Law Commons^™

Appeal And Error-Significance Of Denial Of Certiorari As Precedent By United States Supreme Court, Edward W. Rothe S.Ed.

Michigan Law Review

Respondents were found guilty of contempt of court for broadcasting dispatches concerning a person about to be tried on a charge of murder. The convictions were reversed on constitutional grounds by the Court of Appeals of Maryland, relying upon certain decisions of the United States Supreme Court. The state sought a writ of certiorari on the ground that the Maryland court had misconceived the rulings of the Supreme Court. Although the application for certiorari was denied, Justice Frankfurter took occasion to write an opinion stating that the denial of the writ meant only that fewer than four members of the …

Bills And Notes-The Meaning Of "Next Business Day", Richard B. Gushée S.Ed.

Michigan Law Review

Two checks, payable to the plaintiff, were forwarded to the defendant drawee for payment on February 13, 1949. After the close of banking hours on February 14, the defendant telegraphed the presenting bank advising that it would not pay the checks. The applicable Illinois statute allowed banks until the end of the "next business day" following the day of presentation to decide whether or not they would pay checks. The plaintiff argued that "business" qualified "day" and that defendant therefore should have indicated its decision within business hours on the day following the day of presentation, and that since it …

The Study Of Jurisprudence-A Letter To A Hostile Student, Samuel Mermin

Michigan Law Review

The value to the law student of a course in jurisprudence has long been a question mark-and to the teachers as well as the students. The students have not been prompted by self-interest, as the teachers have, to come up with plausible erasures of the question mark. Most students, as you did, find the course esoteric, murky and impractical. The teachers, however, many of whom are mercifully unaware of the student reaction, have found sufficient justification for the course on various grounds which I think I can briefly summarize.

Some Problems In Federal Question Jurisdiction, George B. Fraser, Jr.

Michigan Law Review

Congress has given the federal district courts original and removal jurisdiction of all civil actions arising under the Constitution or laws of the United States, but the power of these courts to hear such cases has been restricted by the Supreme Court of the United States. The Supreme Court holds that the district courts have jurisdiction of a case if a federal question is raised in the complaint, but jurisdiction cannot be based on a federal question in the answer. This means that the district courts are closed to many cases that involve a substantial federal issue, while many cases …

Corporations-Right Of Corporation To Pay Dividends To Common Shareholders To Equalize Prior Wrongful Payment To Preferred Shareholders, Theodore Sachs S.Ed.

Michigan Law Review

As a general proposition, payment of dividends may be made only out of surplus and not out of the capital stock of a corporation. Though the cases evidence considerable confusion as to the meaning of "surplus" and "capital," it is clear that these terms do not indicate a res. Rather, they are convenient designations for legislatively prescribed limits as to when dividend payments are proper. The capital stock rule, that the aggregate consideration received for no par stock plus the aggregate value of issued par stock may not be tapped for shareholder distribution, is founded, loosely speaking, on the notion …

International Law-Jurisdictional Immunity Of United Nations Employees-The Gubitchev Case, Melvin J. Spencer S.Ed.

Michigan Law Review

Diplomatic officers are immune from the criminal jurisdiction of the receiving state under well-recognized principles of customary international law, which principles are said to be a part of the law of the United States. As international organizations developed, certain privileges and immunities were given to their personnel by treaties or agreements and it appeared that by common consent of the family of nations their right to immunities might also come to be recognized as a principle of the law of nations. As yet the United States has not recognized such a principle and jurisdictional immunity here must still be provided …

Probate-Recent Statutes-"Streamlining'' The Administration Of Small Estates, Joseph Gricar S.Ed.

Michigan Law Review

One by-product of the research leading to the drafting of the Model Probate Code is a monograph by Professor Paul E. Basye which contains a complete survey of the statutes which simplify or eliminate the regular administration of estates. One portion of the monograph is devoted to statutes which provide methods for the administration of small estates. Since the publication of the monograph, there have been a number of statutes enacted which continue· the trend toward a "streamlined" administration of small estates; with these recent statutes this comment is concerned. Statutes which simplify or eliminate administration but which are not …

Constitutional Law-Fourth Amendment-Search Without A Warrant Incident To Arrest, G. B. Myers S.Ed.

Michigan Law Review

Respondent was convicted of selling and of possessing and concealing forged and altered stamps of the United States with intent to defraud. The primary evidence of "possessing and concealing" consisted of numerous forged and altered stamps taken from respondent's one room office by Federal officers immediately after his arrest. The stamps were the product of a one and one-half hour search of the desk, safe and file cabinets in the office. The officers, though without a search warrant for the premises, made the arrest pursuant to a valid warrant. Respondent protested the search, and this protest was renewed by motions …

Constitutional Law- Sixth Amendment-Impartial Jury-Government Employees On Jury When Government Is Party, G. B. Myers S.Ed.

Michigan Law Review

Petitioner, General Secretary of the Communist Party in the United States, was convicted of contempt of Congress after he failed to obey a subpoena of the Committee on Un-American Activities of the House of Representatives. At the trial counsel for the petitioner during voir dire examination inquired as to the employment of each prospective juror, and challenged all Government employees for cause. Counsel argued that because of the "Loyalty Order" and other security investigations taking place in Washington, Government employees would be afraid to risk the possible consequences of an acquittal and were therefore subject to implied bias. The challenge …

Discovery-Disclosure Of Trade Secrets In Tort Action, Cleaveland J. Rice S.Ed.

Michigan Law Review

Prior to trial of suit to recover damages for hand infection alleged to have been caused by the use of defendant's washing compound, plaintiff filed interrogatories requesting the ingredients and proportions used in the compound. Defendant's offer to divulge its secret formula to the court in confidence until the plaintiff should make a prima facie case was ruled upon adversely by the court. Defendant thereupon suffered the statutory penalty of default rather than disclose the secret. Held, default judgment affirmed. In this instance trade secrets were not privileged, and there was no abuse of discretion in the trial court's …

Federal Courts-Removal Jurisdiction-Counterclaim As The Sole Basis For Removal, Paul M. D. Harrison S.Ed.

Michigan Law Review

Plaintiff brought an action for damages in a state court Defendant filed pleas to the declaration, and also filed a counterclaim arising out of the same cause of action. On this date defendant also filed a motion with the Federal District Court asking removal of the case based solely upon his counterclaim. On plaintiff's motion, held, case remanded to the state court. Defendant has no right under the United States Judicial Code to have a case removed from the state court to the federal court when his motion is based upon his own counterclaim. Collins v. Faucett, (D.C. …

Federal Courts-Use Of A Cross-Claim Under Rule 13(G) Of The Federal Rules Of Civil Procedure, Rex Eames S.Ed.

Michigan Law Review

Under an ordinary automobile insurance policy, P insurance company promised to defend and indemnify Harvey for any suit arising from an accident involving his use of the insured truck. Collier sued Harvey in a state court alleging injuries due to the negligent use of the insured truck by two Harvey employees. Before judgment thereon, P, incorporated under the laws of Wisconsin, sued Harvey and Collier, citizens of Oklahoma, in the federal court. P sought a declaratory judgment on the grounds that (a) at the time of the accident the employees were under the control and supervision of the City …

Future Interests-Inter Vivos Application Of Worthier Title Doctrine- Destruction Of The Doctor V. Hughes Rule, Daniel A. Isaacson S.Ed.

Michigan Law Review

In one case, settlor executed an instrument whereby certain property was conveyed to trustees to pay the income therefrom to settlor during her life and upon her death to convey the principal of the trust estate to such persons as she should appoint in her will, or, in default of appointment, to her next of kin as in intestacy. In addition, settlor reserved to herself the right and power to approve and join in the execution of any conveyance or mortgage of the property. After the settlor died without having exercised the power of appointment, her four children applied as …

Labor Law--Arbitration--Management's Disciplinary Authority On Union's Breach Of A No-Strike Covenant, Jean Engstrom S.Ed.

Michigan Law Review

A demonstration protesting the proper discharge of two union officials resulted in the discharge of ninety-six participating employees. The following day the company commuted the penalty to a two-week suspension. The effective collective bargaining agreement provided that there should be no strikes or lockouts "for any reason" unless the grievance and arbitration procedure had been exhausted but it reserved the employer's right to discharge for breach of the agreement. The arbitration board awarded employees back pay for the time of suspension and seniority and other rights incident to employment for the entire period. Although the employee had violated the no-strike …

Labor Law--Federal-State Relations--Validity Of Michigan's Labor Mediation Act, R. L. Storms S.Ed.

Michigan Law Review

Plaintiff labor union called a strike against defendant auto corporation in May, 1948, without conforming to the prescribed state procedure. The purpose of the strike was to enforce demands for higher wages and the strike was conducted peacefully. To enjoin possible criminal prosecution the union instituted the instant suit in the state courts, contending that the Michigan labor mediation law, the much publicized "Bonine-Tripp Act," violated the due process and commerce clauses of the Federal Constitution. The Michigan Supreme Court reversed the decision of the trial court which had granted the injunction. On appeal, held, reversed. Congress has occupied …

Libel And Slander-Necessity For Allegation Of Special Damages For Defamation Not Shown Libelous Per Se, John J. Gaskell S.Ed.

Michigan Law Review

Defendants, the deacons, pastor, and clerk of the Gallatin Baptist Church, published to the church membership a letter to the plaintiff, an ordained minister of the Baptist Church, and a member of the Gallatin Church, requiring him to report and show cause why the hand of fellowship should not be withdrawn from him because of heresy. The plaintiff's complaint for libel set out the letter published, but a motion to dismiss for failure to state a cause of action was sustained by the circuit court on the grounds that there was no allegation of special damages to the plaintiff. On …

Negligence-Charities-Immunity From Tort Liability, Jean Engstrom S.Ed.

Michigan Law Review

When leaving a church service, plaintiff fell on ice that had formed as a result of poor drainage facilities on the public sidewalk outside defendant's church building. An action was brought based on negligence and the maintenance of a public nuisance. Defendant's answer claimed a right as a privately conducted charity to immunity from tort liability. Plaintiff demurred, the demurrer was overruled, and the case was transferred to the Supreme Court for a decision on that issue. Held, decree overruling the demurrer reversed. Charitable institutions are not entitled to immunity from tort liability. Foster v. Roman Catholic Diocese of …

Labor Law--Taft-Hartley Act--Right Of Board To Dismiss Unfair Labor Practice Complaints For Policy Reasons, B. J. George, Jr.

Michigan Law Review

In recent months the National Labor Relations Board and its General Counsel, Robert N. Denham, have come to grips over the right of the Board to dismiss unfair labor practice charges on ground that to take jurisdiction would not effectuate the policies of the National Labor Relations Act. After unsuccessfully opposing the Board in several cases, Mr. Denham aired the controversy publicly, charging the Board with application of "their old Wagner Act formulae" when "the principle of the theory has been repudiated by the passage of the Taft-Hartley Act." The Board retaliated by revoking all the General Counsel's independent powers …

Legislation-Perpetuities-Some Recent Statutory Changes In The Law Of Perpetuities, Thomas L. Waterbury S.Ed.

Michigan Law Review

During the past five years the legislatures of several states have wrestled anew with an old problem, that of limiting the permissible duration of indirect restraints upon the alienation of property. Generally speaking, these statutes may be grouped into two classes: those designed to abandon previous statutory modifications of the common law rule against perpetuities and return to the common law rule; and those designed to modify the common law rule or alter existing statutory rules. With respect to the latter group, a further classification is possible between statutes which attempt a general revision of the law as to perpetuities …

Dulles: War Or Peace, Michigan Law Review

Michigan Law Review

A Review of WAR OR PEACE. By John Foster Dulles.

Judgments-Setting Aside-Failure Of "Local Agent" To Notify Corporation Of Service Of Summons, Lloyd J. Tyler, Jr.

Michigan Law Review

Service of summons was made upon a ticket agent employed by a lessee of the defendant coach line in accordance with a North Carolina statute which provides that any person receiving or collecting money within the state for a corporation is a ''local agent" for the purpose of service of process. This agent did not notify the defendant corporation of the summons, and a default judgment was entered. On appeal it was held that the judgment should not be set aside for want of service of summons, since the ticket agent was within the statutory definition of ''local agent." The …

The Constitutional Significance Of Delegated Legislation In England, J. A. G. Griffith

Michigan Law Review

The Committee on Ministers' Powers defined delegated legislation as the "exercise by a subordinate authority, such as a Minister, of the legislative power delegated to him by Parliament." This definition followed logically from the terms of reference which required the Committee to report "what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law."' Behind these two statements lie certain assumptions which coloured the Report of the Committee and influenced its recommendations. One of these assumptions is that Ministers of the Crown are "subordinate" to Parliament so that any …

Constitutional Law-Due Process-Right Of Condemned Prisoner To A Hearing On Claim Of Supervening Insanity, Robert P. Griffin S.Ed.

Michigan Law Review

Petitioner was convicted of murder in a Georgia court and sentenced to die by electrocution. He made application to the governor to postpone execution on the ground that he had become insane after conviction. The governor, acting under authority of a state statute, appointed three physicians who conducted an examination of petitioner and found him sane. Thereupon, petitioner filed a petition for a writ of habeas corpus in a state court contending that the due process clause of the Fourteenth Amendment entitled him to a hearing on his insanity claim before a judicial or administrative tribunal at which he could …

Corporations-Right Of Directors To Enforce At Face Value Claims Against The Corporation Purchased At A Discount During Insolvency, Robert H. Frick S.Ed.

Michigan Law Review

From 1942 to the initiation of bankruptcy proceedings the assets of the debtor corporation were insufficient to pay its liabilities, and, with the exception of 1945, it operated at a deficit. In 1946 the assets of the corporation were sold, and the debtor filed a petition under Chapter XI of the Bankruptcy Act Prior to the filing of the petition, but during the period of insolvency, the respondents, the sister, mother, and a personal friend of a director, acquired debenture bonds of the corporation, primarily from over-the-counter dealers, at 3% to 14% of face value, the aggregate cost being $10,000. …

Insurance-Subrogation-Right Of Insured To Recover On An Automobile "Collision" Policy After Full Settlement With The Negligent Wrongdoer, Robert W. Shadd S.Ed.

Michigan Law Review

Respondent, whose automobile was covered by a policy of "collision" insurance in appellant insurance company, suffered serious personal injuries and complete loss of his car as a result of a collision with an oil company truck. Despite numerous telephone calls, appellant failed to settle for the cash value of the automobile, as required by the insurance contract. In the meantime, respondent brought an action against the oil company, joining the claims for personal injury and property damage, and executed a full release to that company in return for a settlement of $20,000. He then brought this action for actual damages …

Taxation--Income Tax-Effect Of Loss Carry--Back On Deficiency Assessment Interest Charges, William R. Worth S.Ed.

Michigan Law Review

In 1943 the Commissioner of Internal Revenue assessed deficiencies against respondent taxpayer in its 1941 income and excess profits taxes, adding interest from the date the tax was properly due to the assessment date. The taxpayer suffered a net operating loss in 1943 sufficient to abate completely all tax liability for 1941. When application for a refund of the amount paid and abatement of the deficiency was made, however, the commissioner deducted the interest assessed from the amount to be returned, claiming that the liability to pay interest on the deficiency was still outstanding. The district court held for the …

Trusts-Corporate Trustee's Duty Of Loyalty-Merger Of The Trustee Corporation With A Corporation In Which The Trust Held Shares, Nancy J. Ringland

Michigan Law Review

Securities delivered to the trustee under provisions of a will included stock in the corporate trustee and in a bank. Subsequently, the bank and the trust company affiliated, under an agreement whereby the bank acquired substantially all the stock of the trust company, to be held for the benefit of the shareholders of the bank. The holders of the trust stock and the old bank stock exchanged their shares for new stock in the bank. The trust authorized the trustee to retain stocks in the trust estate, to invest in securities other than of the character prescribed by law for …

Soviet Socialism And Due Process Of Law, John N. Hazard

Michigan Law Review

An eminent American legal philosopher has recently written in the pages of this Review that Soviet leaders have discovered some ancient truths-namely, that some respect must be paid, sooner or later, to the principle of legality. In the light of various memoirs and disclosures of persons who have experienced or studied life in Soviet labor camps, such a statement invites incredulity. Can it have any basis in fact? Can it be possible that there is a dualism in Soviet practice, with one set of experiences supporting the conclusion that there is a trend toward legality and another set of experiences …

Faces On The Court House Steps, A. F. Neumann

Michigan Law Review

Judge Frank may one day write a book which it will be possible to take or leave, but I doubt it. Few writers, with his ability and insight in the field of administration of justice, I suppose, succeed in evoking in their readers the spirited reactions that his writings produce. This is the highest praise that any reader can bestow-even though his reaction be a spirited disagreement.

In his most recent book, Courts on Trial, he has attempted to· destroy what he calls "myths" in legal thinking describing the fact-finding process just as he did for the rule determination …

Administrative Law-Federal Administrative Procedure Act-The Supreme Court Gives The Act Its First Interpretation, Fred W. Freeman S.Ed.

Michigan Law Review

The Federal Administrative Procedure Act received its first thorough consideration by the Supreme Court in the recent case of Wong Yang Sung v. McGrath. The Court held that deportation proceedings must conform to section 5, which provides for notice, opportunity for a hearing, separation of prosecution and quasi-judicial functions, and the issuance of declaratory orders by the agency, and to section 11, which prescribes an independent status for presiding officers. The scope of section 5 is limited to administrative adjudications "required by statute to be determined on the record after opportunity for an agency hearing." There is no specific requirement …