Jenkins v. Greenbaum

Citations

• 95 Ill. 11
• 1880 Ill. LEXIS 144

Syllabus

<p>1. Writ of error—party to, in case of bankruptcy. After an adjudication in bankruptcy, the assignee of the bankrupt is the proper party to bring a writ of error to reverse a decree against the bankrupt, and he alone can do it, and where the writ has been sued out before by the bankrupt, his assignee, after the adjudication, may be substituted as a party, and prosecute the writ of error in his name.</p> <p>2. Usury—sufficiency of answer to admit defence. Where a bill to foreclose a deed of trust prays that an account may be taken of what is due on the notes secured, even if the answer does not set up the technical defence of usury, by claiming a forfeiture of all the interest, but simply claims that the usurious interest paid in excess of six per cent be applied as a credit on the debt, and that the account be stated on equitable principles, it will be sufficient to enable the defendant to avail of any usurious payments made in excess of six per cent on the notes secured or in the various transactions upon which they were based.</p> <p>3. Same—rule in equity as to payments. In a court of equity relief will be given against payments of usury, though voluntarily submitted to at the time, on the ground of oppression and injustice, as well as its being against the statute, and will apply all such payments above six per cent in discharge of the principal debt.</p> <p>4. On bill to foreclose a trust deed praying for an account, all sums of money paid under usurious agreements upon the notes secured, or upon the accounts and renewals before the notes were given or agreed to be paid, above six per cent, where the defendant submits to pay lawful interest, should be deducted from and operate as a credit on the notes; but usury paid on transactions disconnected with the indebtedness sued on should be rejected, and if at any time a settlement has been made, and new notes given in which there is no usury, or on which none has been paid, the master can not go behind the settlem