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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 33, Issue 7 of Michigan Law Review

The Investigating Magistrate (Juge D'Instruction) In European Criminal Procedure, Morris Ploscowe

Michigan Law Review

For nearly five centuries the distinctive figure in the preliminary stages of European criminal proceedings has been the investigating magistrate, known in France as the juge d'instruction. Although temporarily eclipsed by the revolutionary reforms in France in 1791, he was soon re-established. In other European countries the juge d'instruction continued to be the central figure in the preliminary procedure through all the reforms achieved by the liberal movements of the nineteenth century. The investigating magistrate has remained a purely Continental institution. In theory and in practice he embodies the essential difference between Continental and Anglo-American criminal procedure preliminary to trial.

Corporations - Double Liability Of Ex-Director Registered As Stockholder For Qualifying Shares

Michigan Law Review

Defendant received ten shares of stock in a national bank under a trust arrangement for the purpose of qualifying him as a director. The shares were transferred on the bank's stock books to the defendant as absolute owner. At the end of his term as director defendant terminated the trust arrangement but did not have a transfer made upon the stock books. Plaintiff, receiver upon failure of the bank, sued for an assessment under U. S. C. tit. 12, sec. 64. Held, since it is conclusively presumed that creditors become such in reliance on the statutory liability of those …

Corporations - Reorganization Under Section 77 B - Right Of Mortgage Trustee To Vote To Exclusion Of Bondholders

Michigan Law Review

The trustee under a mortgage bond issue which was in default with foreclosure pending, sought to vote to the exclusion of the bondholders on a proposed plan for reorganization in a voluntary proceeding by the corporation debtor pursuant to Section 77B of the Bankruptcy Act. The trust indenture authorized the trustee on default to enforce the security by appropriate proceedings, and the individual bondholders were specifically forbidden to sue. The indenture also gave a majority in interest of the bondholders power by an instrument in writing to direct the procedure of the trustee or to remove him. There was no …

Domestic Relations-Right Of Wife To Consortium-Negligent Injury To Husband

Michigan Law Review

Plaintiff sued for loss of the opportunity to bear children by her husband resulting from his emasculation caused by defendant's negligence. The court below dismissed the complaint. Held (one judge dissenting), judgment affirmed. Such a cause of action has never been recognized. It cannot be said that the wrong is the proximate cause of the loss because of the many elements of doubt and conjecture in connection with the birth of children. Landwehr v. Barbas, 24I App. Div. 769, 270 N. Y. S. 534 (I934).

Fraudulent Conveyances - Change Of Beneficiary Of Life Insurance Policy Formerly Payable To Insured's Estate

Michigan Law Review

An insurance company filed a bill of interpleader to determine disposition of the proceeds of a term policy on the life of one Fitzpatrick, now deceased. Claimants are the administrator, representing creditors, and the deceased's two sons. The policy had been issued payable to insured's estate, but reserved the right to change the beneficiary. A few days before his death (by suicide) deceased sent the company an application for change of beneficiary to his two minor sons. He was then hopelessly insolvent, and the administrator claims that the change of beneficiary was a fraudulent conveyance within the terms of the …

Taxation - Assessment For Property Taxes

Michigan Law Review

In 1926 the plaintiff purchased a lot with the building thereon for $41,000 and expended $ 10,000 in the improvement of the premises. In the same year the property was leased for a period of fifteen years under an agreement that the rent was to be $6,000 for the first five years, $8,000 for the second five, and $10,000 for the third. Plaintiff objected to the tax assessment of $68,660 for the years 1929, 1930, 1931, and 1932 on the grounds that the court based its valuation on (1) actual earnings instead of earning capacity, and on (2) gross, as …

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.

Agency - False Representations By Agent - Ratification

Michigan Law Review

During an intensive stock-selling campaign of the defendant power company, the stock salesman represented to the complainant that the corporation would repurchase at par upon demand any of the stock then offered. Relying upon this representation the complainant purchased thirty shares of stock for $3,000, the company apparently receiving his money and issuing the stock with knowledge of the false representations; when he later wished the company to repurchase the stock, it refused. On suit for (1) rescission and recovery of sum paid, or (2) reformation and specific performance, the company claimed among other things that the agreement made by …

Constitutional Law - Reinstatement Of Attorney - Constitutionality Of Pardon Statute - Legislative Encroachment On Judicial Power

Michigan Law Review

In proceedings based on the record of his conviction for attempted extortion, the petitioner was disbarred. Having received a full pardon from the governor, he sought reinstatement, relying on a statute which purported to make reinstatement mandatory on the court upon proof of the pardon. Held, the statute is unconstitutional in so far as it directs the court to reinstate a disbarred attorney without a showing of moral rehabilitation. It is an encroachment by the legislature upon the inherent power of the court to admit attorneys to practice and in effect vacates a judicial order by legislative mandate. In …

Taxation - Immunity Of State Officers From Federal Income Tax-Trustees Operating Boston Elevated Railway Company As State Officers

Michigan Law Review

A state law provided for public operation of the Boston Elevated Railway Company, with a board of trustees appointed by the governor with the advice and consent of the council. The salaries of the trustees were received from the company. The trustees were to manage and operate the company, having "possession of said properties in behalf of the Commonwealth." They were to fix rates of fare that would insure sufficient income to meet the cost of service including, in addition to operating expenses, specified rates of return on the investment. If the rates were insufficient for this purpose the deficit …

Taxation - Constitutionality Of Graduated Sales Taxes

Michigan Law Review

A Kentucky statute of 1930 levied a tax on gross retail sales at rates varying from 1/20 of one per cent on gross sales up to $400,000 per year, to one per cent on all gross sales over $1,000,000 annually. For the purpose of this tax all retail stores under the same ownership, operation or control, directly or indirectly, were treated as a unit; hence, the heavier rates of the tax fell upon the chain stores and large department stores. A group of chain and department stores sought to enjoin the collection of the tax, as contrary to the state …

Criminal Law And Procedure -Automobiles - Constitutional Law-Criminal Liability Of Owner Of Automobile

Michigan Law Review

The recent decision of the Supreme Judicial Court of Massachusetts in the case of Commonwealth v. Ober has brought to the fore a serious administrative problem arising out of the enforcement of traffic regulations. The problem is particularly acute in the illegal parking cases. Here it is usually impossible for the policeman to do more than tag the car, take down its registration number, and institute proceedings against the registered owner. The difficulty also often occurs in many other situations such as driving through red lights or stop streets where the offense is observed by a patrolman standing near by …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 33, Issue 6 of Michigan Law Review

The English Rule As To Liability For Unintended Consequences, George C. Tilley

Michigan Law Review

The question how far a defendant is liable in tort for the unintended consequences of his wrongful act, generally supposed to have been settled for England by the case of In re Polemis and Furness, Withy & Co., Ltd., has recently been reopened by the House of Lords decision in the case of Liesbosch Dredger v. S. S. Edison. Defendants, owners of the Edison, negligently sank the plaintiffs' dredger Liesbosch while the latter was being used by the plaintiffs in performance of a profitable contract to construct a harbor at Patras, Greece. There was evidence that, …

Attorney And Client - Duty Of Attorney To Follow Client's Instructions

Michigan Law Review

An attorney's duty, where he is specially instructed, is to follow the instructions of his client, except as to matters of detail connected with the conduct of the suit, and he is liable for all losses resulting from his failure to follow such instructions with reasonable promptness and care.

Corporations -Liability Of Broker On Misleading Circulars

Michigan Law Review

The possibilities of civil and criminal liability under the recent Securities Act of 1933 and the Securities Exchange Act of 1934 have caused considerable fear to those business groups which take part in the business of issuing and transferring corporate securities. The federal acts do subject the vendor of securities who induces sales by means of false or misleading prospectuses and circulars to a possibility of civil liability which was not present under the common law. In a recent Michigan case, the court reached substantially the objectives sought by these acts by applying the existing rules of common law in …

Criminal Law And Procedure - Indecent Exposure - Nudism

Michigan Law Review

The two recent cases of People v. Ring and People v. Burke have raised the interesting question of the legal position in this country of the practice of organized nudism. Inasmuch as the decisions are difficult to reconcile, the result is somewhat disconcerting.

Torts - Inducing Breach Of Contract

Michigan Law Review

The recognition of inducement of breach of contract as a tort came only in comparatively recent times, its first clear enunciation being in Lumley v. Gye in 1853. Prior to that case there had been an accepted doctrine that interference with the relation of master and servant was an actionable wrong. Sayre finds the roots of the liability for enticement of servants in the Ordinance of Labourers passed after the Great Plague, and in a confusion of the action based on that statute and the action for forcibly interfering with the servants of another. In Lumley v. Gye the action …

Constitutional Law - Discrimination Against Negroes - Control Of Party Membership, Everett S. Brown

Michigan Law Review

The petitioner, R. R. Grovey, allegedly a citizen of the United States and of Texas, and possessing all the qualifications of a voter, was refused a ballot for a Democratic party primary because he was of the Negro race. Grovey demanded ten dollars damages from the respondent, Albert Townsend, the county clerk, a state officer. The Revised Civil Statutes of Texas provide for primary elections and regulate absentee voting. When Grovey demanded of Townsend an absentee ballot it was refused in virtue of a resolution of the state Democratic convention of Texas, adopted May 24, 1932, as follows:

"Be it …

Constitutional Law - Eminent Domain - Power Of Federal Government To Condemn Land For Slum Clearance Project

Michigan Law Review

In proceedings by the United States government to condemn certain lands in the city of Louisville for the purpose of a slum clearance and low cost housing project, several property owners demurred to the condemnation petitions as being beyond the constitutional powers of the federal government. Although the United States contended that the property was being taken for a public use, in the sense of general public advantage, and that the project was a valid expenditure of public funds for the general welfare, it was held that this condemnation was not within the power of the federal government. United States …

Constitutional Law - Price Fixing - Limits Of Administrative Discretion

Michigan Law Review

An order of the New York Milk Control Board prescribed a minimum selling price to be charged by wholesale dealers to their customers and also a minimum buying price to be paid by the dealers to producers. Competition fixed the minimum selling price as the maximum obtainable. Plaintiff, a wholesale dealer, could not operate at a profit and sued to enjoin enforcement of the order as arbitrary and hence violative of due process. Held, that upon these facts only, with nothing to show that efficient dealers could not operate profitably, the price limits were not arbitrary. Hegeman Farms Corp. …

Corporations - Fiduciary Relation Of Directors - Purchase Of Stock For Company

Michigan Law Review

A company needed a block of stock offered to it in order to acquire certain patent rights. The finances of the company were insufficient to effect the purchase. The board of directors accepted the offer for the company with the understanding that the directors would acquire the stock individually and turn over to the company the needed patent rights. After bankruptcy, the trustee of the company sued to recover profits realized by the directors from a sale of the stock. Held, the inability of the company to purchase the stock itself does not relieve the directors from liability for …

Corporations - Right Of Preferred Stockholders To Participate In Dividends Beyond Specified Amount

Michigan Law Review

The holders of a minority of the preferred stock of a foundry company petitioned for receivership and repayment of part of the dividends which had been paid to common stockholders, contending that after payment of the stipulated 6 per cent dividend on the preferred stock and a like percentage on the common stock, preferred and common stockholders should participate alike in all further dividends declared. There was no provision in the articles or by-laws of the corporation concerning such participation in dividends. Held, that in the absence of express provision, preferred stockholders are entitled to receive only their guaranteed …

Bills And Notes-Alteration By Collateral Written Agreement

Michigan Law Review

Defendant was accommodation indorser on two of four notes executed at the same time with different maturity dates. As part of the same transaction, but unknown to the defendant, the maker, two other indorsers, and the payee, plaintiff in the cause, entered into an agreement in writing whereby the maturity of the unpaid notes would be accelerated on default as to any due. Held, in, an action on the notes, that instruments simultaneously executed and referring to the same subject matter are to be construed together, and the effect of such integration here was to bring about an alteration …

Constitutional Law - Agricultural Adjustment Act - Validity Of Milk Licenses Under Section 8 (3)

Michigan Law Review

Pursuant to the authorization of Section 8 (3) of the Agricultural Adjustment Act, the Secretary of Agriculture issued a blanket license in the Baltimore Sales Area whereby the distributors of fluid milk or its products in the current of interstate or foreign commerce were subjected to detailed regulation of production and purchase and resale prices. The plaintiff dairy company, handling milk produced and consumed exclusively within the state, sought an in junction against the enforcement of the license. Held, in granting a final decree, that the plaintiff's activities were not in the current of and that they did not …

Constitutional Law - Power Of Congress To Punish For Contempt - Power To Punish For Completed Acts

Michigan Law Review

Petitioner was attorney for certain air lines and during the course of the "Air Mail" contracts investigation in the Senate in 1934 was ordered to produce certain correspondence. He delayed, claiming an attorney's privileges, and either he or his partner allowed clients to remove certain of the papers asked for from his files. Some of the papers were later returned by the clients, and others were destroyed. Petitioner was committed for contempt of the Senate and brought habeas corpus proceedings. Held, (1) neither the fact that an obstruction of legislative process has been removed or that its removal has …

Constitutional Law-Service Of Process-Jurisdiction Over Non-Resident Acquired By Service Upon Resident Agent, Maurice S. Culp

Michigan Law Review

Henry L. Doherty, a non-resident of the State of Iowa, did business within the state under the name of Henry L. Doherty & Co., with a district manager in charge of the office at Des Moines. Under the manager were clerks and salesmen engaged in the business of selling securities. One of these salesmen made an illegal sale to Goodman, and for damages resulting from the transaction Goodman brought suit in 1931, serving in the regular manner in accordance with the provisions of section 11079 of the Iowa Code the district agent at the Des Moines office. Doherty appeared specially …

The Effect Of Inflation On Private Contracts: United States, 1861-1879, John P. Dawson, Frank E. Cooper

Michigan Law Review

The Northern inflation coincided almost exactly in its early stages with the inflation in the South, and was produced by the same basic factor - a budgetary deficit due to war expenditure. The financial mobilization of the North was handicapped at the outset by a deficit inherited from the previous administration and by an impaired national credit. The prompt response of the Northern banks enabled the Treasury to overcome this initial handicap and to finance the greatly increased expenditure through the early months of the war. How long orthodox methods of borrowing would have sufficed has been ever since a …

Attorney And Client-Appropriate Penalty For Embezzlement As Executor

Michigan Law Review

An attorney over a period of two years converted for his own purposes $12,500 from two estates of which he was executor. Although the Chicago Bar Association Committee on Grievances recommended disbarment it was held, three justices dissenting, that defendant should be suspended for two years and until complete restitution was made. In re Borchardt, (III. 1934) 192 N. E. 383.