Wilber v. Widner — 1 Wend. 55

Majority

p. 55

Wilber vs. Widner.

Headnote

Where there is ®hc plaintiff; hí a declaration judgment™his íavor’ by h.V? be reversed for tv here aT*suit and the declathroughout^ tbe . nalye °f David K. W0 the true name "¡^tly alfoge! ia any Part oi" tne record, although from ceptfonsitwas manifestly a mi stake, it was held not to be uT^ófyeo/azí" and the judgversed„

Error from the Monroe common pleas. Daniel K. Widner brought an action of slander against Wilber, in the Monroe common pleas. In declaring, the plaintiff, in the commencement of the declaration, is named' David K. Widner, and his name is not again mentioned. The defendant appeared and plead, issue was joined, and the cause brought to trial. On the trial, the words for the speaking of which the action was brought, were proved to have been spoken of and concerning Daniel K. Widner. The capias was produced, which was in the name of Daniel IL Widner, and the pleas of the defendant were shown to be entitled Wilber ads. * Daniel K. Widner. The attorney for the plaintiff testified that Daniel IL Widner was his client, and that the suit was brought for him. In the record, the name of Daniel IL Wid- , . . . ner, as plaintiff, does not occur, except m the warrant of attorney, until after the finding of the verdict, when it is found in a continuance of curia advisare vult, as that of the plaintiff • .1 - ,, . . . , 7 m the cause ; then iollows a judgment on demurrer, and a judgment on the verdict in favor of the said Daniel IL Widner. From the bill of exceptions attached to the record, it appears various exceptions were taken to opinions pronounced by the common pleas in the progress of the trial; but as the questions arising upon those exceptions are not particu

p. 56

larly passed upon by this court, in the opinion pronounced, ^ -g c]eemej unnecessary to state them.

S. Boughton, for plaintiff in error.

R. Beach, for defendant.

By the Court,

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.