1 If a usurious contract is abandoned by the parties and the securities given therefor cancelled and destroyed, a subsequent promise by the borrower to pay the sum actually lent is not tainted with the original usury, is for a good consideration, and is enforceable. Sheldon v. Haxtun, 91 N. Y. 124. - K.

(e) Preston v. Jackson, 2 Stark. 237, was an action on a promissory note, by an indorsee against the maker. The payee was called, and testified that he had lent the defendant £100, for which he was to receive £50 by way of interest, and took his bond for £l50. That he afterwards lent £I00 more upon the same terms, and that in August, 1814, the former securities were given up, and the note sued upon given for the interest. Holroyd, J., Md the note void. In Pickering v. Banks, Forrest, 72, the defendant had given the plaintiff bills for a usurious consideration, some of which he had paid; the remainder not being discharged when they became due, the defendant gave a warrant of attorney for the balance on which the plaintiff had entered up judgment. Macdonald, C. B., ordered the judgment to be set aside, and the warrant of attorney to be delivered up. In Chapman v. Black, 2 B. & Ald. 589, a bill of exchange was in the hands of the plaintiff, which had been usuriously indorsed by a prior party. Upon being informed of this, the plaintiff procured a new bill to be accepted by the defendant, in which the usurious indorser was omitted. The present action was brought upon the last bill, and Abbott, C. J., delivered the opinion of the court that the bill was void. In Bridge p. Hnbbard, 15 Mass 96. Blan-chard £ Ford, the makers of a note void for usury, being called on for payment, asked for a longer credit, which was given on condition that other security should be obtained. The note sued on was then pro-cored, signed by the defendant, who was liable as indorser on the first note; it was made payable to T. W. Sumner, who indorsed it in blank, under which indorsement the plaintiffs claimed. The court held the note sued upon to be a mere substituted contract for the former usurious one, and void in the plaintiff's hands. See also, to the same effect, Marsh v. Martin-dale, 3 B. & P. 154, and the following American decisions: Walker v. Bank of

Washington, 3 How. 62; Powell v. Waters, 8 Cowen, 685; Reed v. Smith, 9 Cowen, 647; Tuthill v. Davis, 20 Johns. 285; Jackson v. Packard, 6 Wend. 415; Steele v. Whipple, 21 Wend. 103; Gibson v. Stearns, 3 N. H. 185; Morcure v. Dermott, 13 Pet. 345; Collins v. Roberts, Brayt. 235; Swift, C. J., Scott v. Lewis, 2 Conn. 135; Botsford v. Sandford, id. 276; Wales v. Webb, 5 Conn. 154; Warren v. Crabtree, 1 Greenl. 167; Lowell v. Johnson, 14 Me. 240; Edwards v. Skirving, I Brev. 548; Dunning v. Merrill, 1 Clarke, Ch. 252; Torrey p. Grant, 10 Smedes & M. 89; Jackson v. Jones, 13 Ala. 121; Hazard v. Smith, 21 Vt. 123; Simpson v. Fullen-wider, 12 Ired. 338.

(f) Ellis i7. Warnes, Cro. Jac. 33, Yelv. 47; Powell v. Waters, 8 Cowen, 669; Brown v. Waters, 2 Md. Ch. 201 Aldrich v. Reynolds, 1 Barb. Ch. 43; Wales v. Webb, 5 Conn. 154. In Cuthbert v. Haley, 8 T. R. 390, Haley procured Plank to discount certain notes of his at a usurious rate. The plaintiffs received the notes from Plank bona fidet and the defendant, being applied to by them for payment, executed to them a bond for the amount of the notes, upon which bond this action was brought. It was held, that it could be maintained. Lord Kenyan, C. J., said: "The construction that has already been put on the statutes has been, in a variety of instances, abundantly hard. The courts have said, and rightly so, that the innocent holders of securities given on usurious considerations, must suffer for the wickedness, or rather unlawfulness, for it has been said that usury is only malum prohibitum, and not malum in se, of the original parties to the transaction. But this is an attempt to carry' that doctrine much further than any prior case, and further than policy or the words of the act of parliament require; and if it were to succeed, it might affect most of the securities in the kingdom; for if, in tracing a mortgage for a the usurious claim to become merged in a judgment, it is then too late to take advantage of the defence of usury, (g)1 But it is also true, that if, in the bargain respecting the new security, there is an agreement to expunge or exclude, or an actual exclusion of the unlawful interest, the new security is valid, (h) *Some difficulty may arise in determining when the usurious character of the original security shall attach itself to the substituted security. If A gives B a usurious note, he may waive the defence and pay the note; and if he pays it in bank-bills, these of course are good in the hands of any honest holder to whom B transfers them. If A happens to have a good note of century past, it could be discovered that usury had been committed in part of the transaction, though between otter parties, the consequence would be that the whole would be void. It would be a most alarm-ing proposition to the holders of all securities. I admit that the securities themselves that are tainted with usury cannot be enforced in a court of justice, even though they be in the hands of innocent purchasers for a valuable consideration, without notice. . . . And therefore the plaintiffs in this case could not have maintained any action on the notes given by the defendant to Plank. But the notes were destroyed after they got into the hands of the plaintiffs, and the bond in question was given to them, they not knowing of the usury between Flank and the defendant. I admit that, if one security be substituted for another, by the parties, in order to get rid of the statute against usury, the substituted, as well as the original, security will be void; but it is not pretended that that was the case here." Kent, C. J., holds similar language, in Jackson v. Henry, 10 Johns. 195.

1 A note renewing a usurious note Is without consideration to the extent of the usury. Rudd v. Planters' Bank, 78 Ky. 513. See Fitzpatrick v. Apperson, 79 Ky. 272. If usurious interest is included in a renewal series of negotiable promissory notes, the accumulated usury of the series may be recouped in an action on the last note unless it has been assigned to an innocent purchaser, when it is recoverable of the payee. Brown v. Lacy, 67 Ind. 478; 83 id. 436. - K.