#### HARE *v.*HARRINGTON.

Error — defendant sued by a wrong name and declared against by his right one — bill of exceptions.

Where one is sued by a wrong name, and declared against by his right name, as sued by the wrong one, it is no error, particularly if the defendant appear and answer.

The bill of exceptions must set forth the particular matter relied upon as error, or a court of error will not notice it — this Court will not presume the court below erred, nor receive affidavits to show an error in the court below.

Error, to the Court of Common Pleas. It appeared by the record that an Rction of trover was brought before a justice of the peace against *J.*¿f *J. Hare*— the writ was returned, *served by reading.*The docket entries show that *the parties*appeared, and the *defendant*asked for and obtained a continuance. The *defendant*again appeared and judgment was rendered against him: The *defendant*then appealed to the Court of Common Pleas — and the recognizance was for the *appellant.*The *defendant*again appeared in the Court of Common Pleas, by *his*attorney, and obtained rules, and continuances. The plaintiff below filed his declaration against *John Hare, who was sued by the name of J. J. Hare.*The *defendant*pleaded, withdrew his plea, was in default, moved to open the default and for leave to plead, and pleaded not guilty. The bill of exceptions sealed at the trial, shows that the court charged the jury,‘that if goods were pledged for a debt, the defendant, if default were made *in the*payment, might sell after a reasonable time, so much of the pledged article as would *be sufficient*to satisfy the debt; but if he sold considerably more than was necessary, the act would be a conversion of the goods *unnecessarily sold,*for which he would be liable in trover.’ A verdict was taken for the plaintiff. The defendant moved for a new trial, on the ground that the court misdirected the jury, because the damages were excessive, and upon affidavits that the plaintiff’s witnesses were undeserving of credit. This, motion was *291overruled. The writ of error seeks to reverse these proceedings of the Court of Common Pleas.

*Gaines,*for the plaintiff in error.

*P. Ross,*contra.

Wright, J.

The three first errors assigned are that the original suit was *commenced*against *J. Sf J. Hare,*and *prosecuted*against *John Hare*alone. The record shows by the singular personal pronouns, that only *one*person appeared, appealed, took rules in the cause, and made an attorney. The declaration is special, against *John*was sued *by the name of J. J. John,*the present plaintiff in error, appeared and pleaded to the declaration, without controverting the allegation that he was sued by a *wrong name.*We hold this virtually an admission of that allegation as true. But, at any rate, there is no error here that will now avail him. 5 *O. R.*61; 1 *Chit. PI.*250.

The fourth error assigned is in the charge of the Court. We think the legal principle applicable to such bailments is, that a bailee must deal fairly with his pledge. If he deals unfairly, or converts to his own use, he is liable in trover; any abuse of a bailed article will render him liable; 2 *Kent,*6,451, 2, 3; *Jones on Bail,*80, *and notes;*1 *Brown Penn. R.*176. But it nowhere appears in the bill of exceptions, or in the case, that it was one of a bailment or pledge; and now, is this Court to take notice of the fact, if it do not appear on the record?

5. In the fifth cause for refusing this judgment, it is claimed the court erred in refusing a new trial, as the damages found exceeded the value of the goods. The record does not show, that in point of fact this was true.- It shows only that the party moving for a new-trial set forth a claim that the damages were excessive. No error, therefore, is found in this part of the case.

6. It is, in the next place, alleged that the court below erred in refusing a new trial on the affidavits filed; that the witnesses for the plaintiff were of bad character for truth. This Court has repeatedly decided, that it will not grant new trials to afford opportunity for impeaching a witness. But if that were not so, the bill of exceptions before us only states the defendant *moved*for a new trial on account of the bad character of one *West,*the affidavits are offered to prove his character bad; yet it nowhere appears that West was sworn or examined as a witness for either party; and it is only left to be *inferred,*for it is not alleged in the bill of exceptions that the affidavits were offered to the court below on the motion for a new trial.

The judgment is affirmed with costs.