Fleming et al. v. Jencks et al.

On the maturity of this note, to renew it, plaintiffs in error gave defendants in error a judgment note for $1,050, due thirty days after date, with 10 per cent. interest; that the difference in amount between the two notes, was made up of usurious interest.

On the maturity of the $1,050 note, another judgment note was given by same parties to same parties, for $1,159, due thirty days after date, with interest at 10 per cent. "Note dated June 13th, 1857. Difference in amounts consisted of usurious interest.

On the maturity of the last mentioned note, another judgment note was given by the same parties to the same parties, for $1,192, due, with interest at 10 per cent., thirty days after date. Difference in amounts consisted of usurious interest.

On the maturity of the $1,192 note, another judgment note for $1,245, due thirty days after date, with interest at ten per cent., was given by same parties to same parties. Difference between notes consisted of usurious interest.

On maturity of $1,245 note, another judgment note, for $1,370, due sixty days after date, with interest at ten per cent., was given by same parties to same parties. Difference between notes consisted of usurious interest. Judgment confessed on this last note, under the power of attorney aforesaid, for $1,490, including the $100, attorney's fee.

There was a prayer to the court, that the judgment might be reduced the amount of the usurious interest, and ninety dollars of the attorney's fee.

Affidavit of Dewey, one of the plaintiffs in error, states that Bradley admitted to him that each of the notes was given to renew the previous one, and contains a prayer that execution may be stayed according to the statute, until further order of the court.

The defendants in error filed an affidavit in which they deny that the $730 note constituted any portion of the consideration, or was, in any way, connected with the note upon which the judgment was confessed; that the $730 note, after several renewals, was paid on the 18th September, 1857. They, however, make no denial in relation to the $1,050 note and the renewals, and the usury in relation to this and the notes subsequent to it, except by a general statement that there is not in the note on which the judgment was confessed, such usury and interest as is set forth in the affidavit of plaintiffs in error.

The bill of exceptions further states that the court so far sustained the motion, as to strike out of said judgment the attorney's fee, but overruled the motion as to the balance of said judgment for $1,490, and refused to reduce or set aside said.

Fleming et al. v. Jencks et al.

judgment to the extent of the usurious interest therein contained, or for any part thereof, or for any cause whatever; and the court also refused to open said judgment, so as to allow the defendants therein to plead to the declaration on any terms; to which opinion of the court, except as to striking out the attor ney's fee, the defendants below excepted.

Errors assigned:

The court erred in not reducing the amount of the judgment to the amount actually due, exclusive of the usurious interest. In not vacating the judgment, and in not allowing the defendants below to plead to the narr.

In not staying proceedings on the judgment till the defendants below could be heard in their defense to the suit.

Overruling motion of defendants below, in the part thereof which was overruled.

LELAND & LELAND, and MONTONEY & SEARLES, for Plaintiffs in Error.

G. GOODRICH, and O. D. DAY, for Defendants in Error.

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

Keech v. People.

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.

HENRY KEECH, Plaintiff in Error, . THE PEOPLE, Defendants in Error.

ERROR TO PEORIA.

Supervisors in the matter of opening a road, when they dismiss an appeal and adjourn, without any intention of further action, cannot resume the subject, unless notice of the time and place of a future meeting is served on the commissioners of highways, and on the three petitioners before served. Without these, the action of the supervisors is void.

When a road is located on a dividing line between townships, the commissioners of the towns must create road districts, and allot the expense, etc., of keeping up the road among the districts, as nearly equal as possible, giving each town an equal number of districts, each road district to be attached to the town in which it lies. Without such an allotment, the road cannot be opened; neither of the towns having power to act.

THIS was an indictment found by the grand jury of Peoria county, presenting that Henry Keech, on 7th of September,

Keech v. People.

1857, built a fence across a public road running north and south on the east line of township ten north, range seven east of fourth principal meridian, commencing at north-east corner of said township, and terminating in the Princeville and Mt. Hawley road; said fence being on south half of north-east quarter of section twelve, in said township, and south half of north-west quarter of section seven, in township ten north, range eight east of fourth principal meridian.

Also a second count, presenting that said Keech continued the said obstruction from the said 7th September until the finding of said indictment.

A plea of "not guilty" was entered.

The cause was tried before POWELL, Judge, and a jury. Jury found a verdict of "guilty."

Defendant entered a motion for a new trial, which was overruled.

The court fined Keech one dollar and costs, and ordered road to be opened by sheriff.

The defendant gave in evidence an original order from the files of the clerk's office of the town of Medina, dated January 25th, 1853, and filed the 26th of January, 1853, signed by Wm. W. Church, supervisor of Jubilee, George J. Stringer, supervisor of Richwoods, and Charles Yocum, supervisor of Milbrook, dismissing the said appeal taken to them for informality in the

same.

Defendant then produced Charles Yocum, who, being sworn, said, I am one of the persons to whom the said appeal was taken. Was present at meeting of supervisors on 25th of January, when appeal was dismissed. That dismissal was intended as a final termination of the appeal, and supervisors separated with no intention of meeting again. Three or four weeks afterward, Harvey Stillman requested us to meet at his house and take further action. We met and adjourned till the 11th of April, and that day, no one being present to object, laid the road. I was served with notice to attend at said last meeting. Do not know whether any steps were ever taken to open the road.

Phineas Couch, being sworn, said, I was town clerk in Medina in 1852; delivered all road papers to my successor. I own eighty acres on this road, in Medina, lying eighty rods on the road, one half mile south of its north end. My fences are on the town line; my east and west fences were built before the road was laid; north and south fence built since. I never had notice to remove my fence; never knew of any person in Medina being so notified. The road has never been open or traveled through; town of Medina has never taken any steps to open it, to my knowledge.

Keech v. People.

James Mooney said: I was highway commissioner of Medina in 1854. Never knew of any allotment of the road between Radnor and Medina. Never knew of the road being traveled through, or any attempt to open it on part of Medina.

Charles B. Pierce said: I was highway commissioner of Medina in 1852 and 1853, and signed the order refusing to lay this road. No steps were taken during said years, nor since, to my knowledge, to open said road, or allot the same between Radnor and Medina. There was when the road was made, and still is, two and a half or three miles of fence on said road in Medina. Has never been an open road, and never worked by authorities of Medina.

Walter Mooney said: I am town clerk of Medina; have with me all the records and papers in said clerk's office relating to the road in question. Witness was then required to produce all of said records and papers.

Phineas R. Wilkinson said: I am town clerk of Radnor; and further stated same as last witness, and produced the papers and records belonging in the clerk's office of Radnor.

The People then produced and gave in evidence from the clerk's office of Medina, an order signed by William W. Church, supervisor of Jubilee, and Charles Yocum, supervisor of Milbrook, dated April 11th, 1853, reciting a dismissal of the appeal aforesaid on the 25th of January, 1853, and that upon further deliberation they considered the reasons for said dismissal insufficient, and decided to take further action in the matter. To which evidence defendant objected.

People then produced and gave in evidence from the clerk's office of Radnor, an order dated the 25th of January, 1853, signed by Wm. W. Church, supervisor of Jubilee, George J. Stringer, supervisor of Richwoods, and Charles Yocum, supervisor of Milbrook, dismissing the beforementioned appeal, and also an order deciding to take further action in the matter of the appeal.

People then produced and gave in evidence from the clerk's office of Radnor, a notice dated March 21, 1853, notifying John Jackson and George Harlan, commissioners of highways of Radnor, of the aforesaid meeting of supervisors at the house of Harvey Stillman, on the 11th of April, 1853, to take further action in relation to said appeal, signed by said Stillman, and service accepted by said Jackson and Harlan.

On part of the people, Harvey Stillman said: I was present both when supervisors dismissed the appeal and laid the road. Highway commissioners of Radnor were present at the meeting, the 11th of April, 1853. Commissioners of Medina not present; one person from Medina, Mr. Yates, and several from