Ford v. Phillips
Massachusetts Supreme Judicial Court
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.
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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…
1Opinion of the Court
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 In the case at bar, the defendant had not then made any promise, or renewal of the promise which was originally made in his infancy.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.1 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. 103.2…
2Cases cited4 opinions
- Goodsell v. MyersNew York Supreme Court · 1830
- Ricker v. HamMassachusetts Supreme Judicial Court · 1817
- Hussey v. JewettMassachusetts Supreme Judicial Court · 1812
- Jackson v. MayoMassachusetts Supreme Judicial Court · 1814
3Cited by2 opinions
- Gailer v. GrinnelSupreme Court of Vermont · 1828
- Commonwealth v. VeiovisMassachusetts Supreme Judicial Court · 2017