DALLAS moved for a rule to shew cause why the execution issued in this action, should not be staid, till another action, brought upon the act of Assembly against Usury, by Shirtliffe, the present defendant, against Shoemaker, the present plaintiff, was determined.

The motion was founded upon an affirmation, which stated, that the plaintiff and defendant, having been concerned in trade, borrowed money from one Anne Gibbs upon a usurious contract; that Anne Gibbs became pressing for the payment of the money while the defendant was out of town; that the plaintiff thereupon gave her his separate securities 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 present execution is issued upon the judgment confessed by virtue of that warrant of attorney; that an action is depending against Gibbs, on the act of Assembly against Usury, and that the defendant has also instituted a suit against the plaintiff, upon the same act returnable to September term, 1785.

It was suggested, in support of the motion, that the object of the execution, was a share which the defendant held in a vessel with the plaintiff, and others; and that if this share was taken and sold, the defendant would be in danger of loosing satisfaction, if he recovered in the qui tam action which he had instituted against the plaintiff.

opposed the rule in the first instance. They contended, that, even admitting there had been an usurious contract between the parties to this suit, 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 person shall receive or take. They said, likewise, that although the consideration of the bond was originally usurious, the act of Assembly did not make it void; but only worked a forfeiture to the value of the thing or money lent; and that, therefore, without going farther, if the defendant’s cross action did not appear from his own stating well founded, it should not be made the instrument of delaying the plaintiff’s satisfaction.

…

Citation profile

How this case has been treated — in progress