Wilber v. Widner

1 Wend. 55

Opinion

By the Court,

Sutherland, J.

The objection arising on the face of the record appears to be unanswerable. The declaration throughout is in the name of David K. Widner, and the judgment is in favor of Daniel K. Widner. It is an action of slander, and, on the face of the record, Daniel has recovered a judgment against the defendant, for a slander uttered against David. No doubt it was a mistake, and enough appears in the bill of exceptions to authorize the améndment, on a proper application for that purpose; but the bill of exceptions cannot be used in aid of the record, and there is nothing in the record to amend by. The case is not within the sixth section of the statute of jeofails, (1 R. L. 120,) because the true name is not rightly alleged in any part of the record,

The decisions of the court below, I am inclined to think, were correct throughout, and that, upon the bill of exceptions, the judgment ought to be affirmed ; but, for the error in the record, it must be reversed.

Judgment reversed, venire de novo.