Whether the statute upon which this indictment is founded applies to the conveyance of land for a precedent debt, when no present consideration is paid, or what construction shall be given to the phrase without, before the consideration is paid, informing the grantee or grantees of the existence and nature ol such an incumbrance, it is unnecessary to inquire, because we are all clearly of opinion that there was a variance between the allegation and the proof.
The allegation that “ said Perkins then and there did pay to said Williams for said conveyance a valuable consideration, to wit, the sum of one hundred and forty-eight dollars and ninety-eight cents,” is not supported by proof that for an old debt and costs the defendant obtained a release from arrest by giving a note for the amount, secured by mortgage. It does not appear whether the note was negotiable, nor is any reference made to the note in the indictment; and, if the note was not negotiable, the only consideration for the mortgage was the release of the *287defendant from arrest; for his debt remained as before, only increased by costs. Bnt if it was negotiable, and so prima facie a payment of the debt, the variance was equally fatal.
Exceptions sustained.