Shoemaker v. Shirtliffe
COMMON PLEAS, Philadelphia
County.
SHOEMAKER verʃus SHIRTLIFFE.
D
ALLAS moved for a rule to fhew caufe why the execution iffued in this action, fhould not be faid, till another action, brought upon the act of Affembly againft Ufury, by Shirtliƒƒe, the perfent denfendant, againift Shoemaker, the plaintiff, was determined.The motion was founded upon an affirmation, which ftated, that the plaintiff and defendant, having been concerned in trade, borrowed money from one Anne Gibbs upon a ufurious contract ; that Anne Gibbs became preffing for the payment of the money while the defendant was out of town ; that the plaintiff thereupon gave her his feparate fecurities to pay within a certain time ; that upon the defendant's return he executed a bond and warrant of attorney to the plaintiff, for his proportion of the debt due to Anne Gibbs, that the prefent execution is iffued upon the judgment confeffed by virtue of that warrant of attorney ; that an action is depending againft Gibbs, on the act of Affembly againft Ufury, and that the defendant has alfo inftituted a fuit againft the plaintiff upon the fame act returnable to September term, 1785.
1785.
It was fuggested in fupport of the motion, that the object of the execution, was a fhare which the defendant held in a verdict with the plaintiff,, and others ; and that if this share was taken and fold, the defendant would be in danger of loosing fatisfaction, if he recovered in the qui tam, action which he had inftituted againft the plaintiff.
Ingerʃol and Sergeant oppofed the rule in the firft inftance. They contended, that, even admitting there had been an ufurious contract (illegible text) the parties to this fuit, and Anne Gibbs; yet, as it did not appear that any part of the money had been paid, no penalty was incurred ; for, the words of the act are, that no perfon fhall receive or take. They faid, likewife, that although the confideration of the bond was originally ufurious, the act of Affembly did not make it void ; but only worked a forefeiture to the value of the thing or money lent ; and that, therefore, without going farther, if the defendant's crofs action did not appear from his own ftating well founded, it fhould not be made the inftrument of delaying the plaintiff's fatisfaction.
Dallas afferted, that he was prepared to prove Gibbs had received a part of the money, and that therefore the Ufury was complete. He argued, that if the original agreement be corrupt between all the parties, and fo within the act, no colour would exempt it from the dangers of ufury. 1 Brownl. 73. 2 And. 428. 4. Shep. Abr. 170. That it is not material whether the payment of the principal and ufurious intereft be fecured by the fame or different conveyances, for all writings whatfoever for the ftrengthening fuch a contract are void. 1 Hawk. 248. Cro I. 252. 508. That a fecond bond made after the forfeiture of a former, and conditioned for the receipt of intereft according to the penalty of the forfeited bond, is within the ftatute. 1. Hawk. 248. 3. Keb. 142. That if a bond depends on fome other deed, and that deed becomes void, the bond is void alfo. 2 . Wils. 341. and that a fine levied, or a judgment fuffered for the fecurity of money in purfuance of an ufurious contract, may be avoided by an averment of the corrupt agreement, as well as any payroll contract. 1. Hawl. 248. 3. Rol. 509. He faid that the defendant did not wifh to diminifh the plaintiff's fecurity, but only to obtain a celfations of proceedings ‘till the illegal confideration of the bond was afcertained by the event of the crofs action ; that if the confideration was illegal by ftatute, it was void by the common law ; and, confequently, that the defendant would then be entitled to recover form the plaintiff as much as was now taken in execution. 2. Wils. 341. Carth. 225.
by the court :—We cannot in this way enter into a confideration of the merits of another action. Nor ought we upon fo flight a foundation to grant a rule to fhew caufe ; for fuch rules by the delay which they occafion, are frequently as prejudicial to the plaintiff, as if they were made abfolute.