State v. Tappan

Gilchrist, C. J. A recovery can be had only secundum allegata et probata, and this rule is as applicable and as much to be regarded in this case as in any other. In actions qui tarn upon the statutes against usury, if the plaintiff undertake to set out the usurious contract, he must prove it precisely as laid, or .the variance will be fatal. Musgrove v. Gibbs, 1 Dall. 216. So the day from which the forbearance is to commence is material, and must be truly stated. Partridge v. Coates, 1 C. & P. 534; Carlisle v. Trears, Cowp. 671; Harris v. Hudson, 4 Esp. 152. The money and the interest upon it, are alone -subject to the forfeiture. Gibson v. Stevens, 3 N. H. Rep. 185; Williams v. Little, 11 N. H. Rep. 66. This is a sufficient reason why the money, on which the unlawful interest is reserved, should be stated accurately. The indictment charges the respondent with having falsely sworn, that the sum of $20 was not received for the loan of the $400. The sum lent was $380 ; for Sargent testified that that was the sum he received, and that he thereupon delivered Tappan the note for $400. There was usury in the transaction, doubtless, but it was received upon the sum of $380, and not upon that of $400. The allegation in the indictment is, therefore, unsupported by the proof, and the respondent has not sworn falsely, and the indictment cannot be sustained.