The opinion of the court was delivered by
Royce, J.It appears, 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 institution of a groundless and malicious suit against the plaintiff, and the latter for a libel upon him in his character, or profession, of a merchant. No question is now made by the excepting party in relation to the first count. In reference to the fourth count several objections to the *26course of the trial are still urged. It is insisted, that the matter complained of as libellous was not sufficient to constitute a libel, without the allegation and proof of special damage. This objection is based upon an assumed distinction between a merchant, in the correct sense of that term, and a mere trader or retail dealer in merchandise, it being conceded 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 exceptions whether the plaintiff’s business was that of a proper merchant. It is an established rule, that after verdict all averments on the side of the successful party, which were involved in the issue tried, shall be taken to have been duly proved, or admitted, unless something is placed upon the record to show the contrary. And since the case is silent in this particular, we must now intend that the plaintiff was a merchant, in the requisite sense for the purposes of this action.
The declaration alleges the publication of the libel on the 16th day of February A. D. 1838, when the proof showed it to have been a year afterwards. This is urged as a fatal variance. The distinction is between matter of mere allegation and matter of description. In the former case a variance 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 case of a deed, or other written instrument, if it be simply alleged that it was made or delivered on such a day, it is no material variance to prove the making or delivery on a different day. It is otherwise, where the date is given in connection with the making and delivery. In the one case an act only is alleged; in the other an instrument is also described. There can be 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 evidence to prove the making, contents, and publication, it is sufficient to say, that we perceive no sound distinction, in this respect, between the present case and other civil actions.
Judgment of county court affirmed.