
    Martin v. Miller.
    Where in an action of slander, the defendant pleaded in justification, the transcript of proceedings before a Justice of the Peace, dated 1st day of December, 1828, and offered in evidence a transcript dated the 8th day of March, 1828, the Court held that the variance was not material, as the date was not alledged as being des. criptive of the transcript. (.)
    ■APPEAL to Howard Circuit Court.
    
      
      (a.) See Stone v. Powell, 5 Mo. R., p. 436.
      Hibler v. Servos, 6 “ “ 25.
    
   Tompkins, J.,

delivered the opinion of the Court.

Miller commenced his action of slander against Martin in the Circuit Court, and had judgment there. To reverse this judgment, Martin appeals to this Court.

In the Circuit Court Martin pleaded in justification, that said Miller ought not to have his action against him, because he says that before the speaking and publishing of the said words of and concerning the said William S. Miller in the said declaration mentioned, to wit: on the first day of December, 1828, at the Circuit and State aforesaid, at a Court holden before one William Black, a Justice of the Peace within and for the county of Ray aforesaid, in Crooked River township, in said county, &c. On the trial of the cause, the defendant offered in evidence to support his plea of justification, a transcript of the proceedings before the Justice of the Peace, dated on the 8th day of March, 1828, and not on the first day of December, 1828, when the pro« ceedings were alledged in the plea to have been had. The Circuit Court refused to allow the transcript to be read in evidence, and the defendant’s counsel excepted to the opinion of the Court, and this decision of the Court is assigned for error.

Many authorities have been cited on both sides, to prove that the variance 'was material or immaterial, as it suited the view of either party. It will suffice to notice one cited by the appellee, inadvertantly it must be supposed. In 3 Starkie, 1598, the rule is stated to be, that when a particular fact is to be tried, a variance Horn the date will not be material, although it is proved by record, or other written instrument, provided the same be not alledged as descriptive of the record, by means of a proutpatet per recorAwm, or otherwise: and therefore, where, in an action for malicous prosecution, the plaintiff alledged that he was acquitted on a particular day, it was held that the precise day was not material, the substance of the allegation being, that the plaintiff was acquitted before the' commencement of the action. Purcel v. Macnamara, 9 East, 157, (there cited). So where in an action on the case for not indemnifying the plaintiff, he alledged that B. afterwards, to wit., in Michmlmas term, in such a year, obtained a judgment against him; and on the trial it appeared that the judgment was of a different term, it was held that the variance was not material, the time not being alledged with a proul patei per recorckim.

The defendant in the Circuit Court, appellant here, did not alledge the time when the proceedings were had before the Justice of the Peace as descriptive of the transcript of those proceedings. The Circuit Court erred therefore in refusing to per* snit the transcript to be read in evidence.

The judgment is therefore reversed and the cause remanded for further trial.  