Digital Commons Network^™

Rights Of Finders, Ralph W. Aigler

Michigan Law Review

Because the deeply important jurisprudential concept of possession is involved, cases dealing with the problem of finders assume an importance far beyond their practical significance. The recent decision by the Oregon Supreme Court in Jackson v. Steinburg suggests further discussion of the problem, with particular reference to the cases in that state.

Habeas Corpus-Inadequacy Of State Remedy, Joseph Gricar

Michigan Law Review

Petitioner had pleaded guilty to a criminal indictment and was sentenced to prison by an Illinois circuit court. His petition for a writ of habeas corpus, based upon an alleged denial of due process at trial, was denied without hearing. The Illinois Supreme Court in People v. Loftus, decided in 1949, seems squarely to have held that habeas corpus is a proper post-trial proceeding for hearing charges of denial of due process. Since the Illinois Supreme Court does not review habeas corpus proceedings in the circuit court, the United States Supreme Court granted certiorari. Held, remanded to the …

Constitutional Law-Commerce Clause-State Taxation Of Interstate Commerce, Charles Myneder

Michigan Law Review

Plaintiff corporation owned and operated oil pipe lines lying wholly within the state of Mississippi. Oil transported through these lines was later pumped into railroad tank cars and shipped out of state. The Mississippi State Tax Commission levied a tax against plaintiff measured by its gross receipts for transporting oil through the pipe lines. The state supreme court sustained the tax, ruling that the operation of the pipe lines was intrastate rather than interstate commerce and that the tax was "merely on the privilege of operating a pipe line wholly within this state as a local activity." On appeal to …

Negligence-Joint Enterprise Between Husband And Wife As Basis For Imputation Of Negligence, Theodore Sachs

Michigan Law Review

H's car, driven by H with W as passenger, collided with D's car as H and W were traveling from their California home to visit relatives in Florida. Both intended to seek employment in Florida and, if successful, to take up residence there. Each had been employed since marriage, their salaries going into a common fund. From this fund the car was purchased and the trip financed. In suit by W and H against D, held, recovery of W denied. Because there was a joint enterprise between W and H, H's contributory negligence was …

Finding Lost Goods-Ancient Indian Canoe, Ralph W. Aigler

Michigan Law Review

As a result of a river's change in course, an old Indian canoe buried on certain land was exposed. While swimming in the river, plaintiffs discovered the canoe and told defendant about it. The latter excavated and removed it. The land had been owned by H, who had died many years ago, devising it to his wife for life and then in fee to his daughter. Plaintiffs, intending to exhibit the canoe, paid the wife and her sons ( who had been farming the land) a sum of money for it. In a replevin action, the daughter intervened. Held …

Negligence-Proximate Cause-Intervening Act Of Child, John J. Gaskell

Michigan Law Review

In the race track arena of defendant's fairground there were nightly fireworks displays. Three bombs, similar in appearance to ordinary firecrackers, but containing explosives more powerful than gunpowder, had failed to explode on the previous night. They had been wrapped in paper, placed in open wooden crates alongside three exposed bombs, and left unguarded in the arena firing area which was accessible to and traversed by the general public. The plaintiff's older brother, aged thirteen, together with other children between twelve and fifteen years old, had climbed over a fence into the fairgrounds. In compassing the fairgrounds he discovered the …

Power Of Appointment-Validity Of Exercise Subject To A No-Contest Clause, John J. Gaskell

Michigan Law Review

The decedent received under the will of her husband a general testamentary power of appointment over a remainder interest. In her will she exercised the power, providing that any person benefiting under the power who in any manner should institute, encourage, or participate in proceedings for the avoidance of any part of the will should forfeit his right to any benefits from the power or from her estate. Held, exercise of a general testamentary power of appointment subject to a no-contest forfeiture provision is valid. Marx v. Rice, 1 N.J. 584, 65 A. (2d) 48 (1949).

Negligence-Application Of The Rescue Doctrine Where Personal Property Is Involved, Thomas Hartwell

Michigan Law Review

The defendant's servant, while parking the defendant's automobile, negligently failed to secure the brakes. At defendant's request, plaintiff police officer attempted to enter the automobile after it had started to roll, hoping to avert any possible collision. In so doing, he slipped on a stone and was injured. Defendant demurred to plaintiff's complaint on the grounds that the plaintiff was contributorily negligent, as a matter of law, and that the rescue doctrine should not apply where that rescued from peril created by the defendant is not human life or the rescuer's own property. Held, the rescue doctrine was correctly …

Real Property-Adverse Possession-Adverseness Of Possession When Possessor Has Not Claimed A Fee, Hugh B. Muir

Michigan Law Review

From 1924 until 1948 plaintiff and her family were in apparent, open and continuous possession of a portion of defendant's lot, without permission, and with the intent to exclude the defendant and all others from possession. Although plaintiff and her family constructed a lawn, gardens, steps and parking space on the premises, the court found that such use was "an incident to her occupancy of the house" on the adjoining lot, and was without any separate claim of title. In 1948, defendant entered and began excavating for the foundation of a house. Plaintiff sought an injunction and damages, resting her …

Procedure-Contempt As Sanction To Enforce Delivery In Replevin, John A. Nordberg

Michigan Law Review

In a replevin action in a common pleas court the plaintiff, after filing a $200 bond for property later valued at $900, obtained possession of some household goods of the defendant under a fatally defective writ. On motion of the defendant the court dismissed the action and ordered the property returned. On appeal, plaintiff's action was again dismissed and he was directed to return defendant's goods. He ignored the order and was adjudged guilty of contempt. On appeal in the nature of certiorari from this conviction, held, reversed without prejudice. The order was void since the court had lost …

Sales-Criminal Law- Elements Of Unlawful Sale Of Narcotics, Robert W. Shadd

Michigan Law Review

Appellant, known to be peddling morphine, was contacted by a federal narcotic inspector who posed as a prospective purchaser. A price having been agreed upon, appellant permitted the inspector to handle and examine several of the tablets. After stating that he would take the drug, the inspector placed appellant under arrest. From a conviction of selling narcotics in violation of the Harrison Act, appellant appealed. Held, affirmed. A sale of narcotics is not complete without payment of the purchase price or delivery, but the facts here warranted a jury in finding that delivery was made. Barnett v. United States …

Reel: The Case Of General Yamashita, Michigan Law Review

Michigan Law Review

A Review of THE CASE OF GENERAL YAMASHITA By A. Frank Reel.

Wills-Holographic-Evidence As To Testamentary Intent, Alan P. Goldstein S. Ed.

Michigan Law Review

The deceased had in her possession, at the time of her death, an envelope entitled 'Will of Ella McNair." The envelope contained three separate sheets of paper dated some nineteen months prior to Ella's death, upon which was written, entirely in the hand of the deceased, what purported to be a will. The document opened with the statement "I, Ella McNair . . . do hereby make my last will." The exordium was followed by fifteen specific bequests, and then the writing ended abruptly at the middle of the back of the third sheet. At the top of the second …

Keeney: Judgment By Peers, Michigan Law Review

Michigan Law Review

A Review of JUDGMENT BY PEERS. By Barnaby C. Keeney.

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.

Wills-Construction-Meaning Of The Phrase ''Nearest Of Kin", Daniel A. Isaacson

Michigan Law Review

Testator died in 1931, leaving his estate in trust for the life use and benefit of his wife. The will further provided, inter alia, that "Upon the death of my wife, I order and direct my said executor to pay and distribute the one-half of all my said estate unto my nearest of kin in equal shares and to pay and distribute the other half of all my said estate unto the nearest of kin of my wife in equal shares." Testator's wife died in April, 1947. The testamentary trustee filed a petition for construction of the will to determine …

Torts-Family Relationship-Child's Right To Recover For Enticement Of Parent From Home, William H. Lowery

Michigan Law Review

Plaintiff, a six year old girl, sued to recover damages alleged to have been sustained as a result of defendant's enticing her mother from the family home. Plaintiff contended that as a child and member of the family she had a legally protected right to maintenance of the family relationship. Defendant answered that no tort had been committed, since no right in the plaintiff was recognized at common law and that to recognize such a right would amount to judicial legislation. From a judgment in favor of plaintiff, defendant appealed. Held, affirmed. Allowing a child a right of action …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 48, Issue 2 of Michigan Law Review

Accrual Problems In Tax Accounting, Alfred E. Holland

Michigan Law Review

Quite frequently at the end of a taxable year some uncertainty qualifies the eventual payment or receipt of an obligation. An obligor may refuse to pay the debt for any number of reasons. There may be disagreement as to the amount which is due; the obligation may not appear collectible; or there may be some other contingency which makes eventual receipt or payment appear uncertain at the time. This uncertainty presents a problem to the taxpayer when he closes his books at the end of the year. Should such an uncertain item be entered on the books as income for …

The Law School 1949-50, E. Blythe Stason

Michigan Law Review

Notwithstanding the fact that the peak of postwar veterans' enrollment is supposed to have subsided, the 1949-50 enrollment in the Law School remains substantially the same as it has been during the past several years. Last year we recorded a total of 1057 students; this year the figure is 1030. The beginning class of 409 students, together with 273 second-year and 328 third-year students, to which must be added 20 graduate students, all add up to the total, 1030. Thirty-three of the total are women, the largest women's enrollment ever recorded in the School. The group of 20 graduate students …

Contributory Infringement And The Combination Patent, Samuel Ewer Eastman

Michigan Law Review

The right of action for contributory infringement of a patent was forged by judicial legislation, and, as limited and subjected to opposing rules of law, has been tempered by that same process. The history is exemplary of the control over society exercisable by the courts according to their own individual economic outlook.

In tracing this history, buying agreements, price-fixing, agreements not to deal in the goods of a competitor, conspiracies to restrain trade through licensing, and other business arrangements subject to scrutiny under the anti-trust laws will be dealt with only incidentally. It is not possible to deal only with …

Corporations-Applicability Of General Corporate Dissolution Procedure To Associations Organized Under Building And Loan Act, Howard W. Haftel S.Ed.

Michigan Law Review

Building and loan associations are organizations designed for the general purpose of accumulating by gradual payments of their members a fund to be invested primarily in loans on real estate. At present these organizations almost invariably are corporations for profit. Because of their economic importance these associations have long been regarded as affected with a public interest and therefore subject to a higher degree of regulation than would be sustained in the case of ordinary profit-making corporations. Special legislation is necessary because building and loan associations differ widely from other corporations in financial structure and operation.

Corporations-General Effect Of Statutes Prohibiting Corporate Loans To Directors, Officers And Stockholders, Paul W. Eaton, Jr.

Michigan Law Review

Over the years a number of states have felt that loans by private corporations to their directors and stockholders should be regulated to protect the interests of creditors and, in many cases, stockholders. At present, twenty-two states have statutes which either absolutely prevent such loans or else limit their scope, and this number will probably increase. A typical statute may be found in New Jersey: "No corporation shall loan money to a stockholder or officer thereof. If any such loan be made the officers who make it, or assent thereto, shall be jointly and severally liable, to the extent of …

Libel And Slander-Testamentary Libel, Charles Hansen S.Ed.

Michigan Law Review

Although the right to recover for injury from admittedly defamatory matter would seem to be clear, the law imposes a series of obstacles when the offending statements are embodied in a will. Of the few cases which have arisen in this area, a recent decision, Carver v. Morrow, serves to illustrate the general problem. In this case, plaintiff claimed that portions of testatrix' will defamed him. After the will was probated, he brought an action against testatrix' executors on the ground that publication had been effected by probate, and that therefore a cause of action in libel existed against …

Constitutional Law-Eminent Domain-Elements Of Fair Value, Hugh B. Muir

Michigan Law Review

Respondent bought the tug MacArthur from the Coast Guard in March, 1942. Exclusive of his own labor, his outlay for purchase and repair of the tug totaled $8,574.78. In October, 1942, the War Shipping Administration, acting under the Merchant Marine Act of 1936, requisitioned the tug and awarded compensation of $9,000. Respondent contested the award, and the Court of Claims found that the fair market value at the time of taking was $15,500. This determination was made without deduction for enhancement of value due to the government's need of vessels, or previous taking of vessels of similar type. The Court …

Constitutional Law-Equal Protection-Foreign Corporations-Discriminatory Intangibles Tax, Robert P. Griffin S.Ed.

Michigan Law Review

An Ohio statute required foreign corporations doing business within the state to pay an ad valorem tax on accounts receivable which arose through outstate sales of goods shipped from warehouses within the state, even though the sales were consummated by an agent maintaining his office without the state. Such intangibles were declared by the Ohio statutory formula to have a situs within the state. At the same time, the accounts receivable of Ohio residents and domestic corporations which were derived from outstate sales by agents having their offices without the state were exempt, even though the goods were shipped from …

Constitutional Law-Privilege Against Self-Incrimination-Waiver Under Compulsory Testimony Act, John A. Nordberg

Michigan Law Review

Smith, sole owner and officer of a clothing corporation, appeared before an OPA examiner in response to a subpoena to produce the corporate books. Under the Emergency Price Control Act these records were required to be kept and preserved. Smith said that the records were "destroyed, lost, or misplaced.'' Then, on claiming privilege against self-incrimination, he testified as to activities of the corporation and contents of the absent records. During the interrogation Smith made a long statement in partial summation of his testimony. When he finished, he was asked, ''This is a voluntary statement. You do not claim immunity with …

Corporations--By-Laws--Restrictions On Transfer Of Bank Stock, Hugh B. Muir

Michigan Law Review

Plaintiff received thirty shares of bank stock by bequest. Before she presented the shares to the bank for transfer, the stockholders, by a majority vote (plaintiff dissenting), amended the by-laws so as to limit to certain classes the persons to whom the bank stock could be transferred, whether by transfer inter vivos, will, or descent. A mandamus proceeding was initiated against the bank to compel a transfer of the shares free of the restrictions. On defendants' appeal from a ruling denying a motion to quash an alternative writ, held, affirmed. The restrictions sought to be imposed were not authorized …

Courts-Martial--Jurisdiction Over Person Discharged And Re-Enlisted For Offense Committed During Prior Enlistment, J. D. Mcleod S.Ed.

Michigan Law Review

Petitioner, a chief petty officer in the Navy was honorably discharged on March 26, 1946, and re-enlisted on the following day. In 1947, he was tried by court-martial and convicted of cruelty, during his prior period-of service, to persons subject to his orders. The District Court sustained his writ of habeas corpus on the ground that the court-martial had no jurisdiction; the Circuit Court of Appeals reversed. On certiorari to the Supreme Court of the United States, held, the court-martial had no jurisdiction to try petitioner for an offense committed prior to his discharge and re-enlistment. United. States ex …