1833. HOLL V. GRIFFIN. Plaintiff as the proprietor of these goods. The case is the same as if the Defendants had undertaken to hold for the Plaintiff goods already in their hands. There is a promise to deliver them on arrival, and, conformably with that promise, the goods, on arrrival, must be deemed to have been received on behalf of the Plaintiff. Rule discharged. Nov. 6. CLEGG V. LAffer. Libel. De- LIBEL. The Defendant, in writing to one of his fendant wrote concerning Plaintiff, "He is so inflated with 300l. made in my service, God only knows whether honestly or otherwise acquaintances, said of the Plaintiff, among other matters, "He is so inflated with 200l. or 300l. which he has made in my service - God only knows whether honestly or otherwise that," &c. The Plaintiff sued him for the libel; and the innuendo in the declaration on the above expression was as follows: Meaning to insinuate, that the Plaintiff had conHeld, with- ducted himself in a dishonest manner in the Defendant's that," &c. out any preliminary averment, to warrant an innuendo that Plaintiff had conducted himself in a dishonest service." A verdict having been found for the Plaintiff, Spankie Serjt. moved in arrest of judgment that the words, taken in their ordinary sense, and without any preliminary averment, did not warrant the innuendo put manner in the upon them. Rex v. Horne (a), Button v. Heyward (b), Cromwell's case (c), Goldstein v. Foss. (d) Defendant's service. TINDAL C. J. The innuendo does not exceed the limits which, according to the definitions in the autho rities referred to, it is allowed to take. The expression amounts in effect to a question, and the Plaintiff had a right to say, that by such question the Defendant intended to impute to him dishonest conduct, and if the jury find that such was the intention, the correctness of the innuendo is established. If the law were otherwise, it would be easy to write libels with impunity. In Comyns's Digest, Action upon the Case for Defamation (E) 1. 3., it is laid down, "If words are slanderous, it is not material though they are spoken indirectly and obliquely; as, 'I will make thee an example for a perjured knave:'-'You may well spend, &c. for you can coin, &c.' for that imports that he had coined, otherwise he could not spend, &c. - 'He hides, and, for aught I know, is a bankrupt." This bears closely on the present case, where 2007. being found in the Plaintiff's purse, the Defendant says, whether he came by it honestly or dishonestly, God only knows. It was not an improper conclusion for the jury to draw, that the Defendant meant to convey a charge of dishonesty. GASELEE J. concurred. BOSANQUET J. The rule is clear, that words must be taken in their ordinary sense, and there can be no doubt upon the effect of these words. ALDERSON J. Concurring, the rule was Refused. 1833. CLEGG V. Laffer. 1833. Nov. 7. Held, that 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 retained by Defendant as a forfeiture, if Plaintiff failed to fulfil an agreement to enter into partnership with the Defendant. THE A. R. CORPE v. W. OVERTON. HE Plaintiff, while yet a minor, in October 1832, signed a written agreement to enter into partnership with the Defendant, a tailor; to pay him 1000l. for a share of the business; and on the 1st of January 1833 to execute a partnership deed with the usual covenants; "and as a deposit for the due fulfilment of the same on the part of the said A. R. Corpe, the sum of 1007. is now paid to the said W. Overton as per receipt, on the condition of the same sum of 1007. being deducted from the amount of the said intended purchase, or otherwise in default of the said intended purchase not being duly completed by the said A. R. Corpe according to the aforesaid terms, the said sum of 1007. shall be forfeited to the said W. Overton; and he, the said W. Overton, shall be subject to no claim or demand whatever from any person or persons for the sum of 100l., or any other amount, unless any disagreement should arise between the creditors of the said W. Overton and himself, so as to prevent the fulfilment of the said intended partnership; then, and in that case only, the said A. R. Corpe shall not be actually held liable to forfeit the said sum of 100%.; but such point to be decided by two arbitrators, one chosen by each said party.” The Plaintiff, after depositing the 100%., as recited in the above agreement, discovered that he had been imposed upon by exaggerated representations as to the value of the Defendant's business; he therefore rescinded the contract as soon as he came of age; refused to execute the partnership deed; and brought an action against against the Defendant for 1007. had and received by him to the Plaintiff's use. At the trial before Alderson J. the jury found that the Plaintiff had paid the deposit on a fraudulent representation in the Defendant's balance sheet, and gave their verdict for the Plaintiff, damages 100%. Goulburn Serjt. obtained a rule nisi to set aside this verdict, and to enter a nonsuit, or proceed to a new trial, on the ground that the finding of fraud was contrary to the evidence; and that if the transaction were bona fide, the Defendant was entitled to retain the money. In Holmes v. Blogg (a) it was expressly decided that if an infant pay money with his own hand, he cannot get it back again, although it were paid without a valuable consideration. Even if the trans Coleridge Serjt. shewed cause. action were bonâ fide, the Defendant has no right to retain the money. First, because First, because it was paid by an infant in pursuance of an agreement to enter into trade; and an infant not being competent to incur the liabilities of trade, the Plaintiff had a right to avoid such a contract: when the contract was avoided, the money was held by the Defendant without consideration, and might be recovered in assumpsit for money had and received. Austen v. Gervas (b); Perk. s.12. Grants; Zouch v. Parsons (c); Vin. Abr. Infant (D). Secondly, because the payment made by the Plaintiff is in the nature of a penalty for non-performance of a contract, and an infant is not liable to a penalty: Fisher v. Mowbray. (d) In Holmes v. Blogg, Gilbs C. J. dropped certain general expressions which (a) 8 Taunt. 508. VOL. X. S (c) 3 Burr. 1794. may 1833. CORPE v. OVERTON. 1833. CORPE ບ. may appear adverse to the Plaintiff's claim in this action, but those expressions must be taken with reference to the facts then before the Court. The infant OVERTON. Sought to recover money which he had paid as a premium upon a lease under which he had for some months enjoyed certain premises demised to him and another; he had, therefore, received a consideration for his money, and it would have been impossible to place the Defendant in the same situation as before the contract. Here the Plaintiff has received no consideration, and the Defendant has sustained no injury. Goulburn in supporting his rule relied upon Holmes v. Blogg, where Gibbs C. J. said, the infant "may, it is true, avoid the lease; he may escape the burthen of the rent, and avoid the covenants; but that is all he can do. He cannot, by putting an end to the lease, recover back any consideration which he has paid for it; the law does not enable him to do that. I cannot find this decided; for I cannot find that any such action as this has ever been brought; but Lord Mansfield has incidentally said that such an action cannot be brought. In the famous case of Drury v. Drury (a), one of the questions was, whether an infant could, by contract, bar her dower. Lord Northington thought that the statute applied only to adults, and the marriage of Lady Drury with the Earl of Buckinghamshire took place on his opinion; but the case afterwards came before the House of Lords upon appeal, under the name of The Earl of Buckinghamshire v. Drury (b), when the decree of Lord Northington, as to this point, was reversed. Lord Mansfield there said, in delivering his opinion, "If an infant pays money with his own hand without a (a) 2 Eden, 39. (b) Wilmot's Notes of Opinions and Judgments, 177. S. C. 3 Brown, Parl. Cas. 492. 2d ed. S. C. 2 Eden, 60. valuable |