| Ill. | Sep 15, 1877
delivered the opinion of the Court:
The court below appears to have been satisfied from the affidavits (although upon information and belief, as to the usury) that the defendants, upon some terms, should be let in to make that defense. The question presented on the record is, whether the order made by the court below, prescribing the terms upon which the defendants should be admitted to plead such defense, is in accordance with the law and practice in this State.
The order made must have been upon the theory that this was an application to the equitable jurisdiction of the court, and the court would compel the party applying to do what was equitable—to pay the money that had been really advanced, with legal interest. Even under such rule we regard the terms imposed as too rigorous in accepting the plaintiff’s rather than the defendant’s statement of the amount due, and requiring it to be paid within ten days. We think no further condition should have been required in this respect, than consent to submit to the rendition of a judgment for the amount actually loaned, with legal interest, as the same should be found to be due upon trial at law in due course.
But we are inclined to hold that, agreeably to the practice which has been recognized by this court, no terms of the kind should have been imposed.
Such equitable terms were imposed in the case of Hindle v. O’Brien, 1 Taunt. 413, in the Court of Common Pleas, decided in 1809, where there was a motion to set aside a judgment which had been entered upon a warrant of attorney, to enable the defendant to come in and plead usury. It was there said by Chambee, J.: “ But this is an application to the equitable jurisdiction of the court, and the court will compel the party applying to do what is equitable; which is, to pay the money that has been really advanced, with legal interest.” In Roberts v. Goff, (4 Barn. & Ald. 92, 6 Eng. C. L. 403,) before the Court of King’s Bench, in 1820, a case of a like application, it was insisted by counsel that the judgment could not be set aside but upon the terms of the party paying the money actually advanced, with legal interest, citing the case of Hindle v. O’Brien.
But it was there said, by Bayley, J.: “We can not impose such terms. The instrument is void. It is not good at law. The construction and practice of this court has always been different; and I have reason to know that some of the learned persons who argued that case in the Common Pleas, were not, at the time, at all satisfied with the decision.” It appears to be the practice in the English Court of Exchequer, as stated by Chancellor Kent, in Fanning v. Dunham, 5 Johns. Ch. 122" date_filed="1821-02-10" court="None" case_name="Fanning v. Dunham">5 Johns. Ch. 122, not to exercise the power at all to set aside judgments in such cases.
In Fleming v. Jenks, 22 Ill. 475" date_filed="1859-04-15" court="Ill." case_name="Fleming v. Jencks">22 Ill. 475, this court recognized the fact to be that, in some of the American courts, the application to set aside judgments thus entered, for such cause, had been uniformly refused, and the party turned over to the court of chancery.
In that case the court below had overruled a motion to set aside a judgment, entered by confession, under a warrant of attorney, because usury entered into the consideration of the judgment. This court reversed the order of the court below, and remanded the case, with directions to allow the defendant to plead to the merits. Although the question there presented was only upon the refusal to exercise the power to set aside the judgment at all, yet this matter of the imposition of equitable terms in its exercise was quite fully considered, and the tenor of the decision is to the effect, that there should be the exercise of no further equitable power in such regard than to allow the judgment to stand for the security of the creditor till after the trial of the question of usury. And, as the case was remanded with directions to allow the defendant to plead to the merits, without prescribing any such equitable terms to be complied with by the defendant as the court below required here, we regard it to be the fair inference, from that decision, that there should be no such terms, and that we but follow that decision in so holding.
As to the objection that the judgment could not be set aside at the subsequent January term, that is disposed of adversely to defendant in error in the case of Hibbard v. Mueller, 86 Ill. 256" date_filed="1877-09-15" court="Ill." case_name="Hibbard v. Mueller">86 Ill. 256.
The judgment will be reversed and the cause remanded.
Judgment reversed.