34 Ill. 504 | Ill. | 1864
delivered the opinion of the Court:
This is a suit in equity, to recover moneys paid by the complainant, as surety of the defendant Fleming, to the defendant Perley. The bill alleges that the complainant, with, and as surety for Fleming, on the 18th of November, 1857, executed a promissory note to Perley for $562, payable four months after' date; that the note was not paid at maturity, and that a suit was brought and judgment recovered thereon in 1860, which was afterwards paid by complainant. The bill further alleges that the note contained usury, and that, by subsequent agreements for usury between Fleming and Perley, the latter extended the time of payment, whereby the complainant was discharged; that the complainant had no knowledge of the usury or subsequent agreements until after the recovery of the judgment against him and its payment, and that Fleming is insolvent. There is no allegation that these defenses could not have been successfully made in the suit at law, if they had been known; and it is not alleged that the complainant used any diligence whatever to ascertain whether he had a defense or not.
Until the contrary is shown, it will be presumed that, if the complainant had used due diligence to ascertain whether he had any defense, he would have been informed of the facts now alleged by him. The facts were all known to Fleming, and, upon the commencement of a suit against the complainant, reasonable diligence required him to inquire of Fleming if there was any defense which could be made to it. The rule is well settled, that where, by the use of ordinary diligence and precaution, a defense could have been made available upon the trial of a suit at law, no relief will be granted in equity. 3 Gra. & Wat. on New Trials, 1490.
In regard to the allegations of Usury, it may be added, that it is the settled law of this State that usury voluntarily paid under the law of 1857 cannot be recovered back. Hadden v. Innis, 24 Ill. 381; Dooley v. Stipp, 26 id. 86; Lucas v. Spencer, 27 id. 15; Johnson v. Thompson, 28 id. 352; Tompkins v. Hill, id. 519; Perkins v. Conant, 29 id. 184.
The decree of the court below, sustaining a demurrer to and dismissing the bill, is affirmed. Secre6
