Reports of Cases At Law And in Chancery Argued And Determined in the Supreme Court of Illinois 72 (January, June And September Terms, 1874)
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On that ground was placed the decision in Galbraith v. Fullerton, 53 111. 126. To the same effect is Tudor v. Good- loe, 1 B. Monroe, 322. But in the case at bar, the considera- tion was paid. The lender, who received it, can not set up the usury, and allege invalidity of his agreement. Hennvnghairh et al. V. Bedford et al. 1 B. Monroe, 325. The reasoning and decision in that case apply with particular force to this case, arising under a statute which does not render usurious con- tracts wholly... void. But we are of opinion the remedy of appellee, the surety, must be sought in a court of equity. The action is brought upon a specialty, and the agreement to extend the time of payment was by parol. By the rules of the common law, when the action is upon a specialty, the surety can not set up a parol agreement to enlarge time with- out his assent, as a defense. It is peculiarly a matter for a court of equity. Da/vy v. Prendergrass, 5 Barn. & Aid. 187; Parker v. Watson, 8 Exch. 404; Tate v. Wymand, 7 Blackf.
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