delivered the opinion of the court.
This is an action upon a single bill, the defence relied upon was usury, and the case is brought up on an exception taken at the trial, to an instruction by the court to the jury, “ that there was not sufficient evidence of usury in the transaction between the parties.”
Every case of usury must depend upon its own circumstances. It is the intention, and not the words used, that gives character to the transaction, and that intention when it can be reached, must govern. Where the real truth and substance is ascertained to be a loan of money, a lending on one side, and a borrowing on the other, at a rate of interest exceeding six per cent, per annum, the form given to the transaction is not material; no shift, or device, can take it out of the Act of Assembly. Here the bill in question was given for the amount of an account rendered against the appellant, in which interest was charged upon the different items. Every item of principal charged in the account, is admitted; but it is said, that the interest charged on different items of principal, exceeded the rate of six per cent, a year, and therefore, that the bill being given for the whole amount, including the interest so charged, it was an usurious transaction.
Whatever might have been the case, if it had appeared that the alleged over charges of interest were, by agreement of the parties, made and allowed, in consideration of forbearance, and giving day of payment to the appellant, of the several principal sums of money due from him, on which such charges of interest were made, there is in this record no evidence, express or implied, of any such agreement or intention, or tending to show, or prove any such *126agreement or intention, without which there could have been no usury. The agreement, the intention of the parties, constituting a principal ingredient of usury.
But it is contended, that whether it was an usurious contract or not, was a question which ought to have been left to the jury, and that the court did wrong in instructing them, “ that there was no sufficient evidence of usury.’ If there had been any evidence tending to prove an usurious contract, it should properly have been left to the jury; but there was no such evidence, and surely in the absence of any evidence tending even to prove it, the court cannot have erred in instructing the jury, “ that there was not sufficient evidence of usury.” So far from there being any evidence tending to prove usury, or from which the jury could have inferred an usurious agreement, the evidence set out in the record tends to a different conclusion.
The only evidence in the case is, the single bill, the account for the amount of which it was given, and a receipt on the back of the account by the obligee, for the bill in full of the account, of the same date with the bill; which receipt contains a stipulation, “ that in case of error either way, should any be discovered, it shall be corrected.” That receipt, if it tends to prove any thing, it is, that there was perfect fairness in the transaction; it seems to presuppose that there might possibly be mistakes in the charges, either of items of principal, or of interest, and provides for the correction of them, if they should be made to appear, and thus tends to show that there was not any usurious intention or agreement, rather than that there was. For can it be, that -if there were known charges of interest exceeding the legal rates, intended and agreed upon between the parties, as a consideration for forbearance, and time given to the appellant for payment of the several sums of principal charged in the account, the obligee would at the same time, have armed the appellant with a stipulation for the correction of those very over charges, the price of forbearance !
*127The evidence goes to negative the allegation of usury, and no other inference can be drawn from it.
The court therefore, we think, did right in giving the instruction complained of. It was the least it could do, to tell the jury there was not sufficient evidence of usury, when there was no evidence at all.
judgment affirmed.