For the fourteen years during which the infant resided in the family of her grand parents, no claim was asserted against the father, for her care and maintenance, either by the grand parents or either of them in their lifetime, or by their personal representatives since their death. It is quite clear that they supported the infant, out of affection towards her as their grandchild, and with no expectation of a pecuniary recompense from the father.
When the grandmother died, in 1828, she, together with the infant, then of the age of fourteen years, was a member of the plaintiff’s family. The infant continued such member, till sometime in 1832, when her father took her to his own house. She, however, made it her home, most of the time between 1832 and her marriage in 1837 or 1838, when she was not out at work, in the family of the plaintiff. There was no evidence that the testator ever requested the plaintiff to take charge of her, at any time. The presumption is, that being in the plaintiff’s family at the death of her grandmother, she continued to reside there, as a member of the family, till she left the first time, with her father, in 1832. It was for the support of the infant during this period of about four years, that the referee reported in favor of the plaintiff.
I. There having been no request from the testator to the plaintiff to support the infant, the action cannot be sustained except upon the ground of an implied promise. An implied promise does not differ from an express promise except in the evidence by which it is proved. The one is proved by indirect and the other by direct evidence. When the parent is willing to support his infant child, and a relative, without his request but with his assent, receives the child into his family and supports it as a child of his own, no agreement of the father *507to pay for such support, can be implied. In the case of Van Valkinburgh v. Watson, (13 John. 480,) it is said, that when the infant is sub potestate parentis, there must be a clear and culpable omission of duty on the part of the parent, to afford support, in order to authorize any other person to act for, and charge the expense to, the parent. Here was no omission of any kind on the part of the testator, and therefore, upon the authority of that case the action could not be sustained. The dicta in Van Valkinburgh v. Watson, go further than any other case, to sustain an action against a father for necessaries furnished an infant child. They place the liability to support an infant child, in the same category as the liability of the husband to support his wife. Although the case itself was rightly decided, yet some of its reasoning was questioned by Justice Hand, in delivering the opinion in Raymond v. Loyl, (10 Barb. 485.) But whether right or wrong, the reasoning of the court does not go far enough to uphold the present action upon the ground of an implied assumpsit. The moral obligation which a parent is under to support his child imposes on him no liability to pay for its support furnished by a relative without his request; certainly not when there has been no culpable omission on his part to furnish such support in his own family. (See Mortimer v. Wright, 6 M. & W. 481; Angel v. McClelland, 16 Mass. Rep. 27; Edwards v. Davis, 16 John. 281; Raymond v. Loyl, supra.)
The infant, during the period for which the recovery has been had, was a member of the plaintiff’s family. He stood in loco parentis to her. She could not have maintained an action against him for her services in the family, nor he against her or her father for her support. (See Williams v. Hutchinson, 3 Comst, 312; 5 Barb. 122.) If he had desired to occupy a different relation, he should, on the death of his mother, have returned the child to the testator, or given notice that he would no longer keep her without compensation. This is not a case where the law implies a promise, from- the beneficial nature of the service. (16 Mass. Rep. 27. 5 Cowen, 531.)
II. The evidence relied on to prove an express promise re *508lates to a time after the service was performed. The consideration, therefore, was past and executed, and not sufficient to maintain an assumpsit, unless moved by a precedent request. (1 Saunders, 264, n. 1.) There are some cases in which it has been held that an action can be maintained upon an express assumpsit, founded upon a past consideration beneficial to the party, and when he was under a moral obligation to do what he promised. The case of Doty v. Wilson, (14 John. 378,) was decided upon this principle. The plaintiff as sheriff having arrested the defendant on a ca. sa. suffered him to escape, and was compelled to pay the amount of the judgment to the plaintiff in the original action. The defendant afterwards promised to pay the sheriff the amount, and it was held that the latter could recover upon that promise. Thompson, chief justice, says, where a man pays a sum of money for me, without my request, and I afterwards agree to the payment, this is equivalent to a previous request to do so. The benefit to the defendant, connected with his express promise to pay, must be deemed equivalent to a previous request. It was an adoption of the payment as made for the benefit of the defendant, and a subsequent ratification is equivalent to an original command. Oatfield v. Waring, (14 John. 188,) was decided upon the principle that a request may be implied from the beneficial nature of the services. These cases must be taken with some qualification.
In Smith v. Ware, (13 John. 257,) Spencer, J. adopts the language of the note to 3 Bos. & Pul. 249, thus, “ An express promise, can only revive a precedent good consideration, which might have been enforced at law, tqfdügh the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which itis founded never, could have been enforced, at law, though not barred by any legal maxim or statute provision.” This case was approved in Ehle v. Judson, (24 Wend. 97, 99,) where Bronson, J. says, a merely moral or 'conscientious obligation, unconnected with any prior legal of equitable claim, is not enough to support an express promise. The testator in this case was under no moral or eonscientious^bligation to support *509his child out of his own family, and it was not shown that he ever neglected or refused to support her there, or requested her to be supported elsewhere. The law of nature, which requires the parent to support his offspring, designates his own house as the place where that duty should be performed. The promise, therefore, was without consideration, and for that reason the action cannot be maintained.
[Franklin General Term, July 5, 1852.Willard, Cady, and C. L. Allen, Justices. Hand, J. took no part in the decision; having been of counsel for one of the parties.]
III. The evidence falls short of making out an express promise. The admission to a stranger that he was going to pay the plaintiff for the services in dispute was no promise to him. In 1840, eight years after the demand accrued, he said to the plaintiff he would settle with him for taking care of his daughter. In Pinkerton v. Bailey, (8 Wend. 600,) and Stilwell v. Coope, (4 Denio, 225,) evidence of a promise to settle a demand, was held to be tantamount to a promise to pay, so as to obviate the statute of limitations. But in both cases there was no dispute about the' justness of the original demand. The only object of the evidence was to remove the effect of the statute bar. This did not require an express promise to pay, but only an acknowledgment of the present existence of the debt. (Depuy v. Swart, 3 Wend. 135. Sands v. Gelston, 15 John. 511, 519, per Spencer, J.) In the present case the original liability was not shown, independently of the promise to settle. The object of the evidence was, not to revive a debt barred by lapse of time, but to establish an original cause of action. I think it was not sufficient for that purpose.
The report of the referee must be set aside, and a new trial ordered, with costs to abide the event.