delivered the opinion of the court:
The master found that there was usury in the contract, and that the principal of the promissory note, assigned by plaintiff in error to his brother, was not greater than the usurious accumulations of the interest with which defendant in error had been charged up to the time that note was given. It is here insisted that this finding is clearly against the evidence. We Have examined the proof taken as the same is set out in the abstract and are entirely satisfied with the finding of the master upon this question.
It is next contended that where usurious interest has been paid it cannot be recovered. This is not the rule where, as in this case, the promissory note containing the usury has been assigned, before maturity, to an innocent purchaser and the defense of usury thereby cut off, and where the maker has been compelled to pay the note to the assignee.
In Woodworth v. Huntoon, 40 Ill. 131, it was held that where a promissory note is given upon usurious consideration and passes into the hands of a bona ñde purchaser without notice of the defense and is by him collected, the payment by the maker to the assignee will be regarded as compulsory and not voluntary, and equity will require the *108original payee to pay to the maker the usurious interest included in the note.
In the case of House v. Davis, 60 Ill. 367, promissory notes containing usury had been assigned before maturity and by the assignee reduced to judgment against the maker, who then filed a bill against the original payee and the assignee, charging that the assignee had notice of the usury at the time the notes were transferred to him, and seeking an injunction to prevent the collection of the usury. In the circuit court it was held that the proof did not sustain the charge that the assignee had notice of the usury when he acquired the notes, and for that reason the bill was dismissed as to him, and thereafter that court rendered a decree requiring that the original payee of the notes bring into court the amount of the usury and that the maker of the notes bring into court the balance of the judgment, by a day named, for the purpose of satisfying the debt to the assignee. The original payee appealed to this court, where the decree .of the lower court was reversed for the reason that the case made by the evidence was not that stated by the bill, and for the further reason that the court required the payment of money for the satisfaction of the judgment of the assignee after the latter had been dismissed and when no control could be exercised over him by the court. It was said, however, that the bill should be amended to correspond with the facts, when the maker of the notes should be permitted to bring the amount of the judgment, and interest thereon, into court for the benefit of the assignee, and then he (the maker) would be entitled to recover the usury from the payee.
It follows that the judgment of the Appellate Court is correct, and it will accordingly be affirmed.