Sec 48

Where an infant, when within a few months of his majority, entered into a business arrangement, in carrying on of which a store was leased, a proportion of whose rent was paid by the infant, he receiving the profits, it was held in England that he could not recover back, at his majority, the sum paid, without putting the other parties in statu quo.2 And an infant paying a premium to enter into partnership cannot, after enjoying the profits of the partnership, recover back the premium ;3 nor can an infant, when repudiating a mortgage given by him as part payment of land purchased by him, retain the land,4 unless the funds received by him as a consideration are no longer in his power.5 The principle thus stated is substantially that expressed by Lord Mansfield,6 that "the privilege is given as a shield and not as a sword ;" and "that it never shall be turned into an offensive weapon of fraud or injustice." This maxim is adopted by Chancellor Kent.1 On the other hand, money advanced by an infant for business purposes can be recovered back when the infant retained no benefit from the contract.2 And money paid by an infant on an unexecuted contract can always be recovered back.3

But cannot inequitably recover back.

1 See infra, sec 59.

2 Holmes v. Blogs, 8 Taunt. 508 ; 2 Moore, 552; see Welch v. Welch, 103 Mass. 562 ; and see infra, sec 723 et seq. 752.

3 Taylor ex parte, 8 D. M. G. 254.

4 Roberts p. Wiggin, 1 N. H. 73; Cnrtiss v. McDougal, 26 Ohio St. 66. As authorities to the effect that the plaintiff, when repudiating a purchase, must restore the consideration he received before he can recover back what he paid, see Locke v. Smith, 41 N. H. 346 ; Hubbard v. Cummings, 1 Greenl. 13; Carr v. Clough, 26 N. H. 280; Heath v. West, 28 N. H. 104; Farr v. Sumner, 12 Vt. 28 ; Taft v. Pike, 14 Vt. 405 ; Weed v. Beebe, 21 Vt. 498; Edgerton v. Wolf, 6 Gray, 453 ; Bartlett v. Cowles, 15 Gray, 445 ; Bartholomew v. Fennemore, 17 Barb. 428; Strain v. Wright, 7 Ga. 568 ; Williams v. Norris, 2 Littell, 157; Smith v. Evans, 5 Humph. 70 ; Betts v. Carroll, 6 Mo. Ap. 518 ; Hill v. Anderson, 5 Sm. & M. 216. But tins will not be required if there was any taint of unfairness or illegality in the conduct of the opposite side. Cope p. Overton, 10 Bing. 252; Price v. Furman, 27 Vt. 268 ; Gibson v. Soper, 6 Gray, 279 ; Walsh v. Young, 110 Mass. 396 ; Stoolfoos v. Jenkins, 12 S. & R. 399 ; Lenhart v. Ream, 74 Penn. St. 59 ; Urban v. Grimes, 2 Grant Cas. 96.

That an infant can recover back the price only (when practicable) on restoring the thing purchased, see Riley v. Mallory, 33 Conn. 201 ; Kerr v. Bell, 44 Mo. 120. In Chandler v. Simmons, 97 Mass. 508, and Bartlett v. Drake, 100 Mass. 174, it was held that if an infant has spent the money received by him for a conveyance of real estate, he could avoid the conveyance without repaying the amount. To same effect as to personal property, see White v. Branch, 51 Md. 210. This distinction is more fully noticed, supra, sec 47.

5 Walsh v. Young, 110 Mass. 396.

6 Zouch v. Parsons, 3 Burr. 1794.