#### William Jackson *versus*Ebenezer Mayo and Another, Executors.

Where a minor received money of the plaintiff, and made a promise in writing to pay the same to the plaintiff’s daughter; and after he came to age, being applied to by the daughter’s husband, said it was not then convenient to him to pay it, but that, on his arrival at the plaintiff’s place of residence, whither he ■ was then bound, he should pay him the money due him; — it was holden, that no action lay for the plaintiff on the express promise ; but that on this evidence a general *indebitatus assumpsit*for money received to the plaintiff’s use might be maintained, the evidence being sufficient to revive the debt, and to establish the consideration on which the law will imply a promise.

This was an action of *assumpsit,*wherein the plaintiff declares *“*that the said *James Weeks,*[the defendants’ testator,] in his lifetime, to wit, on the 15th of March, 1808, by his note, in writing, of that date, by him signed, in consideration of the sum of 2195 dollars, paid by the said *Jackson*to the said *James Weeks,*the *142said *J. W.*then and there undertook and faithfully promised the plaintiff to account with and pay over to *Margaret Jadcson,*the daughter of the plaintiff, the said sum on his arrival at *Portland;*and the plaintiff avers that said *James Weeks*arrived in *Portland*with said sum, but did not pay over said sum to [ * 148 ] said *Margaret,*the plaintiff’s daughter * aforesaid, on his arrival in *Portland,*nor at any time afterwards in his lifetime, though thereto often requested; neither have the said *Ebenezer*and *Lemuel,*executors as aforesaid, ever paid over or accounted for with the said *Margaret*or the plaintiff said sum since the decease of the said *James,*but unjustly neglect and refuse so to do.”

The cause was tried upon the general issue, October term, 1812,, before *Thatcher,*J.

The plaintiff, to support his action, offered and read in evidence a paper signed by the said *James Weeks,*of the tenor following, *viz.: “ Balize,*15th March, 1808. Received of *William Jackson*the sum of twenty-one hundred and ninety-five dollars, which I promise to account with his daughter, *Margaret Jackson,*now in *Portland,*for. *James Weeks.”*This paper was objected to by the defendants, on the ground that it did not support the promise set forth in the declaration; but the objection was overruled.

The defendants then showed that the estate of their testator was insolvent, and that, at the date of the above promise, *viz.,*March 15, 1808, he was a minor, not having arrived at full age until the middle of July, 1809.

The plaintiff read in evidence the last will and testament of the said *J. W.,*executed by him on the 5th of August, 1809, and after he became of age, duly approved, and containing the following clause, *viz.: “*I do give and bequeath unto my beloved brothers and sisters [naming them] all and every part of my real and personal estate, goods, and chattels, of what kind or nature soever, to be divided in equal shares amongst them, *after my just debts shall be paid therefrom, which I direct first to be done.”*

The plaintiff also offered the deposition of *William Harper,*a copy of which came up in the case, as evidence of a promise on the part of the said *J. W.*to pay the sum demanded, after full age. This evidence was objected to by the defendants, but admitted by the judge.

The testimony of *Harper*was, in substance, as follows: About the 4th of August, 1809, he informed *J. Weeks*that he had understood that he had received of *William Jackson*[ * 149 ] * about 2200 dollars, which he had agreed to deliver to his daughter *Margaret,*then the witness’s wife; ask *143ing him if it was then convenient to him to pay it *Weeks*replied *that it was not convenient for him to pay it at that time, hut that he was then hading a vessel for*Jamaica, *where he intended to sell his cargo for cash, and proceed to the Bay of*Honduras, *and that, on his arrival there, he should, pay Mr.*Jackson *the money due him on account of the said sum so received as aforesaid.*The witness then requested him to pay to a Mr. *Martin*a bill, which was due him for the schooling of *Jackson’s*children, out of the money of *Jackson*in his hands ; and he engaged to pay a part, if not the whole, of that Dill. Some time afterwards, and after *Weeks’s*death, the defendant *Mayo*handed the witness the testator’s account against *Jackson,*and desired him to allow it out of the money which the testator had received of *Jackson,*and for which a claim had been filed before the commissioners on the said *Weeks’s*estate. In the account was a charge of 100 dollars, as having been paid by *Weeks*to *Martin;*but the witness had been afterwards informed that that sum was in fact paid by the testator’s father, and by him charged in the testa tor’s books.

A verdict was taken for the plaintiff, subject to the opinion of the Court upon the foregoing facts, as reported by the judge.

The cause was argued, at the last May term in this county, by *Todd*for the plaintiff, and *Hopkins*for the defendants.

*Hopkins.*

To bind an infant to the payment of a debt contracted during his infancy, and for which he would not be liable without a new promise, there must be an express promise to pay. Paying money generally, on account of the bill, is not sufficient; (1) nor is an acknowledgment of the debt evidence of a new promise, as in a case under the statute of limitations. But if a second promise is shown by the evidence in this case, it was to pay when the testator should arrive at *Honduras,*which is not the promise declared on ; nor does it appear that he ever did arrive there.

** Harper,*

being the husband of the plaintiff’s daugh- [ * 150] ter to whom the money in question was sent, and for whose benefit this suit is instituted, was an incompetent witness, having a direct interest in the recovery.

*Todd,*for the plaintiff.

The objection that the evidence does not support the declaration is too nice to avail on a special demurrer; much less will it have an effect after a verdict.

The money having been delivered to *Weeks*in bags, trover might have lain ; and the cause of action being therefore rather for a tort than on contract, infancy seems a very inadequate answer. (2) No *144discretion was implied in the undertaking. There was nothing more wanting to its fulfilment but common honesty, which an infant may as well be presumed possessed of as an adult.

The deposition of *Harper*shows an express promise, or what amount to one; which, however, it is not now necessary to establish, since it is the province of the jury to determine whether a new promise was proved or'not. (3) A confirmation of an infant’s acts may be implied from trivial circumstances, as where an infant had made a lease for years, and at full age said to the lessee, “ God give you joy of it; ” ■— this was held a good affirmation of the lease. (4)

*Harper*had no interest in this action. His wife has no claim for the money demanded. Her father demands it, and there is nothing in the case from which to infer that he will ever give the money, when recovered, to his daughter. x

The cause was continued to this term for advisement; and the opinion of the Court was now delivered by

(1)

 2 *Esp. Rep.*628, *Thrupp*vs. *Fielder.*— 5 *Esp. Rep.*102, *Harmer*vs. *Killing.—*3 *Esp Rep.*159, *Cole*vs. *Saxby.*

(2)

 1 *Esp. Rep.*172, *Bristowe & Al.*vs. *Eastman.*

(3)

 1 *Str.*690, *Southerton*vs. *Whitlock.*— 1 Lord *Raym.*389, S. P.

(4)

*Leon.*4.

Sewall, C. J.

The defendants are charged, as the executors of the last will of *James Weeks,*deceased, upon a promise by him in his lifetime, by his note in writing, March 15, 1808. The promise alleged in the plaintiff’s declaration, and proved by the note, is to this effect: that, in consideration of 2195 dollars paid by the plain tiff to *James Weeks,*he undertook .and promised to account with, and pay over to, *Margaret Jackson,*the plaintiff’s daughter, said sum of money on his arrival at *Portland.*(a) The [ * 151 ] plaintiff * avers that *James W.,*after the receipt of the money, did arrive at *Portland:*but that he never, in his lifetime, paid over the sum so intrusted to him to the said *Margaret,*the daughter, or accounted for it to the plaintiff; and that the executors had also neglected to pay over or account for the same.

At the trial of this action upon the general issue, the defendants proved that their testator, at the date of the promise, alleged an.d proved, although master of a vessel in the *West India*trade, was in his age somewhat short of twenty-one years.

To this defence the plaintiff replies, first, a clause in the will of *James W.,*expressing a bequest of his estate to his sisters and brothel s, after *his just debts*shall be paid therefrom.

The Court has determined heretofore, (5) in a case arising under *145this same will, that this clause or bequest, if it may have that name, as it respects the debts, is no answer to a defence of infancy ; and that the disability of an infant to contract, unless in certain cases specially provided for with a view to his preservation and benefit, is such as renders his promise not only voidable, but void.

The plaintiff in this case insists, secondly, upon certain testimony adduced at the trial, the amount of which is, that *James W.,*after he became of full age, having been called upon by the witness, then the husband of the plaintiff’s daughter *Margaret,*and questioned of the money received of her father, and whether it was convenient to pay it over, *J. W.*answered that it was not convenient to pay it at that time, but that he was then preparing for a voyage to *Jamaica,*with a cargo which he should there sell for cash ; and expressed his intention to proceed from thence to *Honduras,*and, on his arrival there, to pay the plaintiff the money due him on account of the sum received for his daughter. Other circumstances are proved by this testimony, which establish very satis factorily, if the witness is credible, an acknowledgment, on the part of *J. W.,*after he came of age, that *he [ * 152 ] had received of the plaintiff the sum of money expressed in the note to him, and in trust for his daughter.

But there is no evidence of any express promise to the plaintiff himself, or of the renewal to him of the promise expressed in the note, *(a)***The most that can be made of the testimony is evidence of money in the hands of the deceased, intrusted with him, which he had not in his lifetime paid over or accounted for.

We have been, when this cause was argued, very explicit in expressing our sentiments of the defence resorted to in this case. The insolvency of *James W.’s*estate is no apology; and, however inexorable his other creditors may be, we cannot conceive that the executors are under any necessity of continuing the embezzlement of this money, or defending this breach of trust, so reproachful to the memory of their testator, for the benefit of his other creditors. *146The defence being insisted on, however, we must decide according to the strict principles which apply in the case; and these are, we reluctantly say, against the plaintiff’s action, in the particular form in which it is conceived.

A general *indebitatus assumpsit*for money received for the use of the plaintiff might be maintained by the evidence adduced at the trial; but not this action on the original promise. There is no evidence of an express promise to the plaintiff, made by *J. W.*after he came of age; but there is enough proved to revive the debt, to establish the consideration upon which the law will imply a promise to the party injured. (6), *(b)*

The defendants refuse to consent to any amendment of the declaration ; and this being a trial on a review, it is out of the power of the Court to afford any aid by ordering an amendment.

If the plaintiff has any redress against this scandalous fraud, it must be by another action commenced in a better form ; and which it is possible (though on this point we give no opinion) may be maintained, notwithstanding any restrictions on his legal remedy, either by the statute of limitations or the statutes' respecting insolvent estates, *(a)*

[ ***153 ] * The witness relied oh for the plaintiff is, we think, competent; the objections suggested going only to his credit.

Upon the whole, the evidence reported in the case will not support the plaintiff’s declaration. The verdict for him is therefore to be set aside, and a

*New trial granted.*

(a)

**The promise alleged in the declaration was to account *on his arrival at Portland ;*but the promise m the note in writing was to *account*generally, without fixing any time.

(5)

9 *Mass. Rep.*62, *Smith*vs. *Mayo & Al.*Faris

(a)

 There was a promise to pay to the father for the plaintiff’s use, *when Weeks should arrive at Honduras.*In the case of a contract not under seal, this, it seems, was equivalent to a promise to the plaintiff. The party for whose sole benefit the promise was made may in this case sue thereon in his own name, although the engagement be not directly to or with him. — 1 *Chitty, Pl.*5th ed. 5. — *Starkey*vs. *Mylne,*1 *Rolle, Ab.*32, pi. 13. — *Dutton*vs. *Poole,*1 *Vent.*318. — 2 *Lev.*310.— *T. Ray.*302. *— T. Jones.*102.— *Cowp.*443. — 5 *Moore,*31—2 *B. & B.*337. — *Bul.*N. *P.*133, a. — *Marchington*vs. *Vernon,*1 *Bos. & P.*101. — *Martin*vs. *Hind, Dougl.*142. — *Carnegie*vs. *Waugh,*2 *D. & R.*277. — See 4 *B. & C.*664.—3 *B. & A.*280. —1 *Keb.*122, pl. 30. — *Saville,*23. — *Skinner*vs. *Stocks,*4 *B.*& *A.*437. — *Anderson*vs. *Martindale,*1 *East,*497. — *Dawes*vs. *Peck,*8 *T. R.*332. — *Hagedom.*vs. *Oliverson,*2 *M. & S.*485—490. —■ When *Weeks*arrived at *Honduras,*therefore, an action might have been sustained on the promise.

(6)

 1 *Rol. Mr.*18, 1, 1, 2. — 1 Lord *Raym.*389. — 1 *Burr.*323.

(b)

 How could the testator be legally bound by an implied promise resulting from a contract voidable by reason of infancy ?

(a)

**In *Smith*vs. *Mayo & Al. Exrs.*(9 *Mass. Rep.*62,) a case arising under the same administration, the Court say, “ There is nothing in the case from which we .can infer that what was not in law a debt, could be considered by the testator as a just debt."