
    Philip Evert qui tam. against Thomas Barr.
    In debt qui tarn, on the act against usury, the usurious contract in point of date, must be proved as laid, or the variance is fatal.
    Debt 71I. on the act against usury of the 2d March 1723. 1 St. Laws 193. Plea, nil debet and issue.
    On the trial at the last Circuit Court, the defendant’s counsel moved for a nonsuit; the contracts for the usurious loans, as alleged in the declaration, differing in point of date from the evidence adduced.
    The court then directed that the trial should proceed; and should a verdict pass for the plaintiff, they would consider afterwards how far the testimony would warrant a recovery on the whole, or any of the counts in the declaration, in as full a manner as if the same had been then determined. And it was mutually agreed, that the verdict should be entered accordingly.
    The jury found a verdict for the plaintiff for 71I.
    On a rule to shew cause why the verdict should not be vacated, and in lieu thereof a verdict and judgment be entered for the defendant;—
   Yeates, J.

stated the evidence which had been given on the trial, and the seven counts laid in the declaration particularly, and then proceeded.

Hence it appears that no proof was offered on the first, second, fourth, and fifth counts.

Messrs. Duncan and Orbison, pro quer.

Messrs. S. Riddle and Dunlap, pro def.

The third count would have been correctly stated, if the 30I. had been alleged to have been loaned on the 31st December 1794, instead of the 1st January 1795 ; and if the 151. laid to have been forborne, the payment of had been alleged to have been from the 8th September 1794, instead of the last day of February 1795.

The sixth count would have been correct, if the forbearance of the 215I. ns. had been stated to have been from the 1st November 1797, instead of the last day of October 1797. And the same objection holds precisely as to the seventh count.

There seems therefore a fatal variance in all the counts; and whatever our feelings may be as men, we must submit to the authority of Carlisle qui tam. v. Trears, Cowp. 671. In the language of Lord Mansfield, the usurious contract must be “proved as laid; whereas the contract proved in this case, is ,. 1 “ *totally different from the contract stated in the decla-I0°3 “ration.”

Rule made absolute.  