Digital Commons Network^™

Constitutional Law - Impairment Of Contracts - Legislative Regulation Of Deficiency Judgments, Donald H. Larmee

Michigan Law Review

A North Carolina statute provided that when a mortagee purchases property at his own sale conducted under a power of sale, and then brings action for the deficiency, the debtor may as a matter of defense show that the true value of the property at the time and place of sale exceeded the sale price and thus defeat the deficiency claim in whole or in part. In a recent case the plaintiff, mortagee of an $8,000 mortgage, conducted a sale according to law and bought the land for $3,000. On the plaintiff's subsequent action for the deficiency the defendant pleaded …

The Doctrine Of Stare Decisis In British Courts Of Last Resort, John A. Fairlie

Michigan Law Review

The House of Lords and the Judicial Committee of the Privy Council are both British courts of last resort. The House of Lords is the final court for the United Kingdom and reviews cases from the English Court of Appeals and equivalent courts of Scotland and Northern Ireland; the Judicial Committee hears appeals of cases from the colonies and dominions and ecclesiastical cases.

Readers of Professor Gray's lectures on The Nature and Sources of the Law are aware of the distinction he notes between the attitude of the British House of Lords, on the one hand, and the Judicial Committee …

Party Walls - Replacement And Removal, Charles W. Allen

Michigan Law Review

The usual American theory of the rights of adjoining land owners in a party wall is that each owns in severalty that part of the wall on his land and each has an easement of support in that part on the land of the other. If the structure is erected under an express contract, the rights of the parties are determined by the terms of their contract. And when the easement of support is created by prescription, its scope is measured by the prior user, and no right to remove or replace the wall can exist by virtue of the …

Actions - Stay Of Proceedings To Await Result In "Test Case" Involving Similar Issues, Jack L. White

Michigan Law Review

Suits were instituted by respondents, non-registered holding companies, in the District Court for the District of Columbia to enjoin the enforcement against them of the Public Utility Holding Company Act of 1935 on the ground that it was unconstitutional. On the same day that the first of these bills was filed, the Securities and Exchange Commission began suit in a federal district court in New York to compel the Electric Bond & Share Company and others, members of another utility system, to register as required by the act. A cross-bill in that action contested the validity of the act and …

Exemptions - "Implements Of The Debtor's Trade", Jacob L. Keidan

Michigan Law Review

In an action for conversion by wrongful attachment, it was held that printing equipment constituted "implements of the debtor's trade" within the meaning of the exemption statute. Flaxman v. Capitol City Press, 121 Conn. 423, 185 A. 417 (1936).

Constitutional Law --Twenty-First Amendment And Its Effect On The Commerce Clause And Equal Protection Clause As Applied To Liquor, William Stout Gordon

Michigan Law Review

Plaintiffs were granted an injunction in the lower court restraining the enforcement of the California Alcoholic Beverage Control Act on the ground that it violated the commerce clause and the equal protection clause of the Federal Constitution. The act imposed a license fee of $500 for the privilege of importing beer, in addition to the $50 fee to be paid by all wholesalers for the privilege of selling the beer. The Supreme Court reversed the lower court's decision and held that the Twenty-first Amendment withdrew the protection of the commerce clause from liquor and that there was no denial of …

Criminal Law And Procedure - Federal Courts - Reservation Of Power To Grant Probation After Sentence Begun, Virginia M. Renz

Michigan Law Review

The defendant was convicted of a violation of the National Motor Vehicle Act and a sentence not exceeding one year was imposed, subject to reservation of a power to grant probation later. He served a portion of the sentence. Pursuant to an investigation and report by the probation officer, the defendant was released and put on probation for the remainder of his term. Held, that the district court, under the National Probation Act of 1925, had authority to reserve jurisdiction of the case and to release the defendant and put him on probation after he had served a portion …

Suretyship-Effect Of Death Of Surety On Rights Of Creditor, Jacob L. Keidan

Michigan Law Review

In a suit on a bond filed in accordance with statutory requirements by a depository designated by a court of bankruptcy, it was pleaded in defense that the surety died before any deposits were received by the designated bank. The circuit court of appeals held for the defendant, ruling that the bond was only a multiple offer and lapsed with the death of the surety. The Supreme Court reversed this decision on the ground that the bond was a single offer, and the designation of the bank as an official depository constituted an acceptance thereof. United States for the use …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews.

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 35, Issue 5 of Michigan Law Review

Curbing The Supreme Court-State Experiences And Federal Proposals, Katherine B. Fite, Louis Baruch Rubinstein

Michigan Law Review

The avalanche of proposals introduced in the last session of Congress seeking to curb the power of the Supreme Court to declare legislative acts unconstitutional and President Roosevelt's recent message to Congress on the judiciary have focused attention on the problem of the function of that Court in our governmental system.

This article does not take sides in the controversy. Its purpose is merely to review the developments in the four states, Colorado, Ohio, North Dakota and Nebraska, which by amendments to their constitutions have sought to place curbs on their supreme courts, and also to classify the proposals which …

Administrative Law - Johnson Act - Jurisdiction Of Federal Courts Where State Review Procedure Prohibits Issue Of Supersedeas, William J. Isaacson

Michigan Law Review

Complainant power company attacked as confiscatory the decrease in rates ordered by the Public Service Commission of Montana. The company demanded an interloctory injunction pending a final decree. It appeared that there was on the statute book of Montana a statute prohibiting supersedeas pending judicial review in such cases. The district court granted the commission's motion to dismiss on the ground that a plain, speedy, and efficient remedy was available to the plaintiff in the state courts, and hence the requirements of the Johnson Act of May 14, 1934, were met. Therefore, so it was contended, federal jurisdiction was precluded. …

Constitutional Law - Anti-Deficiency Judgment Statutes In Foreclosure Actions - Impairment Of Contract, Elbridge D. Phelps

Michigan Law Review

Plaintiff instituted a proceeding on a judgment bond which was secured by a real estate mortgage, both of which had been executed by defendants, caused judgment to be entered on the bond, and procured the issuance of a writ of execution under which the mortgaged premises were sold. Thereafter, under the provisions of the state Mortgage Deficiency Judgment Act, defendants procured a satisfaction of the judgment in toto. After entry of such satisfaction, plaintiff filed a petition upon which the court granted a rule on defendants to show cause why the satisfaction should not be stricken. From an order dismissing …

Municipal Corporations - Constitutional Home Rule, Charles M. Kneier

Michigan Law Review

The home rule provision of the New York. constitution provides that as to the "property, affairs or government of cities," the legislature may pass special or local laws only on message from the governor declaring that emergency exists, and the concurrent action of two-thirds of the members of each house of the legislature is necessary in such cases. In 1936 the legislature passed an act providing for the establishment of the three platoon system for fire departments in all cities of over 1,000,000 population. The act provided for a referendum vote on the question in such cities. A mandamus action …

Federal Courts - Removal Of Causes - Action By State Tax Collector Against National Bank To Recover Taxes - Federal Question, Malcolm L. Denise

Michigan Law Review

The state of Mississippi passed a statute imposing a tax upon national banks, under authority of a federal statute permitting such legislation. The state assessed the tax upon defendant's predecessor, and defendant, in taking over its predecessor's assets, undertook to pay all of its obligations, including taxes due. The state tax collector started suit on the contract in the state court, but upon defendant's application the cause was removed to the federal district court. On appeal it was held the case did not arise under the laws of the United States within the meaning of the removal statute because it …

The Patman Act In Practice, Blackwell Smith

Michigan Law Review

A recent act of Congress directed against price discrimination and related phases of buying and selling has already become famous as the Robinson-Patman Act, so named for its two principal sponsors in Congress. This act has been much written about, and yet those whose law practice confronts them with daily problems in its application to the actuality of the business world find daily new aspects. The act has something to say with reference to every business transaction (in or related sufficiently to interstate commerce) which involves a price or a service or a facility in connection with the sale of …

The Problem Of Transfers Under Bulk Sales Laws: A Study Of Absolute Transfers And Liquidating Trusts, Thomas Clifford Billig, William L. Branch Jr.

Michigan Law Review

Although the first bulk sales law in the United States was enacted more than forty years ago, the host of decisions still emanating from the courts bears ample witness to the fact that this field of legal learning remains remarkably fertile. For the first decade following the original Louisiana Bulk Sales Act of 1894 the several state legislatures were busily engaged in passing statutes of similar import. During the next three decades the courts became as fully occupied as had been the legislatures in determining precisely what the legislatures meant by the language employed in the several acts. This process …

Insurance - Execution For A Criminal Offense, Herman J. Bloom

Michigan Law Review

The insured was convicted and legally executed for the crime of rape. The beneficiary sued on a life insurance policy which contained no express exemption from liability in the event of death resulting from the legal execution of the insured. The court held that the beneficiary was entitled to recover under the public policy as declared in the constitutional provision against corruption of blood and forfeiture of estate. Progressive Life Insurance Co. v. Dean, (Ark. 1936) 97 S. W. (2d) 62.

Negligence - The Determination Of Existence Of Gross Negligence Making Automobile Host Liable To Non-Paying Guest, Jack L. White

Michigan Law Review

Under common-law principles a majority of courts require the motorist, who voluntarily undertakes to carry another gratuitously, to exercise the ordinary care of a reasonably prudent man in the management and operation of his automobile. The minority rule, by analogy to the gratuitous bailment cases, requires a person who invites another to ride gratis to use only slight diligence to avoid injury to that person and holds him liable for gross negligence. The minority view undoubtedly appeals to those who feel that it is unsportsmanlike to sue one's benefactor, and yet it is doubtful whether such a purely emotional foundation …

Attorney And Client - Drafting Legal Instruments As Practice Of Law, Milton Rabinowitz

Michigan Law Review

In citation of defendant for contempt for unlicensed practice of law, held, that the preparing of a note and chattel mortgage and advising as to the legal effect thereof constitutes practice of law. " . . . [The practice of law] includes . . . drawing of wills, deeds, mortgages and other instruments of like character, where a legal knowledge is required, and where counsel and advice are given with respect to the validity and legal effect of such instruments . . . . " State v. Barlow, (Neb. 1936) 268 N. W. 95.

Trade Marks And Trade Names - Mark Used On Patented Article - Effect Of Expiration Of Patent, William J. Isaacson

Michigan Law Review

P company had distributed patented razor-blades marked Enders, and, upon the expiration of its patent, registered the word as a trade mark. It also used the term Keen-Kutter, as part of its mark, but the use of this term on other goods antedated the patent by several years. P now seeks to enjoin the D company from using either term as part of its trademark. Held, (1) the word Enders having become descriptively designative of this type of razor and blade, D was entitled to use it upon expiration of P's patent; (2) as to Keen-Kutter …

Wills - Probate - Deletion Of Libelous Matter, Michigan Law Review

Michigan Law Review

In propounding the will of the testator for probate, the executor petitioned the surrogate court to exclude from probate certain non-dispositive matter therein, which if published during the testator's lifetime, would have supported an action for libel. Held, that the court had power to exclude the objectionable matter from probate, since it was not properly a part of the will. In re Draske's Will, 290 N. Y. S. 581 (Surr. Ct. 1936).

Limitations Of Actions - Physicians And Surgeons - Malpractice - Accrual Of Cause Of Action, Michigan Law Review

Michigan Law Review

Defendant, a physician, treated plaintiff's decedent for cancer. Defendant failed to remove certain radium beads from decedent's uterus, and their presence in her body caused her death approximately five years later. The fact that defendant failed to remove the radium beads was not learned by plaintiff until a few months before decedent's death. Plaintiff brought suit, under the Kansas Wrongful Death Statute, within two years of the discovery of the alleged malpractice. Held, since plaintiff's cause of action accrued when the injurious acts took place, and since the statutory two-year limitation upon the bringing of tort actions was applicable, …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews.

The Notice Due To A Guarantor, Morton C. Campbell

Michigan Law Review

A guaranty is usually an offer contemplating a unilateral contract in that it requires for acceptance an act or series of acts, or abstention from action, on the part of the offeree. The act or acts ordinarily consist in the furnishing of money, goods, services, or the like, by the offeree to the principal in reliance on the guaranty; or in the assumption of suretyship risk by the offeree on behalf of the principal. Abstention from action commonly consists in the offeree's refraining from pressing the principal by suit or otherwise for an overdue debt.

Corporations - Power Of Majority Stockholders To Reorganize By Transfer Of Assets To New Corporation In Exchange For Stock, Kenneth K. Luce

Michigan Law Review

A private corporation is solvent and prosperous but is nearing the time when its charter will expire. The directors call a stockholders' meeting at which the majority of the stockholders vote: first, to form a new corporation and, second, to transfer all the assets of the old corporation to the new corporation in consideration for the entire capital stock of the new corporation and the assumption by the new corporation of all liabilities of the old corporation. The plan further provides that the old corporation is then to be dissolved, and the stock of the new corporation is to be …

Constitutional Law - Trial By Jury - Waiver Of Absence Of Part Of Jury And Consent To Continue With Remainder, Malcolm L. Denise

Michigan Law Review

The relator in this quo warranto proceeding attacked his previous conviction in a criminal trial on the ground that the verdict was void because rendered by only eleven persons. During that trial, one of the original jurors had been unable to continue, and the relator and the prosecutor had both consented to proceed before the remaining jurors. It was held that the right to be tried by a jury of twelve given an accused by the constitution of the state is a privilege purely for his own protection, and that he could legally waive this, just like any other similar …

Nuisance Contributory Negligence As Defense, Michigan Law Review

Michigan Law Review

Plaintiff brought action against the county for injuries sustained when his truck fell into an unlighted and unguarded excavation made by the county in the center of the highway for the purpose of repairing a culvert. Held, that defendant's act, though required by statute, was done in such a manner as to constitute active wrongdoing and a public nuisance, to which a plea of contributory negligence is no defense. Hammond v. Monmouth County, (N. J. S. Ct. 1936) 186 A. 452.