
    M'Coy against Huffman.
    Motion by the plaintiff to set aside the report of referees. The action was for work and labor, and money had and received; commenced by capias returnable in August term, 1826. The plaintiff had agreed to purchase of the defendant a small lot of land; but the former being an infant, he and his father entered into sealed articles of agreement with the defendant, dated January 21st, 1826, by which the defendant, in consideration of $350 to be paid in the manner stipulated by the articles, covenanted with the plaintiff and his father, to convey the land in fee to the plaintiff, on or before the 1st of December then next; and the plaintiff and his father covenanted that the plaintiff should immediately commence and labor for the defendant at shoemaking, for 12 calendar months at $100 for the whole time $ should pay the defendant $50 on or before the 1st day of March then next, &c.; the services and payments to be in full of the purchase money; that, the plaintiff might enter and take possession of the lot on or before the 1st of March, 1827. For performance, each party bound him and themselves in the penalty of $500. Upon this contract the plaintiff paid $50 in cash, and worked about five months, when the defendant sued the plaintiff and his father, for breach of their contract; but, after the jury had agreed on their verdict, withdrew his suit. The plaintiff was born on the 14th day of August, 1805, Upon these facts, the referees reported ■ in favor of the de fendant.
    
      Though the executory contracts of an infant are voidable, yet where he does work in payment of his contract, or pays money upon his contract, he cannot, by avoiding it, get back the money, or recover a compensation for his work. The avoidance goes merely to relieve him from his contract as far as it is unexecuted.
    
      
      %I. Seelye, for the plaintiff.
    If the defendant should not be deemed to have violated the contract on his part, yet the, plaintiff, being an infant when he contracted, had a right to rescind while the contract was in fieri. The fa1 ther- had no interest in the contract. It was the plaintiff’s. He paid the money, and performed the services; and he is properly the sole party to the action. The father need not be joined, as he should have been, we admit, had the action been on the covenant. But it is in disaffirmance of the covenant. The money and labor belonged to the infant. The father has waived and abandoned all claim to both. This he had a right to do.
    
      A. Stewart, centra.
    It will.be intended that the money paid belonged to the father; the plaintiff being under age. His services also belqnged to the father. Both were applied on the covenant, which was the father’s as well as the son’s; and no action will lie for either. The payiqent was, in this view, by an adult. At any rate, no. action lies in the infant’s name alone.
   Curia, per Savage, Ch. J.

I cannot understand how the prosecuting of an action upon the contract without sufficient cause, can justify its rescission.

The infant was of full age in August, 1826 ; and then brought this action, which is in disaffirmance of the written contract, and he claims a return of- tfxe money paid by him, and' a compensation for his labor. The plaintiff might disaffirm his contract j for all deeds made by infants are Voidable. Any infant may have money or other property .independent of his father. Here the money was .paid by the infant himself; and no presumption follows that it belonged to the father. The presumption is the' other way. Although the father is entitled to. the services of his children till the age of twenty-one, yet he may waive that right. (Burlingame v. Burlingame, 7 Cowen, 92.) He may emancipate his child 5 or the child may, by the father’s consent, be entitled to his own services. Such was the case here. By the terms of this contract, the plaintiff’s services were to enure to his own benefit. There *is therefore, no objection to the action being brought in the name of the infant, if, upon the whole case, there be any right of action.

There is, however, a fatal objection to the plaintiff’s recovery, on another ground. Although the executory contracts of an infant are voidable by him, at his election ; yet, if he pay money on a contract made by him, though he avoid the contract on arriving at mature age, he cannot recover the money back; and so it-was expressly adjudged in Holmes v. Blogg, (8 Taunt. 508;) That was an action for money had and received. Holmes, ah infant, with his partner, Taylor, had agreed with the defendant to take a lease of his house. Part of the money was paid on the Contract by the plaintiff, then an infant. When he came of age he avoided the lease, as he had á right to do; and sued to recover back the money paid by him, on the ground of failure of consideration. Held that the plaintiff could not recover. Gribbs, O. J., in delivering the opinion of the court, said, he may avoid the lease; he may escape the burthen 6f Tent, and avtiid the covenants; but that is all he cab do. He cannot, by putting dn end to the lease, recover back any consideration he has paid for it. The chief justice refers to a dictum of Lord Mansfield in Drury v. Dmry, (2 Eden, 39,) who said, if an infant pays money with his own hand, Without a valuable consideration, he cannot get it back again. This report accords with the note of Wilmot, J. (Wilmot’s opinions, 226, note a,)

The principle of this case and the dicta cited, embrace both branches of the plaintiff’s claim. The money, was paid, and the work bestowed upon the same contract. The motion to set aside the report of the referees must be de nied. ,

Motion denied 
      
       The note of Wilmot, J. is this: Ld. Mansfield said, “That infants are not bound by their agreements, was never held universally any where in the world. By our law, some bind absolutely, some are void, some are voidable. If the transaction were fair, a bargain and sale of lands by an infant for necessaries, would be good. If an infant pays money with his own hand, without a valuable consideration, he cannot get it back again; if he receives rents- he cannot demand them again when of age.”
     