Page:Harvard Law Review Volume 10.djvu/91

65 RECENT CASES. 6$ a creditor the right to have securities deposited under a contract of naked indemnity applied in payment of the debt to him. It has been held that immediately on the de- posit of the securities such an equitable right arises in favor of the creditor. Moses v. Murgiitroyd, i Johns Ch. 119; Mon-ill v. Morrill, 53 Vt. 74. Again, that such a trust arises in the event of the insolvency of the surety. Lewis v. Deforest^ 20 (Zox. it^ A third view is that if the estates of both the principal and surety are bankrupt, the creditor may compel the securities to be applied in payment of his debt {Ex parte Waring, 19 Ves. 345); and a fourth, that the surety, even in the event of a bank- ruptcy of both the prmcipal and surety, has no recourse upon the securities except to reimburse himself for payments made on the creditor's claim ; the particular creditor in such case has no higher right in the securities so held by the surety than has any other creditor of the surety. Royal Bank v. Commercial Bank, 7 App. 366; Pcolev, Doster, 59 Miss 258. The doctrine of Poole v Doster, supra, is, it is submitted, the one to be preferred ; it gives to the contract under which the securities were deposited the operation which the parties intended it should have ; it is not open to the reproach of giving to the par- ticular creditor a preference over other creditors for which he did not bargain, and which the principal and surety did not intend he should have. See i Harvard Law Review, 326. Torts— Lunatic's Liability for Negligence. — /T^/^/, where a vessel in the exclusive control of one of the joint owners, who has chartered it, is lost through his negligence, he cannot defend an action by the other owners by showing that his want of care was due to temporary insanity, though such insanity was caused by his efforts to save the vessel. Williams v. f/ays, 37 N. Y. Supp. 708. In a former adjudication of this same case, the Court of Appeals left open the pre- cise question now passed upon. Williams v. Hays, 143 N. Y. 442. There are few decisions on the subject of the liability of insane persons for torts by negligence, and the text-writers appear to be in great conflict. Some of the latter hold that insanity is no defence, i Shearman and Redfield on Negligence, § 121; Cooley on Torts, 2d ed., 117. Others incline to the view that insanity should in some cases be a bar I Beven on Negligence, 2d ed., 52-55 ; Wharton on Negligence, § 88 ; 2 Jaggard on Torts, 872; Clerk and Lindsell on Torts, 11, 34. The true view seems to be ex- pressed by Mr. Justice Holmes: " If insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse." Holmes, The Common Law, 109. Torts —Malicious Interference with Business. — During a strike at plain- tiff's manufactory, the defendants, officers of a trades society, picketed the works in the usual way, called out the workmen of another manufacturer merely because he worked for the plaintiff, and wrote threatening letters to the parents of minor employees. The plaintiff asked fof an injunction to restrain the defendants from maliciously in- ducing persons not to enter into contracts with the plaintiff. Held, that, though the question of malice was generally one for a jury, still in a clear case the court ought to restrain by injunction the continuance of an act which was unlawful only because malicious Lyons v. Wilkins, 12 The Times L. R. 222. See Notes. Torts — Mutilation of Dead Body. —Held, that a wife may recover damages from one who unlawfully mutilates the dead body of her husband before burial. Foley v. Phelps, 37 N. Y. Supp. 471, See Notes. Torts — Wrongful Disposal of Pledge — Action on the Case.— A, owing B $16,000, deposits with B as collateral security a note for $25,000 B wrongfully sur- renders the collateral note to its maker, but later obtains it from him again, and is ready to restore it to A upon the payment of his debt. Held, that, in trespass on the case, A can recover of B $9,000, the difference between the face value of the note and the amount of the debt, without first tendering payment for the debt or demanding the collateral Post v. Union National Bank, 42 N. E. Rep. 976 (III.). The decision is interesting as bearing on the question of what constitutes conversion by a pledgee, and what is his right of recoupment in damages. This subject was dis- cussed in 9 Harv Law Rev. 540. The form of action here chosen, viz. "case," was used for the express purpose of avoiding the possible objection which might be urged against trover, that the pledgor gets no right of possession before offering to the pledgee the amount of his indebtedness. Blackburn, J., in Donald v. Sucklings L R. I Q. B, 614, 615; Pollock on Torts, 4th ed., 324, 325 The effect of the defendant's getting possession of the note after once parting with it was carefully considered. As this was an action on the case where only actual dam- ages can he recovered, it was insisted that as the defendant was prepared to return to the plaintiff the identical security which had been given, there was no real damage to 9