#### William Hankins, an infant, by Sarah M. Hankins, his guardian, *versus*Elisha Kingsland.

An officer who has levied an execution upon personal property, is not deprived of his special interest therein, by taking the bond or receipt of a third person, stipu. lating for its production on the day of sale; and, if forcible possession be taken of the goods by a wrong-doer, the officer may maintain trover for them, founded upon his special interest.

If upon the return to a certiorari, the plaintiff in error rely upon infancy, disclosed by the record, as a defence, it must be specially assigned as *error in fact,*that the defendant in error may take issue upon it.

Certiorari to the Assistant Justice of the 12th Ward.

The plaintiff in error, in this case, had entered into partnership with one Fisher, with whom, he carried on the business of harafterwards having dissolved the he *426sold out his interest in the joint stock to Fisher, and surrendered the possession to him. The defendant in error, (who was an officer,) having an execution against Fisher, levied upon the property which had formerly belonged to the partners, and oue John Beatty gave him a bond or receipt for it, whereby he stipulated that the goods levied on should be forthcoming at the day of sale. The plaintiff in error not having been paid for his property by Fisher, repossessed himself of a part of it, after it had been levied on by Kingsland.; and the latter, thereupon, brought an action of *trover*against Hankins, before Mr. Flanagan, the Assistant Justice of the 12th Ward.

At the trial of the cause before the Justice, upon the general issue, the defendant, for the purpose of defeating the action, offered to prove the right of property in the goods levied on, to be in Beatty. This evidence being objected to, was rejected by the Justice, and the defendant excepted to his opinion. The defendant then proved that he was but 18 years old at the time of the trial, and insisted that no recovery could be had against him, upon the ground, that as he was an infant, the sale by him to Fisher was void, and that he had, therefore, a right to repossess himself of the goods sold. He also insisted that he could not be proceeded against in the action, as no guardian had been appointed for him, by whom he could appear and defend. It appeared, also, by the testimony *of*one of the witnesses, that Fisher had refused *to*pay Hankins the whole amount due to him, upon the ground that he was “ under age.”

The Justice gave judgment in favor of the plaintiff for fifty dollars, and the defendant then took out a *certiorari.*

*Mr. J. R. Whiting,*for the plaintiff in error,

now insisted that the judgment below was erroneous, for the reasons assigned before the Justice. That an infant *must*appear and defend by his guardian, or next friend, and that the proceedings in this case were irregular. [2 *Saund.*212. *Mockey v. Grey,*2 *John. R.*192. *Alderman v. Tirrell,*8 *Ib.*326. *Dewitt v. Post,*11 *Ib.*460. *Arnold, Duncan, et. al. v. Sanford,*14 *Ib.*417.]

That the sale by Hankins to Fisher was voidable, if not void, on *427the ground of the infancy of the former. He had a right, therefore, to rescind the contract of sale, and repossess himself of his property.

*Mr. J. D.*Craig, contra,

insisted that if the plaintiff in error had intended to rely upon infancy as a defence, he ought specially to have assigned, as *error in fact,*that he was an infant, and that he had appeared in person, and not by guardian, that the defendant in error might have put the fact of infancy in *issue;*whereas, he has presented a general assignment of errors in law merely. [9 *J. R.*159.]

II. *The fad,*as to the infancy, was submitted to the Justice upon the general issue before him, and decided against the plaintiff in error. If he was not an infant, no guardian could be assigned; and if, upon the return to the *certiorari,*the plaintiff in error had specially assigned for error his infancy, such an assignment being *against the record,*would have been unavailing. [3 *J. R.*437.]

III. The receipt given by Beatty did not divest the officer of his special property in the goods, and the Justice very properly excluded the evidence offered as to that point.

*Mr. Whiting*in reply.

I. The defendant in error, if he intended to rely upon the full age of Hankins, should have pleaded in abatement to the assignment of errors, or moved to set it aside. By permitting the court to assign him a guardian, to prosecute his writ of error as an infant, the defendant thereby admits the fact of the plaintiff’s infancy.

II. The Justice did not find that the defendant below was of full age. “ After taking three days for deliberation and advice, he gave judgment for the plaintiff against the defendant.” He did not say, under his oath of office, that Hankins was of age.

III. The objection, that the infancy of Hankins should have *428been assigned as error in fact, is not well taken. If it did not appear by the return, and thus on the face of the record, it would have been necessary to have assigned it. But it appears to be a well settled principle, that if the error is apparent upon the return, it may be taken advantage of upon a general assignment of errors. *[Bacon’s Abridg. Tit.*Error, *K. 2, page*487, *note A.]*In *Waling v. Toll, [9 John. R.*141,] it appeared upon the return of the Justice, and the court reversed the judgment. In *Bliss v. Rice,*the infancy of the defendant did not appear, it was therefore necessary specially to assign it as error in fact. In *Ingersoll v. Wilson,*[3 *John. R.*437,] the defendant pleaded infancy, and issue was joined on that fact. In that case, the Justice, first from inspection, decided him to be of full age, and therefore refused to assign him a guardian. The question was then submitted to a jury, who also expressly found that plea against him. The court, therefore, very properly refused to permit the error to be assigned, because it was against the record.

*Per Curiam.*

Upon the trial of this cause, the defendant below set up the right of *Beatty*to the property in question, as a defence to the action. He, it .appears, had given a bond to the officer, who levied the execution, that the goods should be forthcoming at the day of sale; and they were left on the premises, where the levy was made. This did not divest the special property of the officer, nor deprive him of the right of immediate possession, and the action of trover could be maintained by him. There was, therefore, no error, in this respect, in the court below.

But the infancy of the original defendant, is now alleged as a ground for reversing the judgment. This is error in fact, and it is well settled, that it must be specially assigned, that the defendant in error may take issue upon it. Although the fact of infancy was given in evidence in the court below, it could not have been as a defence to the action, as it constituted none in trover. The Justice cannot be considered, therefore, as deciding against the fact of infancy, upon the evidence; or if he is, his decision is clearly against the proof. The special assignment of infancy, therefore, as error, would not be against the record; and upon a *429joinder in error, upon such an assignment, the fact would be tried in the usual manner.

Upon the general assignment of error in law, the defendant in error would be entitled to judgment. But the plaintiff may withdraw it, on payment of costs, for the purpose of assigning error in fact, specially.

[J. D. Whiting, *Att'y for the plff.*S. D. Craig, *Att’y for the deft.]*