
    Ingersoll, jun. against Wilson.
    ALBANY,
    August, 1808.
    In an action before a justice, the defendant pleaded infancy, and the justice, from examination, was of opinion, that he was not an infant, and did not appoint a guardian, and the jury found that the defendant was not an infant. On the return to the certiorari, it was held, that the infancy of the defendant could not be assignedfbrerror, it being against the record, and the fact, as found by the jury.
    ON certiorari. The plaintiff below declared on a promissory note j the defendant pleaded infancy, and issue was joined on that fact. The. justice, from examination and inspection of the defendant, was of opinion that he was not an infant, and did 'not, therefore, assign him a guardian. The fact being submitted to the jury, they found that the defendant was not an infant, either at that time, or when he gave the note.
    The plaintiff in error, on the return to the certiorari, specially assigned for error, the infancy of the defendant, and there was a general joinder in error.
    
      T. Wood, for the plaintiff in error,
    contended, that the defendant, by the joinder in error, had admitted the fact of infancy.
    
      Kellogg, contra.
   Per Curiam.

The special assignment of infancy as error was against the record below, and the fact, as found by" the jury, and was, therefore, bad. The judgment must be affirmed.

Judgment affirmed.  