Gates v. BowkerGates v. Bowker
- Reporters:
- Before:
- Royce
The opinion of the court was delivered by
Royce, J.It аppears, that the trial was had on the first and fourth counts in the declaration, all the others” being abandoned. These are in trespass on the case, the former for the institutiоn of a groundless and malicious suit against the plaintiff, and the latter for a libel upon him in his character, or professiоn, of a merchant. No question is now made by the exceрting party in relation to the first count. In reference to thе fourth count several objections to the *26course of the trial are still urged. It is insisted, that the matter complained оf as libellous was not sufficient to constitute a libel, without the allegation and proof of special damage. This оbjection is based upon an assumed distinction between a merchant, in the correct sense of that term, and a mеre trader or retail dealer in merchandise, it being cоnceded that the defendant’s letter to Davis, Bates & Turner, of Boston, amounted to a libel per se, if the plaintiff was strictly a merchant. If such a distinction could in any way be rendered important, it should appear by the bill of exсeptions whether the plaintiff’s business was that of a proрer merchant. It is an established rule, that after verdict all averments on the side of the successful party, which were invоlved in the issue tried, shall be taken to have been duly provеd, or admitted, unless something is placed upon the recоrd to show the contrary. And since the case is silent in this partiсular, we must now intend that the plaintiff was a merchant, in the requisite sense for the purposes of this action.
The declаration alleges the publication of the libel on the 16th day of February A. D. 1838, when the proof showed it to have been а year afterwards. This is urged as a fatal variance. The distinсtion is between matter of mere allegation and matter of description. In the former case a variancе as to time, number, or quantity, does not affect the legal right of recovery; whilst in the latter a variance in time, as in other parts of the description, goes to disprove the identity of the subject matter, and is therefore fatal. As in the cаse of a deed, or other written instrument, if it be simply alleged thаt it was made or delivered on such a day, it is no material variance to prove the making or delivery on a differеnt day. It is otherwise, where the date is given in connection with thе making and delivery. In the one case an act only is allеged; in the other an instrument is also described. There can bе no doubt, that, in this instance, the fact of publication was rightly treated by the court below as matter of allegation merely, and not of description.
In reference to the admission of proof to show the loss of the libellous paper, and the subsequent introduction of parol evidencе to prove the making, contents, and publication, it is sufficiеnt to say, that we perceive no sound distinction, in this respect, between the present case and other civil actions.
Judgment of county court affirmed.