This was an action -of debt, qui tarn, for taking and receiving usurious interest on a loan of $213 to John Frederick and Joseph Keifer.
'' The trial resulted in a verdict for the plaintiff, and the plaintiff in error, who was defendant below, has assigned several errors, all of which may be reduced to a few prominent propositions.
1. It is alleged that the court erred in receiving in evidence the record, which is the subject of the bill of exceptions; It was conceded at the trial, that the record was improperly admitted, but, after receiving it, and discovering the mistake, it was immediately withdrawn. The only objection to it was, that it was the wrong record, and, consequently, immaterial to the issue. Surely, such evidence as this can be withdrawn, as it is difficult to ¡rerceive what injury it could possibly do to the adverse party. It is the practice to permit evidence to be withdrawn, when it has been improperly and inadvertently received; and unless this is permitted, and the court allowed tp correct the mistake, they would be compelled either to dismiss the jury, or to try the case under a ,'certainty of reversal if the verdict should be adverse to the party against w'hom the error was committed. If there is good reason to apprehend that the testimony which has been improperly admitted will work an injury to the adverse party, the court may, in its discretion, dismiss the jury, or grant a new trial. Although the latter will be rarely done, as, perhaps, it would be unjust to grant a-new trial where the party has consented to take his chance of a verdict; at any rate it is ■ not such an'error as would justify this court in reversing the judgment. It is error, if any, which may, with more effect,, and with a better chance of doing substantial justice, be- corrected in the court below.
But was there error in instructing the jury that the note constituted the' contract of loan made by the defendant ?—that .the declaration was right, in form and substance ; that the declaration alleges a receipt-of usurious interest from John Fredérick and Joseph Keifer; whereas, the proof is, that the receipt is frpm Joseph Keifer alone; and that the narr; counts on a contract of loan for a year, from 27th February, 1843, to 27th February, 1844, whereas, the record given in evidence show's, that the note -was payable twenty days after date, and is dated 27th February,' 1843. The exceptions, as above stated, •comprise the whole case as it has been submitted to us, in the argn*320ment, except the eighth error; and as to that, it is enough to say, ■ that there is no evidence to submit to the jury on which the point can arise. . ■ ' ■
Joseph Keifer, to whom the money was loaned, testifies, that the note was given by him to John Frederick; that he did not receive the money at once; that he alone borrowed it, and that Frederick was his surety, but that the money was borrowed‘to pay Frederick, to whom he was indebted. It is contended, that under these circumstances, the loan was to Keifer alone, and that, it was wrong to declare on it as made to Keifer and Frederick. If this were so, although a technical objection, there could be no recovery, and so the court instructed the jury. But was the loan to Keifer alone ? We think not. The note constitutes the only proper evidence of the contract, which was with both, not with one. Although 'the application for the loan may have been made by Keifer. alone, who received it and paid it over to Frederick, and as to him was the principal debtor, yet,' so far as the creditor was concerned, both are debtors. It is loaned to both; and it may be, exclusively on the 'credit of' the surety. The court was therefore right in saying to the jury that the note constituted the contract of loan made by . the defendant, and that it was the only contract made with the defendant in relation to it. It is this that secured the money loaned, . and on this' contract alone could the creditor maintain an action for its recovery. All previous negotiations are merged in this note; for, so far as respects the parties, the contract was only complete at the time'the note was executed. The separate contract, if. any existed, is merged in the joint contract.' Nor do we see any force in the allegation, that the declaration alleges a. receipt of usurious interest from "John Frederick and Joseph Keifer; whereas, .the proof is of the receipt 'of. $13 50 from Keifer, alone. As they-are joint debtors, the payment of .one is the payment of both;, and, therefore, the pleader is right in averring, that the usurious interest was received from both. - - .
The narr. counts on a contract.of loan for a year, from'the 27th February, 1843, to February 27th, 1844 ; whereas, the record given in-evidence shows that the note was payable twenty days, after date, and is dated 27th February, 1843. This error is filed under a misapprehension ; for I cannot perceive that the narr. refers to the contract of loan at all, but to the forbearance of the creditor; or the time the debtor had the use of the money.' This, as the court properly say, is correct' in form and substance. But, granting that it is as stated in this point, it amounts to a variance between the decía*321ration and proof,’for which-defect no specific, direction was prayed ; and having omitted to point the attention of the pleader to the defect, he cannot now assign the variance as error. Had the variance been pointed out at the trial, the plaintiff would have had a right to amend, an advantage of which he is. deprived by the course .taken by the plaintiff in error.' Judgment affirmed.