The plaintiff, Jane D. Houston, went to the house of the principal, R. C. Potts, who resided in the State of South Carolina, for the purpose of collecting money then due from him to her wards. The said principal being unprepared to pay the money at that time, proposed to execute his bond to the plaintiff, with his brother J. M. Potts, who resided in North Carolina, as surety. To this the plaintiff assented, upon the agreement between them that the said R. C. Potts would secure to her South Carolina *37interest, to-wit,: 7 per cent., -which, was the legal rate of interest in that State. In pursuance of this agreement, R. 0. Potts came to Mecklenburg county, North Carolina, and obtained the signature of his brother to the bond in question, and offered it to the plaintiff, who reminded him that she was to have “South Carolina interest;” thereupon R. 0. Potts wrote the words “Pleasant Valley, So. Oa.,” at the head of the note, in order to carry out the contract made, several days before in South Carolina.
The principal, R. C. Potts, testifies that “it did not enter his mind, nor did he he suppose that it entered the mind of the plaintiff, to evade the usury laws.” Indeed he does not pretend that there was anything in the contract, or conduct of the plaintiff, to warrant the suggestion of fraud. It is evident, from his own testimony, that the other defendant J. M. Potts, signed the hondas surety for his brother, without regard to the defence which he now attempts to set up, for he cannot state whether the words “Pleasant Valley, So. Ca.” were or were not upon the bond at the time he signed it. He states that he and his brother were both men of large means, and that he would not have hesitated to sign a much larger bond for his brother at that time, &c., but that he had no idea he was signing a seven per cent, note, because he was a magistrate and also a man of means, and could have borrowed money at six per cent, in Meck-lenburg.
This reference is made to the testimony of this defendant in order to show its unsatisfactory character, for taking all that he says to be true, it amounts to no defence in this action. He signed as surety for his brother who resided in South Carolina, and it mattered but little with him whether the bond bore 6 or 7 per cent., for he did not expect to pay either amount, as his brother was a man of “large means at that time.” But the evidence shows this contract, to which he became surety, to have been made in South Carolina, and in the absence of any stipulations to the contrary, it *38must be governed by the lex loci contractus, in respect to interest and its other incidents. The addition of the words “Pleasant Valley, So. Ca.” in this instance did not vary the terms of the contract. They amount to nothing more than was already implied by law.
Take it that this contract, which had been made before in South Carolina with the express understanding that it was to be governed by the laws of that State, had never been reduced to writing until the day on which it was delivered to the plaintiff in North Carolina, still that circumstance would not change the law, or defeat the recovery in this case. So far then as B. C. Potts is concerned, he is clearly bound for South Carolina interest, and when J. M. Potts became his surety in North Carolina, it did not alter the locality of the contract with regard to interest.
The defendant contends that this case is to be distinguished from Arrington v. Gee, 5 Ire. 590, as here the money had been previously borrowed in this State, and the contract between the parties was only for a renewal of the security. But it must be borne in mind that the plaintiff went to the domicil of the principal, B. C. Potts, not to renew a debt, but to collect money then due her wards, and while in another State, was induced by that person to enter into a new contract, in which it was stipulated that it was to be governed in respect to interest by the laws of his domicil, thus making assurance doubly sure, by expressly contracting to do what the law already implied.
We consider the case of Arrington v. Gee, supra, directly in point, and as the learning on this subject is there collected, we deem it unnecessary to do more than refer to tljat case, and the authorities upon which it is based.
In this view of the case we have not thought it proper to decide a very interesting question which was pressed upon the argument, to-wit: the effect of our recent statute repealing the usury laws.
His Honor having intimated that he shonld instruct the *39jury upon the facts proved (and there appears to he no dispute about the facts which control this action) that the plaintiff could not recover, she submitted to a non-suit and appealed to this court.
We are of opinion that there is error in the ruling of his Honor. Let this be certified, &c.
Pee Cueiam. Error.