dissenting.
Alexander Richards, on the 20th day of June, 1854, executed a mortgage to William S. Williford, Treasurer of the Bibb County Loan Association, on certain real estate in the city of Macon. The mortgage recites that the said Richards had, according to the constitution and by-laws of said association, procured an advance and borrowed from said association the just and full sum of two thousand dollars.
On the day of the date of the mortgage, Alexander Richards assigned to the mortgagee ten shares of the capital stock of said association as collateral security, to pay the said mort*617gage, and executed a bond on the same day, to the said mortgagee, in the penalty of two thousand dollars, to be void on the payment by said Richards to said association, so long as it should continue to exist, the sum of ten dollars monthly, on its regular day of meeting, being instalments due on said stock, on which an advance was to be procured, and ten dollars monthly, as aforesaid, on the same day, as interest on said advance. The condition of the mortgage is, that if the mortgagor, his heirs, executors, administrators or assigns shall pay to the Treasurer of the association, his successors in office, and assigns, the sum of ten dollars monthly, on the regular day of the meeting of said association, being instalments on ten shares of stock in said association, on which he has procured an advance as aforesaid, from said association, so long as said association shall continue to exist; and the further sum of ten dollars, monthly as aforesaid, on the same day, as interest on said advance, according to the tenor and true intent and meaning of his 'bond, bearing even date with the said mortgage, and in accordance with the constitution and by-laws of said association. A petition had been filed to foreclose the mortgage, to which the defendant filed two pleas: 1st, That the mortgage and the bond it was given to secure were founded on an usurious consideration. 2d, That the plaintiff was not a corporation. On these pleas the case came on to be heard, at November Term, 1856. The cause was submitted to the presiding Judge for his decision, without the aid of a jury, upon a statement of facts agreed upon by the parties. After reading the petition, rule nisi, mortgage, bond and transfer, the plaintiff gave in evidence, a printed copy of the constitution and by-laws of the association, sworn to be such by William S. Williford, Treasurer of the association; and it was agreed that the said copy was a copy of the original constitution and by-laws of said association, and that it was organized as therein set forth, prior to their application to the Inferior Court for á charter under the general Act of the Legislature, authorizing such proceedings; *618the certificates of the Treasurer showing the several advances received by the defendant from both societies, and also as to the average rate of premium bid for advances in both societies from their date to the 20th November, 1856; also the record showing the petition to, and the order of the Inferior Court granting the charter. The constitution and by-laws of the association were printed by its order, and a copy was furnished to each of its members, and to the defendant among them, and a copy was furnished to the defendant before he signed the constitution and by-laws. There were three certificates of the Treasurer before the Court. The first shows that the average premium paid by members of the Macon Building and Loan Association for advances made to them from its commencement to the 3rd November, 1856, was 46 3-16 per cent., and by members of the Bibb County Loan Association from its commencement to 20th November, 1856, an average of a fraction over forty-eight and three-eights per cent.
The second certificate shows, that on the 15th of June, 1854, Alexander Richards had subscribed in the Bibb County Loan Association, under the constitution, for forty shares of the stock, that on the fifteenth of June, he took an advance of $2,000 at 51 1-4 per cent, premium, that $1,025 were retained as premium and $975 paid him in cash ; and by the 18th of January, 1855, he had received $8,000 of advances, on which the cash paid to him was $3,528, and cash retained as premium was $4,471 50, and that he had paid by the 18th of October, of the the same year, $1,159 instalments and interest. The Inferior Court of Bibb County passed the order of incorporation on the 10th day of June, 1854. It is not stated in the record how long previously thereto the association had been organized. On hearing the arguments in this case, the Court passed an order, that each and all of the defendant’s pleas be sustained.
The record sets out more fully the decision of the presiding Judge, and shows that he decided:
*6191st. That the Bibb County Loan Association is not a partnership.
2d. That neither the act of incorporation granted by the Inferior Court of Bibb County, nor that granted by the Legislature of Georgia, authorized said association to advance or loan money to its members under, and according to the constitution and by-laws of said association, because, in the judgment of the Court, they constituted no part of either of said acts.
3d. That the advance to defendant to secure, which his bond and mortgage were given, was a loan of money by said association to said defendant at an usurious rate of interest, to-wit: at a rate of seven per centum per annum, in violation of the statute against usury. The judgment of the Court was that the plaintiff recover of the defendant, the amount only actually advanced to him, to-wit: nine hundred and seventy-five dollars, less the amount the defendant had actually paid plaintiff as installments, and interest under and by virtue of the bond and mortgage. There is but one sweeping exception to the “rulings” of the Court. The majority of the Court are of opinion that the decision of the Court below was wrong, and reverse it. I am of opinion that it was right, in the main point especially, and that the judgment he rendered in the case was in accordance with the law. I shall proceed to assign my reasons.
According to the view rvhich I take of this case, it is not material whether the Bibb County Loan Association be a partnership or not. In either case the presiding Judge had a right to draw his own inference as to the intention of the parties in organizing it, and contracting as they did. I will remark, however, that if it be a corporation, and it had authority to make such contracts, under the charter, there being no lack of constitution^ power in the Legislature to grant such a charter, with the powers which the association exercised in this case, the contract is lawful and ought to be enforced. If the contract be authorized by the charter and the *620charter be constitutional, and its provisions come in conflict with the statute against usury, even if the latter statute prohibited it, the contract is lawful, for, as to this institution, the law agaist usury in that case, would be repealed. But if the association be a partnership and not a corporation, the contract is usurious. A partnership has no more right or authority to violate the statute against usury than an individual, and whatever would amount to usury in the contract of an individual, would be usury in a contract made by a partnership. Our statute against usury declares that no person or persons whatsoever, shall take directly or indirectly, for loan of any monies, wares, merchandise or commodities whatsoever, above the value of eight pounds for the forbearance of 100 pounds for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time; and that all bonds, contracts and assurances whatsoever, made for the payment of any principal or money to be lent, covenanted to be performed upon, whereupon or whereby there shall be reserved or taken above the rate of eight pounds in the hundred, shall be utterly void. Prince 294.
In order to render a contract usurious three things must concur:
1st. There must be a loan either express or implied.
2d. There must be an understanding that the money lent shall be returned at all events. Comyn on Usury, 156.
3d. There must be an understanding, not only that the money lent shall be returned, but that for such loan a greater interest than seven per cent, shall be paid.
It is insisted by the plaintiff in error that there was no loan to Richards, but an advance upon his stock as purchase of a portion of his interest in the partnership. The title of the association is evidence of its purpose and interest. It is the Bibb County Loan Association. If a stockholder who has received any portion of his stock in advance, neglect or refuse to pay any or all of his dues to the association, for three successive months, the directors may compel payment of principal and *621interest, by instituting proceedings on the bond and mortgage, according to law. § 7, Art. 8 Constitution.
The mortgage recites that Richards had procured an advance and borrowed from the association two thousand dollars. The terms “advanced” and “borrowed” are used as convertible terms. The stock is transferred as collateral security to pay his bond and mortgage. The penalty of the bond is two thousand dollars. In some sections of the constitution the person taking an advance, as it is called, is spoken of as having purchased an advance upon his stock, which implies that he is still the owner. In another section this expression is used, “should any stockholder, having received any portion of his stock in advance, neglect or refuse,” &c., which implies that instead of purchasing an advance' of the stock, the association had purchased up his stock. I have referred to the constitution, mortgage, bond and transfer sufficiently to show that it was a loan to Richards of the amount that he received. It is called an advance, a purchase, a receiving his stock in advance, it is spoken of as a loan, the principal and the interest is spoken of, and the mortgage recites that he borrowed.
There is an undertaking that the money shall be returned at all events. The bond and mortgage are given for what is called an advance on ten shares of stock. On this advance, although he has transferred to the association the ten shares, he is to pay monthly, as installments, ten dollars as long as the association continues to exist, and ten dollars monthly on the same day, as interest. As the shares of stock are transferred as collateral security, that is the contract, he is entitled to the dividends, or in other words, the association is bound to apply them as they accrue, in payment for the stock which they hold. When each stockholder for each and every share of stock held by him, shall have received two hundred dollars, then the association shall determine and close. The association claims to hold the transferred shares as collateral security only. They are nominally Richards’ shares, to preserve the *622vitality of the partnership, as we are now considering it, until he receives two hundred dollars on each share, by his own payments of installments, and the accrual of his dividends, but really, they belong to the association until the full amount of $2,000 dollars is paid, and he pays also the interest-, on that sum at six per centum per annum. The money, then, is to be paid at all events.
That there was an understanding that, on the loan, a greater sum than seven per cent, interest is to be paid, is apparent in the evidence before us, most palpably. The record states that Richards received an advance of $2,000, on the 15th day of June, at a premium of 51¼ per cent., that the association deducted $1,025 for this premium and paid him $975, net cash, as it is called in the record. So that Richards received $975 in money. He was to have it at 51¼ per cent, premium. He gave his bond and mortgage for two thousand dollars, which makes the premium on the sum actually received by him amount to a fraction more than $105 128-975 per cent. By the third section of the eighth article a stockholder taking an advance, is to allow the premium offered by him to be deducted. That is, instead of receiving the $2,000 and giving his note, or otherwise receiving the premium, it is to be discounted, and he takes a sum which, with the premium added thereto, at the rate bid, will make the sum purchased. According to the terms of this contract, therefore, Richards ought to have received $1,322 31-100, and a fraction over. He agreed to pay, additionally, six per cent, on the $2,000; more than 12 per cent, on the amount received, and besides all this, he paid the expense of examining his title to the property mortgaged, &c.
If this association was gotten up for the purpose of loaning money at usury, and the plan of effecting this was a contrivance to evade the usury laws, the association, as a partnership, is illegal, and its contracts cannot be enforced. It is not necessary, however, to go into that question here. It is *623not made in the record, and the decision of the Court below was, that it is not a partnership.
It was insisted in the argument before us, that this contract is not usurious, because the transaction is analogous to post-obit contracts, which, it is said, are not usurious. They are not necessarily usurious, but they may be, and they may be enquired into. In the case of Scott vs. Loyd, 9th Peters, 445, Chief Justice Marshall says, “that the purchase of an annuity or rent charges, if a bona fide sale, has never been considered usurious, though more than six per cent, profit be secured. Yet it is apparent that, if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts therefore, perceived the necessity of disregarding the form, and examining into the nature of the transaction. If that be in fact a loan, no shift or device will protect it.” This association, as ingeniously guarded as it is, in its several points, by having them so adjusted and put together, that decisions of the Courts on special cases may be invoked to protect it against the charge of usury in its transactions, to contract with one of its members, is nevertheless open to investigation; and if in the judgment, of those whose duty it is to pass upon it, on the evidence, the whole matter was a scheme to evade the law of usury, or that a contract for an advance was no more than a loan, and its being put in that form was a device only, for the same purpose, it cannot stand. “To them that lend money,” says Lord Cope, “my caveat is, that neither directly nor indirectly, by art or cunning invention, they take above ten (seven here) in the hundred; for they that seek, by slight, to creep out of these statutes, will deceive themselves and repent in the end.” Co. Lit. 4 a. If the object be to lend for usurious interest, and that object can be established either from the contract itself, or by extrinsic evidence, the contract cannot stand as made. It must yield to the operation of the law. If in a partnership, a loan at usury is made to a member of the firm, under cover of an advance upon his interest in the *624concern, if proved, it can ño more stand than can a loan to a third person. Is it a lending? is it usurious? are the questions.
The case of Silver vs. Barnes, 37th Eng. Com. Law Rep. 335, is referred to as an authority that it is not a lending, therefore not usurious, that it was a dealing with the partnership fund, that the defendant had an interest, and that it was not a loan, and it seems to go to that extent. But that case also settles that whether it was or not, was a question proper for the jury, and that, the Judge who tried it properly left it to them. It is clearly inferable from the case that if the jury had found the note there to have been usurious, the Court would not have disturbed the verdict. But that case is not law in this State. The law against usury is virtually repealed by that decision, and lenders of money in England and elsewhere, where that authority is respected, who have been most studious of devices to evade the statute against usury, have in that decision, a license to set it at naught.
If a jury had been empannelled in this case, and the presiding Judge at the trial, had summed up the evidence to them, precisely as it is stated in this record, giving no opinion to them as to what had been proven, and keeping strictly within his province under the statute, and had simply referred the question to them, whether the contract was a lending, and whether the plan adopted to make the loan, if a loan, was a device to evade the usury laws, and if it was, the contract was void, except as to the sum of money actually advanced, and the jury had found it to be a lending and usury, the Court could not have felt itself authorized to set the verdict aside, as being contrary to either law or evidence. By the consent of parties, the Judge in this case^ became the jury, as well as Judge, and as such he had a right to .pass judgment on the intent of the parties, and, therefore, under the partnership aspect of the case, the judgment ought to stand. Jackson vs. Christman, 4 Wendell, 283.
I will now proceed to consider the case under the charters *625which, the association claims, erect it into a corporation. The Legislature, in December, 1843, passed a general act incorporating companies in advance. This act was amended in 1845. The first act confined itself to a certain specified class of corporations. The second act extended it to all kinds except Banks and insurance companies. By these acts persons who desired to have themselves incorporated for any purpose, with the above exceptions, are required to petition in writing the Superior or Inferior Court of the county where the association may be formed, or desire to transact business, setting forth the object of their association, and the privilege they may desire to exercise, together with the name and style by which they desire to be incorporated. The act requires the Court to which the petition is made, to pass a rule or order directing it to be put on the minutes of the Court. The act then incorporates the petitioners with power to use a common seal, to contract and be contracted with, to sue and be sued, to answer and be answered unto in any Court of law or equity, to appoint such officers as they may deem necessary, and to make such rules and regulations as they may think proper for their own government, not contrary to the laws of this State. They are restricted from making contracts, purchasing or holding property of any kind, except such as may be absolutely necessary to carry into efFect the object of their incorporation.
The petition must set forth the object and privileges of the corporation, for if they are not found there they do not have them. The Courts have no authority to grant a charter. Their power begins and ends with hearing the petition, and directing it, by rule or order, to be put on the minutes of the Court. The order of the Court, in this case, contains a grant, but that does not vitiate it. The petition was ordered to be recorded. The balance of the order is merely surplusage and void.
The petition, then, must be referred to for the power and faculties desired by the association, and the act must be look*626ed to, and by an examination of its provisions, it must be determined to what extent these powers and faculties are conferred. The privileges the petitioners ask for are:
1st. To accumulate a fund by the monthly subscription or savings of the members.
2d. By means of this fund, to procure for themselves such real estate as they may deem desirable.
3d. To conduct the association, in the way such associations, (to wit: associations to accumulate funds to buy land,) are usually conducted.
4th. That they may be incorporated for the said purposes under the constitution and by-laws theretofore adopted by them, and to make and adopt all such rules and regulations and amendments of their said constitution and by-laws, that they might deem advisable, not conflicting with the laws of the State.
5th. To have power to receive and hold and dispose of all property conveyed and mortgaged to said association, as sesurity for any loan or debt, according to the statute in such cases made and provided.
There is nothing in the statute to prohibit them from accumulating a fund, and the statute is the law of their organization as a corporation, from the monthly savings or subscriptions of its members. But to procure or purchase with the fund thus accumulated, such real estate as the association may deem desirable, is prohibited by the act incorporating companies in this manner. It declares expressly, that corporations created by that act, shall make no contracts or purchase, or hold any property of any kind, except such as maybe absolutely necessary to carry into effect the object of its creation. The object of this prohibition was to prevent the accumulation of money to monopolize property of any kind. It need not be said that the object is to collect together funds to be disposed of to individual stockholders, on better terms than they could be obtained elsewhere, for the purchase of real estate for themselves individually. It is not so expressed. *627The constitution of the association does not so provide. What is acquired under the charter, must be acquired as corporate property. The constitution and by-laws of the association, which came up with the record, and which they claim to contain the powers of the corporation, show, that it is any thing else but a corporation to aggregate a fund from the savings or subscriptions of the stockholders to purchase land for the benefit of individual members of the association. The case before us is a pretty good illustration of its workings, purposes and objects, to wit: to loan money to the members on the hardest terms, impose on the unfortunate note borrower, all the expense incident to securing the money loaned, and requiring of him security, ample security on real estate, by mortgage for the amount he receives, prosecute his mortgage when he fails to pay, and wind up his affairs, and in this manner acquire his real estate, or such part thereof “as they may deem desirable.” This is the mode of “ procuring” real estate for which the constitution and by-laws provide. The charter is explicit. It declares that it shall hold no property, except such as may be absolutely necessary to carry into effect the object of their incorporation. The exception specifies the extent of their authority to hold real estate or any kind of property. If it be a corporation to manufacture, it may purchase real estate sufficient for the buildings, houses of the operatives, &c., teams if it require them, &c. If the corporation were to take a mortgage on any kind of property to secure a debt to it, and on the foreclosure, it should become the purchaser to pay its debt, it would not violate the prohibition, unless it continued to hold on to it, under circumstances, which showed that the corporation had resorted to that proceeding as a cover for obtaining property in contravention of the charter. In ordinary cases, if a corporation subject to the same prohibition were to do all this, it would be a question whether it could be made a ground of defence by the party who executed the mortgage, or whether the State alone could use it on a proceeding for the forfeiture of the *628charter. The mortgagor certainly could not avail himself of such a defence, until by the practices of the association in thus acquiring and holding property, it had gone through the process of lending, taking mortgages, foreclosing and purchasing, as a means of obtaining property, to such an extent as to amount to a violation of its charter, and then it is extremely questionable. But aside from all this, the powers exercised by this corporation, are under its constitution and by-laws, and not under the charter. The constitution authorizes the sale of advances on stock to the highest bidder, which I have shown is only a lending at usurious interest or at least it was so in this case. Such a lending is contrary to“ the laws of this State; and the rules and regulations which authorize it, are cantrary to the laws of this State, and under the act of the Legislature, are no rules or regulations. When the petition was presented to the Inferior Court, they had a right to presume that the petitioners had not run counter to the laws of the State in adopting their rules and regulations.
But there is another grave objection to this charter, even if the constitution and by.-laws, or their rules and regulations are a part of it. What powers does the corporation possess, regarding it in this light ? The rules and regulations show how persons may become stockholders, how the fund shall be raised and how it shall be disposed of. The fund when raised is to be advanced. The advance is to be made to him who bids highest. The price bid is to be deducted from the advance, and then interest,- at six percent, is to be paid on the aggregate of the advance and the price paid for it, which is called the premium. This is a loan and nothing else. The borrower, for he is so styled, executed a mortgate to pay his installments on the stock, and the interest, the corporation collecting the dividends, as they accrue, and this must continue until the advance and premium are both paid, which pays the money loaned and the usury. This is the sum of the powers of the corporation, and what does it *629amount to ? It is a bank. There are three kinds of banks, to wit: banks of deposit, banks of discount, • and banks of circulation. This association, by whatever name it may be called, is a bank of discount Its name, however, is appropriate to such an institution. “ The Bibb County Loan Association.” The act grants no charter to such institutions. On the contrary, it specially excludes them. Hence, I think, first, that the association can exercise no powers as a corporation, under the order of the Inferior Court, and second, that if it could, the rules and regulations being contrary to law, under which it claims to be a corporation, are void.
It is insisted, that if this advance, mortgage &c, be void under the order granted by the Inferior Court, the act of 5th of March, 1856, makes them valid. Pamph. 431. That is an act whose caption is to incorporate the LaGrange Light Guards, the Bibb County Loan Association and the Screven Troops, and for other purposes.” There is not a word in the caption which points to the section which legalizes the transactions of the association while acting under the charter derived from the Inferior Court, It is one thing to incorporate a company, and quite a different thing to legalize the illegal acts of the persons composing that company, done prior to their incorporation. The third section of the act completes the incorporation of the association.
If while under consideration in the Legislature, a member had called for the reading of the part of the act designed to incorporate the association, the reading of the third section would have satisfied the call; and so in regard to the part incorporating the La Grange Light Guards, and the Screven Troops. The Legislative confirmation of illegal acts committed by persons ,praying a charter and then incorporated, prior to their incorporation, is no where indicated in the title, and that confirmation is, therefore, “matter different from what is expressed in the title of the act” The phrase “for other purposes,” does not satisfy the Constitution. The Constitution is the work of the people, and every part of it should be *630observed and be given full effect to, as having been designed for some valuable object and no part of the Constitution should be more strictly regarded than that which is intended to protect the people against impositions and frauds meditated upon their Legislators. This provision of the Constitution was intended to call the attention of Legislators to the matter presented for their consideration by the simple reading of the caption of the bill, at the clerk’s table. The history of this provision in the constitution, is referred to in the case of the Mayor and Aldermen of Savannah vs. the State of Georgia, 4 Georgia Reports 38, and I have no doubt, as there stated, that its necessity was suggested by the Yazoo Act. It is not to be found in the older Constitutions. The title of that famous or rather infamous act, (Watkin’s Digest, 557, was “An Act supplementary to an act entitled ‘An Act for appropriating a part of the unlocated Territoiy of this State, for the payment of the late State troops, and for other'purposes-therein mentioned,’ declaring the rights of this State to the unappropriatad territory thereof, for thé protection and support of the frontiers of this State, andfor other purposes.” The same expression, “and for other purposes,” used in the title of the act, under consideration, was used in that act, and the gross imposition practiced on the Legislature in that' case, led to the insertion in our present Constitution, of the clause forbidding the passing of any ordinance or act containing any matter different from what is expressed in the title thereof. This point was not very fully considered in the case of Martin vs. Broach, 6, Geo. Rep. 21. It was not a point in the case, and the Court in delivering its opinion, speaks of it as a suggestion of counsel only. An Act entitled “An Act for certain purposes,” would be equivalent to an act without a title, and yet it would be as specific as to the object of the act, as the expression and “other purposes,” would be of a matter not referred to otherwise, particularly of the title in an act embracing various objects. '
*631It is useless for me to consider this case further, but I will remark in regard to the third section of the act, which incorporates the association anew, that‘I cannot consider that any power is conferred here to do any act not warranted, or which is forbidden by the general laws of the State. In other words that there is no repeal of any public statute, such as the statute against usury, by this act of incorporation, in favor of the association. The constitution and by-laws, adopted by an association of persons for their own government, in the transaction of any business they may undertake, are never to be presumed to be in contravention of the laws of the land. The business they undertake is presumed to be a lawful business When the Legislature grants a charter in general terms, “for the purposes of the association” these purposes are to be considered as lawful purposes, and if they are incorporated under a constitution and by-laws, theretofore adopted by them, the Legislature is not to be presumed in granting the charter, to have known what the constitution and by-laws were, but must be considered as having understood them to be a constitution and by-laws to govern the members in transacting the lawful purposes for which they were incorporated. Bylaws are private statutes for the government of the corporate body, 1 Key on Cor, 69. A by-law cannot be at variance with the general laws of the country, Grant on Cor 76. In respect to this corporation, the General Assembly knew that the parties had petitioned the Inferior Court, and claimed to be a corporation under the act of 1843, and that act restricted their power in making rules and regulations for their government to such as were not contrary to the laws of the State, and the Legislature, I must presume, passed the act of 1856, affirming legal by-laws and constitution adopted under that act, and none other. I cannot consent to look into the affirmed antecedent by-laws and constitution, for the corporate powers of the body, any more than I could look into such constitution and by-laws, if subsequently made. They are affirmed as constitution and by*632laws, and are not affirmed as a giant of power or privilege; the affirmation of what was already made, is only equivalent to a grant to make ; and a grant to make a constitution and by-laws, without words of restriction, is not a grant of power to make them in violation of existing law.
What I have said in reference to the charter of the Bibb County Loan Association, is applicable to the Macon Building and Loan Association, as to the powers it can exercise; and as to the validity of those by-laws, which are repugnant to laws of the State. There is not a word in the constitution and by-laws in respect to building. All the energy of the aggregate corporate mind, seems to have been directed to the forming of a plan of operations which would evade the usury laws, and of contriving an expedient, by which the Legislative sanction, and affirmation of the illegal scheme could be obtained. I think it has failed. In a work entitled “Systems of Building Associations examined,” there is much useful information. It shows the origin of the institutions. That they were projected at first for the laudable object of aiding the poor in providing for themselves comfortable homes ; but it was soon discovered how they might be made instruments in the hands of capitalists of increasing their wealth by oppressing the poor. I am sorry to say that they never found their way here until they had been in other places perverted to this wicked purpose. It is clear that the man of large means, who is a member, never borrows ; while the man in moderate circumstances does. The author of the work I have referred to, denominates those who take no loans, accumulators, and those who do, borrowers. The accumulators, he says, no less than the borrowers share in the profits of the institution, but contribute nothing to produce them, page 4. He says, at page. 14, that in Connecticut, the system has induced a practice which has subverted the purpose it was designed and calculated to fulfill; it has been turned into an instrument of gain, by those who had no need to share its benefits, and been made to oppress those whom it was de*633signed to relieve and assist.” For the reasons then,
1st. That the whole question was submitted to the presiding Judge, by consent, and that from the facts submitted to him, he had the right to infer, that it was the intent of the-party to loan at usury; and it did loan at usury :
2d. That, considering the associaton a partnership, the; transaction was not necessarily not usurious, but whether it. was or not, was a question of intent upon the agreed facts,, which the Judge had as much right, under the agreement of the parties, to find, as jury:
3rd. That for the reasons assigned, I think his inference of intent from the facts was right:
4th. Regarding it as a corporation deriving its authority under the Act of 1854, and the act amendatory of it, for the-many reasons herein set forth, that it had no power to lend money at all, and that the by-laws cannot be considered as a. grant of power:
5th. That the act of 1856, so far as it affirms the acts and transactions under the proceeding of the Inferior Court, and its constitution and by-laws, is unconstitutional and void :
6th. That the act of 1856 passed subsequently to the whole transactions cannot aid them, and that that act contains no grant of power to lend money at a rate above seven per cent: I am of opinion, that therefore, the judgment of the Court below ought to be affirmed.