If a contract be in part for usurious interest, and it is made by two instruments, one promising to pay the principal, with or * without lawful interest, and the other promising to pay the usurious interest as a principal, with or without interest, it would seem that it is not this last promise alone which is void, but both, because both together form one contract, which is tainted with usury, (k) So, if there be a note, and a separate year she would, if requested, transfer to White £400 like stock, and would in the mean time pay all dividends which the stock would produce. The defendant also executed a bond to White, conditioned for the payment of £223, and interest, to him, on a certain date. The present action was brought upon the agreement to transfer the stock. Abbott, C. J., said: "Here, if the lender, after receiving five per cent. interest on his money, had afterwards, on a rise in the stocks, compelled the defendant to replace the stock sold, he would have had principal, interest, and a premium besides. That is an advantage which by law he was not entitled to contract for. The contract was therefore usurious." Bayley, J, said: "A party may lawfully lend stock as stock to be replaced, or he may lend the produce of it as money, or he may give the borrower the option to repay it, either in the one way or the other But he cannot legally reserve to himself a right to determine, in future, which it shall be. It is not illegal to reserve the dividends, by way of interest for stock lent, althongh they may amount to more than £5 per cent. on the produce of it; for the price of stock may fall, and then the borrower would be a gainer; but the option must be made at the time of the loan. The instruments set out in this case show that an option to be exercised in future was reserved;" and the court ordered a non-suit. In Chippendale v. Thurston, 1 Moody & M. 411, £500 was loaned, and the borrower agreed to repay it in three per cent. consols, at a price not exceeding 68 1/2 per cent., or to repay it in Bank of England notes upon six months' notice. The court ordered a non-suit, on the ground that the option was with the lender, and the contract therefore clearly usurious, as he could not have less than five per cent. interest, and might have more than the £500 lent, if the funds rose above 68 1/2.

(j) Bayfey, J. Whiter. Wright, 3 B. & C. 278, in note (i), supra. See also Potter v. Yale College, 8 Conn. 52.

(k) In Roberts v. Trenayne, Cro. Jac. 507, Mary Addington loaned Cory £150, and for security of its repayment Cory leased to Mary Addington a close for sixty yean, conditioned to become void if he paid the £150 within two years. It was then further agreed that Cory should give to Mary Addington annual interest of twenty-two pounds ten shillings, by means of a grant, by fine, of a rent charge, which was done. Cory after, wards granted the inheritance to the plaintiff, who brought this action of trespass against the defendant, husband of Mary Addington. "It was moved, whether this lease, being taken for the payment of the principal money, and not for the payment of any part of the usury, be within the statute, to make the bargain void? It was resolved, that it is: because it is for the security of money lent upon interest, and for the securing of that which the statute intends he should lose; for otherwise it would be an evasion out of the statute, that he would provide for the securing of the payment of the principal, whatsoever usurious bargain was made, which the law will not permit." In White v. Wright, 3 B. & C. 273, ante, p. * 112, n. (i), White loaned the defendant £400 stock, and received an agreement to transfer £400 like stock, and in the mean time pay the dividends the stock would earn. By another agreement the defendant agreed absolutely to pay £223 and interest, to the plaintiff, on a certain day. This action was brought upon the first agreement to retransfer the stock. The first agreement, although oral promise to pay usurious interest, the note is void. (l) The authorities differ on this point; but the prevailing rule is, that if the design of the whole transaction, and the inducement to it, are to lend money on usurious interest, the taint of usury affects the whole and every part of the contract, and no one portion thereof, although in form an independent contract, is made valid by the fact that taken by itself it is free from objection. The very fraud consists in disguising usury, by separating the contract into these parts, (m) The common way in which, in our mercantile cities, the usury laws are now evaded, we suppose to be this. A valid bargain is made for the payment of money with interest; the additional bonus or premium is left entirely at the pleasure of the borrower, with the understanding that the worth of money at that time is a certain per cent. * Then there is no contract which is not legal; if, when the money is due, nothing but simple interest is paid, nothing more can be demanded by any contract, and the lender trusts to the fact that a borrower, who thus executes only his contract, would not be able to borrow again. But if this understanding assumes distinctness enough to become a contract for the repayment of additional interest, we are satisfied that the penalties of the usury law would attach to it. The difficulty of distinguishing between a mere understanding and a promise might often be great. If money was actually paid for the use of the sum loaned over and above the lawful interest, a similar question would arise, whether it was paid in pursuance of a contract to pay, so that the penalty would be incurred; or whether it was a mere gratuity. The rule of law must be, that if A lends to B a sum for a given time, on simple interest, and B, on paying this money, manifests his gratitude for the accommodation by a free gift to A, either of money or a chattel, there is no usury in this; but if the money is paid, or a chattel given, in performance of a previous promise to pay, then the penalty of usury must attach; and in each case it must be a question of fact whether the payment is in the nature of a gift, or of the execution of a promise.