From Iredell.
An indictment for perjury in swearing to an affidavit charged that the affidavit was "in substance and to the effect following." The assignment was that defendant swore he did not know a writ was returned against him in the above suit: the affidavit when produced had the word case instead of suit. The variance is immaterial; the indictment does not profess to give the tenor.
(321) SEAWELL, J.
A new trial is moved for, on the ground that the affidavit was improperly admitted; and it has been insisted that, inasmuch as the assignment and affidavit differ in a word, the assignment was not supported by the evidence; and the case from Cowper (Rex v. Beach, 229) has been relied on, the where Lord Mansfield says: "The true distinction is, that when the word misrecited is sensible, then it is fatal." This case only implies where the tenor is undertaken to be recited; in which, if the recital be variant in a word or letter so as thereby to create a different word, it is fatal. In the present case the indictment only pretends to set forth the substance and effect of the affidavit; and all the authorities show that whenever a statement of the substance and effect is sufficient in the proceedings, evidence of the substance and effect will also suffice. Lord Holt, in Queen v. Drake, 2 Salk., 661, by way of illustration says that when only the sense and meaning are professed to be set out, it may be done by translating it into Latin. The evidence was properly admitted, and the rule for a new trial must be discharged.