Judgment — That the motion in arrest is sufficient, and a repleacler ordered. Upon a repleacler the pleadings were in substance the same as before; to which a demurrer was given by the plaintiff, and the same exceeptions taken as in the motion in arrest. Judgment — That the plea in bar is insufficient. The judgment of the Superior Court was reversed, for the following reasons, viz. The point of a loan, and a corrupt agreement between the parties and William Campbell, was upon the first trial, put directly in issue to the jury, by the most correct and approved forms of pleading; and by them found for the plaintiff in error, in the very terms of the issue joined; the arrest of judgment goes upon the ground, that no corrupt agreement could exist in a case of this nature, when the thing loaned, was in a depreciating condition arid of a perishable nature, and where the depreciation was at the risk of the lender.
1st. The jury were the proper judges not only of the fact, but of the law, that was necessarily involved in the issue; not only that there was in fact reserved by the agreement for loan and forbearance, more than at the rate of 6 per cent. *112per annum-; but also of tbe legal deduction, that it was reserved by corrupt agreement; if tbe circumstances of tbe thing loaned were such, that no corrupt agreement could arise out of tbe transaction, tbe jury should have found for the defendant in error, whatever sums were secured by tbe notes; but as they have found a corrupt agreement, it is too late for tbe court to say there was no such corrupt agreement; tbe point being determined by tbe proper judges.
2d. That tbe thing loaned, was in a depreciating condition and of a perishable nature, does not appear from tbe pleadings; and tbe court would not determine tbe fact By an inquiry in pais, nor by any matters dehors tbe record, upon tbe motion in arrest; this fact therefore, which was tbe sole ground of arresting tbe judgment, tbe court assumed without proof.
3d. Had there been evidence of tbe fact, it would not have justified tbe court, in arresting tbe .judgment, or for giving-judgment for the defendant in error on tbe demurrer; for there is no article whatever that can be loaned, but what may and frequently does, change its relative value, not excepting gold and silver coins; and if it be lawful for tbe lender to reserve more than at tbe rate of 6 per cent, per annum, to secure him from a possible loss, arising from a depreciation in one thing, be may in all; but this would destroy tbe statute against taking unlawful interest and render it of no effect.
4th. Whether at tbe time of tbe contract, in tbe present ease, tbe article loaned would depreciate or appreciate, was perfectly uncertain, and a contract which in its creation, was usurious, could never be saved by a subsequent contingent loss in tbe value of tbe principal loaned.
5th. This contract was not a bargain of hazard as in tbe case of money lent on bottomry bonds, where tbe lender, by tbe act of lending, is exposed tó tbe loss of bis whole principal; but in this case tbe securities-loaned were equally liable to loss by depreciation in whosoever bands they were, and the lending did in no measure increase tbe risk.