
    David Richards v. James Foulks.
    In action for a malicious prosecution, the declaration contained two counts One.alleged that the defendant charged the plaintiff with committing an offense on the-day of-, 1824, the other on or about May 24. 1824. Affidavit containing the charge states the offense to have been committed on or about May 16, 1824: Held, admissible evidence.
    This was a writ of error. The original action between the same parties was for a malicious prosecution. Tho declaration contained two counts. The one set forth' that the defendant had falsely and maliciously, without probable cause, made complaint against the plaintiff before a magistrate, and procured him to be arrested upon a charge of felony. The other set forth the same grievance, varied *so as to allege that the defendant made the complaint, and instituted the prosecution against the plaintiff and two others.
    At the trial the plaintiff offered in evidence a certified copy of the affidavit, made by the defendant at the commencement of the prosecution. In this affidavit it was stated that the alleged offense was committed “ on or about May 16, 1824.” The first count of the declaration stated the charge to have been, that the offense was committed “ on the-day of-in the year 1824.” The second count, that it was committed “on or about May 20, in the year 1824, last aforesaid.” The court rejected the evidence, and the plaintiff excepted.
    The plaintiff then examined one of the grand jurors, who found the bill of indictment; and after his examination in chief, the defendant offered to prove by him, on cross-examination, what facts were testified before the grand jury, as well by other witnesses as by the defendant, in relation to the facts charged, and also in relation to the character of one of the witnesses examined by the grand jury. To this evidence the plaintiff objected; but it was admitted by the court and an exception allowed. A verdict and judgment was given for the defendant, for the reversal of which this writ of error was brought and adjourned from the Supreme Court of Harrison county for decision at Columbus.
    G-oodenow and Bostwick, for plaintiff in error, objected:
    1. The rejection of a certified copy of an affidavit, set forth in the bill of exceptions, on account of variance.
    The allegation in the first count in the declaration is, that the defendant went and appeared before S. D., Esq., a justice, etc., on, etc., “and charged the plaintiff with having on the-day of---, in the year 1824, feloniously stolen and carried away,” etc.
    In the second count the allegation is, that the defendant appeared before the said justice on, etc., and “ charged the said plaintiff (together with one Otho Richards and one Arthur Kerr), with having, on or about May 20', in the year 1824, last aforesaid, feloniously stolen, taken, and carried awav.”' etc.
    
      *The language of the affidavit, wherein the variance is said to exist, is in these words; “That on or about the 16th day of May last;” the affidavit being made, and bearing date July 31, 1824.
    On this assignment of error we will merely cite authorities which so entirely and conclusively dispose of the question of variance as to make it seem rather impertinent to argue the question. Jn neither of our courts have we undertaken to set out the affidavit,.or to speak of the charge as existing even in writing.
    In Pope v. Foster, 4 Term, 590, the declaration stated the proceedings on the indictment, and the trial was on February 25, 1790; the record produced stated the trial to have been on a different day, and at different sittings of the court. For this reason the court (Lord Kenyon presiding) nonsuited the plaintiff. But ten years afterward, in the case of Purcel v. Macnamara, 9 East, 157, when the question of variance arose on a like state of facts, as to the day of trial in a former suit, and a nonsuit had been granted on the authority of Pope v. Foster, Lord Ello'nborough, on a motion to set aside the nonsuit, observed : “This nonsuit proceeded on the authority of Pope v. Foster; if that case be law the nonsuit ought to stand; if not, both that case and this nonsuit must fall together. There are two sorts of allegation: the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved. The question is whether this be an allegation of the former sort. The allegation is that the plaintiff was prosecuted “ until afterward, viz; on the morrow of the Holy Trinity, in the forty-sixth year aforesaid, etc., she was in due manner acquitted.” The substance of the allegation is no more than that the plaintiff was acquitted upon that prosecution; and to support this action, it must also appear that she was acquitted before the action was brought. The day of acquittal is not alleged with a prout patet per recordum; the averment is that the acquittal took place on the morrow of the Holy Trinity, when the record produced states that it took place on Tuesday next after Easter Term; and certainly there would be a repugnancy between the allegation and the proof, if it were to be considered as a specific allegation of time; but *if it be only taken as a substantial allegation of the fact of the acquittal, as of a time which is shown to have been before the action brought; then the repugnancy is immaterial, and the proof in substance supports the allegation. And so it appears to me to do. If it had j;one on to state that the acquittal was on a certain day, as appears by the record that might have been considered as descriptive of the record, and then the variance .would have been fatal. The ground, therefore, on which I consider that the case of Pope v. Foster ought not to bind us, is that this is an allegation of substance and not of description.” Lawrence, J., observed“ Where the day laid is made part of the description of the instrument referred to, which instrument is necessary to be proved, the day laid must be proved as part of that instrument. But where the day laid is not material in itself, and need not have been proved as laid, supposing the proof to have been by parol; if the fact proved will support the declaration, I see no ground for any distinction between making such proof by matter of record or by parol.” And Le Blanc, J., added, among other remarks, that, “ I can not see any reason why, where a fact is not material to be alleged on the exact day, and need not be proved exactly as laid, and the allegation of the day is not particularly of the record referred to, that it should become material, because it appears by matter of record instead of by parol evidence.”
    We only ask, in the words of Lord Ellenborough, is our allegation anything but “a substantial allegation of the fact” of the defendant’s making the charge of larceny against the plaintiff before the magistrate ?
    The second error assigned in this case is the admission of the testimony of one of the grand jurors who found the bill of indictment, on his cross-examination, to prove what facts were testified before the grand jury on that bill, by three witnesses other than the defendant; and also, what evidence had been given before the Baid grand jury in support of the character of one Winchel, a witness before them. On this assignment of error we will content ourselves without an argument, merely referring the court to the argument we have submitted on the same question in the other 'cause between these parties.
   *By the Court :

The declaration did not profess to set out in so many words the original affidavit made by the defendant. It only stated the substance in general terms. This was sufficient for all the purposes of justice. The particular day upon which it was alleged- that the offense was committed was not material for the defendant’s defense, and the paper offered in evidence comported substantially with the allegation in the declaration. It was not a ease of technical nicety, but of substantial accordance. The paper ought to have been received in evidence, and it was error to reject it.

The other testimony was improperly received, as has been already decided in a case between the same parties. 3 Ohio, 66.

The judgment is reversed, and the cause remanded to the court of common pleas for further proceedings.  