This is an action of assumpsit by the widow of a devisor to whom an annual legacy or allowance was given in Bis will, against the minor children and heirs of one of the sons of the devisor, to whom a large portion of his real estate was devised; and who was appointed executor of the will and directed to pay the money and deliver the articles annually to the plaintiff, his. mother. Ebenezer Haskell, the father of the defendants, entered into possession of the lands devised to him, and made the annual payments as directed, until his death.Nelson, his administrator, continued such payments to the year 1818, when the defendants, .by their guardian, entered into the same lands, and have ever since occupied them; — but though the annual legacy or allowance has been demanded, it has not been paidand this action is brought to recover the amount due.
*161Among other grounds of defence, the defendants rely on their infancy. — If this action fui’ijis.hes an exception from the general rule, it is incumbent on the plaintiff to shew that the law implies a promise on the part of the defendants;.which binds ;them. more effectually than an. express promise wpiild in similar circumstances!. ,lt is not contended_tBat the defendants are liable on thé ground that the articles for which payment is .claimed, come within the description of necessaries. The inquiry then is, does the law imply a promise on the part of, these minors from the facts stated ? — in the case of Zouch v. Parsons, 3 Burr. 5794, the question had reference to the legal effect of a certain conveyance of an infant, and.his right to avoid it by entry during infancy. — In Evelyn v. Chichester, 3 Burr. 1717, it was decided that the lord of a manor may maintain an action of assumpsit against an infant copyholder, when he comes of age, for a fine bn his admission during his nonage. In the argument of the cause, the plaintiff’s counsel expressly admitted that the action would not lie,against the infant during his infancy. — Lord Mansfield says, “ Here is a reasonable fine, assessed, the same his “, father paid, — an enjoyirient of sixteen years; and part of it ss since he came of age — and no-renunciation of the estate; — on “ the contrary a confirmation of the .transaction.” .The passage in 3 Bac. Abr. Infancy F. seems not to be supported by 2 Bui's ir ode 69, in its full latitudes — The same case is. afterwards, and probably more correctly, cited-in the same book and title, letter J, 8. in connection with Ketsefs case, Cro. Jac. 320, both are-cited to support the position that “ if an infant take a. lease for “ years of land, rendering rent, which is in arrear for several “ years ; — then the infant comes of age and continues the occupa- “ tionofthe land; — this makes the lease good and unavoidable;, M and of consequence makes ,him chargeable for all, arrearages incurred during his minority.” — This is undoubted law; and the above named case from Cro. Jac„ supports the principle. See also Hubbard v. Cummings, 1 Greenl. 11, and the. Cases there cited. — These all differ from the present case and we do not find any authorities which support the principle contended for by the plaintiff’s counsel. We are all of opinion that the present action cannot be maintained ; and the nonsuit is therefore confirmed, — At the same time we would observe *162that we are not certain that the plaintiff may not have a remedy in some other mode*
Judgment for defendants for costs.