1 Newland on Cont. 14, sed qucere; Zouch v. Parsons, 3 Burr. 1808; Forresters Case, 1 Sid. 41; Reeve, Dom. Rel. 249, 254. See Minock v. Shortridge, 21 Mich. 304.
2 See Proctor v. Sears, 4 Allen, 95 (1862); Irvine v. Irvine, 9 Wall. 617; Thompson v. Lay, 4 Pick. 49; Hubbard v. Cummings, 1 Greenl. 11; Thrupp v. Fielder, 2 Esp. 628; 2 Kent's Comm. 237, and notes; Whitney v. Dutch, 14 Mass. 460; Dilk v. Keighley, 2 Esp. 481; Jackson v. Carpenter, 11 Johns. 539; Deason v. Boyd, 1 Dana, 45; Harmer v. Killing, 5 Esp. 102; Tucker v.- Moreland, 10 Pet. 73; Smith v. Mayo, 9 Mass. 62; Ford v. Phillips, 1 Pick. 202.
3 Mawson v. Blane, 10 Exch. 206; 26 Eng. Law & Eq. 560. Parke, B., in this very late case observed: "Now to take the case out of the statute, there must be either a promise by the defendant in writing after he came of full age, or a ratification of the prior contract. The term 'ratification' has already had an interpretation given to it in Harris v. Wall; and there it was held that a ratification means such a ratification as would make a person liable as principal for an act done by a third person in his name. I take the meaning of ' ratification' to be different from a promise. It is an admission that he is liable, and bound to pay that debt on a contract which he made when an infant; therefore, in order to bring the case within Lord Tenterden's Act, there must be an admission in writing, that he was liable to pay on that contract which he made when he was a minor; that is, he was liable to pay, and bound to pay his acceptance, -bound to pay in prcesenti the acceptance when due. Now, so understanding the meaning of the term ' ratify,' I was of opinion, at the trial, and I still continue to be of the same opinion, that this letter does not amount to a sufficient acknowledgment of his liability as acceptor of the bill; it is only an assurance. A man might consider himself in honor bound to pay the bill, and it is an assurance that contracted during infancy, was partially paid by the infant after he came of age, it was held not to be a sufficient ratification, although it was an explicit acknowledgment of indebtment.1 Indeed, any mere admission of liability is not a sufficient confirmation to sustain an action upon an infant's executory contract; for although it rebuts the presumption of payment created by the statute of limitations, it affords no ground for an action, because the infant may legally refuse to pay a debt, which he acknowledges to be due.2 Thus where a defendant, after he became of age, said " he owed the plaintiff, but was unable to pay him, but that he would endeavor to get his brother bound with him," it was held to be no ratification of his contract made during infancy.3 But any direct confirmation and recognition of his promise, although it do not amount to a promise in so many words, will be sufficient to bind the party; as if he should say, " I do ratify and confirm," or do " agree to pay the debt," or " I have not the money now, but when I return from my voyage I will the bill would be paid, not a recognition of being bound to pay by virtue of that bill. The terms of the letter are: ' Your brother tells me' - I will repeat this again -' Your brother tells me you are very uneasy about the £500 bill; pray, make yourself easy about it, as I will take care that it is paid.' Not, ' Make yourself easy about it; you are sure it will be paid, because I am liable as acceptor;' but, ' I will take care that it is paid,1 that is, he means to give an assurance that some party will pay it. It is clear who he means to be the party to pay it, certainly the drawer of the bill, and that the means of payment are to come from Sir Henry Pottinger; and he assures the plaintiff that it will be paid, and that Sir Henry Pottinger will come to England in June; he points to him as the source from which payment is to be derived. My opinion was at the trial, and still is, that this is really not any admission that he is liable as principal in virtue of that bill of exchange, that is, as principal, liable to pay the debt. It amounts to nothing more nor less than an assurance, that the plaintiff may be calmed in his feelings on the assurance that this bill will be sure to be paid, and points to the arrival of Sir Henry Pottinger in England, in June. I think the rule ought to be, therefore, discharged." See also Rowe v. Hopwood, Law R.4Q. B. 1 (1868).
1 Thrupp v. Fielder, 2 Esp. 628.
2 Lara v. Bird, cited in Peake on Evid. (2d ed.) 260; Whitney v. Dutch, 14 Mass. 460; Jackson v. Mayo, 11 Mass. 147; Martin v. Mayo, 10 Mass. 137; Peirce v. Tobey, 5 Met. 168; Ordinary v. Wherry, 1 Bailey, 28; Wilcox v. Roath, 12 Conn. 550; Proctor v. Sears, 4 Allen, 95 (1862).
3 Ford v. Phillips, 1 Pick. 202; Hale v. Gerrish, 8 N. H. 374.
§ 115. The promise must, however, be made voluntarily and freely, and, it has been thought, with a knowledge on the part of the infant that he is not legally liable upon his contract.6 If, therefore, his promise be obtained by fraud, or duress, or fear, or, possibly, made in ignorance of his legal rights, it is void.7 So, also, the promise must be made to the party in interest, or his agent, and only creates a liability coextensive with its terms.1 And the promise must be that the infant himself will pay, and not that some other person will.2 An exception to the rule which requires a promise in order to ratify an executory contract is introduced in favor of an agreement by an infant to marry, in which circumstances and conduct, intimating a continuing intention to marry after arriving at legal maturity, are sufficient to raise a new promise.3
1 Thompson v. Lay, 4 Pick. 48; Whitney v. Dutch, 14 Mass. 460; Bar-naby v. Barnaby, 1 Pick. 221; Harris v. Wall, 1 Exch. 128.
2 Hartley v. Wharton, 11 Ad. & El. 934.
3 Hunt v. Massey, 5 B. & Ad. 902; 3 Nev. & Man. 109. 4 Rowe v. Hopwood, Law R. 4 Q. B. 1 (1868). See Harris v. Wall, 1 Exch. 122; Mawson v. Blane, 10 Exch. 206. 5 Forsyth v. Hastings, 27 Vt. 646 (1855).