Carter v. Moses

Citations

• 39 Ill. 539

Syllabus

<p>1. Usury—what constitutes—want of consideration. Whether a note given for past and not for future forbearance of money is usurious, was a question not necessary to be considered in this case, but the court could not by any means concede that such a distinction was important in regard to penalties under the usury law. Such a note, however, would be regarded as having been given without any consideration.</p> <p>2. Voluntary payment—what constitutes. Where the maker of a note, which was alleged to have been given upon a usurious consideration, delivered to the holder certain collaterals which the latter was to collect and apply upon the notes, the money collected upon such collaterals was regarded as having been voluntarily paid by the maker upon the note.</p> <p>3. Usury—whether it may he recovered hack at the common law, under the ad of 1845, and the act of 1857. Even conceding that, by the common law, usurious interest voluntarily paid could be recovered back, yet this court has repeatedly held that it cannot be recovered back under our statute of 1857.</p> <p>4. Nor could it be recovered back under the act of 1845, unless the remedy was sought in the mode and within the time therein prescribed. That law gave the right to recover threefold the usurious interest paid, by bill in chancery, provided the bill was filed within two years from the payment.</p> <p>5. And less than threefold might have been recovered by such bill within the two years, but it cannot be held that, under the act of 1845, threefold the usurious interest could be recovered back within the two years from its payment, and a less sum recovered after that period.</p> <p>6. Nor under the law as it now exists is there any remedy in chancery upon equitable grounds, as distinguishable from a legal right, to recover back usurious interest voluntarily paid. The reason of the rule that parties cannot call upon courts to undo- their free and voluntary acts which have been fully executed, applies with equ