Hadden v. Innes

24 Ill. 381

• Court: Illinois Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinions

Catón, C. J.

The only question in this case is one of pleading. On a general plea of set-off, for money had and received, etc., the defendant offered to prove that he had paid usurious interest on the note. Had he filed a special plea, setting out the facts which he offered to prove, we presume it will not be questioned that he might have had the interest thus paid deducted from the principal of the note. Else nothing could be more easy than to evade the statute of usury. Whenever the usurious interest is paid in advance, the statute would become a dead letter. Such is not the true spirit of that law-; it cannot be thus evaded, weak as it no doubt is, and comparatively innocent of injury to the usurer.

But it is insisted by the defendant that the usurious interest which he has paid might at any time be recovered back, as for money paid and advanced, or for money had and received; and that having such a demand against the plaintiff, he had a right to set it off in this action. If the premise is correct, the conclusion follows. Whether that be right, depends on the statute of usury. It is this: “If any person or corporation in this State shall contract to receive a greater rate of interest than ten per cent, upon any contract, verbal or written, such person or corporation shall forfeit the whole of said interest so contracted to be received, and shall be entitled only to -recover the principal sum due such person or corporation.” It is manifest that the legislature had no intention of giving a cause of action to the person who has paid usury and fails to make the defense, when sued for the debt upon which the usury has been paid, or agreed to be paid. If Involuntarily pays the principal sum due, and the usury agreed to be paid upon it, that is an end of the matter so far as this statute is concerned. Suppose the party sued upon an usurious note fails to make the defense authorized by statute, but suffers judgment to go against him for the principal and the usurious interest, and pays it; the statute gives him no right to recover back the interest thus paid; and yet he can have no greater right where he pays it voluntarily. It was manifest that it was only the intention of the legislature to furnish a shield for defense and not a weapon for attack, by the passage of this act, and that defense should be made in a legitimate way, according to the well-settled rules of pleading.

The judgment must be affirmed.

Judgment affirmed.