Digital Commons Network^™

Banks And Banking - Public Moneys As Preferred Claims

Michigan Law Review

The State claims a preference in the assets of an insolvent bank on the basis of sovereign prerogative. Held, that the State has no preference now because the prerogative right has been abrogated: first, by the passing of a comprehensive state banking law; and second, by a constitutional provision giving bill holders of insolvent banks preference in payment over all other creditors. Fry, State Treasurer v. Equitable Trust Co., 264 Mich. 165, 249 N. W. 619 (1933). (Potter and McDonald, JJ., dissenting).

Future Interests - Federal Estate Tax - Admissibility Of Evidence Of Barrenness Of Devisee

Michigan Law Review

In an inquiry as to the value of an executory bequest to charitable institutions, conditioned on the death of the testator's daughter without issue surviving her, was evidence that at the time of the testator's death she had been rendered incapable of bearing children admissible for the purpose of determining the amount of a deduction from the federal estate tax? Held, that such evidence was admissible. United States v. Provident Trust Co., (U. S. 1934) 54 Sup. Ct. 389.

Practice And Procedure - Joinder Of Parties And Causes Under The Uniform Fraudulent Conveyance Act

Michigan Law Review

The plaintiff sought, in one suit, to recover the amount of a promissory note from the maker and to attack a transfer of property by the maker to her brother, alleged to be a fraud on the maker's creditors. The maker and transferee were made defendants. The transferee demurred to the complaint on the ground that the two defendants had essentially different liabilities and so could not be joined in one action, under the South Dakota code. Held, that section 9 of the Uniform Fraudulent Conveyance Act permits the plaintiff to proceed in one action for a judgment on …

Highways - Underpass As Highway Use

Michigan Law Review

The defendant was the owner of a gravel pit, separated from his railway shipping facilities by a highway, the fee of a portion of which was owned by the plaintiff. A bill was filed to restrain the construction under the highway of a passageway between the railroad and the gravel pit, permission for which construction had been granted by the state highway commissioner. The bill was dismissed, and on appeal, held, by an evenly-divided court, that the judgment be affirmed. Grand Rapids Gravel Co. v. William J. Breen Gravel Co., 262 Mich. 365, 247 N. W. 902 (1933).

Insurance - Concept Of Indemnity As Limiting Recovery On Fire Insurance Policies

Michigan Law Review

In the case of Savarese v. Ohio Farmers' Insurance Co. the New York Court of Appeals recently held that a mortgagee, insured against fire loss under a standard mortgagee clause inserted in the policy of the owner, could recover on the policy despite the fact that the owner had gratuitously completely restored the premises after the fire. The court reasoned that to deny recovery would be to permit an act of the owner (mortgagor) to defeat the rights of the mortgagee, in contravention of the terms of the mortgagee clause; also that while a mortgagee has an insurable interest only …

Taxation -Taxability Of Inter Vivos Trust With Power Of Revocation Reserved

Michigan Law Review

In 1918 decedent established a trust fund in favor of his daughter, reserving the power to alter or modify the deed in favor of anyone except himself but retaining neither the life income nor any interest in the res. Later decedent revoked the deed and re-established the trust in favor of the daughter's two children. On decedent's death the Commissioner of Internal Revenue included the value of the trust res in decedent's gross estate for purposes of taxation as provided by the Revenue Act of 1926 § 302(d). Held, that the tax was not repugnant to the Fifth …

Practice And Procedure - Power Of The Court To Increase Inadequate Verdict

Michigan Law Review

With the development of the remittitur in the case of excessive verdicts, one would naturally expect the development of an analogous device for cases wherein the verdicts are inadequate. When the plaintiff moves for a new trial because of an inadequate verdict, a denial of the motion on the condition that the defendant agree to a certain increase in the verdict is perfectly analogous to the remittitur in form. But this device has not received the same wide acceptance as its counterpart. In cases in which the plaintiff has appealed this device has been condemned, while it has been approved …

Constitutional Law - Moratory Legislation

Michigan Law Review

A Minnesota statute, in view of the economic emergency, provided, among other things, that courts might, upon petition of a mortgagor, extend the period of redemption from mortgage foreclosure sales for a definite time not beyond May 1, 1935. If a court took such action, the mortgagor was to remain in possession of the premises and pay a reasonable rental to the mortgagee. Held, by the United States Supreme Court in a five-to-four decision, that this statute did not violate the contracts, or due process, or equal protection clauses of the Constitution. Home Building and Loan Association v. Blaisdell …

Municipal Corporations - Power To License - Discretionary Power In Administrative Officers

Michigan Law Review

The City Council of Philadelphia enacted an ordinance requiring as many officers or firemen as the Director of Public Safety should deem necessary to be present at all athletic contests for profit, and further provided that the officers or firemen so stationed should be compensated at the rate of $5.50 per day by those persons requiring or demanding such service. The plaintiff brought this suit in equity to declare invalid and restrain the enforcement of the ordinance. The lower court held that the ordinance was invalid, but the supreme court reversed this decision and held that this was a valid …

Torts - Libel Per Se - Liability Of Newspaper For Republication

Michigan Law Review

A news item published in a newspaper owned by the .defendant stated falsely that the plaintiff was being held in jail on a charge of forgery. From a judgment for plaintiff the defendant appealed. Held, the defamatory statement was "libellous per se," and the defendant was liable though the information was received through a reliable news-gathering agency and was printed without malice. Oklahoma Publishing Co. v. Givens, (C. C. A. 10th, 1933) 67 F. (2d) 62.

Primary Elections And The Constitution, Luther Harris Evans

Michigan Law Review

Recent attempts in Texas and elsewhere to exclude Negro voters from primary elections reveal the unsettled state of constitutional law in this field. Two struggles of principle, individualism versus police power and States' rights versus nationalism, are outlined in the judicial opinions reviewed below under the following headings: (I) Basis of state power over primaries; (II) Limitations on state power over primaries imposed by the Fourteenth and Fifteenth Amendments; (III) Basis of state power over primaries for nominating United States Senators and Representatives; and (IV) Basis of national power over primaries for nominating United States Senators and Representatives.

Conflict Of Laws-Jurisdiction In Rem Of Documented Claims

Michigan Law Review

A court has jurisdiction in rem over any res of which it has physical control. But does physical control of a document carry with it the control of the chose in action which it represents? This involves an inquiry as to what extent the chose in action is embodied in the document, to what extent the certificate is itself the res or property. Answers to this question have varied with the type of document and even with the type of suit in which the problem has arisen.

Criminal Law And Procedure-Former Jeopardy-Tests Of "Same Offence

Michigan Law Review

The provision in the state and federal constitutions that one may not be put in jeopardy twice for the same offense is merely declaratory of the common law, and is in effect in all jurisdictions. However, there is often great difficulty in determining when offenses are the same. Several tests to determine the identity of offenses have been employed.

Equitable Contract Remedies - Denial Of Both Specific Performance And Rescission

Michigan Law Review

Serious problems of doing justice between parties to a contract arise where on the one hand specific performance of the contract is refused on equitable grounds such as hardship, and on the other hand rescission of the contract is denied and the contract is allowed to stand as a binding legal obligation. The objects of the present comment are two: to examine critically the situations where this result has actually been reached, and to inquire whether there is any real advantage, in the administration of contract remedies, in recognizing an intermediate ground between specific performance and rescission.

Searches And Seizures - Reasonableness Of Arrest - Use Of Evidence Secured Through Unreasonable Arrest- Statutory Changes

Michigan Law Review

Police officers patrolling Detroit streets in a radio-equipped police car stopped a taxicab in which defendants Stein and Massie were riding. From the statement of the court, the officers' attention was attracted to the cab "because it was 'driving pretty fast,' about 32 miles per hour." The police car pursued it for a block or more; as it drew abreast of the cab defendant Stein was seen to reach into his pocket as if to take something out and put it behind him. "There was something about the cab, probably aside from its speed, which suggested to officer Sullivan that …

Certain Evasive And Protective Devices Affecting Succession To Decedents' Estates, Alvin Evans

Michigan Law Review

In Anglo-American law for many generations the power of an owner of property to determine the disposal of his estate at death has met with but comparatively few limitations. The statute creating this power was motivated by the assumption that the interest of the owner, reaching even beyond death, is paramount to other social interests. This power is an important item in a capitalistic system. And even if he does not exercise his power, the decedent may rest assured that another statute will do for him approximately what he may be supposed to have desired.

Constitutional Law-Right To Competition

Michigan Law Review

The appellee was engaged in the business of selling natural gas. A rival utility entered the field duplicating the plant and facilities of the appellee and established with the consent of the Public Service Commission a rate lower than the prevailing rate charged by the appellee. In an attempt to retain its customers against the lower prices of its competitor the appellee lowered its rate several times. The appellants finally ordered the appellee to submit evidence as to the reasonableness of its rates. Upon investigation the Public Service Commission found that the business in the territory was capable of supporting …

State Taxation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

Motor transportation for hire, as indicated earlier in the article, has become a business of large proportions and, like every other business, should be subject to the ordinary business taxes. More particularly, since it is a form of public transportation, it should be subject to the same kinds of taxes that are exacted from other businesses of the public utilities type.

Constitutional Law - Emergency Banking Act - Delegation Of Power

Michigan Law Review

Defendant was indicted in two counts: (1) for failure to file a return in respect to gold bullion held by him, and (2) for holding over $200,- 000 in gold bullion without a license, in violation of the Presidential Order of August 28, 1933, issued by authority of the Emergency Banking Act of March 9, 1933. This Act declared an emergency to exist, by Title I, sec. 2 amended the Trading with the Enemy Act by authorizing the President "during time of war or during any other period of national emergency declared" by him to regulate or prohibit (inter …

Constitutional Law - Force And Effect Of Clauses Providing For Payment Of Private Indebtedness In Gold

Michigan Law Review

Certain Belgium company bonds were issued providing for payment of interest "in sterling in gold coin of the United Kingdom of or equal to the weight and fineness existing on September 1, 1928." After England had left the gold: standard the issuing company sought to make interest payments in depreciated pounds. Plaintiff bondholder sought to enforce payment of sufficient depreciated currency to enable him to purchase on the day of payment gold in the same quantity as he would have received had payment been due September 1, 1928. The English House of Lords held for plaintiff, reversing the decision of …

Criminal Law And Procedure - "Public Enemy" Statutes - Constitutionality

Michigan Law Review

Defendants were convicted of the crime of being disorderly persons within the meaning of section 167, Michigan Public Acts, 1931, No. 328, which provided that "any person who engages in an illegal occupation or business . . . shall be deemed a disorderly person. Proof of recent reputation for engaging in an illegal occupation or business shall be prima fade evidence of being engaged in an illegal occupation or business." Police officers testified as to the reputation of the defendants for being bootleggers, stick-up men, robbers, and murderers. Held, that section 167 of the statute is unconstitutional and void …

Book Notes

Michigan Law Review

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

Process In Actions Against Non-Resident Motorists, Maurice S. Culp

Michigan Law Review

Personal service on the defendant within the jurisdiction of a State is the conventional form of process in personal actions. But considerations of convenience and public need have resulted in recognizing an additional form of process in personal actions against nonresident motorists. Statutes in 35 States authorize the commencement of suit against the non-resident motorist by substituted service on a public official of the State where the cause of action arises; the official is made for this purpose the agent or attorney of the non-resident motorist.

It is proposed herein to discuss (1) the constitutional basis of such legislation, and …

The Municipality As A Unit In Ratemaking And Confiscation Cases, Robert D. Armstrong

Michigan Law Review

The recent decision of the Supreme Court of the United States in the so-called Martinsville case has been interpreted by some critics as laying down a "municipal unit doctrine" of rate making, denying to a system utility the right to earn from its entire operations a fair return on the value of its entire property, and substituting therefor a "bundle of rights" to earn in each "municipality" served a fair return on the value of the property used and useful therefor.

Federal Practice -Appeal And Error - Review Of Denial Of Motion For New Trial

Michigan Law Review

The federal appellate courts have, in a great many decisions, refused to review the denial of a motion for a new trial made in a lower federal court. The very recent case of Fairmount Glass Works v. Cub Fork Coal Co. once again presents the problem, and Justice Brandeis, writing the majority opinion, follows the prior holdings. In this very excellent opinion the learned Justice presents the reasons for the result generally reached, and enumerates some of the exceptions in a manner which should tend to clarify much of the doubt which has existed in this field of appellate jurisdiction.

Constitutional Law - Federal Control Over Crime - Scope Of Power To Regulate Crime Under The Commerce Clause

Michigan Law Review

The increase of criminal activities interstate in scope, and the growing dissatisfaction with state enforcement of local laws, have focused attention of late upon the power of Congress to regulate crime under the commerce clause of the Constitution. Outstanding among proposals for congressional legislation are the following: making interstate felonies federal offenses; punishing criminals who flee across state lines after committing a crime; and restricting the sale and transportation of firearms. Most, if not all, of this suggested legislation must rest on the commerce clause for its validity. We purpose here to discuss the nature and scope of this power, …

Federal Practice -Jurisdiction Over Non-Federal Questions - Meaning Of Cause Of Action

Michigan Law Review

Petitioners brought suit in a federal court to enjoin the respondents from publicly producing a play, alleging that it infringed a copyrighted play of the petitioners and that it would also constitute unfair competition. The parties were citizens of the same State. After considering the claim of infringement on its merits, the court held that, although there was no infringement threatened, the jurisdiction acquired by reason of that federal question might be retained to consider the issue of unfair competition. Hurn v. Oursler, 289 U.S. 238, 53 Sup. Ct. 586 (1933).

Federal Practice-Entry Of Judgment Notwithstanding Verdict On Undisputed Evidence

Michigan Law Review

In an action on a contract the plaintiff claimed the entire contract price as damages on the theory of an anticipatory breach by the defendant. The trial court, however, on the undisputed facts, instructed the jury that the plaintiff could recover only the damages suffered prior to the first day of the present term of court. Held, by the Circuit Court of Appeals, that the trial court should have instructed the jury to return a verdict for the plaintiff for the entire contract price, but that a new trial was not necessary and the cause should be remanded to …

Municipal Corporations - Municipal Responsibility For The Torts Of Policemen

Michigan Law Review

E, standing near the scene of a holdup in the Bronx, was shot by a stray bullet from the gun of a policeman engaged in pursuing several highwaymen. The Municipal Assembly of New York City enacted in 1927 an ordinance providing that the Board of Estimate is authorized to make an award of damages to such innocent bystanders when injured by policemen. E received an award of $6,740 from the Board for injuries suffered. Upon the Comptroller's refusal to pay it without a judicial declaration of its legality, E sued out a writ of mandamus. It was held that …

Searches And Seizures - Search As Incident Of Unlawful Seizure - Search Without Warrant

Michigan Law Review

Where a sheriff took possession of an unattended car parked on the streets, in the belief that the automobile was stolen and without knowledge that it contained liquor, and two hours later searched it and seized liquor in the car, acting on information received subsequent to the seizure of the car but prior to the search for the liquor, held that the taking of the car by the sheriff was an unlawful act and the search was an incident thereof; that the search without a warrant was an unreasonable one under the South Dakota Constitution prohibiting unreasonable searches and seizures, …