
    Daniel M’Auly vs. The State.
    Where an indictment charged the defendant with usuriously receiving and reserving four dollars, for the loan and forbearance of twenty dollars for sixty days, and proof was that the defendant received “United States Bank notes:” Held, that the proof did not support the charge, and that the variance was fatal.
    This is an indictment for usuriously reserving and receiving from John Stewart, four dollars for the loan, forbearance, and giving day of payment of the sum of twenty dollars for sixty days. The defendant was convicted, and a new trial being refused him, appealed in the nature of a writ of error to this court. Stewart was the only witness introduced, and he proved, that being in debt, and wishing to take some horses to Kentucky to sell, he applied to defendant for the loan of twenty dollars for sixty days, and offered to give him any interest he might demand; that the defendant loaned him twenty dollars, and took his note, payable in sixty days, for twenty-four dollars The defendant told Stewart at the time of the contract, that if he would return the money in a short time, he would not charge him so much interest. Stewart was absent in Kentucky only four or five days, and on his return, he sent his son to defendant with United States Bank notes to the amount of twenty-five dollars. His note and one dollar in silver were returned by the hoy. Several days after this, witness saw defendant for the first time after his return from Kentucky, and defendant offered to return him the four dollars, telling him that he did not intend to charge him any interest. Witness refused to take the money then, but being after-wards pressed by the defendant to do so, he consented, and defendant paid him back four dollars in silver.
    The defendant moved the court to charge the jury, that the proof did not support the allegation in the indictment, that, the defendant had received four dollars in specie, but that the payment being made in United States paper, that they must find for the defendant, which the court relused to do; but stated if M Auly received the United States notes as silver, and if they were of equal value to silver, they were equivalent to silvér to him; and if he returned the four dollars in specie to Stewart, it was evidence he had changed the notes for silver, and the evidence was proper evidence for the consideration of the jury in support of the indictment.
    
      Lindsley and Shelton, for plaintiff in error.
    «á. Hays, Attorney General, for defendant in error.
   Green J.

delivered the opinion of the court.

The attorney general admits that'the charge in the indictment, that the usury received was “dollars,” is, in effect, an allegation that the specie was received. The proof is, that United States Bank notes were sent to the defendant. This court, in the case of Johnston v. The State, (Mart. & Yer. 129) decided that upon an indictment charging that a party gambled for “money,” it was not sufficient to prove that bank notes were bet. We do not perceive that there is any difference in principle between that case and the one before the court. The circuit court did not tell the jury in this case, that this proof corresponded with the allegation; but while this is very adroitly avoided, yet the impression is made upon the jury, that proof of United States Bank notes having been received, would authorize them to find the defendant guilty. He says, “that if he received the United States notes as silver, and if they were of equal value to silver, they were equivalent to silver to him.” That would all be very true; but these remarks have no application to the case, unless the judge intended to be understood that evidence of payment in notes “equivalent to silver,” would suppport a charge that payment was made in silver. If he so intended, the charge is in opposition to the principles of Johnston vs. The State, and is erroneous; but if he did not so intend, still the remarks were calculated to make on the jury that impression, and thereby mislead them. But the court further told the jury, that “if he returned the four dollars in specie to Stewart, it was evidence he had changed the notes for silver.” It is not perceived how the fact, that the four dollars paid back to Stewart were in specie, proves, that M’Auly had changed the notes into specie. Such a consequence could not follow, unless it were proved that M’Auly bad no other means of obtaining the four dollars than by changing the notes he received of Stewart. But if this fact does establish the consequence contended for, still it is well answered by the counsel for .the plaintiff in error. If M’Auly took the notes, (not in payment, as the judge supposes), and had them changed in order to get his money in specie, there'would be no proof that he received usury at all; for it is in proof, that he returned, or offered to return, the four dollars, the first time he saw Stewart, and of course, the first time he had an opportunity of doing so after he procured the notes to be changed. But the truth is, the notes were received in payment, and the simple question is, does that proof support the allegation of a payment in dollars? We think it does not, and therefore, without discussing other questions'which have, been raised and ingenuously ar gued, we are of opinion the court erred, and order that the judgment be reversed.

Judgment reversed.  