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JAMES THOMPSON CALLENDER. 847

Jupaz Cuase requested Mr. Hay to point out these parts
of the authorities referred to, on which he relied to establish
his doctrine. .

Mr. Hay. If the court will have a little patience I vill
find the places.

Juvex Case. I will have a great deal.

Mr. Hay. The authorities I rely on are, Hawkins’ Pleas of the
Crown and Salkeld’s Reports, page 660. In this lest book it
ia adjndged that when an indietment uses the words “secundum
tenorem et effectum,” it binds the prosecutor to a Hteral recital; and
any the least variance between the charge in the indictment and
evidence offered to support it is fatal. The ease I here refer to was
an information for a libel: “In which libel were contained divers
libellous matters secundum tenorem et effectum, and in setting forth
a sentenca of the libel, it was recited with the word ‘nor’ instead of
the word ‘not, but the sense was not altered thereby. The defend-
ant pleaded not guilty, and this appearing upon evidence, a special
verdiet was found, and the court held that the word tenor, imports,
@ true copy, and that the variance was fatal; for ‘not’ and ‘nor’ are
different; different grammar, and different in sense; and Powys’
Justice held as to the point where literal omissions, ete, would be
fatal; that where a letter omitted or changed makes another word,
it is a fatal variance; otherwise where the word continues the same;
and in the principal case no man would swear this to be a literal
copy.”

Tt appears from well established authorities that the words “in
manner and form following,” do not bind the proseeutor to recite
exactly, but the word “tenor” bath so strict a technical meaning,
that it binds him to a literal copy.

These prineiples certainly apply to the case before the court. The
words “tenor and effect following” are stated, and the evidence is
variant,

Jupoz CHase. You are certainly mistaken in your state-
ment of the law, as applied to the case now before the court.
In the eases you mention there is really a variance between
the indictment and the evidence. Your objection is, that
there is a variance between the thing charged in the indict
ment and the writing offered in evidence. But this case is
very different; there is no variance. To ascertain this point
I will state the indictment, and compare it with the law on
which the prosecution is founded. The indictment charges,
that the traverser, ‘‘maliciously intending to defame the

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