By the Court.
Benning J.,delivering the opinion.
[1.] The misnomer in the appeal, was amendable by the Act of 1850, to authorize “ amendments to be made instanter, in all judicial proceedings, and for other purposes.” The first section of that Act is in the following words: “ That from after the passage of this Act, all misnomers made in writs, petitions, bills or other judicial proceedings, on the civil side of the Court, shall be amended and corrected instanter, without working any unnecessary delay to the party having made the same.” (Cobb’s Dig. 493.)
An appeal is a’“judicial proceeding.”
Indeed the misnomer would be amendable by the Act of 1818. (Cobb’s Dig. 487.) See a case decided at Macon, in 1854, in which one Seymour was a party.
But although the Court was right in allowing the appeal to be amended, it was not right in rejecting the testimony of Mr. Kiddoo, the Attorney for Watkins Chappell & Co.
It does not appear that the statement of Smith, which it was proposed to prove by Kiddoo, was made to the latter, “ both during the existence, and hy reason of the relationship of client and attorney.” Eor aught that appears, the statement was made by reason of something else.
The Act of 1850 is a harsh, almost a penal one. If, therefore, it is doubtful whether a case falls within or without it, a *70proper presumption will make the case fall without it. (Collins vs. Johnson, 16 Ga. R.)
So the Court should have received Kiddoo’s testimony.