majority">Daggett, J.

1. If a submission to arbitrament is any evidence against the defendant, it is certainly equal evidence against the plaintiff. If it proved, or tended to prove, any right in the plaintiff, on the ground of a ratification, it tended, in an equal degree, to destroy such right, on the ground that the defendant never did ratify. The truth is, it neither proved, nor tended to prove, any thing in the cause. It was testimony wholly immaterial; and was very properly rejected, Even an offer of compromise could not be received ; and it would be strange, that an offer to submit to arbitrament should be of the least weight.

2. It is very clear from all the authorities, that the note of an infant cannot be ratified, by merely acknowledging that he made it, or that it is due. Unlike an admission of a debt barred by the statute of limitations, which has been held to remove the bar and authorise a recovery, in the cáse of the note or bond of the minor, there must be a promise to pay, when of full age. Thrupp v. Fielder, 2 Esp. Rep. 268, Smith v. Mayo & al. 9 Mass. Rep. 62. Ford v. Phillips, 1 Pick. 202. Thompson & al. v. Lay & al. 4 Pick. 48. Goodsell v. Myers, 3 Wend. 479. Gay v. Ballou, 4 Wend. 403. In consideration of law, the infant has no discretion. When that disability is removed, by full age, he may bind himself, by a new contract.

But it is said, that the bare retention of the consideration for which the note was given, after he arrived at full age, will be a ratification of the contract made when a minor. It will be difficult to support this proposition, by any authorities. The learned author of Domestic Relations (pages 243 to 249.) says. *342though he admits that the current of English authorities is the other way, that if a party avoids a note made when a minor, ⅛ shall be liable to an action for the property, for which the note was given. This principle, surely, admits, that the note may be avoided, though the property for which it was given is returned ; and as expressed by the learned court in New-York, it is difficult to see what protection infancy is, if it only changes the form of attack from an action on contract, to one in tort for the consideration. Roof v. Stafford, 7 Cowen, 179. 182.

An infant buys a horse, carriage, or a farm of land, gives his promissory note for the price, and upon his coming of full age, does not return the property, nor offer to return it. To a suit on the note, he pleads infancy, and a new promise is replied ; will that evidence support the issue 1

I am aware, that different considerations may be applied to an executed contract. The cases cited, by the counsel for the plaintiff, are all of that character. It is necessary to show some principle or authority in support of the idea, that an exe-cutory contract of an infant can be enforced against his plea of infancy, on the ground, that the consideration of the contract was not restored, by him, when of age, nor an offer made to restore it, under circumstances like those which exist in this case. That, it is believed, cannot be done.

The motion, therefore, must be denied.

The other Judges were of the same opinion.

New trial not to be granted.

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