The defendant and others are charged in the indictment with an assault and battery on Thomas Adams, a deputy sheriff. At the trial in the court of common pleas, it appeared that the person, upon whom the assault and battery were committed, was commissioned as a deputy sheriff, by the name and addition of Thomas Adams junior. And thereupon the defendant’s counsel objected to the proof, on the ground of its variance from the allegation in the indictment. This objection was overruled, and, as we think, rightly. To support the indictment, it must have been proved that the person named therein, and in the commission, was one and the same person ; and after verdict it must be presumed that it was so proved.
The defendant’s counsel rely on the decision in Boyden v. Hastings, 17 Pick. 200. But the cases differ. There the plaintiff undertook to describe the record of a judgment, and did not describe it correctly. Not. so in the present case. The indictment does not allege by what name and addition Adams was commissioned as deputy sheriff. There is, therefore, no error of description. In the former case, there was a mistake in the declaration. It was a question as to the pleadings. In the present case, it is merely a question of proof. Suppose an action is brought in the name of A. B., and there is a special declaration on a promissory note, as payable to him, and a note is offered in evidence, payable to A. B. junior; that would be a variance, which could not be cured by proof that the note was given to him, by the name of A. B. junior, but he must amend his declaration, as was done in Boyden v. Hastings. But suppose, in the like case, such a note is offered in evidence in an action for money had and received ; then the plaintiff may prove that the note was given to A. B. by the name and addition of A. B. junior ; which is alike in principle to the present case
Exceptions overruled.