CHAPTER XV.

VARIANCE. AMENDMENT.

Allegation of pleadings and proof should correspond— Variance in New York-General rules as to variance -Immaterial variance-Material variance—Amend

ment.

363. The general rule as to variance is, that the allegations of the pleading and the proof must correspond, otherwise there as a variance, and the plaintiff fails; but now, in New York, it is enacted by statute that "no variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the adverse party to his prejudice," and when the variance is shown to be material, the court may order an amendment. The following decisions upon variance are in cases not within the Code of New York.

§ 364. Ordinarily it is sufficient if the words proved correspond substantially with those alleged.3 But although any mere variation of the form of expression is not material, the words alleged cannot be proved by

1 In actions of slander and libel the language charged must be proved as laid. (Birch v. Benton, 26 Mo. [5 Jones], 153; Horton v. Reavis, 2 Murph. 380.) A variance is fatal. (Stanfield v. Böyer, 6 Har. & J. 248; Winter z. Donovan, 8 Gill, 370; Harris v. Lawrence, I Tyler, 156.) It is not sufficient to prove the substance of the charge merely. (Rex v. Berry, 4 T. R. 217.)

2

Code of Pro. § 169. As to amendment of variance in Indiana (Proctor v. Owens, 18 Ind. 21.)

3 Coghill v. Chandler, 33 Mo. 115; Smith v. Hollister, 3 Shaw (Vt.) 695; Taylor v. Moran, 4 Metc. (Ky.) 127; Williams v. Minor, 18 Conn. 464; Desmond v. Brown, 29 Iowa, 53; Bundy v. Hart, 46 Mo. 460.

showing that the defendant published the same meaning in different words,' even if equivalent and of similar import. A count for slanderous words spoken affirmatively is not supported by proof that they were spoken by way of interrogation.3 Proof of words spoken in the second person will not support counts for words spoken in the third person, and vice versa. Proof of a positive assertion is not admitted under an allegation of a hypothetical assertion; an allegation that the words were "he swore to a lie" is not supported by proof that the words were "he swore to a lie if he swore as Jones said he did.”s

§ 365. The plaintiff need not prove all the words laid,

1 Smith v. Hollister, 3 Shaw (Vt.) 695. Within six months before suit brought, the defendant said concerning the words alleged to be actionable, but which were barred by the statute, "I never denied what I have said, and I will stand up to it." Held, that this was not a repetition of what he had previously said, and that an action could not be sustained thereon. (Fox v. Wilson, 3 Jones Law [N. Car.] 485.)

2 Wilborn v. Odell, 29 Ill. 456; Taylor v. Moran, 4 Metc. (Ky.) 127; Norton v. Gordon, 16 Ill. 38. It is not sufficient to prove words equivalent to those alleged. (Moore v. Bond, 4 Blackf. 458; Slocum v. Kuykendall, 1 Scam. 187; Olmsted v. Miller, I Wend. 506; Watson v. Musick, 2 Mo. 29; Armitage v. Dunster, 4 Doug. 291; McConnell v. McVenna, 10 Ir. L. R. 511; Campagnon v. Martin, 2 W. Black. 790.) Words to the same effect are not the same words. (Fox v. Vanderbeck, 5 Cow. 513.)

Barnes v. Holloway, 8 T. R. 150; Sanford v. Gaddis, 15 Ill. 228; King v. Whitley, 7 Jones Law (N. Car.) 529. If in an action of slander the words be proved to be spoken affirmatively as they are laid, the charge is supported, though it appear that they were spoken in answer to a question put by a third person. (Jones v. Chapman, 5 Blackf. 88.)

'Cock v. Weatherby, 5 Smedes & Marsh. 333; Miller v. Miller, 8 Johns. 74; Stannard v. Harper, 5 M. & Ry. 295; M'Connell v. McCoy, 7 S. & R. 223; Culbertson v. Stanley, 6 Blackf. 67; Williams v. Harrison, 3 Mo. 411; Wolf v. Rodifer, I Har. & J. 409; Avarillo v. Rogers, Bull. N. P. 5; Rex v. Berry, 4 T. R. 217; Phillips v. Odell, 5 Up. Can. Q. B. Rep. O. S. 483; Sanford v. Gaddis, 15 Ill. 228; Rutherford v. Moore, I Cr. C. C. 388; Birch v. Simms, Id. 550. Evidence of the words, "You are a broken-down justice," does not support an indictment for speaking of the magistrate the words, "He is a broken-down justice." (4 T. R. 217; but see Cro. Eliz. 503.) Words proved to have been spoken in the second person sustain a count for slander in which the words are in the third person. (Daily v. Gaines, I Dana, 529; Huffman v. Shumate, 4 Bibb, 515.)

Evarts v. Smith, 19 Mich. 55; § 369, post.

but he must prove enough of them to sustain the action. It is sufficient if the gravamen of the charge as laid is proved, and unless the additional words qualify the meaning of those proved so as to render the words proved not actionable, the proof is sufficient.3 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

1 Fox v. Vanderbeck, 5 Cow. 513; Purple v. Horton, 13 Wend. 9; Nestle v. Van Slyck, 2 Hill, 282; Skinner v. Grant, 12 Vt. 456; Scott v. McKinnish, 15 Ala, 662 ; Hancock v. Stephens, II Humph. 507; Isley v. Lovejoy, 8 Blackf. 462; Sanford v. Gaddis, 15 Ill. 228; Whiting v. Smith, 13 Pick. 364; Loomis v. Swick, 3 Wend. 205; Wheeler v. Robb, 1 Blackf. 330; Chandler v. Holloway, 4 Port. 17; Berry v. Dryden, 7 Mo. 324; Coghill v. Chandler, 33 Mo. 115; Geary v. Connop, Skin. 333; Remington v. Meeks, 46 Mo. 217.

Hersh v. Ringwalt, 3 Yeates, 508; Wilson v. Natrous, 5 Yerg. 211; Cheadle v. Buell, 6 Ham. 67; Pursell 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, 11 N. Hamp. 127; Merrill v. Peaslee, 17 N. Hamp. 540.

3 Sanford v. Gaddis, 15 Ill. 228; Merrill v. Peaslee, 17 N. Hamp. 540; Smart v. Blanchard, 42 N. Hamp. 137. The 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, 4 Scam. 30; Scott v. Renforth, Wright, 55.)

4 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 3, p. 490) were set out in the declaration without the line in Latin which followed them; it was held the omission was immaterial.

5 Flower v. Pedley, 2 Esp. 491.

words do not change the meaning of those set forth,' and words spoken at different times may be given in evidence on one count.2

§ 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.3 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 defend

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 was read it was found to contain all that was stated in the declaration and something more; held not a material variance—of course the some thing more did not qualify what went before. (And see Morrow v. McGaver, I Ir. L. R. N. S. 579.) In Crotty v. Morrissey (40 Ill. 477), held no variance between "he stole $200 from me," and "he stole $200 from me when I was drunk," but that there was a variance between "he stole part of the money he collected in the Catholic church," and "he stole part of the money he collected in the Catholic church in Seneca."

Charlter v. Barret, Peake Cas. 32.

3 Kinney v. Nash, 3 N. Y. 177.

4 Sellers v. Till, 4 B. & Cr. 655; Sellers v. Killew, 7 D. & Ry. 121.

'Collins v. Carnegie, 3 Nev. & M. 703; 1 Ad. & El. 695.

ant, 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 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.'

367. The following have been held to be immaterial variances: the date of publication;3 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

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

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

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.

4 Wilborn v. Odell, 29 Ill. 456.

Teague v. Williams, 7 Ala. 844. In an action of slander, the plaintiff alleged that the slanderous words were spoken relative to testimony of the plaintiff in a suit in which S. was plaintiff and H. defendant. Held, that evidence aliunde was admissible to show that the record of an action by S. and W. against H. was the action referred to in the declaration, and that there was no variance. (Hibler v. Servoss, 6 Mo. 24.)

Goodrich v. Warner, 21 Conn. 432. But where the allegation was a speaking in the hearing of "divers citizens," and the proof was of a speaking in the hearing