[The foregoing opinion was pronounced at the April Term, 1864. At the April Term, 1865, a rehearing of this cause was asked and refused. Upon the application for a rehearing]—
Mr. Justice Lawrencedelivered the opinion of the Court:
In the petition for a rehearing, filed in this case by the apellee, it is urged that the court erred in assuming that the bill was framed with a view to recover the penalty provided for in the act of 1845. The court did not overlook the fact that the "bill did not expressly ask for the penalty, but we have spoken of the provisions of that law in the foregoing opinion because the appellee, in his first printed argument, based his claim to recover back the usurious interest wholly upon that law. Even in his petition for a rehearing he devotes much of his space to showing that, these transactions having occurred while that statute was in force, he has a vested right, under it, to recover back the usurious interest, blow, nothing can be clearer than that, so far as he claims rights given by that statute, he must assert them within the time limited by it. The only right therein given to recover back usurious interest once paid is given by the sixth section. That section authorized the recovery back of threefold the interest, by bill in equity, and thereby recognized the right to recover back simply the usurious interest paid, if the complainant did not choose to ask for the penalty. But the right to recover the penalty was clearly lost by the repeal of the law, and the right to recover back the usury paid, so far as that right depended on the statute, and admitting it not to be a penalty, was to be exercised within two years from the time the usury was paid; and hence the propriety of the language used in the above opinion. •Admitting that, by the common law, usurious interest can be recovered back, yet this court has three times decided, in the cases of Hadden v. Innis, 24 Ill. 381; Tompkins v. Hill, 28 id. 519, and Perkins v. Conant, 29 id. 185, that it cannot be recovered back under our statute of 1857. If that statute repealed the common law we are wholly unable to perceive why the statute of 1845 did not equally do so, unless the remedy was sought in conformity with its provisions. Indeed, there would be a stronger reason for holding that the rule of the common law was in force under the statute of 1857, which is wholly silent as to the recovery back of usurious interest, than under the statute of 1845, which provided, expressly, that it might be recovered back, but also provided in what time and .manner the recovery should be had. That law gave the right to recover threefold the usurious interest paid, by bill in chancery, provided the bill was filed within two years from the payment. Unquestionably less than threefold might have been recovered by such bill within the two years, but the legislature, without doubt, intended wholly to close this door of litigation, and prevent parties from undoing their voluntary acts, unless the remedy was sought within that time. We cannot hold that, under that law, threefold the interest could be recovered within the two years from its payment, and a less sum recovered after that period.
There is no inconsistency between our decision in this case and in the cases of Safford v. Vail, 22 Ill. 327; Matthias v. Cook, 31 id. 86, and Dooley v. Stipp, 26 id. 89. The first two cases, instead of being suits for the recovery back of usury, were suits upon the usurious notes, and the court held that the plea of usury was properly interposed, according to the law of 1845, in force when the contract was made. The case of Dooly v. Siipp, which is pronounced to be “ on all fours ” with this, is so far from being so that, although, like this, a bill to recover back usurious interest paid, and like this, not asking the penalty, unlike this, it was filed within the time allowed by the statute of 1845, as appears by the record which we have examined. The court expressly says, referring to the date of the contract, “ by the law, as it then stood, the party who had paid interest could file a bill to recover it back, and by that law the rights of the parties must be determined.” The right to recover is here expressly placed on the law of 1845.
That the money collected by Carter in this case, although collected upon collaterals deposited by Moses, is to be considered as money voluntarily paid by 'the latter, does not admit of doubt. It is in no wise distinguishable from the case of Perkins v. Conant, 29 Ill. 184, where the money was collected by the creditor under a power of sale in a mortgage.
As to what is said in the argument about the application of the money upon the $2,367 note, we must regard all the notes given by Moses & Wadhams as one transaction, and the money collected as voluntarily paid upon the legal debt and the note for usurious interest. It was when this last note was given that the collaterals were delivered.
The petition for rehearing contains a very learned and ingenious argument, but we do not perceive the alleged contradiction in the past decisions of the court, and we prefer to apply the maxim of stare decisis.
Rehearing refused.