Frank v. Morris

Citations

• 57 Ill. 138

Syllabus

<p>1 Practice—-affidavit 'of merits. Where a plea of usury in a suit in the Superior Court of Chicago, averred that defendant had paid one hundred and fifty dollars for forbearance in the payment of §3,850, for seventy-five days, and the affidavit of merits required by a rule of that court stated that the note sued on was given for the balance due on another note and that defendant paid one hundred and twenty-five dollars for forbearance in the payment of such balance for seventy-eight days: Held, that the affidavit of merits was insufficient, inasmuch as the defense it disclosed could not be given in evidence under the plea of usury.</p> <p>2. Plea—variance. Where a plea of usury averred the payment of one hundred and fifty dollars to procure forbearance, and the evidence showed but one hundred and twenty-five dollars thus paid: Held, there was such a variance as to exclude the evidence. The defense of usury being penal in its nature the proof must be strict to sustain the defense.</p> <p>3. Non assumpsit—evidence of usury under. As usury rendered the contract void at the common law, it could be proved under the plea of non assumpsit, like any other defense which showed the contract void, released or discharged. But under our statute the creditor only forfeits the entire interest, and hence the defense does not render the contract void or defeat a recovery of the principal, and the reason for allowing the defense under the plea of non assumpsit does not apply, and the defense of usury must be made by special plea, under our statute.</p>