#### JOSEPH BOST vs. THOMAS SMITH.

Where A. gave 3. an ■usurious bond for $220 in consideration that B. would discharge him from a previous bonafide debt of 200, altho’ this original debt is not affected by the subsequent usury, yet B. cannot recover the $200 upon the mere declaration of A. to a third person, that he would pay that sum, but never would pay the usurious bond,

Appeal from the Superior Court of Law of Lincoln coun*69ty, at the Fall Term, 1843, his honor Judge Settle presiding.

This was action of assumpsit brought by the plaintiff to recover the sum oí $>200, with the legal interest thereon. It was admitted by the defendant, thatabouttwo years previous to the bringing of this suit, one Simpson was indebted to the plaintiff in the sum of g200, 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 three and four hundred dollars, 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 sum of $20 therein included, which Simpson alleged he was justly entitled to, as the plaintiff was unwilling to taire Smith’s bond unless it was discounted at ten per cent. — that Simpson delivered the $220 bond to the plaintiff in discharge ofthe debt due to him, and the plaintiff accepted the bond on the defendant in lieu thereof, without any knowledge of the addition ofthe 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 knew 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 ofthe 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 on it.” It was on this de-*70daration 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 tjlat morai 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.

Moke for the plaintiff.

Alexander for the defendant.

Daniex, J.

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 untainted with the vice of the second security. Cro. Eliz. 20. Comyn on Usury, 189, 190. When Smith gave Bost the usurious bond lor $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. 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 affirmed.

Per Curiam, Judgment affirmed.