This was a suit to foreclose a mortgage.
The cause was fairly tried upon its merits. The appeal must have been taken simply for delay.
The judgment will be affirmed with 10 per cent, damages and costs.
The defense set up was, that the mortgage was given to secure the consideration of the purchase of a mill and machinery, which was represented to be in a good condition, &c., when it was not; but it was not shown but that the defendant had full opportunity of inspecting the property purchased, and judging for himself. The answer was defective in this particular; but the Court left the question to the jury whether the defendant purchased upon *216the representations, or his own judgment, and they found for the plaintiff, and a new trial was refused below.
D. Wallace and J Coburn, for the appellants. I A. Lewis, for the appellee.It may be remarked, that the bill of exceptions is not signed by a judge of the Circuit Court. 'This Court judicially knows such judges. And were there nothing in the record showing the right of the person who signed the bill to do the act, it is probable we could not notice it. Where a person, other than a judge, performs an act'in the progress of a cause, which should be performed by a judge, the record should show his right to act. It does show the special appointment in this case.
The judgment is affirmed with 10 per cent, damages and costs.