Page:Federal Reporter, 1st Series, Volume 7.djvu/755

 PALMES V. OALL. ' I4:3 �party to it, no change in the form of the security will have any effect to purge it of the taint of usury; but where it has passed for value into the hands of an innocent assignee the �rule is different. ElUs v. Warner,, 752 ; Cuthbert �M. Haley, 8 Tenn. 890; Powell v. Waters, 8 Cow. 669; Kent V. Walton, 7 Wend. 257; Dix v. Van Weyck, 2 Hill, (N. Y.) 522; Smedburg y. Simpson, 2 Sandf. 87; Smedburg V. Whittlcsey, 3 Sand. Ch. 323; Smalleys v. Dougherty, 3 Bosw. 66; Houghton v. Payne, 26 Conn. 396; Brown v. Waters, 2 Ch. Cas. 209; Bearce v. Barston, 9 Mass. 44; Campbell v. McHarg, 9 Idwa, 357 ; Wendlebone v. Parks, 18 lowa, 544. �It is needless to say that the present case is clearly within this principle. The plaintiff was an innocent purchaser of the original notes for value. He not only took a new and substituted security, but the new obligation was founded upon additional considerations — the extension of time and the advance of a f urther sum of money. There was no usury in the second loan which could, as we have shown, affect him. The argument of counsel that the true construction of sections 2079 and 2081 of the Codes is repugnant to the principle that a new and substituted security in the hands of an innocent assignee avoids the usury, — is to my mind plausible, but in- conclusive. These provisions have not'yet been construed as applicable to such a security, and I think it is quite unneces- sary so to construe them. The provision of section 2081 is that nothing in the statute shall be construed — �" To prevent the proper assignee in good faith and without notice of any usurious contract from recovering against the usurer the full amount of the consideration paid by him for such contract, less the amount of the principal money." �It seems to me that this provision was merely intended to give the assignee without notice a remedy where he had none before; that is, where he stood upon the original usurious contract without any new security. In most cases we may assunde that the debtor would not execute to the innocent assignee a new security for the usurio;iis debt, and in all such cases the innocent holder could recover from the debtor only ��� �