
    *Alex. Hamilton vs. James J. Langley. The Same vs. George C. Mayson.
    In an action on the- case for slander in charging the plaintiff with perjury, the colloquium stated in the declaration set forth the trial of an indictment for a riot; the record produced on the trial was for a riot and assault; held, to be an immaterial variance.
    So, a slight variance in the names of the defendants in the indictment, as set out in the declaration and contained in the record, may he cured by parol proof of the identity of the persons.
    Before Earle, J., at Edgefield, Fall Term, 1835.
    These were both actions of slander, for similar words, spoken by both defendants of the plaintiff, charging him with having sworn a lie on the trial of an indictment. There was a verdict in the first case for the plaintiff for one dollar, and in the other for one hundred dollars, both being submitted at the same time, under the same argument and charge, and on the same evidence. Both parties appeal, and as the objections of the defendant apply to the pleading on a motion for a nonsuit, they will be first disposed of. The colloquium in the declaration set forth the trial of an indictment. The State vs. John H. Robinson, Irvine Huchison, George C. Mayson and Philip Ogilsbee, for riot. The indictment produced on the trial, with which the minutes of the former trial corresponded, was The State vs. John H. Robinson, Irvine Huchison, Philip Oglibee and Conway Mayson, riot and assault. It was proved that George C. Mayson, and Conway Mayson, and Philip Ogilsbee and Philip Ogilbee, are the same identical persons; but it was objected, on the motion for nonsuit, that the variance was fatal, and could not be supplied by parol. In the first place I came to the conclusion, after some deliberation, that the variance was immaterial. On this subject the cases are numerous, and not free from contradiction, and without undertaking to refer to them or collect them, I was of opinion that as an assault was an usual constituent ingredient of riot, and the greater necessarily includes the less, it was still an indictment for riot, although it embraced a count for an assault. In fact, the oath of the plaintiff which was alleged to be false, applied strictly to the charge of riot, and the defendants were convicted of riot. The variance in the names was also immaterial, and if otherwise, it was competent to cure the variance by proof of the identity of the persons. The old strictness on this subject is much abated, and since the case of Briston & Wright, the Courts seem in England to be always endeavoring to tie up the generality of the propositions.
       But the distinction between that and all similar cases and those under consideration, is that in the former the paper or record set out con-stitntes the ^plaintiff’s cause of action, the gravamen of his case, the foundation of his injury. Here, on the contrary, it is mere inducement to the statement of the injury, the mere occasion in reference to which the slander was uttered, and the same strictness is not required. Indeed, I doubt the necessity of producing the record at all, and I think on principle, and that authority may be found, that the occasion of the taking of the oath alleged to be false, the trial, and all the colloquium, may be proved by parol.
    I overruled the other objections to the declaration contained in the defendant’s grounds. The fact was enough, that it was an indictment for riot, for that was sufficient to show that the Court had jurisdiction of the cases, and of course the power to administer the oath. In an indictment for perjury, the materiality of the oath is essential, but in a civil action it cannot be.(a) The presumption is, that what a witness swears is material, and if the defendant expects to avoid a recovery on that ground, he must show that the particular oath charged to be false, was on an immaterial point. How far it would avail him, I would not say. The jury found, as already stated, verdicts for plaintiff, and the plaintiff appeals on several grounds. As to the first, it is sufficient to say that there was no objection made to the defendant’s going into the proof of the facts and circumstances on which they relied to create suspicion ; at least I remember no formal objection, and I have taken note of none. Second, I considered it competent for the defendant to impeach the oath of the plaintiff on any point he chose. Suppose he had not specified any point or particular at the time of the speaking, surely he might on trial show it false in any particular; and if he does specify, I do not perceive he should be bound by it as by a technical rule of pleading. I need not remark further on the others. It is difficult to conceive how the juries could have come to results so different on the same evidence. The verdict for one dollar was surely too small, with the other there is no reason to be dissatisfied.
    
      Defendant’s grounds for a nonsuit.
    
    1. Because there was a material and fatal variance between the record offered in evidence and that described in the declaration.
    2. Because there was no allegation in the declaration that the Court in which the indictment was tried, had jurisdiction of the case or had power to administer an oath.
    3. Because the declaration did not allege that the oatli of the plaintiff had been taken on a point material to the issue.
    
      Plaintiff’s grounds for a new trial.
    
    1. Because the Judge permitted evidence of the justification in fact under the “ plea of the general issue,” and on points in which the plaintiff’s testimony had not been impeached by defendants, when speaking the slanderous words.
    *2. Because his Honor charged that the proof of defendants militating against the oath of plaintiff, should necessarily reduce the damages.
    3. The verdicts were too small, and were inconsistent.
    
      
      
        2 Doug., 665. An.
      
    
   Curia, per

O’Neall, J.

Upon the motion for a nonsuit, this Court concurs in opinion with Mr. Justice Earle, and principally for the reasons which he has given. The rule stated by Starkie in his treatise on Evidence, (4th part, page 1603,) that where a fact is simply alleged without vouching any instrument, and the instrument is used as mere evidence, a variance will not be fatal if the substance of the allegation be proved, covers the point made by the defendant on the motion for a nonsuit, for a variance between the record set out and that offered in proof. The record was, it is true, particularly alleged, but still it was a mere allegation of the record, without vouching it, and as in substance it was made out, it was sufficient.

See 2 Sp., 592; 2 Rich., 580. An.

Wardlaw and Wardlaw, plaintiff’s attorneys. Griffin, defendant’s attorney.

The Court of General Sessions is a Court of general jurisdiction, and it was unnecessary to allege that it had jurisdiction of the indictment. So, too, it was unnecessary to state that the oath of the plaintiff was taken on a point material to the issue. As soon as it appeared from the declaration that the defendant’s words applied to a legal swearing on the part of the plaintiff, it became in legal contemplation an imputation of perjury.

As to the first and second grounds of a new trial, the Judge’s report explains away the first, and on the second we concur with him. Upon the third ground, I would remark that a question of damages is particularly for the jury, and it must be a manifest case of error upon which we would undertake to interfere. The opinion of the presiding Judge, that the damages found were too small, cannot help the plaintiff; for notwithstanding we are disposed to give effect to his opinion in all cases where it can be done, yet this is one of those cases in which he had not the means of saying that the verdict was against evidence. For the damages are more discretionary than otherwise with the jury.

The motions are dismissed.

Johnson and Harper., JJ., concurred. 
      
       2 McMul., 116. An.
      
     
      
      ) See 2 McM., 118. An.
      
     