The plaintiff in error contends, that this suit should have been instituted by the commissioners of Scott coun-ty, and not by the agent. If such he the case, he should have made the discovery at an earlier period. He not only appeared in the Circuit Court, but acknowledged that he could not gainsay or deny the plaintiff’s action. If he could not gainsay or deny the action in the Circuit Court, he cannot be permitted to do it here (1).

The judgment is affirmed with costs.