The infancy of the defendant, at the time the contract was made, being shown, and it being admitted that the goods sold were not necessaries, the defendant was entitled to judgment, unless the plaintiffs could prove a promise of the defendant, after he came of age, to pay the debt contracted whilst he was under age. The previous debt, founded on a contract, invalid in law for the cause that the defendant had not legal capacity to make it, would be undoubtedly a good consideration to support an express promise. A mere acknowledgment of the promise made in infancy is not sufficient. The act relied on as a ratification must amount to a promise or undertaking to pay it. Ford v. Phillips, 1 Pick. 202. Smith v. Mayo, 9 Mass. 64. In a recent case, Boyden v. Boyden, 9 Met. 519, cited by the plaintiffs’ counsel, it was held, that when a promissory note was given by a minor, for personal property capable of being surrendered and restored, if the defendant, after coming of age, used the property as his own, or sold it, or kept it a long time, it was evidence from which a jury might infer an intent to ratify the contract; which he might elect to do. But, ratification being an entire act, if he did it in part, he must do it in toto. Such use of the property, therefore, would be evidence of a new promise to pay the debt. But this, we think, must be a voluntary act on the part of the minor; and in order that a jury may infer such promise from the act of the minor, after he comes of age, it must be a voluntary act which manifests his intention to keep the property, when he has the power to keep or relinquish it, at his election. If he had not such actual possession and control of the goods, or made no sale or disposition of them, after he came of age, and before action brought, there was no evidence on which a jury could find a *311new promise and ratification; and the burden being on the plaintiffs to prove such new promise, the issue must be for the defendant. If the defendant had no such possession of the goods, or power over them, or disposition of them, no notice, on his part, was necessary, of his intention to vacate the contract, in order to establish his defence.
The directions of the judge to the jury having been contrary to these views, the court are of opinion that they were incorrect; that the verdict was wrong, and must be set aside ; and that a new trial be granted, to be had in this court, unless the plaintiffs shall elect to become nonsuit.