had read such a letter, and then stating the libelous matter as said by him in commenting upon that letter; for it was said the characters of the several libels were essentially different, though the slander imputed might be the same.1 Where the libel given in evidence was contained in a book published by the defendant respecting William Cobbett, entitled "The Book of Wonders," and was as follows: "Many well intentioned persons have expressed their surprise that the enlightener should have been willing to accept of a seat in corruption's den purchased with the bank notes of a man whose incapability and baseness he had so powerfully exposed. To convince such persons that such line of conduct was strictly patriotic, we have only to assure them that in so doing, he was walking in the footsteps of that venerable veteran whose creed is the criterion of excellence (see No. 195), and who, in an article of that creed, has laid it down as a maxim that we must, in fighting the enemy, not reject the use of even despicable and detestible men. Cobbett, v. 32, p. 82." The libel, as set forth in the declaration, omitted the words and figures, "see No. 195,” and “Cobbett, v. 32, p. 82." It was held a fatal variance; for, upon reading the declaration, the libel would be understood to mean that the defendant had himself made the assertions respecting the plaintiff, but from the libel itself it appears that the paragraph was written with intent to expose the conduct, not of the plaintiff, but of another person.❜

1 Bell v. Byrne, 13 East, 554.

44

2 Cartwright v. Wright, 5 B. & Ald. 615. Where the words alleged were, "My sarcastic friend by leaving out," &c., and the proof was, My sarcastic friend Moros, by leaving out," &c., held a material variance (Tabart v. Tipper, 1 Camp. 350); leaving out the words "of" and "which," although they did not materially alter the sense, held a variance. (Cooke v. Smith, McClel. 250.) The words complained of were, Tell Gilpin I have prohibited Mr. Rainey (plaintiff) from practicing in my court, and the proof was that to these words were added, "until he apologizes for his conduct towards me on the bench," held a material variance. And it made

370. An indictment for a libel charged that the defendant set up, in public, a board on which a painting or picture of a human head, with a nail driven through the ear, and a pair of shears hung on a nail, and the proof was that a human head, showing a side face, with an ear, a nail driven through the ear, and a pair of shears hung on the nail, was inscribed or cut in the board by means of some instrument, but was not painted. Held, that there was a fatal variance between the allegation and the proof, and that the defendant must be acquitted.' In an action of slander, one of the counts charged the defendant with having made a voluntary affidavit, and caused certain false statements to be written therein, to wit: "that there was a certain quantity of American soap, which, to his certain knowledge was sold at Curaçoa (by the plaintiff), at six dollars, current money." The affidavit, as offered in evidence by the plaintiff, stated the same words, except that the words "per box" were added after the words "six dollars." Held, that the variance was fatal. The averment was that A., before a magistrate, maliciously charged B. with felony; the information contained a mere charge of tortious conversion, upon which a warrant for felony was improperly founded. The variance was held fatal.3 If a declaration count upon a charge of perjury upon a particular occa

no difference that the words as qualified were still actionable. (Rainey v. Bravo, 20 Weekly Rep. [London], 873.)

1 The State v. Powers, 12 Ired. 5.

2 Wilson v. Mitchell, 3 Har. & J. 91.

3 Tempest v. Chambers, I Stark. Rep. 67. In slander the allegation was, He burnt Knox's barn. The proof was that defendant added, Because one of the girls would not marry him. It was doubted if a variance. Where the inducement was of a conversation of Mr. Knox's barn which had been burnt, and that defendant said of plaintiff and of said barn, He burnt Knox's barn; proof that defendant spoke the words, He burnt Knox's barn, without proof of the colloquium respecting the burning of Mr. Knox's barn, was held insufficient. (Manly v. Cory, 3 Up. Can. Q. B. R.

sion, proof of a general charge of perjury is inadmissible to sustain it.'

371. The following are additional instances of ma

PROOF.

Strumpet.

Defendant had no doubt the papers were embezzled at F., or he thought the papers were embezzled at F.3

Have you heard anything about L.'s being pregnant by Dr. P.

If Dr. F. is a twopenny physician, I am none. I am a regular graduate, and no quack.5

There is the man that burnt my barn; if he was not guilty of it, he would not carry pistols."

He, defendant, said he, plaintiff, stole away the wheat in the night, and I was well aware of it, and would have put him in jail for doing it."

1 Emery v. Miller, I Denio, 208.

Williams v. Bryant, 4 Ala. 44; contra, see Cook v. Wingfield, 1 Stra. 555; ante, note I, p. 249. A charge of being "a whore and a common prostitute," is not supported by proof of words amounting to a general charge of unchastity. (Doherty v. Brown, 10 Gray [Mass.] 250.)

3 Taylor v. Kneeland, 1 Doug. 67. Long v. Fleming, 2 Miles, 104. Foster v. Small, 3 Whart. 138.

Van Keurin v. Griffis, 2 Up. Can. Q. B. Rep. 423. 'McNaught v. Allen, 8 Up. Can. Q. B. Rep. 304.

ALLEGATION.

That persons who would otherwise have retained and employed the plaintiff, wholly declined and refused so to do.

You swore false.

She is a great thief.

That plaintiff then had three or four vessels in the river.

This is my umbrella. He stole it from my backdoor.

Stolen.

You robbed the mail.

Plaintiff had sworn a lie, and it is in him, for he had sworn what he, defendant, could prove to be a pointblank lie.

1 Sterry v. Foreman, 2 Car. & P. 592.

* Sanford v. Gaddis, 15 Ill. 228.

PROOF.

That other persons would have recommended the plaintiff, and that the persons named in the declaration would have employed plaintiff on such recommendation.'

3 Hancock v. Winter, 2 C. Marshall, 502.

You have sworn false."
She is a bad one.3

That plaintiff had given out that there were three or four vessels in the river.

It is my umbrella. He stole it from my backdoor.5

Taken out of my yard."

I am not like you, running about the country with forged deeds and robbing the mail, as you did."

Plaintiff had sworn off a just account, and that he, defendant, could or would prove it.8

4 Wood v. Adams, 6 Bing. 481; 4 C. & P. 268.

5 Walters v. Mace, 2 B. & Ald. 756; 1 Chit. 507. The allegation concerned a

thing present, and the proof a thing not present.

Shepherd v. Bliss, 2 Stark. Rep. 510.

'McBean v. Williams, 5 Up. Can. Q. B. Rep. O. S. 689.

8 Berry v. Dryden, 7 Mo. 324.

$372. In New York, under the Code of Procedure, great latitude of amendment is allowed; besides the

6

1 Sties v. Kemble, 27 Penn. St. Rep. 112.

2 Street v. Bushnell, 24 Mo. (3 Jones), 328.

'Brooks v. Blanchard, 1 Cr. & M. 779; 3 Tyrw. 844.

Johnson v. Tait, 6 Binn. 121.

Self v. Gardner, 15 Mo. 480.

Wagaman v. Byers, 17 Md. 183. These following are adjudged material variances: If the declaration be for these words, Thou procuredst eight or ten of thy neighbors to perjure themselves," and the jury find that he said, Thou hast caused eight or ten, &c., for it might be a remote cause, scilicit, without procurement. Nar. (the declaration), He is a bankrupt. Verdict, He will be a bankrupt within two days. Nar. He is a thief. Verdict, He stole a horse. Nar. Thou art a murderer. Verdict, He is, &c. Nar. I know him to be a thief. Verdict, I think him to be a thief. And at p. 330: Nar. Strong thief. Verdict, Thief. Nar. I say, &c. Verdict, I affirm or I doubt not. Nar. The plaintiff will do such a thing. Verdict, I think in my conscience he will do such a thing. (1 Trials per Pais, 329.)