Woods, J.
The plaintiff in this suit in consideration of $7.50, as stated in the deed, conveyed to the defendant a cow, with, condition that the deed should be void if he paid within a time therein limited, the sum of ten dollars to the defendant.
Upon a suggestion of usury, without other proof than is contained in the deed, the jury were instructed that if they believed that the sum of ten dollars named in the condition -was for nothing else than the §7.50 named as the consideration, the contract was usurious.
Such a construction was not warranted by the evidence, which had really no legal tendency to show that the ten dollars secured were for the §7.50 lent; nor did the evidence show any thing further than that the larger sum was admitted by the parties to be due, and that a chattel admitted to have been sold for the smaller sum to the defendant, might be redeemed by the plaintiff upon the payment of the larger.
All this afforded no evidence that the ten dollars due was agreed to be paid for the seven dollars and fifty cents lent, or that any such sum was lent.
Besides, if the sum of §7.50 named as the consideration of the conveyance, be assumed to be the sum lent, and the difference between that with the accruing interest, and the sum of ten dollars secured, be assumed to be usurious, it would not enable the plaintiff to avoid his deed of sale and to maintain this action. There was the sum of §7.50, with lawful interest, justly due, for which the defendant had the undoubted right to detain the chattel. There is no law that provides for the forfeiture of the sum loaned by reason of the exaction of usury, or including it in the same security with the sum justly due, under circumstances like the present.
The verdict must therefore be set aside.
The questions arising upon the sufficiency of the tender, and upon its effect as to enabling the plaintiff to maintain this action, do not require under the present circumstances to be determined.
New trial granted.