Tompkins v. Hill, 28 Ill. 519 (1862)

April 1862 · Illinois Supreme Court

28 Ill. 519

Joseph Tompkins, Plaintiff in Error, v. Elijah S. Hill, Defendant in Error.

ERROR TO LEE.

If a party voluntarily pays a note and usurious interest, he cannot have an action to recover anything back.

This was an action of assumpsit brought by Hill against Tompkins, to recover a sum of money which Hall alleged he paid to satisfy a note given by him to Tompkins, to release a trust deed which the latter held on the property of the former, to secure the payment of said note. A demurrer was filed to the declaration, which the court overruled, and the defendant standing by his demurrer, the damages were assessed at two hundred and seventy dollars. Thereupon Tompkins brought the case to this court.

W. E. Ives, for Plaintiff in Error.

Leland & Blanchard, for Defendant in Error.

Brícese, -I.

We have not seen by any argument advanced in this case, any reason for overruling the case of Hadden v. Innes, 24 Ill. 381. We then decided if a party voluntarily pays a note and usurious interest upon it, the matter is ended under our statute. It is manifest, the legislature had no intention of giving a cause of action when usury is paid and no defense made.

In this case, the party was not compelled to pay the usury. Ho could have resisted the claim, and avoided so much of the claim as the usury amounted to. This he did not choose to do, but paid the amount freely.

The demurrer to the declaration should have been sustained. The judgment is reversed.

Judgment reversed.