
    MAY 22, 1802.
    John Kincaid v. Wilson.
    
      ■Upon an appeal from a decree of the Gourt of Quarter Sessions of Madison county.
    
    In the absence of a bill of exceptions, showing what the testimony was ■sipón the trial of a motion in the lower court, this court must presume that it justified the action of that court upon the motion.
   The affidavits exhibited in this suit to show that the award of the arbitrators exceeded the submission, and that it ought not to have been entered as the decree of the court below, is only hearsay testimony, which, on a point of the kind, was hot conclusive legal evidence ; and therefore, at the most, should have been no further regarded than to produce a continuance of the question until more adequate evidence might have been obtained. It appears that a continuance was ordered, and before the second hearing the parties entered into an -agreement that the testimony of the ai’bitrators themselves should be taken, which was done: on which the court established the award,' and this court must presume, with propriety, as the testimony of the- arbitrators was not by a bill of -exceptions made a part of the record to evince the contrary. The same consideration will apply to the exception, that one of the parties was admitted by the arbitrators to prove his account by his own oath, and the same privilege denied to the other party.

Wherefore, it is decreed and ordered, that the said decree of the «court of quarter sessions for the county of Madison be affirmed. ‘That the appellee be at liberty to have the benefit thereof and ■recover of the appellant ten per centum damages on the amount •of the same, together with his costs in this behalf expended, which 5s ordered to be certified to the said court.  