Law Commons^™

Molding The Corporate Form To Particular Business Situations: Optional Charter Clauses, F. Hodge O'Neal

Vanderbilt Law Review

This paper looks into the usefulness of optional (or as they are sometimes called, "permissive" or "special") charter provisions' in molding the corporate form of business organization to meet the diverse needs of particular business situations. It first examines statutory materials and judicial decisions bearing on the validity and effect of optional provisions. It then considers optional clauses in current use and typical legal and business problems that optional clauses may help to solve. It shows that optional clauses often can be used to clarify the rights and other relations of participants in an enterprise, to avoid disadvantageous corporate "norms," …

Molding The Corporate Form To Particular Business Situations: Optional Charger Clauses, F. Hodge O'Neal

Vanderbilt Law Review

This paper looks into the usefulness of optional (or as they are sometimes called, "permissive" or "special") charter provisions' in molding the corporate form of business organization to meet the diverse needs of particular business situations. It first examines statutory materials and judicial decisions bearing on the validity and effect of optional provisions. It then considers optional clauses in current use and typical legal and business problems that optional clauses may help to solve. It shows that optional clauses often can be used to clarify the rights and other relations of participants in an enterprise, to avoid disadvantageous corporate "norms," …

Cash Sales, Worthless Checks And The Bona Fide Purchaser, Calvin W. Corman

Vanderbilt Law Review

The owner of goods or chattels in consummating a sale frequently accepts a check in exchange, only to discover that the check is worthless and that in the brief interval before dishonor the goods have been resold to a bona fide purchaser for value. On ascertaining the whereabouts of the goods, the initial owner seeks to repossess them or recover their reasonable value from the holder. A judicial question as to the relative rights of two innocent parties must therefore be determined.

This legal problem has received the attention of law review commentaries' and text writers and has been annotated …

The Beginning, Flourishing And Decline Of The Inns Of Court: The Consolidation Of The English Legal Profession After 1400, Anton Hermann Chroust

Vanderbilt Law Review

The origin and history of the Inns of Court, their relation to each other and to the English legal profession, and their subsequent decline, pose some puzzling problems which often do not admit of a precise or uniform answer. This paper, however, will attempt to clarify some of the following questions: When and under what conditions did the lawyers of England move into common dwelling places or Inns? Why did they cluster together in a strip of land which was surrounded on the south by the River Thames, on the east by the old City of London, on the north …

Book Reviews, Robert J. Harris (Reviewer), John Raeburn Green (Reviewer), H. C. Nixon (Reviewer)

Vanderbilt Law Review

----------------------------------- Book Reviews ----------------------------------

The Forgotten Ninth Amendment

By Bennett B. Patterson

Indianapolis: The Bobbs-Merrill Company, 1955. Pp. ix, 217. $4.00.

reviewer: Robert J. Harris

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The Birth of the Bill of Rights, 1776-1791

By Robert Allen Rutland

Chapel Hill: University of North Carolina Press, 1955. Pp. vii,243. $5.00.

reviewer: John Raeburn Green

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James Wilson: Founding Father, 1742-1798

By Charles Page Smith

Chapel Hill: University of North Carolina Press, 1956. Pp. xii, 426.$7.50.

reviewer: H. C. Nixon

A Missing Link In The Evolution Of Due Process, Wallace Mendelson

Vanderbilt Law Review

On the eve of the American Revolution, Blackstone could comment that "so great.., is the regard of the [English] law for private property ... it will not authorize the least violation of it; no, not even for the general good of the whole community."' A similar concern for proprietary interests soon found expression on this side of the Atlantic in what Professor Corwin has called "The Basic Doctrine of American Constitutional Law"; namely, the "doctrine of vested interests." The general purport of this concept was that "the effect of legislation on existing property rights was a primary test of its …

Personal Property And Sales -- 1956 Tennessee Survey, J. Allen Smith

Vanderbilt Law Review

The Right to Possession: In Shirley v. State' the Supreme Court of Tennessee held that a county court clerk could not be required to return money illegally gained by participation in a gambling game, which money had been confiscated by the sheriff and turned into court. Despite a theoretical difficulty arising from the absence in Tennessee of a statute authorizing forfeiture of gambling funds, the decision invoked the equitable principle that courts will not assist persons violating the law. For its result, the court relied in considerable measure on the New York case of Hofferman v. Simmons, which involved a …

Agency -- 1956 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

The appellate courts of Tennessee and the United States Court of Appeals for the Sixth Circuit handed down during the survey period a considerable number of interesting and significant cases dealing with the Tennessee law of agency. This article groups the cases and arranges them under topic headings. In most instances, the discussion of the case or cases under a topic heading is preceded by brief background material designed to place the cases in their proper setting and aid the reader in evaluating them.

Conflict Of Laws -- 1956 Tennessee Survey, John W. Wade

Vanderbilt Law Review

Personal Jurisdiction: In State v. Perry, the Tennessee Department of Public Welfare, which had paid sums for the support of dependents of certain nonresidents, brought an action against the nonresidents for reimbursement and for an order to pay money in the future. No personal service was had on the defendants, and the court held that the Tennessee statute does not authorize the court "to enter a personal judgment against a non-resident husband-father upon the ex parte petition, when that husband-father is not personally before the Court, and afforded no opportunity to be heard.' It correctly implied that such a proceeding …

Constitutional Law -- 1956 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Several major constitutional problems were presented to the Tennessee Supreme Court during the survey year. There were no startling developments in the court's disposition of these cases, nor in the opinions proclaimed in each instance. The court avoided what it termed a "spectacular exhibition of judicial sophistry" in giving constitutional approval to certain activities of a religious nature in the public schools. In the regulation of economic affairs the court found no valid basis for a statute prohibiting the offering of benefits or premiums in connection with the sale of gasoline. Basic allocations of governmental power were involved in a …

Contracts -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

In Shirley v. Slate the Supreme Court of Tennessee had an occasion to pass upon the status of a gambling transaction in Tennessee. In the Shirley case a petition was filed to recover money seized by a sheriff in a crap game. In denying recovery, the court held that the power of the court could not be invoked for recovery of money which the participant had won and which had been seized by the sheriff during a raid and turned over to the county court clerk. Tennessee visits severe consequences on gambling or wagering transactions. By statute it is provided …

Procedure And Evidence -- 1956 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

To one who has not inherited the Tennessee system of procedure and has not yet "first endured, then pitied, then embraced" it, it presents some startling contrasts. There is an astounding inter-mingling of the modern, which seeks to make procedure the servant of substance, with the ancient, that has in most jurisdictions been relegated to the legal attic or to a museum of procedural antiques. In an action instituted by warrant in the Court of General Sessions of Shelby County and tried de novo on appeal in the circuit court, the warrant is a summons and cannot serve as a …

Torts -- 1956 Tennessee Survey, John W. Wade

Vanderbilt Law Review

This year, as in the past several years, there were approximately forty Torts cases. A much smaller number of the cases, however, involved automobile accidents. This is hardly competent evidence that there were fewer accidents, but may perhaps indicate that negligence law is becoming somewhat clearer so that fewer appeals to the higher courts are considered warranted.

Labor Law And Workmen's Compensation -- 1956 Tennessee Survey, Paul H. Sanders, James G. Bowman, Jr.

Vanderbilt Law Review

Labor Law

Inducing Breach of Contract: Howard v. Haven' was the only case during the survey period which presented a legal problem relating to the activities of a labor organization. In this case an electrical contractor sought an injunction and damages because of the acts of a local labor union, its business agent, and other named defendants in preventing the plaintiff from carrying out a hospital construction contract. On the trial of the case the determinative issue became whether or not the defendants brought about a breach of the contract which the complainant claimed to have had with the general …

Business Associations -- 1956 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Surprisingly few cases were decided in the field of Business Associations during the survey period. Those decisions for the most part merely reaffirmed legal principles already established in Tennessee law. One of the cases, Wyatt v. Brown,' raised again the interesting old question of what is a partnership and what factual elements are necessary to constitute the partnership relation. This article discusses that question first and then comments rather briefly on the other cases and the principles they enunciate.

Insurance -- 1956 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

In Pennsylvania, etc. Ins. Co. v. Homer,' it appeared that Homer had struck a parked vehicle but failed to stop. His identity was later established and he signed a statement admitting that the accident was his fault and assuming all responsibility in connection therewith, including damage to the vehicle and hospital and medical treatment to any person suffering injuries as a result of the accident. It was not until five months after the collision that Homer's insuror received any notice of the accident. The insuror thereupon filed this action in the chancery court for declaratory judgment to determine its rights …

Domestic Relations -- 1956 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

Only one reported opinion dealt with the subject of adoption during the survey period.' In this case the petitioners had contracted with the Department of Public Welfare to keep the subject child on a foster-home-care basis. When the Department sought custody of the child from them, however, they had become very attached to her and refused to surrender custody. Pursuant to the statute then in effect, they filed a petition to the county court to adopt the child. The petition was denied, and on appeal the decision was affirmed. Immediately thereafter, petitioners filed the present suite in chancery, seeking to …

Restitution -- 1956 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The pervasive principle of Restitution--that "A person who has been unjustly enriched at the expense of another is required to make restitution to the other"'--makes use of many remedies, both at law and in equity. This year's Restitution cases will be classified according to the nature of the remedy.

One who pays the obligation of another may be entitled to indemnity, if he has not acted officiously. He may also be entitled to the remedy of subrogation, permitting him to "step into the shoes" of the person to whom, he paid and enforce any lien or right which that person …

State And Local Taxation -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

As indicative of the growing importance to the bench and bar of state and local taxation, the Tennessee Supreme Court was called upon to decide three significant tax cases during the period covered by this survey article. During this period, objecting taxpayers spear-headed vigorous assaults against various privilege taxes on commerce and due process clause grounds.

Wills, Trusts And Estates--1956 Tennessee Survey, W. J. Bowe

Vanderbilt Law Review

The Tennessee statute creates a rebuttable presumption that any transfer or conveyance of property to a child shall be treated as an advancement. The above evidence would seem adequate to rebut the presumption but the court went further and stated that, without regard to this evidence, the transfer was not to be so treated since an advancement must be irrevocable and in presentae. Query, if this language may not be misleading and cause confusion in later cases. American case law does not require that an advancement be irrevocable. Thus the proceeds of a life insurance policy, though the decedent retained …

Equity -- 1956 Tennessee Survey, Val Sanford

Vanderbilt Law Review

One of the most important characteristics of the administration of justice in Tennessee is the maintenance of separate courts of law and equity. While numerous statutes have been enacted from time to time in an effort to clarify the jurisdiction of the two courts and the boundaries of their respective jurisdictions have been further defined by the courts, nevertheless, cases are still dismissed because they are brought in the wrong court...

Administrative Law -- 1956 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Questions of the scope and timing of judicial review of administrative agency action were again before the courts during the period covered by this survey. Timing of Judicial Review: The problem of "timing" of judicial review of administrative action includes questions of the availability of administrative remedies and whether their exhaustion must be required before court action; ripeness for review, usually associated with the issuance of agency rules and regulations; and jurisdictional questions vis-a-vis the agency and the court.

Bills And Notes -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Section 23 of the Negotiable Instruments Law, adopted in all of the forty-eight states,' provides: "When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.' In Nashville Trust Co. v. Southern Buyers the Tennessee …

Creditors' Rights And Security Transactions -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Possession of Land Under Contract of Sale as Notice to Subsequent Purchaser of the Land: There is a security transaction facet in the ejectment case of Harris v. Buchignani,' decided by the Tennessee Supreme Court, which should be given some attention. In that case, by clear implication, the court put forth some disturbing doctrine relative to priorities under the Tennessee recording statute. Without specifically mentioning it, the court appears to have disavowed and repudiated the doctrine that possession of property inconsistent with the record title holder is notice to a subsequent deed of trust lender so as to prevent the …

Local Government Law -- 1956 Tennessee Survey, Joseph Martin Jr.

Vanderbilt Law Review

The scope of local government law covers the problems arising out of the functioning of units of government essentially local in character--the municipality, the county, the school district. Involved are the relations between the unit and its constituents or between the units themselves, the validity of its actions, the status of its officers or employees. In the era of increased government, the impact of this body of law is pervading.

Criminal Law And Procedure -- 1956 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Homicide: Involuntary manslaughter by automobile was involved in the case of Smith v. State.' The evidence tended to show that while the defendant was operating his automobile at a speed of possibly 40 miles per hour, he attempted to turn at a dead-end intersection, skidded on loose gravel, and struck his victim at a point approximately four feet off the street. It also appeared that the victim was a child of six who was playing on a bridge leading to a school; that the accident occurred on Christmas day; and that the defendant had consumed an unknown quantity of intoxicating …

Real Property -- 1956 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

Bona Fide Purchases Without Notice: There were two cases, First Federal Savings and Loan Ass'n v. Dearth' and Harris v. Buchignani, decided during the year which concerned the title acquired by a purchaser of real property without actual notice of an unrecorded interest. The first of the above cases concerned a purchaser from the heir of the deceased record owner, and the second concerned a purchaser from a record owner who had previously executed a contract of sale which was not recorded. Both cases originated in Memphis.

Psychiatric Challenge Of Witnesses, Thomas E. Watts Jr.

Vanderbilt Law Review

Although insane' persons were incompetent as witnesses at early common law, the modern view is that the effect of mental illness upon competency is a preliminary question for the court in the absence of contrary statutory direction. An insane person is generally said to be a competent witness if he can understand the sanctions imposed to elicit the truth and can correctly recount the occurrence which is the subject of his testimony. Some courts exclude evidence of insanity offered for purposes of impeachment but most courts admit such evidence, treating medical and lay testimony with equal respect because of the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Congressional Investigations --Relevancy of Required Testimony

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Constitutional Law--State Taxation of Interstate Commerce--Sales Taxation of Income from Trans-Shipment of Goods within State

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Criminal Law--Felony Murder Doctrine--Co-Felon Killed by Victim of Crime

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Evidence--Judicial Admissions--Testimony as to Objective Facts

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Federal Tort Claims Act--"Private Individual" Clause--Uniquely Governmental Activity

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Income Taxation--Capital Gains and Losses--Business Purpose for Contracting in Commodity Futures

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Labor Law--Taft-Hartley Act--Discharge of Employees because of Union Membership

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Negligence--High Tension Power Lines--Duty to Warn of Dangerous Condition

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Real Property--Joint Tenancy--Severance of Estate by Murder of Co-Tenant

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Torts--Landowner--Duty to Social Guest

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Wills--Pretermitted Heir Statue--Sole …

Support Rights And Duties Between Husband And Wife, Monrad G. Paulsen

Vanderbilt Law Review

According to the common law a husband was entitled to his wife's earnings and most of her personal property in addition to the pleasure of her company and services in the home. These advantages have been considered the quid pro quo for the man's duty of support. Today, because of legislation, most of a husband's legal control over the income and means of his wife is gone. If a husband's duty to support is to be grounded in a reciprocal benefit to him, that benefit is derived almost wholly from the wife's obligation to be a wife and to live …