delivered the opinion of the Court:
The conclusion is- irresistible, from, the pleadings and the evidence in this case, that the note for $2,367, given in March, 1855, was for the accruing interest on the notes for $3,000 and $1,500, computed at the rate of two per cent, per month to that date. It is urged by counsel for appellant that there is no technical usury in this tranasction, because, if this was the consideration of the note, it was given for past and not future forbearance of money. It is not deemed necessary to consider in this case whether such a distinction can be important in regard to penalties under the usury law. If, however, it was conceded that the note was not usurious, which we by no^ means concede, it was given without consideration, and, for the purposes of this case, the effect in either case would be the same.
The only other question presented by the record grows out of that portion of the decree which directs the repayment, to Moses, of the usurious interest actually received by Carter. It is the settled law of this court that such interest, when voluntarily paid, cannot be recovered back under the existing statute, and we are not inclined to depart from our former decisions. It is, however, insisted that those cases were actions at law, and that a different rule should obtain in chancery, on equitable grounds, apart from any statutory provisions. But if usury thus paid cannot be recovered back, in an action for money had and received, which Lord Majñseield said was like a bill in equity, we are unable to perceive upon what ground the repayment can be decreed on the equity side of the court. The reason of the rule applies with equal force in both tribunals, that parties cannot call upon courts to undo their free and voluntary acts which have been fully executed. Hadden v. Innis, 24 Ill. 381; Tompkins v. Hill, 28 id. 519. If, however, the creditor obtained payment of such interest by fraud, or by means of oppression of his debtor, the rule would be no doubt different.
It is, however, urged, that, as this transaction arose prior to the passage of our present interest law, which was enacted in 1857, the case should be decided as if the act of 1845 had not been repealed, and reference is made to the cases of Safford v. Vail, 22 Ill. 327, and Dooley v. Stipp, 26 id. 89, in support of the position. The statute of 1845 authorized the recovery of threefold the amount of usurious interest actually paid. This is obviously a penalty, and if so, it may be doubted whether the court in these cases, sufficiently considered the effect of repealing such a statute upon the right to sue for the penalty. But we are saved the consideration of that question in this case, by the express language of the act of 1845. Assuming that this transaction is governed by that law, the appellee is not in a condition to invoke its aid. The sixth section, which gives the right to recover the penalty, requires the action to be brought within two years after the right accrues. In this case the right, if it ever accrued, did so in 1855, when the usurious interest was paid. Mo moneys were received by appellant after that year, and the uncollected collaterals were returned by him to appellee during that year. The bill was not filed until in 1861, and the right to recover back the usurious interest, if it ever existed, was lost, if in no other way, by lapse of time.
The decree is reversed and the cause remanded, with instructions to the court below, to render a decree in conformity with the decree appealed from, so far as relates to the surrender of the notes and the discharge of the incumbrances, but not ordering the repayment by appellant to appellee of the usurious interest received by the former. In this respect the decree appealed from is erroneous. Appellant will recover his costs in this court. Appellee his costs in the court below.
Decree reversed.