
    Bigelow and others vs. Grannis.
    Where the plaintiff replies to a plea of infancy that the defendant ratified the eeve. ral promises &c. after attaining to the age of 21 years, and the defendant rejoins, taking issue upon the allegation, the plaintiff is prima facie entitled to recover upon proof of a new promise, without showing that the defendant was of age at the time of making it.
    Assumpsit, tried at the Monroe circuit, in April, 1842, before Dayton, C. Judge. The action was on a promissory note, dated May 6th, 1838, and payable on the 1st of September then next. The defendant pleaded infancy, and the plaintiffs replied that, after the defendant had attained to the age of 2.1 years, to wit, on &c., at &c., he ratified and confirmed the several promises &c. The defendant rejoined, taking issue upon the allegation of a new promise. On the trial, evidence was given that soon after the note fell due, the .defendant promised to pay it. The defendant’s counsel moved for a nonsuit, on the ground that it did not-appear the defendant was of age when the promise was made. The judge denied the motion, and the defendant’s counsel excepted. The jury found for the plaintiffs, and the defendant now moved for a new trial on a bill of exceptions.
    
      J. H. Martindale, for the defendant.
    
      G. H. Mumford, for the plaintiffs.
   By the Court,

Nelson, Ch. J.

It was enough for the plaintiffs to prove a new promise, without showing that the defendant was of age at the time of making it. It lay upon the defendant, who wished to take advantage of it, to prove the fact of infancy. This was decided upon a like issue in Borthwick v. Carruthers, (1 T. R. 648.)

New trial denied.  