Every executory contract may be avoided by an infant, and then the adult dealing with him is relieved from his part of the contract; as if the contract were for the sale of a horse, by the infant, and the infant refuses to deliver the horse, the adult of course may refuse to pay the price. But if it be executed on the part of the adult, - as, for instance, by the payment in advance for the horse, - and the infant then annuls the contract, and refuses to deliver the horse, the rights of the other party are not so certain. (d) If, previous to the contract, the infant fraudulently represented himself as of age, we have seen that for this fraud he may be answerable. But, if there were no such representations, it is not certain that the adult party has any remedy. He cannot bring trover for the horse, for it was never his; nor case, unless he can found his action upon a wrong independent of the contract; we should say, however, he can now recover the money on the ground that the entire avoidance of the sale has left the infant in possession of money that belongs only to the adult. If the infant disaffirms a sale that he has made, and reclaims the

Smith, 6 Cranch, 226, rests upon similar principles. There the defendant received goods as supercargo, hut disposed of them in disobedience to the orders of the owner, who brought trover. The defendant pleaded and proved infancy, and the court below held it to be a sufficient defence. Marshall, C. J., in delivering the opinion of the Supreme Court, said: "This court is of opinion that in fancy is no complete bar to an action of trover, although the goods converted he in his possession, in virtue of a previous contract. The conversion is still in its nature a tort; it is not an act of omission, but of commission, and is within that class of offences for which infancy cannot afford protection. . . . This instruction of the court (below) must have been founded on the opinion that infancy is a bar to an action of trover for goods committed to the infant under a contract. . . . This court has already stated its opinion to be, that an infant is chargeable with a conversion, although it be of goods which came lawfully to his possession " And see Walker v. Davis, 1 Gray, 506. We think that Badger v. Phinney, 15 Mass. 359, and Fitts v. Hall, 9 N. H.. 441. imply similar principles.

(c) Holmes v. Blogg, 8 Taunt. 508 Bailey v. Barnberger, 11 B. Mon. 113; Smith v. Evans, 5 Humph, 70; Cummings

0. Powell, 8 Tex. see. And see Harvey v.

Owen. 4 Blackf. 337; Weeks v. Leighton,

5 N. H. 343; Medbury v. Watrous, 7 Hill property he sold, it seems now quite well settled that he must return the purchase-money. (e) l

(N. V.). 110.

(d) See shaw v. Boyd, .5 S & R. 309 Crymes v. Day, 1 Bailey, 320; Jones V. Todd, 2 J. J". Marsh. 361, 20 Am. Jur. 260.

(e) Badger v. Phinney, 15 Mass. 363; Hubbard v. Cummings, 1 Greenl. 13; Srnith v. Evans, 5 Humph. 70; Farr v Sumner, 12 Vt. 28. See also Taft & Co. v Pike, 14 Vt. 405; Carr v. Clough, 26 N. H. 280; Heath v. West, 28 id. 101. So if the indorsee of an infant payee is paid, the infant cannot avoid his indorsement, because he cannot restore the maker of the bill or note to the same condition as before. See Dulty v. Brownfield, 1 Barr, 497; Willis v. Twambly, 13 Mass. 204; Nightingale v. Withington, 15 Mass. 272.

1 It is generally admitted that an infant may avoid his contract, though executed or partly executed, and recover what he has given. On principle there should be no difference whether the infant has given and seeks to recover money or goods, or whether the money was paid in advance or not. An early dictum of Lord Mansfield has, however, led to some confusion in the law as to recovering money. In Earl of Buckinghamshire v. Drury, 2 Eden, 60, 72, he is reported as saying: "If an infant pays money with his own hand, without a valuable consideration for it, he cannot get it back again." This was approved and followed in Holmes v. Blogg, 8 Taunt. 508; s. c. 2 Moore, 552; Wilson v. Kearse, Peake Add. Cas. 196, and Ex parte Taylor, 8 DeG. M. & G. 254. But inconsistent decisions were made in Corpe v. Overton, 10 Bing. 252, and in Everett v. Wilkins, 29 L. T. 846. In this country also the later cases allow recovery of money paid by an infant, whether paid as an advance, as a gift, or in present exchange for goods, at least if the goods are returned. Robinson v. Weeks, 56 Me. 102; Holt v. Holt, 59 Me. 464; McCarthy v. Henderson, 138 Mass. 310; Ruchizky v. DeHaven, 97 Pa. 202; Shurtleff v. Millard, 12 R. I. 272, and cases cited below.

There is much conflict of authority as to how far it is necessary for an infant on avoiding a contract to return what he has received under it as a condition of recovering what he has given.

It has been held that an infant cannot recover what he has given or paid without restoring or offering to restore what he has received, in Bailey v. Bamberger, 11 B Mon. 113, 115; Bartholomew v. Finnemore, 17 Barb. 428; Crummey v. Mills, 40 Hun, 370 (cf. Green v. Green, 69 N. Y. 553); Kilgore v. Jordan, 17 Tex. 341; Bingham v. Barley, 55 Tex. 281; Taft v. Pike, 14 Vt. 405 (cf. Price v. Furman, 27 Vt. 268; Whitcomb v. Joslyn, 51 Vt. 79). And if what he has received cannot be restored, or can only be restored in part or in an imperfect condition, he can only recover what he has paid or given subject to a deduction of the value of what he has received and does not restore. Heath v. Stevens, 48 N. H. 251 , Kimball v. Bruce, 58 N. H. 327; Hall v. Butterfield, 59 N. H. 354; Bartlett v. Bailey, 59 N. H. 408; City Savings Bank v. Whittle, 63 N. H. 587. But these decisions are not generally accepted to their full extent. And if an infant has lost, wasted, or destroyed what he received, he is usually allowed to recover what he gave without deduction. Manning v. Clarkson, 26 Ala. 446; St. Louis etc.' Ry. v. Higgins, 44 Ark. 293; Corey v. Burton, 32 Mich. 30; Miller v. Smith, 26 Minn. 248; Craig v. Van Bebber, 100 Mo. 584; Green v. Green, 69 N. Y. 553; Lemmon v. Beeman, 45 Ohio St. 505; Shurtleff v. Millard, 12 R. I. 272; Price v. Furman, 27 Vt. 268; Whitcomb v. Joslyn, 51 Vt. 79; Mustard v. Wohlford's Heirs, 15 Gratt. 329, 340; Gillespie v. Bailey, 12 W. Va. 70, 92.

Indeed, if, as is generally admitted, an infant's disaffirmance of his contract makes it void, it is difficult to resist the conclusion that he may always recover what he has given without returning or tendering what he has received, even though it is within his power to do so. And this is supported by much authority. Eureka Co. v. Edwards, 71 Ala. 248, 256; Stull v. Harris, 51 Ark. 294; Shuford v. Alexander, 74 Ga. 293; White v. Branch, 51 Ind. 210; Clark v. Van Court, 100 Ind. 113; Shirk v. Shultz, 113 Ind. 571; Chandler v. Simmons, 97 Mass. 508, 514; Walsh v. Young, 110 Mass. 396. The adult has then a right to demand the return of what he gave, if it is still in the possession of the infant, and may recover in trover or other appropriate action. Stull v. Harris, 51 Ark. 294; Strain v. Wright, 7 Ga. 568; Carpenter v. Carpenter, 45 Ind. 142; Shirk v. Shultz, 113 Ind. 571; Walker v. Davis, 1 Gray, 506; Fitts v. Hall, 9 N. H. 441; Heath v. West, 28 N. H. 101; Skinner v. Maxwell, 66 N. C. 45, Nichol v. Steger, 6 Lea, 393; Mustard v. Wohlford's Heirs, 15 Gratt. 329, 340.

But if it is no longer in the infant's possession, the adult is without remedy. St. Louis etc. Ry. v. Higgins, 44 Ark. 293; Dill v. Bowen, 54 Ind. 204; Vallaudingham v.

If, during infancy, he has destroyed or parted with the property he purchased before a demand was made upon him for it subsequently to his disaffirmance, the seller, as we have said, may be remediless; unless he does this in such a way, or * under such circumstances, as to amount to a tort; but if he destroys or disposes of the property after coming of age, this must be regarded as a confirmation of the contract. (f) And it has been held that an infant can rescind his purchase and recover the price he paid, only when he is ready to return the thing purchased; nor do we think the rule would be unjust to the infant if it did not permit him to rescind his purchase, unless he was both willing and able to return the thing purchased in substantially as good a condition as when he purchased it. (//")

If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover this money back, because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this money unless it was obtained from him by fraud.1 Whether an infant who has engaged to labor for a certain period, and, after some part of the work is performed, rescinds the contract, can recover for the work he has done, has been differently decided. (g) The principle upon which the rule is founded that forbids the infant's recovery of money advanced by him on a contract which he has rescinded, would appear to lead to the conclusion that he could not recover for the work he bad done; but the weight of authority seems to be the other way. As to the time of an infant's disaffirmance of his contract, it may be said, in general, that he cannot avoid a sale of lands, conclusively, until of full age, (h) although he may enter, while under age, and take and hold the profits. (i) The disaffirmance may be by any appropriate legal process, or by any act on his part showing conclusively his purpose of annulling the sale. Contracts which relate only to the person or to personal property may be avoided at any time, and by any act clearly manifesting this purpose. (j) Thus he may avoid a sale, and his guardian may bring trover for the chattel sold (k) And this right may be exercised against all equities of purchasers from the grantee, or other persons. (l)

(f) Cheshire v. Barrett, 4 McCord, 241; Deason v. Boyd, 1 Dana, 45; Law-son v. Lovejoj, 8 Greenl. 405.

(ff) Riley v. Mallory, 33 Conn. 201. See also Bryant v. Pottinger, 6 Bush, 473; Kerr v. Bell, 44 Mo. 120; Middle-ton v. Hoge, 5 Bush, 478

(g) See note (/), supra, p. *315.

(h) Stafford v. Roof, 9 Cowen, 626; Bool v. Mix, 17 Wend 120; Matthewson v. Johnson, 1 Hoff, C'h. 560; Shipman v. Horton, 17 Conn. 481; Cummings v. Powell, 8 Tex. 80. See also ante , p, * 294, note (j).

(i) Stafford v. Hoof, 9 Cowen, 626.

Johnson, 85 Ky. 288; Bartlett v. Drake, 100 Mass. 176; Corey v. Burton, 32 Mich 30; Dawson v. Helmes, 30 Minn. 107, 113; Green v. Green, 69 N.Y. 553.

It is frequently laid down that if an infant goes into equity to avoid a transaction, he will be granted relief only on the condition of restoring what he has received or its value. Eureka Co. v. Edwards, 71 Ala 248, 256: Bozeman v. Browning, 31 Ark. 364; Bryant v. Pottinger, 6 Bush, 473; Hillyer v. Bennett, 3 Edw. Ch. 222, 225; Folts v. Ferguson, 77 Tex. 301. But the prevailing view is that this rule does not apply when the infant no longer has the consideration. Eureka Co. v. Edwards, 71 Ala. 246 Stull v. Harris, 51 Ark. 294; Reynolds v. McCurry, 100 Ill. 356; Brandon v. Brown, 106 Ill. 519; Brantley v. Wolf, 60 Miss. 420, Bedinger v. Wharton, 27 Gratt 857.

1 This is probably not law. See note 1, supra.

An infant stands on the same footing as an adult, in respect to his rights to reclaim money on a failure of consideration, or because obtained by fraud, or to rescind contracts for good cause.