Merriman v. State

Blackford, J.

This was an indictment for usury consisting of four counts. The cause was tried by the Court. Judgment for the State on the second count, and for the defendant on the others.

The second count alleges that the defendant, on the first of January, 1841, at, &c., lent to one William Fox the sum of $30.00 for the term of three months; and that the defendant did then and there unlawfully demand and receive from said Fox four tons of hay, of the value of $16.00, for said loan of $30.00 for said term of three months.

The State offered to prove on the trial, that in January, 1841, the defendant made a loan to Fox of $30.00 for three months from that time, and one month in addition thereto if he wished; and that for the use of said money as aforesaid, Fox was to deliver and did deliver to the defendant four tons of hay, which hay was worth $4.00 a ton. The defendant objected to this evidence, but the objection was overruled.

J. B. Howe, for the plaintiff.

W. H. Coombs, for the State.

We think the evidence was objectionable on the ground of variance. According to the second count, the loan was for three months; but according to the evidence, it was for three months, and one month in addition thereto if the borrower wished it. That was a fatal variance. Tate v. Wellings, 3 T. R., 531.

Per Curiam.—The judgment is reversed. Cause remanded, &c.