Page:Federal Reporter, 1st Series, Volume 7.djvu/754

 742 FBDEEAL EBPOBTEE. �ity, be Sound law, it is decisive of the present case ; for it ia evident that neither Mrs. Davison nor the plaintifif had any knowledge whatever of the retention by Burnham, Ormsby & Co. of the respective bonuses of $2,000 and $500. They did not authorize the usury. They received no benefit from it. They paid the, full sums for whieh they respectively received the defendant's notes. If, therefore, it be granted as a fact that A. C. Burnham was Mrs, Davison's agent in makingthe original loan, and that Burnham, Ormsby & Co. were the plaintiflf's agents in negotiating the second loan, it would make no difference in the decision of the question in this case. The plea of usury must still be overruled. I cannot assent to the proposition of defendant's counsel that in the original transaction A. C. Burnham was the lender of the money, because he failed to disclose his principal, and took the notes in his own name. The money belonged to Mrs. Davison. A. C. Burnham was her agent in making the loan of it. They both treated the notes as the property of Mrs. Davison, and she received the interest upon them. A. C. Burnham had in fact no real interest in the loan, exeept as trustee for Mrs. Davison. He vould have lost nothing if a plea of usury had been sustained. The penal- ties would have fallen upon Mrs. Davison; anditis, therefore, her intentions and her acts, not the acts and intentions of A. C. Burnham, that are to be considered in determining whether or not the penalties of usury shall be inflicted. The act of an agent in taking notes upon a loan of his prinoipal's money in his own name does not make the agent the lender. But even if we grant the proposition that A. C. Burnham was in fact the lender, it will not avail the defendant in this case; for it is a legal proposition well settled in oar juris- prudence by the most respectable authorities, that where an usurious obligation passed for value to an innocent purchaser without notice of the usury, and where the innocent assignee takes a new and substitute security for the debt, there being no taint of usury in the second transaction, the plea of usury to the substituted obligation cannot be sustained. So long as the usurious contract remains in the hands of the original ��� �