2

It is sufficient if the gravamen of the charge as laid is proved,' and unless the additional words qualify the mean. ing of those proved so as to render the words proved not actionable, the proof is sufficient. It is necessary for the plaintiff to prove some of the words precisely as charged, but not all of them, if those proved are in themselves slanderous; but he will not be permitted to prove the substance of them in lieu of the precise words. Where the whole of the words laid in any one count constitute the slanderous charge, the whole must be proved. But where there are distinct slanderous allegations in any count, proof of any of them is sufficient. The plaintiff may prove more words than are set forth in the complaint, provided the additional words do not change the meaning

cient if the gravamen of the charge laid be proven. (Dufreene v. Weise, 46 Wis. 290; Albin v. Parks, 2 Bradw. [Ill.] 576; Humbard v. The State, 21 Texas App. 200; Mix v. McCoy, 4 West [Mo. App.], 894; Schoonhoven v. Beach, 23 Week. Dig. 348; Nichols v. Hayes, 13 Conn. 163.) Where it is alleged that defendant charged plaintiff with sleeping with another man than her husband, and the proof is that he charged that such a person was in bed with her, held no variance. (Barnett v. Ward, 36 Ohio St. 107.)

1 Hersh v. Ringwalt, 3 Yeates, 508; Wilson v. Natrous, 5 Yerg, 211; Cheadle v. Buell, 6 Ham 67; Purcell v. Archer, Peck (Tenn.), 317; Miller v. Miller. 8 Johns. 74; Cooper v. Marlow, 3 Mo. 188; Barr v. Gaines, 3 Dana, 258; McClintock v. Crick, 4 Iowa, 453; Baldwin v. Soule, 6 Gray, 321; Scott v. McKinnish, 15 Ala. 662; Bassett v. Spofford, II N.

Hamp. 127: Merrill v. Peaslee, 17 N.
Hamp. 540.

2 Sanford v. Gaddis, 15 Ill. 228; Merrill v. Peaslee, 17 N. Hamp. 540; Smart v. Blanchard, 42 N. Hamp. 137. Plaintiff need not prove all the words set forth in the declaration, provided he proves enough to sustain his cause of action, and the words proved do not differ in sense from those alleged. (Nichols v. Hayes, 13 Conn. 155; Nestle v. Van Slyck, 2 Hill, 282; McKee v. Ingalls, Scam. 30; Scott v. Renforth, Wright, 55.)

3

Easley v. Moss, 9 Ala. 266; Morgan v. Livingston, 2 Rich. 573; Creelman v. Marks, 7 Blackf. 281; Patterson v. Edwards, 2 Gilman, 720. Although the libel read in evidence contained matter in addition to that set out in the declaration, there is no variance if the additional part do not alter the sense of that which is set out. (M'Coombs v Tuttle, 5 Blackf. 431; Cooper v. Marlow, 3 Mo. 188; Rutherford v. Evans, 6 Bing. 451; 4 Car. & P. 74.) Thus, in Tabart v. Tipper (1 Camp. 350), the rhymes (see ante, note 4, p. 457) were set out in the declaration without the line in Latin which followed them; it was held the omission was immaterial.

4 Flower v. Pedley, 2 Esp. 491.

of those set forth, and words spoken at different times may be given in evidence on one count."

§ 366. An action for slanderous words imputing to the plaintiff misconduct as a constable is not sustained by proving words imputing misconduct to him, as an agent of the executive of one State, for the arrest, in another State, of a fugitive from justice. Where the words were alleged to have been spoken of and concerning the plaintiff as treasurer and collector of certain tolls, and the innuendo corresponding thereto, and the proof was only of his being treasurer, and he failed in making out his appointment to be collector; held, that for want of such proof he was properly nonsuited. For words spoken of a physician, alleging that he was not entitled to practice as such; held, first that the plaintiff was bound to prove not only that he practiced as a physician, but that he practiced lawfully. In an action for these words spoken by defendant of the plaintiff in his profession as a physician: "Dr. S. has upset all we have done, and die he (the patient) must," it was proved that the plaintiff had practiced several years as a physician, and having been called in during the absence of a physician who with the defendant attended the patient, the defendant, as apothecary, made up the medicines prescribed by the plaintiff for the patient in question. Quære, whether, on this declaration, it was necessary for the plaintiff to produce a diploma, or other direct evidence

1 Wilborn v. Odell, 29 Ill. 456. In Bourke v. Warren (2 C. & P. 307), a letter was set out as inducement alleged to contain "the words and matters following;" when the letter Iwas read it was found to contain all that was stated in the declaration and something more; held not a material variance-of course the something more did not qualify what went before. (And see Morrow v. McGaver, 1 Ir. C. L. R. N. S. 579.) In Crotty v. Morrissey (40 Ill. 477), held no variance between "he stole $200 from me," and

that he had taken a degree in physic, in order to maintain the action.1 Where the declaration alleged the plaintiff to be an attorney, and that the words were spoken of him in his professional character, the words being actionable without any reference to such character; held, that mere proof of his having been admitted, without showing that he had practiced or had taken out his certificate, was not a fatal variance."

8

367. The following have been held to be immaterial' variances: the date of publication; a difference in the tense of the words, as had for has; the transposition of the names of the parties to the suit, as a witness in which the plaintiff was charged with having sworn falsely; alleging that the offense was committed on Saturday instead of Sunday; a discrepancy in the title of a paper; where it was alleged that the publication was in the presence of B., held not necessary to prove such allegation. On an allegation that the defendant charged the plaintiff with perjury in a suit of A. and B. v. C. and D., the variance is not fatal if it be shown that the charge was made in reference to the case of a cross-bill, by one of the defendants in such case, against the complainant and co-defendants.

1 Smith v. Taylor, 1 N. R. (4 Bos. & Pul.) 196. In an action by an apothecary, what is sufficient proof of his qualifications as such. (Wogan v. Somerville, Moor, 102; 7 Taunt. 401.)

Lewis v. Walter, 3 B. & Cr. 138, note b; 4 D. & R. 810.

3 Thrall v. Smiley, 9 Cal. 529; Gates v. Bowker, 18 Vt. (3 Washb.) 23; Commonwealth v. Varney, 10 Cush. 402; Potter v. Thompson, 22 Barb. 89.

• Wilborn v. Odell, 29 Ill. 456. Teague v. Williams, 7 Ala. 844. In an action of slander, plaintiff alleged that the slanderous words were spoken relative to testimony of plaintiff in a suit in which S. was plaintiff and H. defendant. Held, that evi

And

where the declaration on a libel stated that certain prosecutions had been preferred against M., and that, "in furtherance of such proceedings," certain sums of the parish funds had been appropriated to discharge the expenses; but the libel charged the money to have been so applied after the proceedings had terminated; held, that it being immaterial to the defamatory character of the libel when the money was so applied, the variance was immaterial.1 So a slight variance in the names of the defendants in the indictment, as set forth in the declaration and contained in the record, may be cured by parol proof of the identity of the persons. Where the words charged in one count were "He is a thief," and in another, "He is a thief, and stole the hay and hay-seed from D.'s barn," and the proof was that the defendant said, at one time, that he was "a thief, and stole the hay-seed out of the barn," and at another that he had "stolen hay and hay-seed that had belonged to D.," it was held that the words charged were sufficiently proved.3

2

§ 368. The following are additional instances of immaterial variance:

ing, in a proceeding between A. & B., held sustained by proof of a proceeding between A. & B. and wife. (Dowd v. Winters, 20 Mo. [5 Bennett], 361.)

1 May v. Brown, 3 B. & Cr. 113; 4 D. & R. 670. It is a general rule that the variance between the allegation and the proof will defeat a party, unless it be in respect of matter which, if pleaded, would be material. (Id.) Where the words are actionable with

PROOF.

He stole a hog.*

The girl that lived with

us. 5

out the inducement, the insertion of what is not material and not proved does not occasion a variance of which advantage can be taken. (Cox v. Thompson, 2 Cr. & J. 361; 2 Tyrw. 411.)

Hamilton v. Langley, 1 McMullan, 498.

3 Williams v. Miner, 18 Conn. 464.
▲ Barr V. Gaines, 3 Dana. 258.
• Robinett v. Ruby, 13 Md. 95.