Page:United States Reports, Volume 1.djvu/227

216 

1787.

been brought, a prefumption arifes, that the fenfe of mankind is againft it. If, however, we fhould be thought to be miftaken, another hearing may be had before the High Court of Errors and Appeals, on a writ of error, where this new cafe may be finally fettled. 

HIS was an action qui tem &c. on the Act of Affembly againft Ufury ; and, in the courfe of the trial,  refolved the following points:

Firʃt.–Richardʃon, though the mediation of Shoemaker, borrowed 800 Dollars of the Defendant, and gave his not for 840 Dollars  payable in one month. There was no talk about premium at the time of the loan ; but it was underftood by the witneffes, that the Borrower was to pay at the rate of 5''per cent. per month'' for the money. At the end of the month, Richardʃon paid Ł.168. on account of his note, and gave a new note, drawn in favor of, and indorfed by, Shoemaker, for the ballance. He difcharged the amount of his laft note at different times ; but it was never given up by the Defendant.

RESOLVED, that this was an illegal loaning of money, not the purchafe of a note, fo as to avoid the penalties of the act ; and that the ufury was compleat on taking and receiving the Ł.168; as a proportion of that fum, went towards payment of the illegal in tereft included in the original note.

Second.− The ufurious contract was ftated in feveral Counts of the declaration, to be with Shoemaker and Shirtliʃʃe  (who were Partners) jointly ;  but the proof was of a not given by Shoemaker alone.

RESOLVED, that this variance is fatal : For, an action upon the note could only be maintained againft Shoemaker, who, if he intended to bind his partner, ought to have ufed the firm of the company ; and, befides, if there fhould be a recovery againft the Defendant on the prefent count, it would be not bar to another qui tam  action on the fame note, ftating the unfurious contract to have been with Shoemaker alone.

Third.− Shoemaker and Shirtliʃʃe  borrowed feveral fums from the Defendant, and gave their notes payable in a month, with intereft, at the rate of 5 ''per cent. per month,'' added to the principal. When thefe became due, they could not pay the money, but drew new notes, making the principal and intereft of the former notes (which were given up by the Defendant) principal, and again adding the fame execeffive intereft upon the agregate amount.

RESOLVED, that, although no money was actually paid to the Defendant, the fecond notes were a fatisfaction of the firft ; and the ufury The parties acquiefcing in the decifion of the Court, no writ of error has been fued out.