Buck v. Beekly , 45 Ill. 100 ( 1867 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

Bo error is perceived in this record sufiicient to reverse the judgment. It was a technical error to vacate the original decree, as this court held in the case of Baker v. Admr. of Backus, 32 Ill. 79, but it has worked no injury, as, on the hearing, after the coming in of the answer of the defendants, the decree was set aside, and the bill dismissed on the merits.

The fifteenth section of the Chancery Code seems to contemplate only the filing an answer, if the petition so to do is allowed, the decree remaining in full force.

The objection, that the petition was heard, and leave to answer was given at a Special Term of the court, is of no force, inasmuch as it appears, it was heard at a term convened for the transaction of business generally, which is allowable, notwithstanding the power given to the judge to order a special chancery term.

The court properly rejected the testimony of defendant to prove usury, as the crditor was not then alive. The statute expressly provides, to justify the testimony of the debtor, the creditor must be living, by which we understand the party who participated in the usury, which was not the position of the defendants in the injunction;

They were the representatives of the assignee of the original payee of the note, and were not such creditors as contemplated by the statute.

Upon the point of assessing damages on the dissolution of the injunction.and dismissing the bill, we perceive no error. The act of 1861 expressly authorizes this mode of proceeding. Laws of 1861, p. 133. Perceiving no error in the record the decree must be affirmed.

Decree affirmed.