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Lucas. Spencer et al.

six per cent. per annum, unless a larger rate is fixed by agreement. But the second section of that act allows the parties to agree upon any rate not exceeding ten per cent. per annum. The third section provides that if a greater rate than ten per cent. is taken or reserved, the creditor shall forfeit the whole interest, and only recover the principal sum due. And the fourth section repeals all other laws imposing penalties for receiving or contracting for a greater rate of interest than is allowed by law. Under this enactment, there can be no pretense that a penalty can be recovered for a violation of the statute. It only creates a forfeiture of all the interest, legal as well as illegal, which has accumulated on the debt. And it repeals the penalty imposed by the act of 1845, for taking or reserving a greater rate of interest than is allowed by law. This then disposes of the question of the right to enforce the penalty claimed by the bill.

It is however urged that equity will interpose to prevent the collection of the usurious interest reserved in these notes. The reason of the creation of courts of equity, at their foundation, was to supply the deficiencies, and to relieve the severities of the law. We are informed by Grotius, that equity was for "the correction of that wherein the law, (by reason of its universality) is deficient." This being the object and scope of equity jurisdiction, courts of equity have at all times, adhered to this as the general rule. Whilst in some instances courts of law have acted upon equity principles, and courts of chancery have assumed concurrent jurisdiction with courts of law, for the purpose of affording more ample relief, to prevent a multiplicity of suits, and to afford relief against fraud, accident or mistake in the recovery of judgments at law, yet, unless it be for some such purpose, they never assume jurisdiction to revise judgments at law, but leave the party to his legal remedy. Where the party has had the opportunity of interposing his defense at law, and his remedy in that forum is complete, and he from carelessness or inattention has failed to make it, courts of equity never afford relief. The law only favors the vigilant. In this case the plaintiff in error had ample opportunity and means to make his defense if he had any, in the court of law, yet he failed to appear and make it, nor does he give any reason or excuse for his negligence. is not the policy of the law to permit a party to slumber upon his rights, when he has the opportunity, and is required to assert them in a court of justice, and then seek them in another forum.

It

But it is supposed, that, whilst such is the general rule, the sixth section of the interest law of 1845, has conferred the

Moore v. Goelitz.

jurisdiction, and afforded the means of obtaining the relief at any time by bill. That section gives the debtor, who has paid or delivered a greater sum or value than is allowed to be reserved for interest, the right to maintain an action of debt or a bill in chancery, to recover it from the creditor. This provision by its terms, seems to apply alone to cases where the money has been paid, and not as a defense to usury due and unpaid. The whole policy of our statutes prior to the passage of the act of January 31st, 1857, has been that the defense of usury should be made alone by plea, as authorized by the fifth section of that act. Hadden v. Innes, 24 Ill. 381. And under such a plea the plaintiff in error could have had the benefit of a discovery, by calling the plaintiff in the action at law as a witness, as fully as by a bill. After the money had been paid however, in a suit to recover it back the parties are not made competent witnesses, and it was to give the benefit of a discovery that a recovery was authorized by bill in chancery.

In any point of view the defense is as complete at law as in equity. And hence the General Assembly could not have designed to authorize it to be made in equity. But only to prevent a resort to that forum, when the money has already been paid, for a recovery of it from the creditor. Again, a party who voluntarily permits a default to be taken, thereby impliedly admits that the demand is just, and that he has no defense. And unless he can show some sufficient reason for the interposition of the chancellor, he cannot be heard to impugn the judgment at law. Inasmuch as there is no pretense that the principal and legal interest was paid, or any portion of the usury, and as the plaintiff in error had an opportunity to make his defense at law, we can perceive no reason for reversing the decree of the court below, and it must be affirmed.

Decree affirmed.

NINIAN S. MOORE, Plaintiff in Error, v. GEORGE GOELITZ, Defendant in Error.

ERROR TO MONROE.

A continuance will not be granted because a witness has said that he would be present at the trial and had been subpoenaed by the opposite party. The party desiring the testimony of the witness, should secure his presence at the trial.

THIS was an action of trespass by Goelitz againt Moore for assault and battery, tried at the Monroe Circuit Court. Pleas

Moore v. Goelitz.

of the general issue and son assault demesne were filed, and issue joined. At the October term, 1859, judgment was rendered in favor of Goelitz for $600 and costs. The case is brought here by writ of error.

Before the trial, Moore applied for a continuance, and filed an affidavit, setting forth, "That Jacob Lavo was a material witness for him on the trial of his suit; that said witness resided in Georgetown, St. Clair county, in this State, and promised the affiant to be present at the term of court to testify in said case, and said he was subpœnaed for plaintiff, and was absent against his (defendant's) will and consent. That defendant expected to prove by said absent witness, who had testified before a justice of the peace in said case, that said witness was present at the time the supposed trespass sued for was committed, and that defendant at that time used no more force than was necessary for the defense of his person, on that occasion." Affiant further swore that the witnesses who saw the said supposed trespass, differ materially as to the circumstances attending the same, and affiant could not safely proceed to trial in the absence of said witness, and this affidavit was made to enable affiant to have a fair trial on the merits, and that he expected to procure the attendance of said absent witness at the next term of said court.

The court overruled the said motion for a continuance, to which Moore, the defendant below, at the time excepted, and assigns said decision for error.

W. H. UNDERWOOD, for Plaintiff in Error.

R. S. NELSON, and OMELVENY & KENNEDY, for Defendant in Error.

CATON, C. J. The plaintiff in error complains, that his motion for a continuance was overruled. The feature that distinguishes this case from that of Day v. Gelston, 22 Ill. 102, is, that here the witness told the party, that he was subpoenaed by the opposite party, as a witness in the same cause; while in that case, the witness merely promised to attend without a subpoena. We there held that if a party would rely upon the promise of the witness to attend, he must run the hazard of having the promise violated. Nor is this case any better for the party complaining. He had no right to appropriate the diligence used by the opposite party, to his own use. He knew that his adversary had a right to tell the witness that he need not attend in obedience to the subpoena, and

Bromley v. People.

thus relieve him from his obligation to obey it. Indeed, he might well expect if the party who subpoenaed the witness found his opponent wanted him upon the trial, that he would relieve him from the trouble of attending.

The judgment is affirmed.

Judgment affirmed.

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162 266

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197

174 ANDREW J. BROMLEY, indicted with Dempsey Abels, and Smith Sullivan, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

ERROR TO MARION.

This court will not disturb a verdict, which the evidence justifies.

AT the July special term of Marion Circuit Court, 1861, the plaintiff, Andrew J. Bromley, was indicted with Dempsey Abels and Smith Sullivan for larceny, in stealing one shoulder of bacon, of the value of two dollars, one ham of bacon, of the value of two dollars and fifty cents, and eight sides of bacon, of the value of three dollars each, the property of John Wood. The indictment was in proper form, and the plaintiff was tried separately before BRYAN, Judge, and a jury.

The jury found the defendant guilty, and sentenced him to imprisonment in the penitentiary for one year; whereupon the defendant moved for an arrest of judgment and for a new trial, for several reasons; but the ground relied upon for a new trial was, that the verdict was contrary to the law and evidence. The court overruled the motions in arrest of a new trial, and rendered judgment upon the verdict of the jury.

R. S. NELSON, for Plaintiff in Error.

T. S. CASEY, State's Attorney for The People.

CATON, C. J. The only point relied on for the reversal of this judgment is, that the evidence did not sustain the verdict. In this we cannot agree with the counsel for the prisoner. That a larceny was committed as charged in the indictment, is not questioned. And the tracks of the prisoner's horses from his stable to the place where the meat was stolen, and back to the stable, which was distinctly proved, would seem

Winkelman et al. v. Kiser, use, etc.

to leave no doubt, that the meat was carried away, and to the
premises of the prisoner, on his horses. In addition to this, a
portion of the stolen meat was found on the prisoner's prem-
ises, secreted under a stack. The only explanation of this, is
the prisoner's own declaration, that the other prisoners in-
dicted with him, had taken his horses and brought away the
meat without his knowledge, and the testimony of one or two
witnesses, that they had never heard anything against his
character; while another witness had heard him suspected of
counterfeiting. Upon this evidence the jury convicted the
prisoner, and we think they were justified in doing so.
The judgment is affirmed.

Judgment affirmed.

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WILLIAM WINKELMAN, and NICHOLAS KISER, Plaintiffs
in Error, v. MATHIAS KISER, for the use of Noah 186
B. Harlow, Defendant in Error.

ERROR TO MONROE.

A person who holds the beneficial interest in a mortgage should be made the
complainant, yet when the use is declared the suit need not be dismissed if the
bill should be amended by striking out the name of the nominal complainant;
and such an amendment would not produce injury.

A decree should not be pronounced against a party not before the court.
A decree should not be entered against the purchaser of mortgaged premises,
whether he be or not a purchaser with notice; the decree should direct a sale
of the premises and a distribution of the proceeds. If he held the equity of
redemption, the sale might bar it, if he failed to redeem.

THIS was a suit in chancery, brought in the Monroe Circuit Court, at the May term thereof, 1861, by Mathias Kiser, who sued for the use of Noah B. Harlow, against Nicholas Kiser and William Winkelman, to foreclose a mortgage, made by Nicholas Kiser to Mathias Kiser, dated September 7th, 1858, to secure to said Mathias Kiser the payment of a certain promissory note of that date. Said mortgage conveyed certain town lots in the town of Harrisonville in said county. Winkelman claims said lands by a title subsequent to said mortgage. Said bill prays for a foreclosure and sale of the premises in the usual form.

Summons was issued in the usual way, and notice given by publication to said Nicholas Kiser, he being a non-resident of this State. Summons was served upon Winkelman and the following return thereon indorsed, to wit: "This writ executed.

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