
    Benjamin Goodridge & another vs. Silas Ross.
    Where a writ of error is brought to reverse a judgment recovered on a note against an infant, who appeared by attorney, a promise, made by him after he comes of age, to pay the note, is neither a release nor a waiver of the error, nor a bar to a writ of error.
    As there is no general issue for the trial of questions of fact upon a writ of error, it seems that the court, since special pleading is abolished, may direct how an issue may be framed, and may allow the defendant in error to plead that the judgment, which is sought to be reversed, is not erroneous in any matter of fact, and tender an issue to the country, and may require him to file, with such plea, a specification, setting forth a release of errors, an estoppel, or any matter of fact in avoidance, on which he reties to show that the judgment ought not to be reversed.
    This was a writ of error to reverse a judgment recovered by Silas Ross against Benjamin Goodridge and Daniel Goodridge in the court of common pleas. The action, in which said judgment was rendered, was on a promissory note signed by said Benjamin and Daniel, and was entered at the August term, 1840, of said court, when an attorney entered a general appearance for the defendants. At the following December term, the defendants were defaulted, and the action was continued for judgment, which was rendered at the March term, 1841. No guardian ad litem, was at any time appointed for said Daniel, nor did any person act or profess to act in said suit as his guardian.
    The error assigned was, that said Daniel Goodridge, at the time of the rendition of said judgment, was an infant, under the age of twenty one years. The defendant in error pleaded that there was no error in the record, and issue was taken upon the allegation that said Daniel was an infant. Upon the trial of this issue, before Dewey, J., the plaintiffs in error introduced evidence tending to show that said Daniel was born on the 18th of October 1820. The defendant in error then offered a witness, by whom he proposed to prove the following facts: “ That the witness heard Ross, the defendant in error, ask said Daniel Goodridge, on the 1st of June 1842, if he could not pay him some money on that note. Daniel said he could nbt then; he supposed he had no business to have signed it, as he was not then twenty one. Ross asked him if it was not an honest and just debt. Daniel said it was. Ross asked him if he was not willing to pay it. He said he was. He said he had no money then; he should have some in September, and then he would pay it.” The judge ruled that this testimony was inadmissible, and the jury found a verdict for the plaintiffs in error.
    Verdict to be set aside and a new trial granted, if the above ruling was erroneous and furnishes a sufficient cause for a new trial; otherwise, judgment to be entered for the plaintiffs in error.
    
      Wood, for the defendant in error.
    The promise of Daniel, 'n June 1842, to pay the note, was a ratification of his original promise. Whitney v. Dutch, 14 Mass. 457. Reed v. Batcheldvr, 1 Met. 559. And as he appeared in the original suit by at torney, he must have had notice of the suit, and his new prom* ise was a ratification of the attorney’s acts.
    A defendant, who was an infant when judgment was rendered against him, may waive the error. Arnold v. Sandford, 14 Johns. 417. Such a waiver was made by the new promise in this case.
    Where a party has satisfied an erroneous judgment, it will not be reversed on error, merely to avoid costs, unless the plaintiff in error can recover back the money which he has paid. Potter v. Smith, 14 Johns. 445. In the case at bar, the defendant in error could recover on the new promise, if this judgment should be reversed. And where a party has suffered no injury, he ought not to be permitted to maintain a writ of error. See Camden v. Edie, 1 H. B. 21. Salmon v. Pixlee, 2 Day, 242. Whiting v. Cochran, 9 Mass. 532. Shirley v. Lunenburg, 11 Mass. 383. 2 Saund. 46, note (6.) Bac. Ab. Error, B.
    The new promise is tantamount to a release of errors, and should operate as such to bar this suit. See Bac. Ab. Error, L. Dyer, 90 a. Hutchinson’s case, 3 Lev. 36.
    
      Washburn, for the plaintiffs in error.
    If several defendants appear by attorney, and one is an infant, it is error, and as the judgment is entire, it shall be reversed against all. 2 Saund. 212 a, note (4.) One cannot release, in such case. Ruddock’s case, 6 Co. 25. And if he could, the new promise of Daniel, which was offered to be proved in this case, could not operate as a release or waiver of error. Such promise of an infant, after action brought, will not support the action. Ford v. Phillips, 1 Pick. 202. Much less will such promise, made after rendition of an erroneous judgment, release or waive the error.
   Shaw, C. J.

The only question in this case is, whether the facts that were offered to be proved, would, if proved, have constituted a good waiver or release of the error. The evidence offered had no tendency to prove the fact in issue, to wit, whether Daniel Goodridge was twenty one years old when the judgment was rendered.

As there is no general issue to try questions of fact upoD a writ of error, inasmuch as the plea in nullo est erratum is in the nature of a demurrer, (Yelv. 57,) putting in issue only such errors as may be shown on the face of the record; it may be a question, since special pleading is abolished, how an issue should be framed, so as to enable the defendant in error to avail himself of an estoppel or other matter in avoidance. Perhaps it might be competent for the court, under their authority to direct how an issue may be framed, and might be most conformable to the rules and practice of the court in analogous cases, to allow the defendant in error to come and plead that the said judgment is not erroneous in any matter of fact, in manner and form, &c., and tender an issue to the country. With this plea he might be required to file a specification, setting forth, in addition to a denial of the fact assigned for error, a release of errors, an estoppel, or any other matter of fact in avoidance, on which he relies, tending to show that the judgment ought not to be reversed.

But we are of opinion, without relying on the form of the issue joined in this case, that the evidence, which was offered at the trial, would not constitute a good bar to the writ of error. That evidence went no further than to show an admission of Daniel that he owed the debt, and a promise to pay it. But no reference was made by him to the judgment. The doctrine of rebutter does not apply, because here was a bill of costs, in addition to the debt, and because Daniel might have grounds of defence to an action on the note, which he could not have to an action of debt on the judgment.

Had the alleged admission and promise been made after the commencement of the first action, and had this evidence thereof been offered, then it would not have been admissible, because it was evidence to maintain an action on a new promise, on which the cause of action accrued after it was brought. Ford v. Phillips, 1 Pick. 202. Thornton v. Illingworth, 2 Barn. & Cres. 824. As a waiver or release of errors, it was not admissible, and would not be under a plea in bar; because such plea is in the nature of an estoppel, and must apply directly to the judgment itself. The admission and promise, offered to be proved, were, that the note constituted a good debt, and that Daniel would pay it. It did not attach to the judgment, and it does not even appear that he knew that judgment had been rendered. Supposing such acknowledgment and promise would, prima facie, support a new action, it would be competent for the defendant therein to prove payment by himself or his co-debtor, or set-off, or any other matter in discharge and avoidance; of all which he might be deprived, if this judgment should be affirmed. It does not therefore follow, as a necessary or even a natural conclusion, because Daniel was willing then to pay the note, that he intended to waive the error in the judgment admitted to be erroneous.

The verdict must stand, and the judgment of the court of common pleas be reversed.  