| N.C. | Dec 5, 1843
Assumpsit to recover the sum of $200, with the legal interest thereon. It was admitted by the defendant that about two years previous to the bringing of this suit, one Simpson was indebted to the plaintiff in the sum of $200, and to pay him, Simpson agreed to give him a bond or note on the defendant Smith for the sum of $220; that at that time the defendant was justly indebted to the said Simpson in a sum between $300 and $400, and that Simpson informed the defendant that he owed the plaintiff $200 and had agreed to let him have a note or bond on him for $220 to discharge the debt, and that he wished him to execute to him (Simpson) a bond for the sum of $220, and another for the residue of the sum due him, and the defendant accordingly executed and delivered to Simpson a bond in the sum of $220, drawn payable to the plaintiff, and also another bond for the residue together with the *58 sum of $20 therein included, which Simpson alleged he was justly entitled to, as the plaintiff was unwilling to take Smith's bond unless it was discounted at 10 per cent; that Simpson delivered the $220 bond to the plaintiff in discharge of the debt due to him, and the plaintiff accepted the bond on the defendant in lieu thereof without any knowledge of the addition of the above-mentioned $20 to the other bond; that after the lapse of some time, the defendant not paying off his said bond to the plaintiff, a suit was brought thereon in the county court of Lincoln, and in bar of the action the defendant pleaded the statute against usury, and eventually sustained his plea by proving the facts above set forth. It was admitted that the plaintiff know nothing of the usurious contract between Simpson and the defendant. The plaintiff then proved by a witness that during the pendency of the suit in the county court, and a short time before the trial, the defendant, in speaking of the said bond and suit, said to the witness that "as to the $20, he never would pay Bost that, but he would pay him the $200, with the legal interest (70) on it." It was on this declaration to the witness that this action was founded. The plaintiff insisted that under these circumstances there was a moral obligation resting upon the defendant to pay him, and that such moral obligation formed a sufficient consideration for the promise to sustain the action. But the court intimating an opinion that, under all the circumstances of the case as admitted and proved, the action could not be maintained, the plaintiff, in deference to that opinion, submitted to a judgment of nonsuit and appealed to the Supreme Court. Where one man is bona fide indebted to another, and agrees, in consideration of forbearance, to pay him more than legal interest, this second contract is usurious and, consequently, void. But this does not affect the original debt, provided the original debt was lawfully contracted; the original debt will still remain untained with the vice of the second security. Cro. Eliz., 20; Comyn on Usury, 189, 190. When Smith gave Bost the usurious bond for $220, he did not owe him any antecedent debt. The said bond was given in consideration that Bost should discharge Simpson of an antecedent debt of $200. During the pendency of the action against Smith on the usurious bond of $220, he said to a witness (who was not the plaintiff's agent) that he would pay Bost the $200, but that he never would pay the usurious bond of $220. Was this declaration by Smith to the witness a promise to Bost to pay him that sum? His Honor thought it was not, and we concur with him. *59 The assent of Bost at that time was wanting. There was merely a declaration of an intention by Smith, and not an engagement. The judgment must be
PER CURIAM. Affirmed.
(71)