26 Ill. 86 | Ill. | 1861
These are two writs of error upon the same record, neither party being satisfied with the decree below, and they have been considered together.
The transactions complained of in this bill occurred before our present usury laws were enacted, and by the law as it then stood, the party who had paid usury could file a bill to recover it back, and by that law the rights of these parties must be determined. The cause was set for hearing on bill, answers and replications. The bill was properly dismissed as to Niccolls. He bought the judgment against Dooley without notice of the usury, and collected the amount with the legal interest. Stipp answered under oath as required by the bill, but his answer was not full, and had there been exceptions taken, the court would have required a further answer. Stipp does not in his answer state whether the usury charged in the bill was included in the several notes given to him by the complainant; nor does he state what amount of interest was included in the judgment, for the stay of execution for one year, but he says more than ten per .cent; was included. The complainant probably supposing that as the answer did not deny the allegation of the bill, that fifteen per cent, was included in the judgment, that would be taken as admitted on the hearing, and hence did not except to the answer. This, however, is not the rule in chancery, but the complainant must establish by proof whatever is not admitted by the answer, whether it be denied or not. Whatever interest to any amount was included in that judgment, was usury, and to that amount at least the complainant was entitled to a decree. By force of the statute the judgment drew interest just as much as if it had been so expressed on the face of the judgment, and that interest which by force of the statute accrued on the judgment, the complainant was bound to pay, and did pay. All over such legal interest, was of course usury.
The decree will be reversed, and the suit remanded, with directions to refer it to a master to ascertain and report what usurious interest was included in the notes, and also what usury was included in the judgment for which the complainant will be entitled to a decree. Stipp to pay the costs in both causes in this court. Decree reversed.
