgan, 3 Heigh 557. But after the board had agreed to sell Stribiing the stock, and refused to lend him 8000 dollars on a pledge of it, which was the accommodation he mainly desired, a member of the board, his personal friend, proposed that a loan of 5000 dollars, should be made to him, which was also rejected; and then, the same member importuned the board to lend him 2500 dollars upon undoubted personal security; and this, was agreed to. Such being the history of' the transaction, the design could not be fairly imputed to the bank, of offering the loan for the purpose of effecting a sale of' its stock, — of holding out an inducement to. Stribling to purchase the stock at par, by offering him a loan so far short of the accommodation he wanted, — unless some reason could be shewn for believing, 1. that the board would not have lent him the 2500 dollars on undoubted personal security, independently of his purchase of the stock;: and 2. that the board thought, or suspected, that its agreement to sell the stock would not be accepted, without being accompanied with a loan to such an amount. Now, no reason appeared in the evidence, and none had been suggested, which should* have induced the board to refuse a simple-accommodation ^f 2500 dollars to Stribling upon undoubted security; and nothing occurred which could have led the board to-suspect, that the loan of so small a sum,, compared with *the accommodation asked, would induce him to make the purchase of the stock, which otherwise-he would have declined. And if it had been, the intention of the board to connect the sale of the stock with the loan of the money, and to make the one dependant on> the other, there was no reason why such an intent should not have been distinctly expressed in the resolution, unless it could bethought, that the directors were aware such: a contract would be usurious, and intended not only to practice the extortion, but to dévise a mode of concealing it; which it was impossible to believe, or even suspect. True, a violation of the statute against usury might be committed without intending it, through ignorance or mistake of the law; but a device to cover usury, such as. was here imputed to the bank, could not possibly be framed without wilful intention and conscious guilt. Upon the whole, they concluded, that as the resolution of the board did not connect the loan of money with the sale of the stock, or make the acceptance of the latter the condition of the former, so neither did the history of the transaction evince any such connexion, any such dependency of the one upon the other, but, on the contrary, all the circumstances led to the belief, that the loan and the sale were wholly independent of each other ; that the sale was intended if the loan should be declined, and the loan intended if the sale should be declined; that it was left to Stribling to take both, or either, or neither, at his option. If this were so, there could be no pretence of usury in the case; and but for the letter of the cashier, which stated a different agreement of the board from that which its resolution imported, and which its whole proceedings authorised the court to infer, no doubt could have arisen on the subject.
    2ndly, If they had succeeded in shewing, that the cashier’s letter to Stribling was not authorized by the resolution of the directors, and in fact, however unintentionally, '^misrepresented its purpose, the case ought to have been put to the jury upon Stribling’s proposition, the resolution, and the parol evidence of the proceedings of the board; discarding the cashier’s letter from consideration. And then, the instruction given to the jury, at the defendant’s instance, stated in the third exception was plainly erroneous. For that instruction was, that if, in the opinion of the jury, the evidence detailed in the first bill of exceptions, proved the hypothetical statement therein contained, then the jury should regard the loan and the sale of stock as connected and dependant, and forming one entire contract. But of this evidence, the unauthorized letter of the cashier was a part, and (if proper to be considered) a most material part. Besides, supposing the hypothetical state of facts properly formed in all respects, yet the inseparable connexion of the sale and the loan, and the dependency of the one upon the other, was only an inference of fact from the facts stated; and it was error to instruct the jury, that such was the proper inference of fact.
    So, Srdly, if the terms of the contract, and the nature and intent of the transaction on the part of the bank, ought to have been collected from Stribling’s proposition, and the resolution of the board in answer thereto, uninfluenced by the mistaken account of its import contained in the cashier’s letter, the court erred in refusing to give the instruction asked by the plaintiffs, stated in the fourth exception. The defendant had withdrawn his plea of nil debet, and rested his defence on the special pleas of usury; to maintain which on his part, it was not enough to prove usury, generally; it was necessary to prove the usury alleged in manner and form as it was pleaded. It was quite clear, that the special pleas were framed upon the cashier’s letter, as the only exponent of the contract on the part of the bank; and discarding that letter from the case, and supposing that the transfer of stock was a real sale and not a device *to cover a usurious loan of the cash value thereof, it was impossible to point out any proof of the usury alleged, in manner and form as it was pleaded.
    4thly, The fifth exception was taken upon the supposition, that the letter of the cashier to Stribling was to be regarded (as the court considered and instructed the jury to consider it) as part of the evidence from which the contract on the part of the bank was to be ascertained. Now, if it could properly be so regarded, it was because it shewed the construction which the cashier put upon the proceedings and resolution of the board; a construction, which surely was not a matter of fact, but only the opinion of that officer. If that opinion,, hastily and loosely expressed in the letter, was proper evidence for the jury, why was the real opinion of the officer, at the time of the transaction, as to the meaning of the board, declared upon his oath, incompetent evidence? and why should the bank be precluded from proving, by the cashier’s solemn testimony, that his letter did not accurately express his sense of the meaning of the board? or that the sense in which the letter had been understood by others, was not the meaning of the author? for such purposes, the inquiries which the court suppressed, were proper, and if proper for any purpose whatever, the court erred in suppressing them.
    Lastly, as to the point stated in the sixth exception. Here was a small parcel (only 182 shares) which the bank held of its stock, and which, the circumstances shewed, the bank had not acquired for purposes of speculation. The directors were bound to sell this stock, as soon as they conveniently could, but were prohibited from selling it under par. Stribling’s proposition offered them the opportunity' of selling 100 shares of it at par; and they embraced that opportunity, apparently because they thought their duty required them to do so, not because the interest of the bank would be ^promoted by the sale. The stock was rising in the market, at the time. It was yielding three per cent, half yearly dividends, equal to the legal interest on its par value. If the bank retained the stock, it would take the chance of any rise in the market, and draw a profit meantime, equal to legal interest on the par value. If Stribling, after purchasing the stock, should keep it, he would get the same benefit; nor was there any probability of his sustaining a loss, unless he should make immediate sale of it for cash. The directors were informed, that Stribling wished to raise money on the stock; but they had no reason to believe, or to suspect, that he meant to effect that object by a sale of the stock; and, in point of fact, he did not intend, and he did not make, such sale. Tn this view, the case is exactly like that of Selby v. Morgan, 3 Leigh 557. This stock, then, might very fairly have been considered as reasonably worth its par value to the bank and to Stribling; worth par, in the estimation of both. And, in that case, the circuit court instructed the jury, there would he no usury in the transaction ; but it destroyed the effect of the instruction, by adding, that the only mesaure of what the stock was reasonably worth to the parties, was its then cash price in the market. By this qualification, the court discarded every consideration, which could and might naturally have induced the parties to put a higher value on the stock than its then market price. The market price at the time might have been the proper measure of the value of the stock to the parties, or in their estimation, if Stribling had intended, and the directors had known he intended, to make sale of it, immediately or promptly; but otherwise, not.
    Further, they said, it would be found, that in all the cases, in which, upon a treaty for a loan, a sale of goods on credit at an exorbitant price, or a sale of goods at an exorbitant price coupled with a loan of money, had *been held usurious, there was an intention in the purchaser or borrower, known to the other party, to sell the goods, immediately, to raise cash. Nor was there a single instance, in which a sale of goods had been condemned as usurious, where it appeared, that the purchaser intended to keep them, and thereby to take the chance of a rise in the market that might fully or more than reimburse the price he gave for them, and the vendor was wholly ignorant of any design to sell them immediately for cash. If this transaction should be held usurious, it would form an entirely new precedent.
    Johnson, for the appellee,
    premised, that no point which had been decided by this court on the former appeal, could now be drawn in question; and that if the hypothetical case stated in the first bill of exceptions, had been found in a special verdict, and the court upon such a verdict would have given judgment for the defendant, it would, upon the principles it had already settled in the cause, approve the instruction stated in the first exception.
    And then he maintained, that there was no substantial difference between that hypothetical case, and the state of the case presented to the court on the first appeal. The difference supposed to exist, consisted entirely in the parol evidence of Hoff, the cashier; upon the strength of which evidence it was now argued, that the cashier’s letter to Stribling ought to be discarded from consideration, and the terms and intent of the contract on the part of the bank, ascertained from the resolution of the board of directors and the cashier’s testimony as to the proceedings of the board on Strib-ling’s proposition. This argument supposed, in effect, that the cashier’s letter to Stribling was not competent evidence, yet it was read at the trial without objection ; nor was any application made to the court to instruct the jury to disregard it, even after the cashier’s testimony *had been heard, which (as it was now contended) shewed that the letter had been written without authority, and misrepresented the resolution and proceedings of the board. The letter must, at any rate, be taken as a part of the case, whatever might be its effect, considered in connexion with the other evidence. It was certainly part of the res gesta. It was written by the cashier to Stribling as the answer of the board to his proposition, and it was the only communication made from the board to Stribling: neither the resolution, nor any thing which transpired at the board during its proceedings on his proposition, was communicated to him. The inquiry was, what was the agreement between the parties? what were the modified terms of contract proposed by the board to which Stribling assented, in lieu of the contract proposed by him? The agreement consisted in Strib-ling’s assent to those terms. Here, then, was a document handed to Stribling by the official agent of the bank, stating the terms of contract on which it was willing to agree; and Stribling agreed to those terms. That document, therefore, must be taken as evidence of the agreement; it was, on Stribling’s part, the only evidence of the agreement. Even supposing the import of the letter different from that of the resolution, still the resolution could not be referred to, in order to shew a different agreement intended from that which was in fact made, since the resolution was never communicated to him; much less could the private proceedings and consultations of the board, not entered on their journal, not made known to him, nor ever intended to be made known, in any way affect him. They certainly did not, and could not, enter into his consideration in making the agreement. In truth, therefore, instead of the cashier’s letter being thrown out of the case, it would be more reasonable to discard from the consideration of it, the parol evidence of that officer.
    *He argued, that whether the cashier’s letter pursued the resolution of the board or not, the bank must abide by the letter. In Mr. Hoff’sown language, “as cashier it was a duty, which he had habitually performed for years without objection or complaint, to receive the propositions of those who applied to the bank for accommodation, and to communicate to them the answer of the bank.” He was, then, the official agent of the bank to communicate its answer to Stribling; he had always acted, and been recognized, as its agent for such purposes. The bank could not renounce the answer, which its own agent (to whom alone it confided the duty of giving the answer) had given to Strib-ling’s proposition, under the pretence that the agent misunderstood, or through haste or carelessness misrepresented, the meaning and purpose of the board.
    But he maintained, further, that the cashier’s letter to Stribling was authorized by the resolution of the board, and was a fair exposition of its meaning and purpose. Both the letter and the resolution were presented as part of the case, when it was formerly before this court: and judge Green held, distinctly, that “the letter of the cashier, and the order of the directors on their minutes, stated, in substance, the same terms;” that the resolution of the board “considered as an answer to Strib-ling’s proposition could not bear any other construction,” than that which the cashier’s letter put upon it; 5Rand. 163, 4. The other two judges did not affirm the same opinion on the point; but they nowise dis-affirmed it. The appellants’ counsel thought judge Green’s opinion, in this respect, extra judicial. He denied that it was so: but suprjose it was, he said, the judge’s reasoning was not the less to be respected on that account; and it would be found irresistible. In ascertaining the import of the resolution, it must be considered as an answer to Strib-ling’s proposition. The gist of that proposition was, that Stribling would purchase *100 shares of stock at par, on a credit of eighteen months (the market value of the stock, at the time, being at least twenty per cent, below par, and this known to both parties), “upon the faith of the expectation” that the bank would lend him, for the same term, 8000 dollars on a pledge of the stock, and 2000 more on approved personal security: he then proposed the form into which the contract should be put, and the time and manner in which the discounts should be paid: concluding with a plain declaration, that his purpose was to raise the money for his present exigencies. The bank, thereupon, did agree to sell the stock at the exorbitant price : it did not agree to lend him the whole amount he wanted to borrow, but it agreed to lend him a part of it: and it agreed to allow him a credit of eighteen months, both for the price of the stock and the money lent; departing from its charter in allowing so long a credit, for no other conceivable purpose but to effect such an advantageous sale of its stock on hand. The only other variance between Stribling’s proposition and the terms indicated by the resolution of the board, respected the form to be given to the contract and the security, and the payment of discounts; a variance wholly immaterial to the present question. If the bank had simply assented to Strib-ling’s proposition, and agreed to sell him the stock and lend him the whole sum he wanted, it could not have been denied, that the sale and the loan would have been one entire contract, inseparably connected, and the one dependant on the other: and the whole question was, whether the bank agreeing to the sale of the stock at the exorbitant price, but agreeing to lend him ■only a part of the money he wanted, this circumstance dissolved the connexion between the sale and the loan, severed them into two distinct contracts, and made the loan independent on the sale? whether, if the resolution had been shewn to Stribling, as the answer of the bank to his proposition, *he could have fairly understood from it, that he could have the loan of the money without buying the stock? If not, the cashier’s letter followed and expressed the substantial meaning and purpose of the resolution. And then, he said, the former judgment of the court on the question of usury, was conclusive of the point, and of the cause.
    The argument of the appellants’ counsel, upon the points stated in the third and fourth exceptions, rested on their fundamental proposition, that Stribling’s letter was not authorized by the resolution of the directors, misrepresented its meaning and purpose, and ought therefore to be discarded from the consideration of the case. Having shewn that that ground was untenable, he had nothing further to say on these points.
    Then, as to the questions put to Mr. Hoff, which the court would not permit him to answer, — he said, it was quite clear, that those questions were only intended to draw out the opinion of the witness on the very points of the controversy. He had given the answer of the board of Stribling’s proposition, which he alone was intrusted and authorized to give, in a letter written to Stribling at the time; a letter not purporting to state any opinion of the intent and meaning of the board, but the fact that he was instructed to give that answer. He made no explanation. Stribling entered into the agreement, upon the strength of that letter. He surely did not, and could not, in concluding the agreement, have reference to any secret understanding in the cashier’s mind as to the intention and purpose of the board, or to any unexplained meaning of the writer of the letter, different from that which the letter itself clearly imported. That letter was documentary evidence of the agreement: taken in con-nexion with Stribling’s written proposition to the bank, it was the agreement of the parties. The cashier was asked, “whether the sale of the stock and the loan of the money, were dependent *on each other, or separate and distinct?” A question, which (in the opinion of this court, expressed on the former appeal) was certainly a question of law. Then he was asked, what he would have done, if Strib-ling had declined to take the stock, and yet accepted the loan, or vice versa? And this question he was called to answer, many years after the transaction, in the expectation that in that answer he would contradict the plain import of his letter written at the time, which letter was the written evidence of the agreement between the parties. It was perfectly obvious, that he could not say what, under such circumstances, he would have done at the time of the transaction, except from the opinion he entertained at the time of his examination, as to what he ought to have done. And this again brought the examination to an inquiry into the witness’s opinion on a question of law. His opinions were wholly irrelevant to the questions of fact in issue, and could have had no other effect than to confound or mislead the jury. The evidence was, therefore, properly suppressed.
    Lastly, he said it was impossible to sustain the appellants’ objection upon the point stated in the last exception, without bringing again into question the very principle of the decision of this court on the former appeal; namely, that considering the loan of the money, and the sale of the stock at par, when its market value was far below par, as inseparably connected in one entire contract, and dependant on each other, the contract was usurious in point of law, whether the bank intended a violation of the statute or not. The direction which the circuit court gave to the jury, to estimate the value of the stock to the parties, by its market value, was founded on the authority of this court, which could not be questioned now in the same case. This was enough. But he differed from the appellants’ counsel, with respect to the principle, upon which a sale of goods at an exorbitant price coupled with a loan of money, had *been held usurious. He understood that principle to be simply this,' — that, in such a transaction, the vendor and lender exacted, in the excessive price of the goods above the market value, a premium for the loan exceeding the legal rate of interest. If the price of the goods was proved to be exorbitant, the fact of the usurious premium for the loan being exacted, was established; nor could it make any difference, whether or no the borrower and purchaser intended to make a sale of the goods immediately or at all.
    
      
      Usury — What Constitutes. — In Gordon v. Dooley, 10 Fed. Cas. 785, it is said: “If the parties intended to make a usurious loan in the form of a sale, then, of course, the transaction will be illegal and void; but if it appear that a sale was really intended, then it is equally clear that the transaction is legal and valid. The difference between the two cases is, that the law allows the one and condemns the other; and though you cannot do what the law condemns, yet you may do what the law allows, even though the effect be precisely the same. Brockenbrough v. Spindle, 17 Gratt. 36. A man may purchase bonds or negotiable paper in the market at any discount, whether they were manufactured for sale or not, and not be guilty of usury; Hansbrough v. Baylor. 2 Munf. 88: Taylor v. Bruce, Gilmer 42: Whitworth v. Adams, 5 Rand. 333; and the same is held in many other cases. (Kenner v. Hord, 2 H. & M. 14.) Nay more, ho may sell property greatly above its market value, knowing that the purchaser intends selling it again at its market value for the purpose of raising money, and the sale will not be usurious if it is a sale. Selby v. Morgan, 3 Leigh 577; and Brockenbrough v. Spindle, 17 Gratt. 21. But if such sale is accompanied by a loan of money as part of the transaction, the whole is usurious. Bank v. Stribling, 7 Leigh 26.” See monographic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.
    
    
      
      The cashier was not a stockholder; and the bank had in 1828, released him from all responsibility to it on account of his agency in this transaction. No objection was made to his competency. — Note in Original Edition.
    
   BROCKENBROUGH, J.

It seems to me that the first and principal instruction given to the jury by the circuit court of Orange, on the last trial of this cause, is not to be justified by the opinion of this court formerly rendered.

The instruction which was asked for on the first trial in the circuit court of Frederick, was founded on the hypothesis, that the bargain between the bank and Stribling ' was evidenced by the written proposition of the latter, and the letter of the cashier written (as alleged) under the authority of the board of directors, and upon the subsequent discount of the two notes “in conformity with the terms” set forth in the cashier’s letter. No stress was laid by a majorit3' of this court, on the terms of the resolution of the board itself, nor indeed does it appear that the counsel for the defendant in the court of Frederick, who excepted to the opinion of that court, viewed that resolution as constituting one of the terms of the compact between the parties; and his ground seems to have been, that the resolution was “never communicated to the said Stribling.” But in the case as now presented, the resolution of the board, explained as it is, by the evidence of the cashier, does form one of the elements from which we are to decide the question whether the transaction was usurious or not. It is surely proper that it should be taken into Consideration. The parties to the transaction were the board of directors on one side, and Stribling on the other. If the contract which they agreed to make with Stribling, was not a forbearance for the loan of money at an illegal rate, their contract ought not to be avoided on the ground of usury, although Stribling’s proposition was to borrow money at an illegal rate, and the cashier did in his letter accede to such proposition. For though the cashier was the agent of the board, yet they could not be affected by any contract which he might make, not in accordance with their agreement.

This court formerly decided, that the sale of the stock at a price considerably above its value, was indissolubly connected with the loan of 2500 dollars, and made the whole contract usurious and void. This opinion was founded on the proposition of Stribling, and the acceptance of it by the cashier. His letter expressly states, that the board had agreed to discount for Stribling two notes, one for 10,000 dollars, the other for 2500 dollars, for eighteen months, on his giving negotiable notes with certain persons as makers and indorsers; in paj-ment for which discount (the letter said) “you wil. receive 100 shares of stock, and the balanc1 in money.” This was an agreement in terms to lend him 12,500 dollars, and instead of paying him all of it in cash, to-transfer to him stock at a greater than the market price, in part of the loan. This, the court said, was clear usury, and was completely within the principle of Pratt v. Willey, 1 Esp. Rep. 41; Davis v. Hardane, 2 Camp. 375; Doe v. Barnard, 1 Esp. 11. I refer to the opinions of judge Carr, 5 Rand. 147, and of judge Cabell, pp. 192, 3, to shew, that this was the ground on which they decided the case.

Was the cashier authorized by the board to-make such agreement? I think not. It was very different, in my opinion, from the contract which they agreed to make. The evidence of the cashier shews that the *board rejected Stribling’s proposition. But they agreed to sell him 100-shares of their stock at par, for which they would receive certain specified negotiable notes payable at the end of sixty days, and; to be renewed from time to time for the term of eighteen months. If the agreement had stopped there, no one would have considered it as a contract for an usurious loan. It would have been merely an agreement to sell stock on a credit of eighteen months, carrying interest from the date, but at a price higher than the market price. I suppose there is no doubt, that any person natural or corporate may dispose of stock, or any other property, at a high price, on time, without being subject to the penalties-of usury, unless the sale be indissolubly connected with a loan, or be a mere shift to evade the statute. But the cashier further proves, that a member of the board, after the sale had been agreed to, proposed that they should lend Stribling 5000 dollars, on accommodation for eighteen months: this was rejected. And then, at the earnest solicitation of the same member, they agreed to discount a note for him for 2500 dollars. The agreement of the board as to the sale and loan, was then put into the form of a written resolution, and the two subjects of the sale and loan were kept separate and distinct from each other.

Does the written resolution of the board, or the evidence of the cashier, prove that the sale and loan were indissolubly connected with each other, or that the sale was a mere -shift to evade the statute? The question of the connexion of the two subjects, depends on the proper solution of the following questions: 1. did the directors agree to sell the stock in consequence of Stribling agreeing to borrow a further sum? 2. did they agree to make the loan in consequence of his having agreed to purchase the stock at a high price? or 3. did they agree to lend him the sum of 2500 dollars, in consequence of any apprehension or belief, that, if they did *not, Strib-ling would refuse to close the bargain for the sale of the stock?

I must here remark, that, in my opinion, it would have been more proper to have left the decision of these subjects to the jury, untrammelled by any opinion which the court might entertain on them. Where usury is not proved by direct evidence, it can only be proved by inferences from the ' evidence given, and it seems to be the •province of the jury to draw the proper inferences from the evidence; in other words, it is their duty to decide not only on proved but inferred facts. The question, here, does not depend on proof of any loan of money at unlaw ful interest: the question is, •whether a loan at a lawful rate, can be connected with a sale at an exorbitant price, so as to convert the latter into a loan? Now, this seems to depend on the motive or intention of the party who made the loan and sale. I do not mean to say, that where there is a direct negotiation for a loan of money or other thing, and more than the legal rate of interest is contracted to be given and taken, the intention of the parties is of any consequence: in such case, whether they intend to violate the law or not, the contract is invalid if they do violate it. But where the negotiation is partly for a loan at lawful interest, and in part for a sale, the question is, whether the sale is a pretended one? whether it is a •shift, a contrivance concocted by one party and agreed to by the other, for the purpose of evading the statute? Hence, in such case, the intention is of great importance. But this motive or intention can be judged of only by the circumstances; and of those •circumstances, and of the intention to be ascertained from them, the jury ought to be allowed to judge. I therefore think, that the court ought not to have given the required instruction, but ought to have left it to the jury.

But, if it was proper for the court to give its opinion on the hypothetical case stated in the bill of exceptions, *1 do not think that the court drew the correct inference from the evidence. I do not think that, according to the evidence of the cashier, or the written resolution of the board, the sale and the loan were indissolubly connected with each other, or that the sale was a mere shift to evade the statute. 1. It does not appear, that the directors were induced to make a sale of their stock, in consequence of Stribling agreeing to borrow a further sum of money. The sale was agreed to be made, before the loan was agreed to. The high price offered for the stock, and the satisfactory security which was tendered for it, afforded of themselves a sufficient inducement for the directors to make the sale, without imputing to them the unreasonable design of making the sale ■depend on a loan of much smaller amount. It can hardly be supposed, that they would refuse to sell for so advantageous a price, unless he would also agree to borrow the smaller sum. Nor, 2. do I think, in the absence of proof to the contrary, it ought to be inferred by the court, that the directors would refuse to lend 2500 dollars on the security which was offered, even though the borrower would not agree to purchase the stock at the price which was asked for it. But 3. did the directors agree to lend the 2500 dollars, in consequence of any apprehension or belief, that, if they did not, Stribling would refuse to purchase the stock? There may, indeed, be some ground to suspect, that such was the inducement for the loan; but there is no proof of it; and I do not perceive, that there is any evidence from which that deduction can be justly made. On the contrary, it was proved, that there was no conversation or remark among the members of the board at any time, indicating that the loan of money should be offered as an inducement to Strib-ling to buy the stock, or should depend on his agreeing to take the stock.

I am of opinion, that the judgment should be reversed, and the verdict set aside.

*CARR, J.

When this cause was formerly before us, we decided, 1. that upon facts found or agreed, or upon a case hypothetically put, it was the province of the court to pronounce whether such facts amounted in law to usury: 2. that where, upon a negotiation for a loan, the lender connected therewith a sale of property (whether goods, stocks, or any other thing) making the loan dependant on the sale, and asking for the property a price clearly above the market value, such transaction was usurious. According to the established rules of this court, these points are to be taken as settled law, in this examination ; and the question is, whether the case, as now presented to us, is beyond their influence?

That the object of Stribling was to raise 10,000 dollars, and that object clearly disclosed to the bank, is apparent from several circumstances. In his first communication to the president of the bank, requesting a meeting of the board, he said, his object in asking an extra meeting, was to submit to them a proposition “for the purpose of purchasing bank stock, and an accommodation consequent upon it.” In his written proposal, after the offer to take 100 shares at par, he added, that the proposition was made “on the faith of the expectation, that, if acceded to, the bank would discount for him upon the stock, a note of 80 dollars on each share, and 2000 dollars more” &c. And in the conclusion he said,' — “I offer my brothers &c. as indorsers upon the note of 2000 dollars, which together with the stock, is to make the 10,000 dollars I am to receive.” How did the bank deal with this proposition? The directors refused to take separate notes with separate indorsers ; they also refused to take the stock on deposit; but the entry on their book said — “Erasmus Stribling having agreed to purchase 100 shares of the stock belonging to this institution, for the sum of 10,000 dollars, Resolved, That the note of E. Stribling, Francis Stribling &c. as drawers, and endorsed by Sigismund Stribling, *shall be received for the said sum of money, and shall be regularly renewed, and the discount paid, at the expiration of every sixty days, for and during the term of eighteen months; also, that the said E. Stribling shall have a loan of 2500 dollars from this institution, for the same term of eighteen months, upon the same terms” &c. Eet us look for a moment, at the subject, in the light these papers shed on it, without adverting to the letter of the cashier, or his parol evidence. Strib-ling tells the bank, “I want to get 10,000 dollars on loan; to effect this object, I will take of you 100 shares of your stock at par, if you will credit me for eighteen months, take the stock on deposit at eighty dollars in the hundred, and also lend me 2000 dollars, so as to make up the 10,000 dollars.” The directors answer — “It does not suit us to take the stock on deposit; but we will sell it to you, and if you take it at par, we will lend you 2500 dollars, on the same terms: we offer 500 dollars more than you ask, because as you cannot deposit the notes at more than seventy-five dollars in the hundred, you will want that in addition, to make up the 10,000 dollars.” I do not offer this as the language of the parties, but as the understanding, which these papers seem to me to establish between them; as the ground on which the negotiation thus far placed them. The offer of the bank was accepted by Stribling. Both knew that the highest selling price of the stock at the time, was eighty dollars for the share of one hundred. Do not these facts speak a language too plain to be misunderstood? Suppose Strib-ling’s proposition had been for a loan in money of 10,000 dollars, and the bank had refused the money, but offered its stock at twenty per cent, above the selling price, and a loan of 2500 dollars, so as to enable the borrower to realize the 10,000 dollars; can any body for a moment doubt, that this would have been palpable usury? And what is the difference? Is not the object equally intelligible here? Stribling’s object *in applying for stock to raise money on, and such a sum on loan as would make up his loss on the stock, was just as clear as if he had asked a loan of 10,000 dollars; and the effect was the same to the bank, as if, in reply to that, it had sold him stock, and made up the deficiency by a loan. In either case, it was a loan connected with, and consequent upon, a sale of stock at twenty per cent, above its value. I say a loan consequent upon the sale; for in addition to the other circumstances connecting them, there is this, that Stribling, in his written proposition, made the purchase and the loan to depend on his having eighteen months credit, saying he would not accept it on a shorter credit; and the directors gave him that time. In doing this, they violated a positive and express restriction of their charter, prohibiting them from lending their funds for- a period longer than one hundred and twenty days, and subjecting those directors who shall violate it to a heavy penalty. Now, can we suppose that fhe board would have done this, for the mere purpose of making a loan of 2500 dollars, unconnected with any other object? No: it was the prospect of making this advantageous sale of the 100 shares of stock, which tempted them. The money they could lend any day, on the terms allowed by their charter; but such an offer for their stock rarely occurred,' and they could not resist it. If Stribling had said, “I decline the purchase of your stock, but I will take the loan you offer, for the eighteen months,” — can any body believe he would have gotten it? I cannot.

Such is the impression which the written proposition of Stribling, the resolution of the board, and the acceptance of the terms of that resolution, have made on my mind. Is this aspect of the case changed by the parol testimony of the cashier? To my mind, not at all. In the first place, what he tells-us of the progress of the negotiation at the board, the rejection of the proposition to take the stock on deposit, the agreement to sell, the ^refusal to lend 5000 dollars, and the lending 2500 dollars, are in themselves matters of little moment ; the mere deliberations of the directors among themselves, never disclosed to the borrower, and therefore never entering into his views of the matter. His only knowledge of the terms offered by the bank was derived from the letter of the cashier; the officer whose appropriate business it was, to make such communications to applicants; the organ through whom the bank dealt with its customers. If this agent had even misrepresented the intention of his principals, and made for them an usurious contract, which they did not intend, I am not prepared to say that they would not have to suffer the loss; as in the case of Barnet v. Tompkyns, Skin. 348, where the wife lent money upon usury, and lord Holt said, that, though it was not sufficient to charge the husband criminaliter, it was sufficient to discharge the bond civiliter. But this is a point which I merely touch, without resting upon it. I do not think the cashier’s letter at all misrepresented the meaning of the board. The transaction was one and entire, and he so stated it. He tells us, in his testimony, that he had nothing but the entry and proceedings in bank to guide him in his letter; and it seems to me that he construed them very correctly. Indeed, if they were more doubtful than they seem, I do not know where we could look for a more authoritative exposition than this, given by the confidential agent, who was present at all the consultation, was then fresh from it, and could at that time have had no possible motive to misrepresent what had passed.

It will be observed, that, in the view I have taken of this subject, I have not given a separate consideration to the decisions of the circuit court on the various points submitted: I have thought it best to present a general connected view of the whole subject. I think the points were correctly deT cided, and that the judgment must be affirmed.

*CABELL, J.

The principles decided in this cause, when it was here before, are applicable to it as it is exhibited in the present record; for there is not, in my opinion, any substantial difference between the case as presented then and as presented now. The parol testimony of the cashier relates to matters, which ought not to have any influence on the case:' and his letter is a correct exponent, in substance, of the resolution of the board of directors, although it is somewhat different in form. I think all the points decided by the circuit court, were correctly decided, and that the judgment should be affirmed.

Judgment affirmed. 
      The principal case is cited in Bank of Old Dominion v. McVeigh, 29 Gratt. 554.
     