Page:Harvard Law Review Volume 5.djvu/225

RECENT CASES. 209 ground of action, but that he could on his second. Delz v. Winfree, 16 S. W. Rep. in (Texas). Approving Walker v. Cronin, 107 Mass. 562. Tort — Deceit — Actual Intent. — Plaintiff, a depositor, sued defendant, pres- ident of a bank, for false representations as to the solvency of the bank, whereby plaintiff was induced not to withdraw his deposit, and consequently lost it. Held, a charge to the jury was erroneous which stated that plaintiff must prove defendant to have intended to deceive; defendant was liable, whatever his intent, if by the exercise of ordinary care he might have ascertained that his statements were false. Giddings etal. v. Baker et al., 16 S. W. Rep. 33 (Texas). This case is directly opposed to the English law, as settled in 1887 by the House of Lords in Peek v. Derry, L. R. 14 App. Cas. 337 ; and also contrary to the weight of American authority. See Cowley v. Smith, 46 N. J. Law, 380 (1S84). Torts — Forcible Entry — Injury to Furniture. — The plaintiff, a tenant of defendant's house, wrongfully refused to give up possession on the expiration of his tenancy. The defendant, desiring to rebuild, sent workmen to remove the roof; in • such removal, without any personal violence, certain tiles fell on plaintiff's furniture in the room below and damaged it. Held, that the defendant was not liable in trespass. Beddallv. Maitland, 17 Ch. 1). 174, distinguished on the ground that, in that case, the damage was done in the course of a forcible entry within the penal statute ; while here, what was done did not amount to a forcible entry. Jones v. Foley [1891], 1 Q. B. 730 ( E "g-) ; It is hard to see the distinction between this case and Beddall v. Maitland. It is submitted that the question depends, not so much on the nature of the entry, as on the fact of the owner being in or out of possession. Torts — Malicious Institution of Civil Suit — Slander — Privileged Communication. — Where B brings an action of slander against A, and after- ward voluntarily discontinues it, — held, that in order to give A an action for malicious institution of a civil suit, it is not necessary that either his person should have been arrested or his goods seized. (Cf. Cooley on Torts, 2d ed., 217, contra. ) Semble, that when a voter says in conversation with other voters that B, a candidate for office, has stolen horses, it is not a privileged communication. Smith v. Burrus, 16 S. W. Rep. 881 (Mo.). Trusts — Prior Equity — Purchase for Value. — B, holding shares in trust for the plaintiffs, pledged them with the defendant for a private debt. The defendant had no notice of the trust. After learning of it he applied to the com- pany, which had been notified of the trust, to have the transfer registered. By the articles of association no transfer of stock could be made unless approved by the directors. Upon this ground, — held, that the plaintiffs prior equity must pre- vail. The second claimant must be able to show a complete legal title, or at least that all the formalities have been complied with, so that nothing more than a purely ministerial act remains to be done. Moore v. Northwestern Bank [1891], 2 Ch. 599- . This case adopts the true test, and is plainly distinguishable from Dodds v. Hills, 2 Hem. & Mill. 424. In that case the company could not object to the transfer of the shares, and accordingly the pledgee immediately upon the. transfer of the certificates to himself got a complete legal right, — an irrevocable power of attorney which enti- tled him to demand absolutely the transfer to himself upon the books of the company. Here he got no such complete legal right, and the company could not approve the transfer without assisting in the fraud. Usury — Interest as Penalty. — Where one agreed to pay interest at the rate of six per cent, but in case payments were not made promptly, then the principal was to draw ten per cent, — held, that the agreement to pay increased interest in case of default was in the nature of a penalty, and did not taint the original contract with usury. Upton v. O'Donahue, 49 N. W. Rep. 267 (Neb.). Wills — Undue Influence — Burden of Proof. — Where a beneficiary has a testator under his control with power to make his will the will of the testator, espe- cially in a case where the testator has made an unnatural disposition of his property, the court presumes that the beneficiary has used undue influence, and puts on him the burden of showing that he did not influence the testator. " Whatever constrains a per- son to do what is against his will, and what he would not do. if left to himself, is undue influence, no matter bv what means the control is exercised." Carroll v. Hurse, 22 Atl. Rep. 191 (N. J.). 27