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Federal Procedure-Removal Jurisdiction-Meaning Of "Separate And Independent'' As Used In The United States Judicial Code, Paul Harrison S. Ed.

Michigan Law Review

The respondent suffered a loss by fire, and being uncertain as to which party was liable to compensate for this loss, joined the petitioner and two others as defendants in a suit asking for alternative relief. The petitioner and one of the defendants were insurance corporations with residence outside the state, while the third defendant's residence was the same as that of the respondent. The corporate defendants secured removal of the case to the federal court, and on a trial of the issues, a judgment was rendered for the respondent against the petitioner in the amount of the insurance claimed …

Taxation-Federal Gift Tax-Transfers Made Pursuant To Postnuptial Separation Agreements, Douglas L. Mann S. Ed.

Michigan Law Review

Taxpayer and her husband entered into a property settlement whereby she agreed to make certain payments to him in return for his promise to relinquish all marital rights in her property. The agreement was not to become operative unless a divorce decree was entered in a then pending action, but it was further provided that "the covenants in this agreement shall survive any decree of divorce which may be entered." The subsequent divorce decree approved the agreement and directed performance of its provisions. The Tax Court, which expunged the gift tax deficiency assessed by the Commissioner, was reversed by the …

Taxation-Federal Income Tax-Accounting For Money Mistakenly Received Under A Claim Of Right, Allan Neef

Michigan Law Review

The plaintiff taxpayer, as the general manager of a manufacturing corporation, received a bonus of approximately $22,000 for the 1944 calendar year, pursuant to a percentage-of-net-profits bonus arrangement. In 1946, a state court found that this bonus had been erroneously computed, and that the terms of the agreement only called for a payment to the plaintiff of about $11,000 for the prior year. As a result of this adverse judgment, the plaintiff repaid the excess to the corporation, and filed an amended tax return and a timely claim for a refund of the prior tax on such amount with the …

International Law-Immunity Of Employee Of United Nations Delegation From In Rem Proceedings In Municipal Courts, Allan Neef

Michigan Law Review

A landlord's summary proceeding for recovery of possession was brought in a New York municipal court against a secretary of the Argentine delegation to the United Nations. The defendant appeared specially and moved to vacate the service of the precept, claiming immunity from suit by virtue of the grant of diplomatic privileges and immunities to official employees of member delegations under Article V of the Headquarters Agreement between the United States and the United Nations. Held, motion denied. Realty not directly pertaining to a delegation's employee's official position is not removed from the jurisdiction of the local courts by …

Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publishers' literature, and the ordinary library sources.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this REVIEW.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this REVIEW.

Separation Of Powers Revisited, Reginald Parker

Michigan Law Review

Since administrative law is law that governs, and is applied by, the executive branch of government, it is necessarily as old as that branch. As long as executive and judiciary were one and the same and the king at the head of both, all of the law was in fact "administrative" though the term was not used. When, however, out of the amorphous mass of the legal order a fixed body of law courts began to emerge with jurisdiction over the most important legal problems, the term "administrative law," had it been used, would have acquired a specific meaning. Property, …

Civil Procedure-Venue-Forum Non Conveniens-Application Of Doctrine By State Court In Case Arising Under Federal Employers' Liability Act, Nancy J. Ringland S.Ed.

Michigan Law Review

Two suits based on the Federal Employers' Liability Act were brought in the Circuit Court of the City of St. Louis, Missouri. In both cases, plaintiff was not a Missouri resident, the defendant carrier was a foreign corporation, and the cause of action arose outside the state of Missouri. A motion to dismiss on the ground of forum non conveniens was denied as beyond the jurisdiction of the court, and mandamus proceedings were begun in the Supreme Court of Missouri to compel the trial court to exercise its discretion in disposing of the motions. The writs were quashed by the …

Conflicts Of Law-Divorce-Canadian Choice Of Law, Paul M.D. Harrison S.Ed.

Michigan Law Review

When the problem confronting the judge is one of recognizing a divorce decree awarded by a foreign state, then once again the domiciliary concept will be used to determine the jurisdictional competency of the court making the award. The foreign divorce decree will be accepted as lawful and proper if it was given by the court of the husband's domicile or if the decree is one which would be accepted as valid by that court. The authority underlying the latter proposition originates in the case of Armitage v. Attorney-General. It is the purpose of this comment to examine briefly …

Insurance-Application Of "Incontestable" Clause In A Life Insurance Policy To Defenses Arising Out Of Application For Reinstatement, Walter L. Dean S.Ed.

Michigan Law Review

An agreement to limit the contest period in which other than specifically excepted defenses on the policy can be raised by the insurer is a common feature in a modem life insurance contract. Such a clause gives the policy holder and the beneficiary a guaranty against expensive litigation after the lapse of the specified period while reserving to the insurer a reasonable opportunity to challenge the validity of the policy.

Conflicts Of Law-Negotiable Instruments-Situs Of Bearer Bonds, Paul M.D. Harrison S.Ed.

Michigan Law Review

By a Vesting Order, the Alien Property Custodian vested in the Attorney General property of an enemy alien which consisted of a "certain debt or other obligation" underlying bonds issued by the defendant corporation. The defendant corporation was ordered to cancel the said bonds and deliver the proceeds of the redemption and accrued interest to the Attorney General. Upon the trial of the action brought by the Attorney General to enforce these demands, it appeared in evidence that the bond certificates had last been located in the Russian sector of Berlin, Germany, and were there seized by the occupying authorities. …

Federal Procedure-Joinder Of Legal And Equitable Claims-Trial By Jury, William O. Allen

Michigan Law Review

Plaintiff brought an action against his employer in a federal district court under the Federal Employers' Liability Act for damages for personal injuries suffered during the course of his employment. In the same action, plaintiff sought to have a release, which he had executed, set aside on the ground that it had been obtained by defendant's fraud. Plaintiff requested a jury trial of both claims; defendant objected to a jury trial of the issue of setting aside the release, on the ground that a claim for cancellation of a release is for equitable relief triable to the court alone. Held …

Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.

Michigan Law Review

Though as a practical matter it is difficult to secure passage of uniform legislation in all states, particularly when the subject matter has so long been considered as of local interest only, the need for such legislation in the case of the statute of limitations seems clear. To the extent that such a statute is adopted, the problem of varying limitation periods upon particular causes of action and similar causes of action will be removed. Only by a uniform state treatment of the problem will the conflict among federal districts resulting from the uniformity of result requirement of Erie Railroad …

Labor Law--Federal-State Relations--Validity Of State Law Abolishing The Right To Strike For Employees Of Public Utilities, Rex Eames S.Ed.

Michigan Law Review

In 1948, petitioner-union of the employees of the transit system in the City of Milwaukee called a strike upon failure to agree with the transit company on wages, hours, and working conditions. Under the Wisconsin Public Utility Anti-Strike Law, a state court issued an injunction perpetually restraining petitioner from calling a strike which would cause an interruption of the passenger service of the transit company; petitioner complied therewith. The Wisconsin Supreme Court affirmed the issuance of the injunction, and the United States Supreme Court granted certiorari. Thereafter, the United States Supreme Court granted certiorari to a union of the employees …

Constitutional Law-Due Process Of Law-Thornhill Reexamined, Rex Eames S.Ed.

Michigan Law Review

In the spring of 1940, the Isle of Thornhill emerged from the watery depths and assumed a position in the Sea of American Constitutional Law. The discoverors of this Isle indicated their success was largely due to certain revelations made known three years· before by another highly distinguished explorer. The pronouncement in 1940 of the Isle's existence excited great furor and debate among the professional geographers as to its substance and future utility. In the early days of its discovery, Thornhill's area and coastline were not precisely or clearly charted, and only through several subsequent voyages have these important …

Landlord And Tenant-Liability Of Landlord To Persons On The Premises-Breach Of Covenant To Repair, Thomas P. Segerson

Michigan Law Review

Plaintiff, a carpenter, hired by tenant, suffered personal injuries in a fall caused by a defective railing on the rear porch of premises leased by defendant to tenant. By the terms of the lease, tenant was given exclusive possession of the premises, while defendant agreed to keep the rear porch in repair. Defendant had failed to repair the railing on being notified of its defective condition. From a judgment holding defendant liable to plaintiff for the injuries sustained; defendant appealed. Held, reversed. In the absence of control of the premises, a lessor is not liable in tort for personal …

Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publishers' literature, and the ordinary library sources.

The Voluntary Arbitration Of Labor Disputes, George W. Taylor

Michigan Law Review

Diverse conceptions about the relationship between collective bargaining and arbitration are at the root of some important current problems about the use of voluntary arbitration to resolve labor disputes. Should voluntary arbitration be considered, in any degree, as an extension of collective bargaining, or should it be basically conceived as an alternative to collective bargaining? In other words, does any part of the criterion of mutual acceptability-the very essence of collective bargaining-carry over when arbitration is invoked, or does "arbitration" connote a process through which employment terms are imposed upon the parties without any regard to the acceptability factor. There …

Union Powers And Workers' Rights, Clyde W. Summers

Michigan Law Review

The plight of the Highland group is not the product of labor strife, but of collective bargaining; not of employer discrimination, but of union power. It symbolizes in an extreme form the potential fate of an individual worker within the structure of unionization and collective bargaining. It sharply reminds us that contracts apply to workers, and that unions consist of members. It warns us that we must not become so obsessed with the glamor of studying mass action that we ignore the fate of those who make up the mass and in whose name the action is taken.

Such cases …

The Limitation Of Taxation Of Transfers In Contemplation Of Death By The Revenue Act Of 1950, Edmund W. Pavenstedt

Michigan Law Review

The Revenue Act of 1950 amended the estate tax provision dealing with transfers in contemplation of death, which has been on the books ever since the estate tax first appeared as a war emergency measure during World War I, by eliminating from this category all transfers made more than three years prior to the date of death. All transfers made within that period are deemed under the new law to have been made in contemplation of death (and hence are includible in the transferor's gross estate) unless the contrary is shown. Such a rebuttable presumption formerly was limited by the …

Extraterritorial Effects Of Confiscations And Expropriations, Ignaz Seidl-Hohenvelden

Michigan Law Review

The study of the problem of extraterritorial effects of confiscations and expropriations from the point of view of Comparative Law has special practical importance. There are hardly any codified rules applicable to foreign confiscations and expropriations, either in statutory law countries or in common law countries. Hence, decisions have to be based largely on generally accepted rules of public and private international law. Such general acceptance can only be proved by a comparative analysis of foreign as well as of domestic precedents.

Habeas Corpus-Jurisdiction Of Federal Courts To Review Jurisdiction Of Military Tribunals When The Prisoner Is Physically Confined Outside The United States, Willis B. Snell S. Ed.

Michigan Law Review

The question of the power of federal courts to issue the writ of habeas corpus for a prisoner confined outside the territorial United States has not as yet been completely answered. Until recently, there were few instances in which anyone was confined outside the United States under the authority of the United States. However, during and since World War II, American military tribunals have exercised power over citizens and aliens, civilians and military personnel, in many parts of the world, and especially in Germany and Japan. Because of this extended use of military tribunals, the question of the power of …

Jurisdiction-Basis And Range Of Process-Recent Developments, Thomas Hartwell S. Ed.

Michigan Law Review

Since Pennoyer v. Neff, holding that mere notice was an insufficient basis for in personam jurisdiction, it has generally been held that an in personam judgment requires service, as distinguished from notice, on a defendant present or domiciled within the jurisdiction. With the increased tempo of interstate activities, however, it has become expedient to relax the concept of physical power as being the basis of jurisdiction, which prompted the Pennoyer decision. Presence has assumed a more elaborate meaning, while service has become more closely equated with adequate notice. Illustrative of this development is the recent decision of Traveler's Health …

Unemployment Compensation-Effect Of The Merits Of A Labor Dispute On The Right To Benefits, Robert H. Frick S. Ed.

Michigan Law Review

Every state and territorial unemployment compensation act contains a provision disqualifying persons from receiving benefits whose unemployment is the result of a labor dispute or some form thereof. In most states these provisions have been applied to deny benefits to striking or locked-out workers regardless of the merits of the particular controversy. A few states have adopted provisions permitting at least a limited investigation into the question of fault. It is the purpose of this comment to discuss the extent to which the merits of labor disputes are and should be considered in determining workers' rights to benefits.

Constitutional Law-Freedom Of Speech, Alan C. Boyd S. Ed.

Michigan Law Review

Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he "'called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.'" He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry …

Criminal Law-Confessions And Due Process, Harold G. Christensen S. Ed.

Michigan Law Review

Petitioner was arrested on suspicion of robbery and the next day confessed the theft of a car owned by a person who had been found dead a month previous. On the following evening, after a four and one-half hour "interview" with two F.B.I. agents, he "broke down and confessed the killing." Other confessions were made the next day and finally, after a detention of five days from the day of arrest, petitioner was taken before a committing magistrate. He was found guilty of murder at a trial in which these confessions were used against him. He sued out a writ …

Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.

Michigan Law Review

Plaintiff corporation and defendant union entered into a collective bargaining agreement which provided that there should be no strikes by members of the union until the grievance procedure prescribed therein was exhausted. A walkout in violation of this agreement occurred and the plaintiff sought damages for the consequent loss of profits. A statute provided that ''Whenever any unincorporated . . . association . . . shall be formed in this state . . . actions . . . may be brought by or against such associations. . . " On de novo hearing, held, the defendant was amenable to …

Municipal Corporations-Validity Of Agreement By Municipal Employees To Accept Less Than Statutory Salary, John T. Gallagher

Michigan Law Review

Plaintiff firemen sued the City of Chattanooga to recover the difference between the salary actually paid them during the depression years and the minimum salary provided by statute. The city, as a defense, relied upon certain instruments voluntarily executed by the plaintiffs by which they authorized the city auditor to reduce their salaries by a specified amount each month during these years so that the city could meet its budget without being compelled to exercise its legal right to reduce the fire force. The plaintiffs claimed that the reductions were illegal because of the minimum salary fixed by law. On …

Partnership--Partner's Right To Compensation For Services To Partnership As A Going Concern, C. E. Lombardi, Jr.

Michigan Law Review

Plaintiff and defendant bought a fishing boat, which they operated in partnership for a number of years, under an agreement embodied in a series of informal letters. Both plaintiff and defendant at times ran the boat, but apparently they never operated it together. The partner in charge received the customary share of the crew's two-thirds of the "catch," plus compensation for services rendered as captain; each of them received half of the ''boat's share" of the catch. Defendant bought materials for some special nets, which he designed and constructed; he informed. plaintiff that he was doing so, and that it …