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.' 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. 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.3 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.*

of one person, and he not a citizen, it was held a fatal variance. (Chapin v. White, 102 Mass. 139.)

1

1 Wiley v. Campbell, 5 T. B. Monr. 560. A charge of false swearing, 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.)

2 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 without 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. Thomason, 2 Cr. & J. 361; 2 Tyrw. 411.)

* Hamilton v. Langley, 1 McMullan, 498.

4 Williams v. Miner, 18 Conn. 464.

368. The following are additional instances of im

material variance:

us.

ALLEGATION.

He stole hogs.

The girl that hired with

A. committed forgery.

We supposed that they had become aware of the fact.

He stole my staves and nails.

She has had a bastard child.

A. has had a baby.

He is a strong thief.

1 Barr v. Gains, 3 Dana, 258.

2 Robinett v. Ruby, 13 Md. 94.

PROOF.

He stole a hog.'

The girl that lived with

us.2

A. and B. committed forgery.3

We supposed that they had by this time become aware of the fact."

He is a damned rogue, for he stole my staves and nails, and I can prove it."

If I have not been misinformed, she had a bastard child."

We hear bad reports about some of your girls; A. has had a baby?

He is a thief.8

3 Nichols v. Hayes, 13 Conn. 155. But words spoken of a husband or of a wife will not support an allegation of words spoken of both of them. (Davis v. Sherron, I Cr. C. C. 287.)

4 Smiley v. McDougal, 10 Up. Can. Q. B. Rep. 113.

Treat v. Browning, 4 Conn. 408. The words alleged were Plaintiff was in the family way, and R. took her to Chicago to have the child worked off." The proof that defendant said “Plaintiff was in the family way by Tom. Bell," not a material variance. (Baker v. Young, 44 Ill. 42.)

Robbins v. Fletcher, 101 Mass. 115.

Burgis's Case, Dyer, 75.

1 Dancaster v. Hewson, 2 Man. & Ry. 176.

• Commons v. Walters, 1 Port. 377.

3 Scott v. McKinnish, 15 Ala. 662.

'Robinson v. Wallis, 2 Stark. Rep. 194; the word it showing that only one sheep was meant.

8 Orpwood v. Barkes, 4 Bing. 261; s. c. Orpwood v. Parkes, 12 Moore, 492.

$369. It was held a material variance where the declaration alleged that the defendant charged the plaintiff with a crime, and the proof disclosed merely that defendant said he supposed the plaintiff to be guilty of such crime. Where the declaration charged the defendant with speaking slanderous words, and the proof was that he procured another to speak them; where the declaration charged the defendant with speaking defamatory words, and the proof was that defendant signed a written complaint charging the plaintiff with larceny;3 where the declaration charged the defendant with saying that plaintiff, a single woman, had had a child, and the proof was that defendant said, in his opinion plaintiff was pregnant with child. An allegation of slander as to the cleanliness of the person of plaintiff (a cook), as of the defendant's actual knowledge, held, not supported by proof of words as to the defendant's belief or understanding only. An allegation that words were spoken concerning three plaintiffs (partners) in their joint trade, is not supported by proof that the words were addressed to one of the plaintiffs personally." Where the words set forth, in their ordinary sense, import a charge of crime, if they are proved to have been so spoken in connection with

1 Dickey v. Andros, 32 Vt. (3 Shaw), 55. Where, in case for a malicious prosecution, the declaration alleged that an express charge of felony was made against plaintiff, but it appeared that the defendant had only deposed to a suspicion that he had committed it, held no variance, it being the only meaning which could be imputed to the accusation. (Davis v. Noake, 6 Maule & S. 29.)

Watts v. Greenlee, 1 Dev. 210.

Hill v. Miles, 9 N. Hamp. 9.

4 Payson v. Macomber, 3 Allen (Mass.) 69. A count in slander, alleging that the defendant charged upon the plaintiff an act of fornication, witnessed by a particular person, is not sustained by proof of words charging an act of fornication witnessed by another person, or by proof of words implying a charge of habitual fornication and lewdness with the person named in the declaration. (Id.)

5 Cook v. Stokes, 1 M. & Rob. 237.

Solomons v. Medex, 1 Stark. Rep. 191; and see Davis v. Sherron, 1 Cr. C. C.

other words as to rebut the idea of criminality, there is a a fatal variance; and where an innuendo gives a specific meaning to the language published, that meaning must be proved, or there will be a variance. Where the declaration in an action of slander alleges that the words spoken were in reference to an oath taken by plaintiff before the register and receiver of a land office, touching the entry of land, proof of an oath taken before a notary public concerning the same subject-matter, does not support the allegation; and where the declaration for maliciously charging the plaintiff with felony stated that the defendant went before R. C. Baron Waterpark, of Waterfork, in the county of, &c., and the proof was that his title was Baron Waterpark, of Waterpark, &c.; held a fatal variance. Where the libel given in evidence contained two references (showing it to be the language of a third person respecting the plaintiff), and which were omitted in the libel set forth in the declaration; held, that the meaning of the paragraphs being different, the variance. was fatal. An action upon a libel charging in one count that the defendant published it as purporting to be a letter from A. to B., and in another charging generally that the defendant published the libelous matter; held not to be sustained by proof of a publication wherein the defendant stated that in a debate in the Irish House of Commons several years before, the attorney general of Ireland.

1 Edgerly v. Swain, 32 N. Hamp. 478.

Williams v. Stott, 1 Cr. & M. 675; 3 Tyrw. 668; ante, § 338. In a declaration for slander the words charged to have been published were, "You have murdered your little girl;" innuendo the infant daughter of plaintiff. On the trial it appeared that the child was illegitimate, but that the plaintiff was in fact the father. It was objected that the innuendo implied a child born in wedlock, and that there was a variance. The objection was sustained, and the plaintiff was nonsuited. (Foote v. Rowley, 2 Law Rep. 138, in Appendix, post.)

3 Phillips v. Beene, 16 Ala. 720.

4 Walters v. Mace, 2 B. & Ald. 756; 1 Chit. 507.

Tabart v. Tipper, 1 Camp. 353.