Fredlander v. Strawn, 25 Ill. 219 (1860)

Nov. 1860 · Illinois Supreme Court

25 Ill. 219

Louis Fredlander et al., Appellants, v. Jacob Strawn, Appellee.

APPEAL FROM MORGAN.

The parties to a cause are admissible as witnesses to prove or disprove usury.

Appellee commenced suit against appellants in the Morgan Circuit Court. The declaration contained one special count, declaring on a promissory note, dated January 6th, 1859, due twelve months after date, with ten per cent, interest per annum from date, for $630.

Defendants filed two pleas in said case. First plea, general issue. Second. A special plea, that the consideration of the note sued on was the loan of $600 by plaintiff in this suit to defendants, and for no other consideration ; that there was at the time interest reserved to the plaintiff at the rate of fifteen per cent, on each one hundred dollars loaned, and that the plaintiff in this suit had forfeited thirty dollars, part of said note and all the interest accrued on the same; to which plea plaintiff filed a general replication.

Case tried by the court by consent, a jury being waived.

The plaintiff offered in evidence the note sued on in this case, which was read, and rested his case. Defendants then introduced Louis Fredlander, one of the defendants, as a witness, and offered to prove by him that he was the principal debtor in the contract sued on, and defendant Rintchler security, and also offered to prove by said Fredlander that the contract as to usurious interest, set up in defendant’s special plea, was made by witness with plaintiff in this suit. Defendant objected to the introduction of said evidence, on the ground that said Fredlander was an incompetent witness in this case. Court sustained said objection, and refused to permit said Fredlander to testify; to which opinion of the court the defendants, at the • time, excepted.

This was all the evidence offered. The court found the issues for plaintiff, and rendered judgment against defendants for $750.30, and costs, and defendants appealed to this court.

I. L. and C. M. Morrison, for Appellants.

D. A. Smith, for Appellee.

Caton, C. J.

The seventh section of the interest law of 1845, authorizes parties to the cause to become witnesses to prove or disprove usury, and the only question presented in this case is, whether that section is repealed by the fourth section of the law of 16th February, 1857, which is as follows: “ All laws and parts of laws inconsistent with this act, are hereby repealed.” There is nothing in this last act, in the least inconsistent with the seventh section of the former law. It is exclusively devoted to construction of certain specified transactions in reference to usury. It has no reference whatever to the rule of evidence established by the former law.

The court erred in refusing to allow the defendant to testify on the subject of the alleged usury, and the judgment must be reversed, and the cause remanded.

Judgment reversed.