
    Johnston against Tait.
    
      Pittsburg, Saturday, September 18.
    « was a collusion. to *'er¿a “false oath, &c.” ^píoof of°h¡sd a co5_ “lusiou between ]a¡*f*ee of not supported hy ™| béon^he “stole (he goods A declaration that the defendant. said C( there
    IN ERROR.
    SlANDER in the Common Pleas of Mercer.
    
    The declaration laid the words to have been spoken by Tait as follows: “ It is a rascally business. There was a “ collusion between William, Johnston, the plaintiff meaning, “ Aaron Hackney, Levi Arnold and Peter Rambo, to make “ John Bowman swear a false oath in a suit before Peter “ Rambo, (Peter Rambo esquire a justice of the peace mean- “ ing,) between Bowman, the said John Bowman meaning, “and Hackney and Arnold.” The evidence was, that the fendant said “ that J ohnston had entered into a collusion with “ Aaron Iiackney and Levi Arnold, to make &c.,” mentioning Rambo. The judge charged the jury that it was doubtful, whether the evidence supported the declaration; and the plaintiff’s counsel excepted.
    
      S. B. Foster and Campbelliov the plaintiff in error.
    The substance of the words was proved, and that was sufficient to support the declaration. The words proved were substantially those laid, because there was an alleged conspiracy between the plaintiff and two of the three persons named. In an indictment against the plaintiff for conspiracy with the three, he would have been convicted on proof of a conspiracy with two of them. The pase of Cuming v. Sibly 
      , E. 9 Geo. 3. C.B., and the King v. Lookup 
      
       7 G. 3. B. R., áre strong to shew that it is sufficient to prove the substance, except where the tenor is stated.
    
      A. W. Foster contra.
    The offence according to the words proved, was a different offence < from that charged in the declaration, since a conspiracy with A and B, is a different offence 'from a conspiracy with C and JD. If the words are changed, and the charge remains the same, the words are matter of form; but if the change of them, changes the of-fence, they are matter of substance. The offence is changed - not merely when its specific character is altered, but also when its individuality is gone. He cited Nelson v. Sir Woolston Dixey 
      
      .
    
    
      
      
        1 D. and E. 239.
    
    
      
      
         Ibid.
      
    
    
      
      
         Hardin. Ca. 291.
    
   Tilghman C. J.

delivered judgment.

To give the plaintiff the full benefit of his exception, I shall consider the judge as having said that the evidence did not support the declaration; for when he told the jury that the law was doubtful, they would naturally find for the defendant, it being incumbent on the plaintiff to make out his case without doubt both in fact and law. It is a question which admits of very little reasoning. The single point is, whether the words laid and the words proved are substantially the same. I think they are not. A collusion between A, B and £7, and between A, B, £7 and Z>, are different things. It is not necessary to prove the words exactly as laid; it will do if you prove so many of them as are actionable. 2 Salk. 660., the §>ueen v. Slater. If the plaintiff declares that the defendant called him a strong thief and proves that he called him a thief, the action is supported, because the only material word is thief. Dyer 75. But if the words laid had been, that the plaintiff stole the goods of A, proof of the defendant’s saying that the plaintiff stole the goods of A, would not support the declaration; because although stealing the goods of A is an indictable offence, yet it is a different offence from stealing the goods of A. So when the defendant says that the plaintiff with A, C and D conspired &c,, it is not enough to prove that he said the plaintiff together with A and C conspired &c.; because although it may be Indictable for the plaintiff to conspire with A and C, yet it is a different offence from his conspiring with A, C and D; he may have been guilty of both and punishable for both. I am of opinion therefore that the charge of the Court was right, and that the judgment should be affirmed.

Judgment affirmed.  