
    Ford versus Phillips.
    An action upon a promise of the defendant when an infant is not supported by a new promise after he comes of age, which was made while the writ was in the officer's hands, but before it was served.
    A defendant, in a conversation respecting a promissory note given by him when an infant, said,{i that he owed the plaintiff, but was unable to pay him 5 he would endeavour, however, to get his brother to be bound with him." Held, that this did not amount to a renewal of the promise.
    So, where he said to an officer who had the writ to serve, “ that his brother ought to have paid the note 5 that the writ should not go to court 5 that it should be settled 3 that he would see his brother, who ought to pay it 3" and after the writ was returned, u that he meant to go to jail on it."
    Assumpsit upon a promissory note. The defendant pleaded infancy, and the plaintiff replied a new promise after the defendant came of age. To prove the new promise, the deputy sheriff who served the writ was called, who testified, that when he went to serve it, but before the service, he had a conversation with the defendant, by direction of the plaintiff’s attorney, respecting the note. The defendant (being then of age) said <£ he owed the plaintiff, but was unable to pay him ; he would however endeavour to get his brother to be bound with him.” He also said something about appointing a day to meet the plaintiff or his attorney for the purpose of adjusting the debt in that way. The writ was served immediate!)' af'er tí s conversation. Wilde J., who tried the cause, directed a ver diet for the plaintiff. If the direction was right, judgment was to be rendered upon the verdict; otherwise the plaintiff was to be nonsuited.
    
      W. Baylies, for the defendant,
    objected, that a mere ac knowledgment of the debt was insufficient ; that if there wachere any promise to pay, it was conditional, that it was made under the apprehension of an arrest, that it was not made to the plaintiff himself, and that it was made after the commencement of the action. Thrupp v. Fielder, 2 Esp. 628; Cole v. Saxby, 3 Esp. 159; Smith v. Mayo et al. 9 Mass. Rep. 64.
    
      Whitman, for the plaintiff,
    contended, that the action was not commenced before the writ was served ; that the officer was the plaintiff’s agent, and a promise made to him was sufficient. To show that the words of the defendant amounted to a renewal of the promise, he relied on Martin v. Mayo, 10 Mass. Rep. 137
   The opinion of the Court was delivered at May term 1823, at Plymouth, by

Putnam J.

The right of a party to recover is to be tried by its validity at the time when the action was commenced. In the case at bar, the defendant had not then made any promise, or renewal of the promise which was originally made in his infancy. A direct promise is necessary ; a mere acknowledgment of the debt is not sufficient. Smith v. Mayo et al. It must be voluntary ; not under the terror of an arrest, and with a knowledge that the party was by law discharged. Per Lord Alvanley, in Harmer v. Killing, 5 Esp. 103. Paying money on account of a bill is not sufficient. The promise is not to be inferred, as in the cases under the statute ot.’ limitations, but must be express. And it must be made before the commencement of the action. Per Lord Kenyon, in Thrupp v. Fielder.

The case at bar is much like Tappan v. Abbot et al. in Essex, November term 1820, where the evidence to prove a promise after the defendant came of age, was, that he said to the officer who had the writ to serve, “ that his brother ought to have paid the note ; that the writ should not go to court; that it should be settled ; that he would see his brother, who ought to pay it;” and after the writ was returned, “that he meant to go to jail on it.” But that evidence was held not to be sufficient.

Now the only evidence in the present case was drawn from the defendant by the officer, after the action was commenced, and before the writ was served. It was altogether prospective ; “he would endeavour to get his brother to be bound with him.” In the view of it most strongly to be taken against the defendant, it does not prove that he had made even any acknowledgment of the debt; much less was it a promise to pay, before the action was commenced, and after he was of full age. On this ground, the Court are of opinion, that the verdict must be set aside, and that the plaintiff shall be nonsuited. 
      
      
        Thompson v. Lay, 4 Pick 48; Whitney v. Dutch, 14 Mass. R. 137; Jackson v. Mayo, 11 Mass. R. 147 See Cheshire v. Barrett, 4 M’Cord, 241.
     
      
      
        Hussey v. Jewett, 9 Mass. R. 100; Curtin v. Patton, 11 Serg. & R. 305.
     
      
      
        Thornton v. Illingworth, 4 Dowl. & R. 545; S. C. 2 B. & C. 824. Contra, Wright v. Steele, 2 N. Hamp. R. 51. The ratification of an infant’s contract should be a promise to a party in interest, or his agent, or at least an explicit admission of an existing liability, from which a promise may be implied. Goodsell v. Myers, 3 Wendell, 479. See Orvis v. Kimball, 3 N. Hamp. R. 314; Kline v. Beebe, 6 Conn. R. 494; Barnaby v. Barnaby, post, 317.
     