7 Ga. 281 | Ga. | 1849
By the Court. —
delivering the opinion.
In the case before us, the bill of exceptions is right, and in conformity to the transcript of the record which has been sent up from the Superior Court. The defendant in error has been served with a copy of the bill of exceptions, and notified of the signing thereof. In the writ of error, however, “ John Killen,” individually, is stated to be the party, whereas the bill of exceptions and transcript of the record show the cause below to be against “ John Killen, as executor of James H. Killen, deceased.” If the discrepancy was between the bill of exceptions and transcript of the record, or if there were no bill of exceptions, and the variance was between the writ of error and transcript of the record, we doubt whether, in the absence of express authority, such as has been given in our sister State, the defect could be cured.
The writ of error refers to the bill of exceptions, as showing in what cause it is in the Superior Court, that complaint is made that manifest error was committed ; but by reference to the bill of exceptions, it appears tha.t the Clerk has misstated the parties, in issuing the writ of error. It would seem that there could be no doubt, that the defect is amendable by this Court. In Knapp vs. Palmer, (1 Caine’s Rep. 486,) the Court allowed a certiorarito be amended, according to the affidavit on which it was obtained, by striking out the words, “ trespass on the case,” and inserting “ debt.”
Here, we order the writ of error to be amended according to the bill of exceptions, by adding to the name of “John Killen,” “ Executor of James H. Killen, deceased.”
Motion discharged.