The Court,
Gilpin, C. J.,charged the jury, that it was a penal action founded on the provision of the statute of usury to recover the sum of $5500, alleged to have been loaned by the defendant to John S. Kersey at a usurious rate of interest, that is to say, at a higher rate of interest than six per centum per annum, and that he has thereby forfeited a sum equal to it, one half for the use of the party suing, and. the other half for the use of the State. It was a well settled principle of law that any intentional taking, either directly or indirectly, of interest on a loan of money at a higher rate than the statute allows, is usurious, and subjects the party guilty of it, to the penalty or forfeiture imposed by it. To entitle the plaintiff to recover, however, the jury must be satisfied from the evidence that there was an agreement, directly or indirectly brought about, between John S, Kersey and the defendant when the loan of the money was made to him, that he would pay the defendant, directly or indirectly, no matter in what way, or by what contrivance, a higher rate of interest than six per cent, per annum upon it. And if there was any, or sufficient evidence in the case to satisfy them that there was an understanding or agreement between the defendant and, either McCaulley, or Rickards, through whose agency or instrumentality the loan was negotiated and transacted, that he was to share to any extent in, or be paid any part of the commissions or per cent, 'they, or either of them, were to receive for their services in the business, and the defendant was paid any part of such commissions by them, or either of them, then it would constitute a usurious loan by him to Kersey, and a violation of the provisions of the statute, and their verdict should be in favor of the plaintiff for the amount sued for in the action. But the fact that Kersey agreed with McCaulley after the latter had been furnished with the money by the defendant for him, that he would pay him interest on it from that time, if he would hold *320and retain it for him, until he could get certain incumbrances then open on the record against him and his property discharged and satisfied, and which McOaulley assented to and did at his special instance and repeated requests, would not impair or affect the validity or legality of the loan, or taint it with usury, if Kersey in pursuance of that agreement did pay interest at the rate of six per cent, per annum upon it, and no more, from that time.For it was but a reasonable, fair and- legitimate understanding and agreement between them under such circumstances. If, however, the j ury were not satisfied from the evidence that there was some such agreement or understanding between the defendant and McOaulley, and Rickards, or either of them, as before suggested, and that the defendant was paid some part of the commissions received by them, or either of them, then their verdict should be for the defendant.
The defendant had a verdict.