The only question in the case is upon the suffi- ■ ciency of the evidence to justify the finding of the jury that the. $8.97 was included in the renewal note, for the purpose of securing a rate of interest greater than 10 per cent, per annum. The evidence was not very strong; but, as between the inconsistent accounts by plaintiff and defendant, the jury was at liberty to believe either, and it seems to have accepted that of the plaintiff instead of that of the defendant. And from the account given by plaintiff, it is not easy to assign a reason for including the above sum in the renewal note, other than that it was a part of the consideration for the renewal, for the forbearance, evidenced by that note. The sum was, it is true, comparatively small, but the statute makes no difference *498in the effect of reserving a larger or smaller excess above the permitted rate. •

Order affirmed.

(dissenting.) I think that the evidence was wholly insufficient to justify the verdict. It appears that the parties were making a change of mortgage securities for the accommodation of the plaintiff. • The amount of the debt then due was in fact $741.03, while the new securities were taken for $750, the difference ($8.97) being the amount of the alleged usury.

Defendant testifies, in substance, that, after figuring up the amount hastily, he suggested making the new notes for even $750, to cover his expense and trouble in making and recording the renewal papers, to which plaintiff assented; that the subject of bonus or extra interest was not mentioned; and that he had no intention or expectation of any such thing. Plaintiff’s statement is that defendant, after figuring up the interest, said: “This amounts to a little over $741; suppose we make it $750. It will give me a little commission, but not much but he does not claim that the subject of extra interest w¡as mentioned. Subsequently the plaintiff frequently asked for extensions, and promised to pay, accompanied with expressions of gratitude, for .defendant’s kindness and forbearance, and never intimated or claimed that the notes were usurious until defendant commenced to foreclose, nearly six years afterwards. It is not enough to make the notes usurious that they might have been taken for more than was •actually due. The excess must have been exacted for the use or forbearance of money. The essence of a usurious transaction is an unlawful intent on the part of the lender to take unlawful interest. Taking a practical, common-sense view of the evidence in this case, 1 think it utterly fails to establish any such intent. The most that can be claimed from it is that defendant may have charged more than was reasonable for the trouble and expense of changing the securities.