Lecatt V. JANUARY 1830. Court that it will not revise the decisions of inferior tribunals, on motions for new trials. These motions being addressed to the sound discretion of the Court, must abide its determination. But were we willing to make this case an exception, which we are not, we have no data upon which to determine that the decision of the magistrate was in that instance incorrect. Stewart. The 6th assignment is, that the justice erred "in admitting the lease to be read in evidence to prove possession without the aid of other evidence of that fact.” It appears from the record that the complainant offered in evidence a paper, termed in the record a lease, executed by Martha J. Livingston, in which it is recited that the complainant had rented to the said Martha the premises in dispute, for the term of one year from the date thereof, which is the 19th October, 1826, and she promises to pay twentyfive dollars rent therefor, and "return the premises in as good order as received" by her. The introduction of this lease was objected to, but admitted by the justice. This paper must have been offered as testimony conducing to prove that Stewart had been in possession of the premises by his tenant; for it will be observed that the proceed ings in this case commenced within a month after the time at which the term of Mrs Livingston expired. If this was all the evidence which was introduced to prove that Stewart had ever been in possession of the premises, it was certainly insufficient to establish that fact; but this is no where stated to be the case. The presumption must be, that other evidence was introduced to prove that Mrs Livingston had occupied the premises, and the object of reading this paper was, to show that she held that possession as the tenant of Stewart. For this purpose it certainly was legally admitted. The possession of the tenant is the possession of the landlord; and as the tenant herself would have been estopped by her own deed from denying this fact, so that deed, when coupled with evidence of her possession during the time specified in it, was admissible. in this case to show that such possession was the possession of Stewart. The 7th assignment is, that the justice erred in "charging the jury that it was not necessary for the complainant to prove any title in him." In a proceeding of this kind, the title is not in controversy; it is only necessary to prove that the possession has been intruded upon by the defendant, and it is then for the defendant to shew that he holds that possession in a manner which affords him a defence in JANUARY 1830. this summary proceeding. The judgment must be affirmed, and in this opinion the Court are unanimous. Lecatt V. Stewart. PERKINS V. HARPER. Where the Court refuses to sign a bill of exceptions, and the party wishes to establish the exceptions by proof, under the statute, it must be done within the trial term, and on notice to the opposite party. THIS was an action tried in Franklin Circuit Court, in which Harper was plaintiff, and Perkins was defendant. At March term, 1828, the cause was determined, and judgment was rendered for the plaintiff, for $720 26 debt, and $26 82 damages. The record rceites that, at the trial, the defendant's counsel tendered a bill of exceptions, which the Court refused to seal; and thereupon that the presiding Judge drew up and filed a bill of exceptions, and ordered it to be made a part of the record, which bill of exceptions is set out. The record recites that afterwards, on the 7th of May, the defendant filed the bill of exceptions which had been rejected, and also three affidavits to establish its truth. The matter of those several bills, and the errors thereupon assigned, it is unnecessary to notice. COALTER, for the plaintiff in error. ORMOND, for the defendant. By JUDGE SAFFOLD. In this case a preliminary question arises, which is decisive of the cause. On the trial in the Circuit Court, the plaintiff in error being the original defendant, tendered a bill of exceptions, which was refused by the presiding Judge, but who signed a different one, containing, as he said, the truth of the facts, but which was not satisfactory to the defendant. months subsequent to the term at which these proceedings were had, the defendant proceeded, under the authority of the statute, to establish his exceptions by affidavits, and without notice to the adverse party. The difference in Two Perkins v. Harper. JANUARY 1830. the legal effect of the exceptions, is not considered material, except as relates to the terms on which the parties consented to have the judgment by default opened. The bill, as allowed by the Judge, states the consent to have been "that the defendant should plead to the merits of the action, and go to trial," and that he afterwards contended for the right to plead in abatement, which the Court refused to permit. The exceptions which he attempts otherwise to establish, state the consent to have been, "that the defendant should plead to issue," as the terms on which the default was opened. Therefore, without scrutinizing the effect of the agreement, regarded in either form, it is deemed sufficient to say, the exceptions claimed by the defendant were not taken in due time, or in the proper manner; that instead of the delay of two months, and ex parte affidavits, the only correct and safe rule, is, that the party claiming exceptions which the Court refuses to allow, shall proceed du<ring the term at which they are rejected, and within a reasonable time after the trial, to make proof of the exceptions in the form precisely in which the bill has been refused by the Judge, and after due notice to the adverse party, or his attorney, of the time and place of taking the proof. The language of the statute, is, that in such cases, it shall and may be lawful for the Supreme Court to receive such evidence of the exceptions as may be satisfactory to it." The Court must be satisfied of the truth of the exceptions taken. It may be a matter of the utmost importance, and ex parte statements can never be so satisfactory in the decision of essential rights, as proofs which the adversary has had an opportunity to contest. The points constituting exceptions are often so intricate, that delay would be productive of uncertainty and mistake. The only material assignments of error being predicated on these latter exceptions, and they not having been regularly proven, the judgment must be affirmed. See the case of the Tombeckbe Bank v. Malone, 1 Stewart's Reports, page 269. JANUARY 1830 McGOWEN V. GARRARD and MORGAN. Where a party, with a full knowledge of the alleged fraudulent circumstances, recognizes or confirms a contract made in his name by an agent, he cannot afterwards set up the fraud or want of authority in that agent. THIS was an action of debt brought in Lauderdale County Court, by J. McGowen as assignee, against W. W. Gar rard and John Morgan, to recover on a sealed instrument made by them, and one J. Willis, in 1818, for the payment of $164 14, to G. Price, by said Price indorsed to one F. P. Pennington, and by Pennington to the plaintiff. The declaration was in the usual form. The defendant pleaded two pleas. The first was a general plea of fraud. The second was a special plea, alleging that Price, the payee, Pennington, the first indorser, and Willis, the joint maker, who was not sued, combined and confederated to defraud the defendants; that in pursuance of said combination, Willis, without the knowledge or consent of the defendants, borrowed or pretended to borrow of Price, money in the names of the defendants Garrard and Morgan, representing that it was for their use and benefit, and executed an obligation in the names of Morgan and Garrard to Price; that Willis had no authority to borrow nor to execute the note for the defendants, and that the money never came to their hands or use. It is further alleged that Price threatened to harrass and oppress the defendants if they would not pay the amount, and that Pennington (in whose integrity and legal knowledge they had great confidence,) assured them they were bound to pay the amount, and advised them to settle it rather than be harrassed by Price; and believing the assertions and advice of Pennington, they gave in lieu of the original note the obligation now sued on, with Willis as their security, on Price's agreeing to give time till the 15th June, for payment: wherefore, they say the writing sued on was obtained by fraud, covin and misrepresentation, and without valuable consideration. To these two pleas, the plaintiff demurred, and the Court sustained the demurrer as to the first plea, but overruled it as to the second. The plaintiff declining to reply to the second plea, judgment was given for the defendant. This decision of the Court on the demurrer to the second plea is here assigned for error by the plaintiff. JANUARY 1830. W. B. and P. MARTIN, for the plaintiff. McGowen Garrard and COALTER, for the defendants. By JUDGE PERRY. We are by the demurrer brought to the consideration of the sufficiency of the facts of the second plea to bar the plaintiff of his recovery. The defendants, by executing with Willis the writing obligatory sued on, waived all their right to question the illegality of the first transaction; for it was competent for them to recognise the contract made by Willis, and thereby make themselves liable with him, although they might not have been liable in the first instance. This they did do, by entering into the bond sued on. But the defendants. endeavor to avoid their responsibility by alleging that they were threatened to be harrassed, and that Pennington advised them that they would have the notes first executed by Willis to pay, and that to avoid being harrassed, they substituted the note in question. They shew no want of knowledge as to the facts on their part, and having execu ted the note with a full knowledge of all the facts, they are bound by it. The plea does not shew a state of fact sufficient to warrant the conclusion that a fraud has been practised upon the defendants; consequently it is no bar to the action. We are therefore of opinion that the judgment of the Court below must be reversed, and judgment rendered here for the plaintiff. SPANN V. BOYD. 1. In appeals from justices, technical nicety and formal declarations are not required. 2. An omission to state the term of the Court in the title of the declaration, is not fatal on general demurrer. 3. By the statute, justices of the peace have jurisdiction of all demands in form ex contractu; therefore they have jurisdiction for the recovery of the value of specific articles bailed, and not re-delivered according to promise. 4. Where there are good and bad counts in a declaration, on general demurrer to the whole, judgment must be given for the plainiiff." SPANN recovered a judgment before a justice of the peace of Marengo county, against Boyd. Boyd, by certiorari, removed the cause into the Circuit Court, and |