I cannot regard the transfer of the stock in this case, as a mere security for the payment of the note. *The circumstances of the case, and the conduct of the parties, forbid such a construction. The understanding between them, before the execution of the note, as evinced by their written memorandum, and clearly proved by the evidence, compels me to regard the transfer of the stock, as a sale; subject, however, to the condition, that if Robinson should, at any time before the note became due, relieve Leavell from his responsibility to the bank, the stock should be returned to him. Considering the agreement, as at the time it was made, there certainly was nothing in this construction of it, that Robinson could complain of; for although there seems to have been a hope that stock would rise, yet nobody believed it would rise high enough to pay off the note. As to Leavell, he came into the arrangement with great reluctance, and was determined, from the beginning, to extricate himself from it at the end of the 60 days, even at the loss he might sustain by the probable deficient value of the stock.