The claims urged by the defendant in this case can not be sustained. It is apparent that he has been misled by hasty text writers who did not fully comprehend the true principles and condition of the law relating to infancy.
The privilege of an infant to avoid contracts which are injurious to him, and rescind those which are not, is not an exception to a general rule, but a general rule with exceptions. The law assumes the incapacity of an infant to contract. It also recognizes the fact that the limitation of infancy is arbitrary ; that it is indispensably necessary that an infant should be at liberty to contract for necessaries ; and that he may happen to mate other contracts which will be beneficial to him. It does not therefore forbid him to contract, but gives him for his protection the privilege of avoiding contracts which are injurious to him and rescinding all others, whether fair or not, whether executed pr executory, and as well before as after he arrives at full age — excepting from the operation of the privilege only contracts for necessaries, contracts which he may be compelled in equity to execute, and executed contracts where he has enjoyed the benefit of them and can not restore the other party to his original position. These exceptions are founded in the necessities of the infant, or required by a just regard for the equitable rights of others. The exception which the defendant claims to exist, founded on the simple fact that the infant has paid money in the purchase of an article not a necessary or upon a contract which would be otherwise voidable, has no element of necessity or equity to require or sustain it, and no settled recognition in the law.
Fifty years ago the Hon. Tapping Reeve, who had been for many years a judge of the superior court and for one year chief justice of the state, and who conducted one of the earliest law schools in the country, published his carefully prepared lectures on the law relative to the domestic relations. In his chapter on infants he states the law in relation to their privilege thus: — “ It is the privilege of an infant that he may *207rescind his contracts at pleasure. In ordinary cases he can avail himself of this privilege. It is not a matter of any moment whether the contract is a fair one or not, the infant may rescind it.” (Page 227.) Again, on page 254, he says, “ It is an universal rule that all executory contracts which are voidable on the ground of infancy may be avoided during infancy by the infant as well as afterwards, as when a minor promises to pay, &c. So too all contracts respecting property which are executed, by delivery of some article on payment of money, may be rescinded by the minor both before and after the time of his coming of age.” To these general rules he states the three exceptions; viz., contracts for necessaries; contracts, if not unequal, to effect what the infant is compellable in chancery to do, as making partition, releasing a mortgage, executing a trust, &c.; and contracts under which the infant has so enjoyed or availed himself of the consideration that the parties can not be restored to their original position. He states no other exceptions, and there were no others then known in the law. That work was then and is still an authority, and such then was and ever has been the law in this state, and it was correctly stated to the jury.
Two years after the publication of the work of Judge Reeve, and in 1818, the case of Holmes v. Blogg, was decided in the common pleas in England. That was a case where an infant and adult, as partners in trade, had taken a lease of premises and used them in their business, the infant having paid the rent in advance. When the infant came of age he dissolved the partnership, rescinded the contract of lease, and brought an action to recover the rent paid. He did not recover. As he had enjoyed the use of the premises and could not put the lessor in his original position, he was within the third exception stated by Judge Reeve, and so the court should have held. But Gibbs, O. J., branching off unnecessarily, and quoting a dictum attributed to Lord Mansfield, that “ if an infant pays money with his own hands, without a valuable consideration for it, he can not get it back again,” put the case on that ground, and made it an erroneous and mischievous precedent. The case was followed *208blindly in 1827, by the supreme court of New York in Mc Coy v. Hoffman, 7 Cow., 84. But Judge Kent, who published his commentaries soon after, although he cited those cases as authorities for the position that “if an infant pays money on his contract and enjoys the benefit of it he can not recover back the consideration paid,” yet had the good sense to avoid the error into which Chief Justice Gibbs had fallen. The case of Holmes v. Blogg was overruled by the common pleas in England in 1888, in Corpe v. Overton, 10 Bingham, 252, where it was held that an infant might recover back money which he had paid in advance towards a share of the defendant’s trade. So in the state of New York in 1845 the case of Me Coy v. Hoffman was expressly overruled in Medbury v. Watrous,7 Hill, 110. See also Bent v. Osgood, 19 Pick., 572. No court in England or this country it is believed would now follow Holmes v. Blogg, or pay any attention to the senseless dictum attributed to Lord Mansfield.
The extracts cited by defendant’s counsel from Story on Sales were based on the overruled cases of Holmes v. Blogg and Mc Coy v. Hoffman, but the annotator of the third edition, Mr. Perkins, has corrected the error in effect by adding the true rule in a foot note, as follows : — “ But the infant may renounce his purchase and recover back the purchase money upon the restoration of the property purchased,” citing a number of recent American cases. Future editions of the other text-books cited will probably contain similar corrections, and the law be purged of the error thus introduced in Holmes v. Blogg.
We discover no error in the other rulings of the court. In fact the other questions made were immaterial ones. Thus it was immaterial to the defendant whether the plaintiff found or stole the money he paid for the gun; and what he said about it was equally unimportant. The minor in either event was not responsible to the defendant, or the defendant to the owner. The minor was responsible over to the owner of the money and entitled to demand it for the purpose of restitution. Moreover the case shows that the owner of the money concurred in the request that the contract should be rescinded, and *209the purchase money repaid, and estopped himself from making any claim upon the defendant.
On the whole case it is very clear that justice has been done and a new trial should be denied.
In this opinion the other judges concurred.