Bost v. . Smith

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.