
    Lawrence against Knies.
    NEW YORK,
    May, 1813.
    Where a de'action” cm “a bond, .and gave notice, specially set-usurious^conbew’ that"?!! pases of no-ash?pfeasjthe forth mustie ^oiTeciij^and ami proved as luid; and a valance m vesp plea, as fi, fespeot í¡i a declaraInd’mhre esfíctToC%sury?
    AiW wherp in the notice fdq^piea? sktfeel the usu-as money, were sold and delivered at the time of the contract, and the proof was, 'that the cattle were to be kept by the' plaintiff for one month before delivery, the variance was held material and fatal; but it seems an omission to state in the notice or plea, that the defendant gave ^'mortgage, by way of collateral security, is pot ?o material as to vitiate it,. '' ' "
    THIS was an action of debt on a bond. The cause was tried the Oneida circuit, in September, 1812, before Mr. Justice Thompson. The declaration was in the usual form. The de.fendant pleaded non est factum, with a notice subjoined, that he, f . at tap trial, wpuld give in evidence, that before the making of the bond, “tp wit, on the 4th May, 1811,” it was corruptly, and ?Saa!St the form of the statute, Seo. agreed, by and between the plaintiff and defendant, that the plaintiff should lend and advance tp the defendant, 207 dollars and 38 cents, and that the plaintiff ^ould fprbear and g|ve day of payment thereof to. the defendant, for the space of one year from the 4th of May, 1811, and that the defendant, for the loan of the said sum of 207 dollars and 38 cents, an^ giving day of payment, &c. should, within one year, Sec. give and pay to the plaintiff 97 dollars and 62 cents, and further, that the plaintiff should sell and deliver to the defendant, a certain yoke .of steers and a certain ypke pf oxen, and that the defendant should S‘ ‘P the plaintiff for thp yokp of steers 70 dollars, and for the yoke of oxen 85 dollars, within one year, Sec. which said §ums of 85 dollars, 70 dollars, 37 dollars and 62 cents, and the sum of 207 dollars and 38 cents, made the full sum of 400 dollars, mentioned in the condition of the bond set forth in the plaintiff’s decimation; and also that the defendant should pay to the plaintiff* interest on the sum of 400 dollars, from the 4th May, 1811, &c. And further, that for securing the payment of the sum of 400 dollars with interest, See. the defendant should make and seal, and, as his act and deed, deliver, to the plaintiff a certain writing obligatory, &c. for 800 dollars, conditioned- for the payment of the sum of 400 dollars, &c. And farther, that in pursuance of the corrupt and unlawful agreement, &c. the plaintiff afterwards, &c. sold and delivered to the defendant the yoke of steers, and yoke of oxen, and lent and advanced the sum of 207 dollars and 38 cents; and for securing the payment of the sums, Sec. the defendant sealed and delivered the writing obligatory mentioned in the plaintiff’s declaration, and that the plaintiff received the same in pursuance of the corrupt and unlawful agreement.
    The defendant also gave further notice, to the same effect as above, and stating the corrupt agreement to be, that the plaintiff should lend the sum of 207 dollars and 38 cents, and should sell the yoke of steers, of the value of 50 dollars, and the oxen, of the value of 75 dollars, and that the forbearance of payment for one year, of the sum of 207 dollars and 38 cents, was on the express condition that the defendant should pay to the plaintiff 70 dollars for the steers, and 85 dollars for the oxen, and also the sum of 37 dollars and 62 cents, within one year, and on which sums, making together 400 dollars, tlie defendant was to pay interest, and for securing the payment thereof, was to give his bond; and averring that in pursuance of such agreement, the plaintiff executed the bond mentioned in the plaintiff’s declaration, &c.
    There was also a further notice, substantially, to the same effect.
    The plaintiff having proved the execution of the bond, the defendant proved the corrupt agreement as set forth in the notice annexed to the plea, except that the witness, on his cross-examination, testified, that the plaintiff was to keep the cattle one month, and that the defendant gave a mortgage to secure the money, and the witness could not testify with certainty as to the number of cents. The plaintiff’s counsel insisted that there was a fatal variance between the agreement set forth in the notice, and that proved by the witness. The judge expressing an opinion that the variance was immaterial, and that there ought to be a verdict for the defendant, the plaintiff submitted to a nonsuit, with leave to move to set it aside, and for a new trial.
    
      
      Sill, for the plaintiff,
    contended, that in pleading, great strictness was requisite in set ting out the contract, and that a trivial variance between the contract stated and the one proved at the trial would be fatal. In cases of usury, especially, courts hold the parties to very great strictness ; and the rule as to declaring was equally applicable to pleas.
    The contract for the sale and delivery of the cattle, and for the loan of the money, was one and the same; and the usury is alleged to be as well in the sale of the cattle as on the loan of the money. Having undertaken to set out the security, in his notice, he was bound to state it truly. Notices are allowed by statute, instead of special pleas, but the same rules apply to them as to pleas. The fact proved, that the plaintiff was to keep the cattle for a month, was a material variance, for it may be that the expense of keeping would have absorbed all the usurious interest or consideration.
    
      Kirkland, contra, insisted,
    that the contract was proved precisely as stated in the notice. The evidence that a mortgage was given as security, did not affect the contract. It was merely an additional security. None of the cases cited by the plaintiff’s counsel applied to the point, as to a variance in stating; the security.
    As to the objection that the plaintiff was to keep the cattle for a month, it did not appear that any thing was to be paid for .the keeping; nor whether it was to be beneficial to the borrower or lender; it could not, therefore, affect the contract,
    
      
       1 Chitty on Pl. 304. 1 T. R. 240. 2 East, 2. 4 T. R. 558. Dong. 665.
    
    
      
      
         2 Camp. N. P. 53. 4 Esp. Rep. 152. 1 Saund. 295. n. 1.
    
   Per Curiam.

The notice undertook to set forth specially the usurious contract. It was a substitute for a plea of usury, and in a notice, as well as in a plea, the contract must be correctly and truly stated, and proved as laid. A variance in a plea as well as in a declaration, between the contract as laid and the contract as proved, is fatal; and it is equally so, though the contract in either case would be usurious. The rule even requires the contract to he more precisely stated in a plea of usury in bar, than in a declaration in a qui lam suit, because the facts are within the defendant’s knowledge. (Hawk. tit. Usury, s. 24. Carlisle v. Frears, Cowp. 671. Tate v. Wellings, 3 Term Rep. 531. Hinton v. Roffey, 3 Mod. 35.) The omission, then, in this case, to state that it was parcel of the agreement that the plaintiff was to keep the cattle for one month, was fatal. The variance between the proof and the contract stated was, that in the one case they were sold and delivered at the time of the contract, and in the other, that they were sold and to be kept by the plaintiff for a month before delivery. Whether the keeping the cattle for a month would have aittred the corrupt nature of the contract is immaterial. The omis9mn ~o state that the defendant gave a mortgage, by way of collateral security, ai~d which was also made a ground of ob~ jection, does not seem to have been injurious, according to the case of Wade v. Wi1son. (1 East, 195.) Our opinion proceeds on the ground of the other variance.

The nonsuit must, therefore, be set aside, and a new trial awarded, with costs to abide the event of the suit, and with liberty to the defendant to amend his notice on the usual terms.

New trial granted.  