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money paid by him, even upon a contract which by reason of his infancy he is not bound to complete, there being no imposition."

And Parsons lays it down very broadly, thus: "If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover the 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 by fraud:" 1 Pars. on Contracts (ed. 1853) 268.

The origin of this doctrine is to be found in a dictum of Lord MANSFIELD, in the celebrated case of The Earl of Buckingham v. Drury, 2 Eden 60. One of the questions in that case was whether an infant could, by contract, bar her dower. When the case came before the House of Lords upon appeal, the opinion of Lord NORTHINGTON that the statute applied only to adults was reversed, and Lord MANSFIELD, in delivering the opinion, said: "If an infant pays money with his own hand without a valuable consideration for it, he cannot get it back again." This doctrine was quoted to support the decision in Holmes v. Blogg, 8 Taunt. 508. But it was uncalled for in that case, the pure doctrine of which is that a minor cannot recover money paid on a valuable consideration which he has partially enjoyed, when he cannot put the other party in the same position as before; and in Corpe v. Overton, 10 Bing. 252, while the decision in Holmes v. Blogg was sustained, the dictum of Lord MANSFIELD, and the "strong expressions" in the later case, were reviewed and substantially overruled; and it was held that the plaintiff might recover back, "in an action for money had and received, a sum which, while an infant, he had paid in" advance towards the purchase of a share in defendant's trade, to be forfeited if the purchase was not completed when it appeared that he, on arriving at the age of twentyone years, had refused to complete the purchase.

The dicta of the learned judges in The Earl of Buckingham v. Drury, and Holmes v. Blogg, ubi supra, seem to have been followed in McCoy v. Huffman, 8 Cowen 84; Weeks v. Leighton, 5 N. II. 343; and Harney v. Owen, 4 Blackf. 337; and thus far they do not seem to have been eliminated from the text-books, but they have been practically rejected not only in Corpe v. Overton, above cited, but by many courts in cases where the question has arisen whether an infant, who has engaged to labor for a certain period, and after performing part of the work, has rescinded the

contract, can recover for the work he has done. So that Parsons, ubi supra, while remarking that "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 work done" under such circumstances, admits that the weight of authority is the other way. See Judkins v. Walker, 17 Maine 38; Moses v. Stevens, 2 Pick. 332; Vent v. Osgood, 19 Id. 572; Thomas v. Dike, 11 Verm. 273; Peters v. Lord, 18 Conn. 337; Medbury v. Watrous (overruling McCoy v. Huffman), 7 Hill 110; Whitmarsh v. Hall, 3 Denio 375; Lufkin v. Mayall (overruling Weeks v. Leighton), 5 Foster 82; Wheatley v. Miscal, 5 Porter (Ind.) 142. Thus it will be observed that all the principal cases where these dicta have been followed, have been reconsidered and overruled by the courts in which they were decided. It is true that in Breed v. Judd et al., 1 Gray 455, the right of the minor to rescind an executed contract was made to depend not upon the character of the contract, but upon the finding of the jury, that the consideration by him received was not only adequate but beneficial. That case is apparently in conflict with Tupper v. Cadwell, 12 Met. 559, which holds, we think rightly, that what subjects of expenditure are to be termed beneficial to the infant is a matter of law to be decided by the court.

We think the true doctrine is, that the contracts of minors may be divided into three classes: (1) binding-if for necessaries at fair and just rates; (2) void-if manifestly and necessarily prejudicial, as of suretyship, gift, naked release, appointment of agents, confession of judgment, or the like; (3) voidable-at the election. of the minor, either during his minority, or within a reasonable time after he becomes of age; and this last class includes all the agreements of a minor, which may be beneficial (and are not for necessaries), until fully executed on both sides, and all executed contracts of this sort where the other party can be placed substantially in statu quo. How far executed contracts where the other party cannot be placed in as good a position as before must be excepted, and the power of the minor to avoid them denied, it is not necessary here to discuss.

The mere fact that the contract has been fully executed, or that the infant has paid the money with his own hand, does not necessarily affect his right of rescission and recovery: Williams v.

Brown, 34 Maine 594; Austin v. Gervas, Hobart 77; Price v. Furman, 1 Williams (Vt.) 268.

The protection which the law supposes the infant to need is as much required against the improvidence which has paid out, as against that which only promises to pay; and where it can be afforded without converting the shield into a sword, it should be given. There seems to be no good reason why, if lands conveyed and goods sold and delivered may be reclaimed by the infant, money paid should not be.

In this case, the contract being legally rescinded, the rights of the parties are the same as if none had been made. He who makes a contract of this class with a minor, assumes the risk of a rescission. The money must be repaid with interest from the date of its receipt.

Defendant defaulted.

KENT, DICKERSON, DANFORTH, and TAPLEY JJ., concurred.

Supreme Court of Wisconsin.

JAY C. AKERLY, RESPONDENT, v. L. B. VILAS, APPELLANT.

An order of an inferior state court under the Act of Congress for the removal of a cause to a United States court, is reviewable by the Supreme Court of the state, and an appeal to such Supreme Court suspends the vesting of jurisdiction of the case in the United States court until the determination of the appeal.

The Act of Congress provides for the removal of a cause before trial if an action at law or before final hearing, if a suit in equity, and after a judgment in the inferior court it is too late to remove the cause, although the judgment may be reversed by the Supreme Court of the state, and a new trial or hearing ordered.

THIS was an appeal from an order of the Dane Circuit Court, sending the case to the United States Circuit Court for the District of Wisconsin.

The opinion of the court was delivered by

PAINE, J.-The application for removal was made by the plaintiff under the Act of Congress of March 2d 1867, and the appellant claims that the order was erroneous upon two grounds: 1st. That the case was not within the act; 2d. That if it were within it, the act itself, so far as it professes to authorize a non-resident plaintiff who had commenced his suit in the state court to obtain removal, is invalid.

The respondent's counsel have declined to argue either of these ques tions, but have contented themselves with simply submitting and briefly

discussing the proposition that this court has no jurisdiction to hear and determine this appeal. Of course, this question must be determined upon the hypothesis that it is possible that the case may not have been within the Act of Congress, and that even if within it, the act may have been invalid. Counsel assume this possibility, for they say that the appellant's remedy "(if indeed he has any) is to apply to the Federal court to remand the case to the state court."

In support of the position they refer to two classes of authorities. But these wholly fail to sustain it, and in truth warrant directly the opposite conclusion. And it would seem impossible to have drawn any such inference from them, except by confounding the distinction between the two classes, and applying the doctrines of both indiscriminately to each. Thus they first refer to several cases, holding that where a proper application for a removal is made, in a case where the party is entitled to a removal by law, the jurisdiction of the state court ceases, and every subsequent step, except that of sending the case away, is coram non judice and void. They next cite another class, holding that where the order of removal was improperly made, in a case where the party was not entitled to it, an application may be made to the Federal court to dismiss it for want of jurisdiction, and they then seek to transfer to the latter class of cases the doctrines of the former, and to hold that the jurisdiction of the state court ceases, and every step subsequent to the application for removal is equally as unauthorized and void in those cases where the order for removal is improper and the party not entitled to it by law, as in the others.

Such a conclusion is in conflict with both classes of cases. Both proceed upon the express assumption that it is only when the removal is authorized by law, and the application properly made, that the jurisdiction of the state court is divested, and that of the Federal court attaches. Both proceed upon the assumption that where this is not the case, the jurisdiction of the state court remains, and the Federal court acquires none whatever. And yet we are now asked to hold, that although this case may have been one of the latter class-though it may be one in which there was no law authorizing a removal, and in which, consequently, the Federal court acquired no jurisdiction, yet that by some unaccountable process the state court lost it, so that between the two the jurisdiction has lapsed entirely. Such a conclusion would be extraordinary indeed, and it has as little support in authority as it has in

reason.

If there was no law authorizing the removal, and there was none if either of the positions taken by the appellant is true, then the jurisdiction of the state court remained unimpaired, and there was no obstacle in the way of its exercise except the erroneous order that the case be removed. And the idea that the appellate power of the state court cannot be invoked to correct this error-that it remains in abeyance, suspended by such an unauthorized application, that the court which has jurisdiction must decline to exercise it, until the court that has none shall see fit to disclaim it-is one that cannot be supported upon any reasoning. But if the right to appeal exists in a case where the removal is unauthorized, then it must also exist even when the order of removal is proper. The question whether the court has power to hear and deter

mine the appeal, cannot depend upon the conclusion to which it may come on the merits of the order to be reviewed.

Nothing is better settled in legal practice, than that an order by which a subordinate court dismisses a case for want of jurisdiction, or in any way divests itself of jurisdiction, is subject to review on appeal. It is within the express provision of our statute that allows an appeal from any order which prevents a judgment from which an appeal might be taken. It is the common practice of all courts. The case of Mayer v. Cooper, 6 Wallace 247, cited by the respondent, is one where the Supreme Court of the United States reviewed such an order, made by the United States Circuit Court. It is true in that case the order or judgment of dismissal was reversed, the court holding that the Circuit Court had jurisdiction. But if they had held differently, they would have affirmed the order, and not have dismissed the writ of error. This is the invariable practice. And this shows that the exercise of the power to hear and determine an appeal from an order by which a subordinate court attempts to divest itself of jurisdiction, is not an assertion of jurisdiction in the case subsequent to and in defiance of the application for removal. It is merely the decision upon that application itself. And that decision, whether the power be exercised by a subordinate or appellate court, is not the exercise of jurisdiction in the case. It is the determination of an independent preliminary question, and one which every court, from the necessity of the case, has the power to determine whenever presented.

And whoever invokes the exercise of this power on the part of a subordinate tribunal of the state, must invoke it subject to all the conditions imposed upon that tribunal by the law of its existence, and one of those conditions is that an order made upon such an application is appealable.

That the power to hear and determine an appeal from such an order is entirely independent of the question of jurisdiction to proceed upon. the merits of the action, the case of Nelson v. Leland et al., 22 How. U. S. 48, is an express authority. A motion was there made to dismiss the appeal on the ground of a want of jurisdiction originally in the subordinate court, and the chief justice delivered the opinion of the court, "that the question of jurisdiction in the lower court is a proper one for appeal to this court, and for argument when the case is regularly reached, and that this court have jurisdiction on such appeal." The motion was therefore denied, and upon the express ground that their jurisdiction of the appeal was wholly independent of the actual jurisdiction of the lower court, to try the action upon its merits. And if this is so, the exercise of this appellate power is not the exercise of that jurisdiction of which it is claimed the state court is divested by the presentation of a proper application for removal. It is true that if the appellate court should sustain the jurisdiction of the state tribunals, they might proceed subsequently to attempt to exercise it. But the mere determination of the question whether such jurisdiction had ceased or continued is not an exercise of it, any more when made by the appellate than it was when made by the subordinate court.

Indeed, the right and the duty of the state courts to exercise such appellate power has been expressly decided by the Supreme Court of the

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