(g) Thatcher v. Gammon, 12 Mass. 268; Thompson v. Berry. 3 Johns. Ch. 395, 17 Johns. 436. See also Jackson v. Henry, 10 Johns. 196; Jackson v. Bowen, 7 Cowen, 20; Day v. Cummings, 19 Vt. 496.

(h) Wright v Wheeler, I Camp. 165, note. This was an action on a bond to which usury was pleaded. A. bond had been given for the loan of money, with lawful interest, hut the defendant also agreed to give plaintiff a salary of £50 per year, as a clerk in his brewery. It was not intended that the plaintiff should render any service, but the salary was a mere shift to give the plaintiff more than £5 per cent. for his money. After one year's salary had been paid under the agreement, the parties agreed that it should be deducted from the principal, the original deed cancelled, and a fresh bond taken for the remaining principal and legal interest. This was done, and on the second bond the action was brought; Lawrence, J., said: "The act of parliament only makes void contracts whereby more than five per cent. is secured. The original contract between these parties was certainly usurious, and no action could have been maintained on the first bond; but there was nothing illegal in the last bond; it was not made to assure the performance of the first contract, nor does it secure more than five per cent. interest to the plaintiff. The parties saw they had before done wrong, they rectified the error they had committed, and substituted for an illegal contract one that was perfectly fair and legal. I see no objection to their doing that, and am therefore of opinion that the present action is maintainable." The principle of the above decision is abundantly sustained in the following American cases: De Wolf v. Johnson, 10 Wheat. 367; Chadbourn p. Watts, 10 Mass. 121; McClure v. Williams, 7 Vt. 210; Hammond v. Hopping, 13 Wend. 505; Miller v. Hull, 4 Denio, 104; Bank of Monroe v. Strong, 1 Clarke, Ch. 76; Fowler v. Garret, 3 J. J. Marsh. 681; Postlethwait v. Garrett, 3 T. B. Mon. 345; Cummins v. Wire, 2 Halst. Ch. 73.

1 But where, for the purpose of evading the statute against usury, a judgment was confessed for usurious notes, and a bond given to secure the judgment, the bond was held to be tainted with usury. Moses v. McDivitt, 88 N. Y. 62. See Kendig v. Marble, 55 la.. 186; 58 la. 529; Mullen v. Russell, 46 la. 386. - K.

C, and transfers it to B in payment, is not this" equally good in the hands of B's indorsee ? Or if A procures for this purpose the note of C, whose note B has expressed himself willing to accept, this note being not usurious in itself, and C not knowing the original usury, would not this note be good in the hands of B's indorsee, or assignee? We should: say that it would be; because, we think, on principle, that no contract should be held void for usury, unless the borrower, for usury, was a party to it; or unless it is given as collateral security for a present subsisting usurious contract (i) It has been said, very forcibly, if one * chooses not to avail himself of the defence of usury, but to pay a usurious debt, and pays it by delegating a debtor to himself to pay this debt, it ought not to be in the power of this delegated debtor to insist upon the original defence, and avail himself of a usury by which he was not affected. (J)1 So, at least, it seems to be held in the case of a usurious mortgagee, where the land, subject to such a mortgage, is conveyed to a third party; for the grantee cannot hold his land clear of the first mortgage debt, by denying the right of the mortgagee, on the ground of usury. (k) Indeed, it would seem that none but parties or privies can take any advantage of this defence, or this defect in a contract For while a subsequent mortgagee cannot relieve himself from the former mortgage, by showing its usurious nature, a guarantor of a debt is so fat connected with the contract that he may avail himself of the defence of usury. (l)1

(i) In Turner v. Hulme, the plaintiff arrested the maker of a note to him, which was clearly void on the ground of usury. The defendant in this action represented to the plaintiff that he could not recover on the note, the consideration being usurious, but the plaintiff refused to liberate the maker of the note unless the defendant would join in a note to the amount of the maker's debt, which the defendant did, and upon that note this action was brought. It was contended that the second note was tainted by the original usury. "But Lord Kenyon, on this being reopened, intimated his clear opinion to the contrary; he said that Banks, when the first note had been put in writ, by Turner, against him, should have resisted and defended himself on the ground of usury; but that the consideration of that note could not be questioned in the present action, unless it could be shown that this was a colorable shift to evade the statute against usury, devised when the money was originally lent, and the first note granted" In Marchant v. Dodgin, 2 Moore & S. 632. an action was brought against the defendants, acceptors of a bill of exchange, drawn by Taylor, by him indorsed to Daniel, and by Daniel to plaintiff. Taylor testified that certain other bills had been accepted by defendant, for his accommodation, and usuriously discounted by the plaintiff. One of these bills being due, the bill sued upon was accepted by the defendants, in order to enable Taylor, by its discount, to meet the former bill, which he did, and no usury was proved as to this bill. A rule for setting aside a verdict for the plaintiff, being moved for, Tindal, C J., said: "The bill upon which the action was brought was not a continued bill, given in substitution of the former acceptance of the defendants, but was given merely for the purpose of raising money to meet the second bill." Bosanquel, J., said: " It does not appear from the evidence that the third bill was given in substitution of the second, so as to be affected by what passed on the discount of it." The rule was refused. In Stanley v. Kemp-ton, 30 Me. 118, Butler held three notes against Bangs, which were usurious. Bangs, being called upon to pay, pro-cured the defendant to give the note in suit, in payment of the three original notes, which were given up. The court held the last note to be a payment, and not a substitute for the other notes, and therefore valid.

(j) Jackson, J., Bridge v. Hubbard, 15 Mass. 103; Bearce v. Barstow, 9 Mass. 45.

1 Equity will purse a claim of usury, when disclosed by the record, although the debtor refuses to make that defence, Hart v. Hayden, 79 Ky. 346. - K.