still understand that the proof of equivalent words will not be proving the substance of those charged to have been spoken. To prove words of similar import will not surely be proving the substance of those laid, but the proving of other and different words.

This rule should be adhered

to. Further relaxation would be attended, in my opinion, with infinite mischief. The allegation and the proof should correspond; yet, if a party be charged with the speaking of one set of words, and the proof show another set, of an equivalent character, and that be admitted to be sufficient to sustain the cause of action, how is the party to be prepared to defend himself? If this latitude be indulged in, and proof of equivalent words be sufficient, how will the defendant be able to know what he must come prepared to meet? One set of words is charged, another is proved, and the party surprised and held answerable for what he might have rebutted or explained by testimony had he had reason to suppose such proof I would have been offered. The introduction of such a course seems to me subversive of the first principles of the rules of evidence and ought not to prevail. Besides, the uncertainty of the memory of witnesses, and their understanding of the import of words, and the sense in which they may have understood them to have been used, would render a party accountable for their misapprehension very frequently, if they could be allowed to testify to the import of his expression."

A witness is not permitted to make out the plaintiff's case by proving words merely equivalent, in his estimation, to those which he heard the defendant use; but he must state the language that was employed, according to the best of his recollection, so that it may appear to the court whether the cause of action alleged is supported. Teague v. Williams (1845) 7 Ala. 844. See to the same effect, Rainy v. Bravo (1872) L. R. 4 P. C. (Eng.) 287, 27 L. T. N. S. 249, 20 Week. Rep. 873; Scott v. McKinnish (1849) 15 Ala. 662.

The complaint or declaration can

not be supported by proof of words differing from the words alleged, though of equivalent import. Mohr v. Lemle (1881) 69 Ala. 180.

Proof of the same charge against plaintiff in words substantially different from those alleged, even though of equivalent and similar import, is insufficient. Laster v. Bragg (1913) 107 Ark. 74, 153 S. W. 1116. See to the same effect, Enos v. Enos (1892) 135 N. Y. 609, 32 N. E. 123.

Equivalent words or words of similar import will be insufficient, nor will a cause of action be sustained by proof of words that might produce an impression similar to that which the words alleged would produce. The words shown to have been spoken by the defendant are to be construed by their own meaning and import, and not by any impression which the hearer may receive from them. Haub v. Friermuth (1905) 1 Cal. App. 556, 82 Pac. 571.

A failure to prove all the connected words, or the proof of the actionable words in a differently constructed sentence or other combination, without change of meaning, is not a material variance. Smith v. Gillis (1915) 51 Okla. 134, 151 Pac. 869.

Where the words recited in the pleading were sought to be proved by an alleged admission of defendant that he had uttered something entirely different in phraseology from what was charged in the complaint, the variance was held to be fatal. Bond v. Brewster (1890) 16 Daly, 82, 9 N. Y. Supp. 516.

The refusal of the court to give the following instruction has been held to be reversible error: "Though the words proved are equivalent to the words charged in the declaration, yet, not being the same in substance, and though the same idea is conveyed in the words charged and those proved, yet if they contain substantially the same charge, but in different phraseology, the plaintiff is not entitled to recover." Norton v. Gordon (1854)

16 Ill. 38.

And so an instruction to the jury, "that if they believe from the evidence that the defendant used the words

toward the plaintiff charged in the declaration in this case, or substantially the words, then, under the pleadings in this case, they should find the defendant guilty," has been held to be error; and in the same case it was held to be error to refuse to instruct that "to entitle the plaintiff to recover in this suit, he must prove the speaking of the words alleged in the declaration; other words of like meaning, or equivalent words or expressions, will not suffice." Searcy v. Sudhoff (1899) 84 Ill. App. 148. See to the same effect, Wheeler v. Robb (1824) 1 Blackf. (Ind.) 330, 12 Am. Dec. 245; Clements v. Maloney (1874) 55 Mo. 352. Compare Estes v. Antrobus (1821) 1 Mo. 197, 13 Am. Dec. 496, wherein the words proved were in substance the same, or of similar import, as those pleaded, and it was held to be sufficient.

While it is not sufficient to prove equivalent words, it is sufficient if the proof shows words synonymous with and carrying the same specific idea as those alleged; as, for instance, where the words "set fire to" are alleged, and the proof shows the word "burnt." Fleet v. Tichenor (1909) 156 Cal. 343, 34 L.R.A. (N.S.) 323, 104 Pac. 458; citing Merrill v. Peaslee (1845) 17 N. H. 540.

It was said in Valley Dry Goods Co. v. Buford (1917) 114 Miss. 414, 75 So. 252: "In our state it has always been sufficient to allege the words or synonymous words which constitute the slander." See to the same effect, Fritz v. Williams (1894) Miss., 16 So. 359; Bigner v. Hodges (1903) 82 Miss. 215, 33 So. 980. This, it has been said by the same court, is as far as the court has gone in relaxation of the rule requiring the precise words charged to be proved. Furr v. Speed (1896) 74 Miss. 423, 21 So. 562.

b. Effect of statute.

In some jurisdictions, statutory provisions have been enacted which in substance provide that variances are not to be deemed material unless they actually mislead the adverse party to his prejudice; and under the rule embodied in it, proof of similar words which, in their scope and meaning,

make the same imputation as the words pleaded, is deemed sufficient. Grotius v. Ross (1900) 24 Ind. App. 543, 57 N. E. 46; Bower v. Deideker (1874) 38 Iowa, 418; Payson v. Macomber (1861) 3 Allen (Mass.) 69; Baldwin V. Soule (1856) 6 Gray (Mass.) 321; Robbins v. Fletcher (1869) 101 Mass. 115; Chace v. Sherman (1876) 119 Mass. 387; Robinson v. Van Auken (1906) 190 Mass. 161, 76 N. E. 601; Fowlie v. Cruse (1916) 52 Mont. 222, 157 Pac. 958; Pegram v. Stolz (1872) 67 N. C. 144; Hamilton v. Mance (1912) 159 N. C. 56, 74 S. E. 627, Ann. Cas. 1914A, 1253; Barnett v. Ward, (1880) 36 Ohio St. 107, 38 Am. Rep. 561; Schild v. Legler (1892) 82 Wis. 73, 51 N. W. 1099; Kloths v. Hess (1906) 126 Wis. 587, 106 N. W. 251; Brueshaber v. Hertling (1891) 78 Wis. 498, 47 N. W. 725. And see the reported case (HAYES v. NUTTER, ante, 365). Compare the following earlier cases, wherein it was held that proof of equivalent words is insufficient: Wheeler v. Robb (1823) 1 Blackf. (Ind.) 330, 12 Am. Dec. 245; Linville v. Earlywine (1837) 4 Blackf. (Ind.) 469; Gray v. Elzroth (1894) 10 Ind. App. 587, 53 Am. St. Rep. 400, 37 N. E. 551.

Thus it was said in Kloths v. Hess (1906) 126 Wis. 587, 106 N. W. 251: "Proof merely that the substance of the charge was made, but in different words, is not sufficient. Even this rule does not require, however, that every witness must quote the words of the complaint, but merely that the narrative related by the witness shall convince the jury that defendant used the words alleged against him in the complaint. The great weight of authorities, however, while recognizing that the gravamen of slander is the speaking of certain words, and not the mere making of a defamatory charge, support the more liberal and reasonable rule that proof of substantially the same words as those alleged will suffice; that mere insignificant changes in the form of expression, or the situation of an unambiguous pronoun for a substantive or for a proper name and the like, will not prevent a verdict for the plaintiff. . . . It would be dif

ficult to escape this more liberal view in this state under § 2669, Rev. Stat. 1898, declaring no variance material 'unless it shall actually mislead the adverse party to his prejudice.'"

So it was held in Grotius v. Ross (1900) 24 Ind. App. 543, 57 N. E. 46, that while there is a variance between the pleading and the proof, where the complaint fails to allege the speaking of the slanderous words in a foreign tongue, and the proof is that they were spoken in a foreign tongue, yet, under the statute (Horner's Rev. Stat. 1897, § 391), such variance will be immaterial unless the defendant has been actually misled by it to his prejudice. See to the same effect, Bower v. Deideker (1874) 38 Iowa, 418.

But, under the operation of such a statute, it is not competent to prove the charge alleged by words substantially different. Chace v. Sherman (1876) 119 Mass. 387. Under it, the proof must be that the defendant accused the plaintiff of the same offense stated, and in words substantially like those alleged, though they need not be exactly the same. Payson v. Macomber (1861) 3 Allen (Mass.) 69, wherein it was held that a charge against an unmarried woman, of now having a child, was substantially different from proof that she formerly had one and got rid of it. The court said: "The variance is that the declaration alleges a charge of a past transaction, viz., having had a child and got rid of it; and the deposition states a charge of an existing fact, viz., now having a child or a part of one. The evidence by which the two transactions would be proved would vary materially. . . . And it may be stated as a general rule that the evidence substantially varies from the count in slander when it proves a charge of an offense not identically the same with that alleged, though of the same species."

In Barnett v. Ward (1880) 36 Ohio St. 107, 38 Am. Rep. 561, the complaint alleged that defendant spoke of the plaintiff, an unmarried woman, as follows: "Angeline Ward (plaintiff) was sleeping with John Fox when her watch was stolen," which words were substantially laid in several counts in

a variety of modes of expression. The proof in effect showed that defendant said that the way Fox found the watch was because he was in bed with plaintiff. The variance was held to be immaterial; as, under the statute, the allegation pleaded was substantially proved.

c. Illustrations.

1. Charge of immorality or unchastity. In Olmstead v. Miller (1828) 1 Wend. (N. Y.) 506, the words charged that the plaintiff had sexual intercourse with three different persons, whose names were stated. The proof was that defendant had said that the plaintiff was a thief; that she was fond of men; that she was a very bad woman; that the three persons named in the declaration were in the habit of visiting frequently at her house, etc. The court said: "These words, although they may be said to be equivalent to the charge of having connection with P. B., within the rule heretofore established, they are not the same in substance. The same remark is applicable to the other charges. The same idea is conveyed in the words charged and those proved; but they are not substantially the same charge, but in different phraseology."

In Cooper v. Bruce (1833) 2 Watts (Pa.) 109, the declaration alleged that "Jacob Bruce [plaintiff] was guilty of buggery with a mare." The proof was that defendant said that "he [plaintiff] had acted with a mare,”—“he had been guilty with a mare,"—and that "he [defendant] could prove that Bruce was guilty of acting with a mare." The variance was material, since no one of the words was proved as laid, except the names of the plaintiff and the animal.

Proof that plaintiff was called a "whorish bitch" has been held not to be a material variation from an allegation that defendant used the words "public whore." Zimmerman v. McMakin (1885) 22 S. C. 372, 53 Am. Rep. 720.

Similarly, the allegation of a charge that the plaintiff a female, “has been counted a whore," and "is a whore," has been held not to vary materially

from proof of the words that "she is a whorish bitch." Scott v. McKinnish (1849) 15 Ala. 662.

In Cohen v. Pinson (1910) 1 Tenn. C. C. A. 93, the complaint alleged the use of the words, "The damn bitch, she is trying to get something to f-;" the dash denoting a vulgar word indicative of sexual intercourse. The proof showed that instead of the word "trying," the words "plotting" or "triggering" were used, and there was also some doubt as to whether the defendant used the expression "damn bitch" or "whorish bitch." The variance was held not material.

Compare Williams v. Bryant (1842) 4 Ala. 44, wherein charging a woman with being a "whore" was held not to be supported by proof that defendant said that she was a "strumpet."

In Berry v. State (1889) 27 Tex. App. 483, 11 S. W. 521, the complaint averred that defendant slandered the plaintiff, an unmarried female, by saying that "she was in the family way, and that he believed her brother, Helm, was the father of the child." The proof was that he said "he had seen Isabella Helm at home, and if there was not something wrong with her, his eyes had fooled him; that he saw enough to convince him that there was something wrong with her, that if his eyes had not deceived him worse than they ever had before, she was in that condition," and further, that he said "it was reported that she was in the family way, and that it was reported that her brother Frank was the other party concerned." The variance was held to be fatal.

In Dickey v. Andros (1859) 32 Vt. 55, it was averred that defendant said: "I saw Dickey [plaintiff] here on Friday night. I saw him and heard him and can swear to it, and can prove it. He [plaintiff] was not here for any good design. I will break up the haunt if I can possibly do it," meaning that plaintiff came to a certain house and had carnal relations with one Mary Webster. The proof was that defendant said: "I saw him and heard him and can swear to it, and furthermore can prove it, if called on," and further, "I suppose he came there not

out of any good design. I mean to break up the haunt if I can." The variance was held to be material.

There is a fatal variance between a pleading alleging that the defendant stated that he (defendant) had “carnal intercourse with her" and proof showing that the words used were that he had a "good time with her." Halsey v. State (1909) 57 Tex. Crim. Rep. 400, 136 Am. St. Rep. 986, 123 S. W. 596.

In Kidder v. Bacon (1902) 74 Vt. 263, 52 Atl. 322, the allegation in the first count was that the defendant said: "I discovered them in the very act of adultery." The proof was that the words used were that he said that he "see" or "saw" them in the very act. The allegation in the second count was, "I caught them in the very act, the act of adultery," and the proof was that defendant said that he "catched" them in the very act. The variance was held to be immaterial.

In Conlee v. State (1883) 14 Tex. App. 222, the charge was that defendant said that he had had carnal knowledge with the plaintiff. The proof was that defendant said: "She would have been a nice girl if he [defendant] had not done what he had done to her; and if I [meaning witness] did not believe it, meet him at the gin house that night and he would prove it." The variance was held to be fatal.

In Patterson v. Edwards (1845) 7 Ill. 720, the averment was that the defendant said: "Mrs. Edwards [meaning plaintiff's wife] has raised a family of children by a negro, and I can prove it." The proof was that he said: "Mrs. Edwards has had children by a negro;" also, "Mrs. Edwards has had children by a negro, and all her children are negroes." The variance was held to be material.

In Hamilton v. Nance (1912) 159 N. C. 56, 74 S. E. 627, Ann. Cas. 1914A, 1253, the complaint alleged that defendant said that the "news" was that the husband of the plaintiff "had" a venereal disease, naming it, and "has given it to his wife." The answer admitted that he said the "report" was that the husband of the plaintiff "has had" the disease named in the complaint, and "has given it to his wife."

The variance was held to be immaterial.

In Bleitz v. Carton (1908) 49 Wash. 545, 95 Pac. 1099, it was alleged that defendant said of the plaintiff, "Bleitz is not a fit man to associate with decent people. He has another wife back east and a wife and child here. He has been in jail two or three years back East. I have the documents to prove all this." The proof was that the words used were: "He has a wife and child back East and is living with another woman here." The variance was held to be fatal, the court saying: "After a careful examination of numerous authorities, we have been unable to find any cases in which the general rule has been so far relaxed as to hold that an allegation of the speaking of words charging one crime or misdemeanor is sustained by proof of the speaking of words charging, or tending to charge, a different crime or misdemeanor, or that such a failure to prove the words alleged would not constitute a fatal variance. Respondent alleged the speaking of words which, in substance and effect, charged the crime of bigamy, such words being actionable per se although spoken. The words proven can, by no possible construction, be held to have charged respondent with bigamy. The variance was therefore fatal. One reason for requiring substantial proof of the words alleged is that the defendant may, if he so desires, have an opportunity to plead and prove justification by showing the truth of the words charged. Were it to be conceded that the appellant had actually said of and concerning the respondent in this action that he had a wife and child back East, and another wife and child here, thereby charging him with bigamy, it could not be seriously contended that he would establish the truth of such words under a plea of justification by showing that respondent, while having a wife back East, was living with another woman here. In respondent's third cause of action it was alleged that, on April 9, 1906, the appellant did speak to one A. E. Croft of and concerning him the words: 'Bleitz is a bigamist.

I threw it in his teeth and he did not deny it. He has two wives.' The only witness called to prove the speaking of these words was A. E. Croft, who testified that 'he [Carton] said that he [Bleitz] had a wife and family in the East, and that he was living here with another woman. He didn't state-he didn't call him a bigamist in so many words; that is, he didn't call Mr. Bleitz a-bigamist that I can recollect.' This evidence was not only such a failure of proof as to constitute a variance, but it in effect amounted to a positive denial of the allegations of the third cause of action of the complaint."

In Stevens v. Handly (1832) Wright (Ohio) 123, the words charged were: "Stevens keeps a whore house, and Phebe is a whore-Ida has gone to Stevens's, and Stevens keeps a damned whore house; and Debby and Phebe were not able to stand the three tanyard blackguards; and Stevens's wife, and all the Delanys are whores." The proof was that the defendant said: "Stevens kept a damned whore house, and Phebe and Debby had taken on a new mode of making money by their arses. Phebe and Debby are not able to stand the three tanyard blackguards, and took Ida to stand John Lisle, and if it had not been for the fever sore on Phebe's leg, she would have had the other leg broke long before this time." The variance was held not to be material.

An allegation that defendant charged the plaintiff with having had sexual intercourse with a man is not variant from proof that defendant said that the plaintiff "was a whore." Clark v. Munsell (1843) 6 Met. (Mass.) 373, wherein it was said: "The fact that the defendant used words importing a higher grade of offense constitutes no sufficient objection, on the ground of variance, if the words used do in fact necessarily impute to the plaintiff the offense charged in the declaration; unless the case be one where, from the nature of the declaration, the precise, and not equivalent, words must be proved."

2. Charge of theft or larceny. Proof of words charging deception and fraud is a variance from an al