The opinion of the court was delivered by
Collamer, J.As a general rule, the letting of any article to multiply at a greater rate than six per cent, is usurious, and it is difficult to stop and inquire of the fluctuation of price, as that is as likely to rise as to fall. In relation to the letting of cattle, &c, which the proviso of our usury statute permits to be done, agreeable to the usage among farmers, it was decided by this court in the county of Franklin, while Ch. J. Skinner presided, and in a more recent case in the county of .Chittenden, that such letting is not usurious, though the risk of the lives of the cattle be on the hirer, and though an unqualified note to deliver a certain number of cattle be taken, if such was the usage. This fs not only within the proviso of the statute, but is sustained by the case Spencer vs. Tilden, 5 Cowen, 144, where it was decided that selling eows, &,&. on a contract to return double the number at the end of two years, is not usurious. Also the same point, as to sheep, in Holmes vs. Wetmore, 5 Cowen, 144, note.
The first contract had two aspects, and was in the alternative; the defendant having the right to pay $22 50 and interest in a year, or 27 sheep in two years ; and he not having paid the money, the other alternative became absolute, and was good within the proviso *4640f our statute, and agreeable to the usage as.found by the county court, and therefore not usurious. It must, however, be under--st00d, there must be no fictions to bring a loan within this proviso. There must be no loaning money, ©r deferring a debt, and calling it cattle or sheep to evade the statute. If there can be no fiction in the first instance, so there must be none in the second or third contract. When the present note was given, the plaintiff let no sheep to the defendant. It is true the defendant owed the plaintiff a previous note, payable in sheep, but it had never héasunaid and was due for money, was a mere debt, and this debt was ny a fiction called sheep. There were no sheep there, none which plaintiff ever owned. Indeed, as a letting, it was a mere ideality, fictitious and colorable, and these pretended sheep had never an identity. It was not a lettipg of cattle or sheep within the proviso of the statute, but in the words of the case, “ the consideration of the last note was the giving up of the first,” not letting sheep. The note now sued is usurious and void, and the plaintiff cannot recover thereon.
Judgment affirmed.