Mr. W.C. Moore , for appellant, cites: The evidence shows that it was the intention of all the parties that the old indebtedness be wiped out by the new obligation of February 20th: 28 S.C. 115 ; 37 S.C. 590 ; 47 S.C. 445 ; 67 S.C. 553 ; 77 S.C. 147 ; 104 S.C. 367 ; 22 Ohio St. Rep. 516 ; 7 Cyc. 749; 29 Cyc. 1136. Inclusion of interest in face of note a sufficient contract in writing to authorize change of eight per cent. interest: 39 S.C. 175 ; 77 S.C. 146 . Withholding attorney's fees is no part of penalty provided by the usury statute: 109 S.C. 264 ; 83 S.C. 529 . Messrs. Sherwood McMillan and L.D. Lide , for respondents, cite: More than seven per cent. usurious unless instrument in writing authorizing eight per cent.: 77 S.C. 141 . Where there is usury only sum actually advanced can be recovered, which excludes attorneys' fees: 49 S.C. 345 . Whether new obligation was a renewal or payment of old obligation question of fact: 77 S.C. 141 . If there be usury in original transaction it affects all consecutive securities, and neither renewal of an old or substitution of a new security between the same parties can efface it: 42 L. Ed: (U.S.) 801. Even though new parties are brought in or the borrower assumes a different relation to the security: 39 Cyc. 1003-1005. Lender cannot retain unlawful gains, or contract for same and by change of securities or renewal of obligation avoid the forfeiture enacted: 2 Spiers 83. Unlawful contract when made it could not be made lawful by another contract: 3 Brev. 54. Any subsequent contract to pay a usurious contract is itself usurious: 39 Cyc. 997.

MR. CHIEF JUSTICE GARY..

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