Fleming v. Jencks

22 Ill. 475

• Court: Illinois Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Caton, C. J.

An important question is now ,for the first time presented to this court, and that is, whether under any circumstances, we shall interfere with or examine the exercise of discretion by the court below in overruling a motion to set aside a judgment, entered by confession by an attorney, because usury entered into the consideration of the judgment. While the English courts have freely exercised this power of setting aside judgments thus entered, and for this cause, in some of the American courts, the application has been as uniformly refused, and the party turned over to the court of chancery. Where by the rules of law, as in England and New York, and some of the other States, the whole debt is forfeited if tainted with usury, we can see great propriety in the courts of law, when judgment is once fairly obtained, in turning a party over to a tribunal, by whose rules he could be compelled to do justice, by paying the amount actually due, with legal interest, and relieving only against the usury, although this consideration does not prevent the common law courts in England from interfering and setting aside the judgment; and as a general rule we may safely assume that these decisions are true expositions of the common law, by which our statute requires us to be governed.

Our statute of usury has to a great extent, adopted the rule of equity above referred to, differing only in this, that it compels the defendant only to pay the principal sum loaned, while the court of chancery would in general compel him to pay the principal "with legal interest. There is nothing in the rigor of our statute, although slightly differing from the rule of chancery courts, which would justify us in saying that the English decisions are not in conformity to the common law, and repudiate them, or which should even create a reluctance on the part of the common law courts, to exercise the same, discretion in this as in other cases. Even if the English decisions were the other way, we might with great propriety say, that our statute is so, much more lenient than that of England, that it would justify and even require the exercise of a more liberal discretion, in admitting the defense of usury, than where the whole debt is forfeited, when usury is established. • We may however, in a court of law, exercise a further equitable power for the security of the creditor, by allowing the judgment to stand, till after the question of usury shall have been tried, and then if the verdict shall require it, reduce, or set it aside altogether. On motions of this kind, this power rests.with a court of law. Lake v. Cook, 15 Ill. R. 353.

The order overruling the motion will be reversed and the cause remanded, with directions to allow the defendant to plead to the merits. In the meantime, the judgment will be continued in force, but further proceedings on it will be stayed till the final determination of the issue to be formed.

Judgment reversed.