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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 35, Issue 6 of Michigan Law Review

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 …

Corporations - Foreign Corporations - Service Of Process Based Upon Solicitation, Donald H. Larmee

Michigan Law Review

The question of just when a foreign corporation is amenable to process for an in personam action has long troubled the courts. To one who is seeking a clear and applicable formula, the cases in this field offer but little aid because of the confusion created by the multitude of decisions upon the problem. The decisions of the United States Supreme Court itself are of no great assistance in deriving such a formula. Many attempts have been made by legal writers to define a working rule for this problem as a whole. However, the present writer will endeavor only to …

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 …

Trade - Marks And Trade Names - Effect Of Word - Mark Acquiring A Descriptive Connotation, Grover C. Grismore

Michigan Law Review

One of the principal stumbling blocks in the way of the development of a consistent and satisfactory theory of trade-mark protection has been the anomalous distinction that has always been made between the so-called technical or common-law trade-mark, and the non-technical mark or tradename. This distinction, as has been pointed out previously in this Review, grew somewhat accidentally out of the supposed limitations on the jurisdiction of equity. Some of the earliest trade-mark cases proceeded on the theory that to justify the intervention of a court of equity, when the defendant was not shown to have been guilty of …

Appeal And Error-Appealable Interest Of Bidder At Judicial Sale, Michigan Law Review

Michigan Law Review

The receiver of a bank effected a compromise settlement with the maker of a second mortgage note of $2100, agreeing to sell him the note for $500. Notice of hearing to confirm this sale was published. Prior to the confirmation, appellant, who was the holder of the first mortgage, offered to pay the receiver $600 for the note. The court confirmed the sale to the maker over appellant's objection made at the hearing. Held, that the appellant was not an aggrieved party and had no appealable interest. Dean v. Clapp, (Iowa 1936) 268 N. W. 56.

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 …

Damages - Applicability Of Gold Clause Resolution To Obligation To Deliver Gold Bullion, William J. Isaacson

Michigan Law Review

Petitioner lessor and respondent lessee entered into a lease for the enjoyment in perpetuity of water power rights. The yearly rental was stipulated to be "a quantity of gold which shall be equal in amount to fifteen hundred dollars of the gold coin of the United States of the standard of weight and fineness of the year 1894, or the equivalent of this commodity in United States currency." In 1934, after the devaluation of the dollar by the Federal Government, the lessors intervened in the lessee's reorganization proceedings and filed a claim for rent. The petitioners requested that the lessees …

Gifts Of Choses In Action -- Delivery, Michigan Law Review

Michigan Law Review

The alleged donor of a trust certificate of the X trust company presented it at the office of the company, had the assignment blank on the back of the certificate filled in and the name of the donee registered on the books of the company, but retained possession of the certificate at all times except during the interval when the registration was taking place. Previous to the transaction the donor had stated that he did not intend to "sign it over" to the donee but merely to "have it fixed in case something happened to him." Yet he told the …

Powers - Execution By A Residuary Clause, Herman J. Bloom

Michigan Law Review

A testator devised all his property in trust; he instructed the trustees to purchase a residence for his wife and gave her the general power to appoint by will, both with respect to this proposed residence and with respect to a sum of money from the testator's estate, the aggregate amount being $20,000. The trustee purchased a 25-foot lot and the wife purchased 8 1/ 3 feet of an adjoining lot. At the request of the wife, the trustees erected a two family residence, the main part of the building being on the 25-foot lot, but the eaves and one …

Specific Performance - Contract To Make A Will - Right To Specific Relief For Breach Where Promisee Predeceases Promisor, Elbridge D. Phelps

Michigan Law Review

In September, 1930, Cornelius Powell died testate, leaving certain personalty absolutely to his wife, Elizabeth Powell, and devising certain realty to her for life, with a remainder over to his son, Clifford S. Powell. Subsequently, Elizabeth and Clifford entered into a written agreement whereby, in consideration that Clifford would convey all his interest in said realty to her, Elizabeth agreed to execute a will giving to Clifford "at her death all of the property then owned by her, whether real, personal, or mixed." Pursuant to this agreement, the requisite instruments were duly executed. On October 31, 1932, Clifford S. Powell …

Taxation - Exemption Of State Instrumentality From Federal Tax, Francis T. Goheen

Michigan Law Review

A federal statute provided that "Upon all tobacco and snuff manufactured or imported into the United States, and hereafter sold by the manufacturer or importer, or removed for consumption or sale, there shall be levied, collected, and paid . . . a tax of 18 cents per pound, to be paid by the manufacturer or importer thereof." The company received an order to deliver a quantity of tobacco to a hospital owned by the State of Massachusetts; the company complied by shipping tobacco which had been previously stamped in accordance with the regulations under the above statute. The state paid …

Torts - Fraudulent Interference With Testamentary Benefits, Michigan Law Review

Michigan Law Review

Instituting a suit for damages, plaintiff alleged by way of application for order of examination that defendants had, by fraudulent misrepresentations, diverted the established intention of decedent to provide for plaintiff in the testamentary disposition of decedent's estate, and consequently no disposition in plaintiff's favor was made, to plaintiff's loss. Held, that plaintiff stated a cause of action in tort. Bohannon v. Wachovia Bank & Trust Co., 210 N. C. 679, 188 S. E. 390 (1936).

Trade Restraints - Federal Trade Commission - False Representation As Unfair Method Of Competion, Michigan Law Review

Michigan Law Review

An order to cease and desist, directed against the defendant publisher and others, forbade the following trade practices: representing that its encyclopedias were given away and that only the "extension service" was sold; representing the work as given away to selected persons among whom the prospective buyer was one; representing the work as new; selling the same under two names; representing its usual price as higher than that at which it was offered; representing any person as a contributor who was not a contributor; representing any person as giving a testimonial who had not done so; publishing garbled testimonials; and …

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.

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 …

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).

Gratuitous Promises-A New Writ?, Warren L. Shattuck

Michigan Law Review

Under the early common law, the fact situations which presented actionable wrongs were limited in number and stereotyped into various writs which issued from the Lord Chancellor. Only as new writs were devised by him was it possible for new fact situations to achieve the dignity of justiciability and so raise legal rights and duties. But with the liberalization of pleading the recognition of new legal rights and duties became a judicial function. In consequence, the constant struggle of new fact patterns for a place in the law is now principally waged before the courts. In this struggle some fail, …

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 …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

Basic Monetary Conceptions In Law, Arthur Nussbaum

Michigan Law Review

While in various periods of American legal history American courts have been confronted with problems of a monetary character, the importance and multiplicity of these questions have never been more strongly felt than within the last few years, and there is certainly no indication that this situation will change in the near future. The jural difficulties arising from monetary troubles are unusual, not only because of their financial and social implications, but also because of their theoretical intricacies. No wonder, therefore, that arguments advanced by courts in cases of a monetary nature are very often highly unsatisfactory. Again and again, …

Police Power - Due Process And State Regulation Of Food Production And Distribution, Charles C. Spangenberg

Michigan Law Review

It is well settled that the state, in the exercise of its police power, may legislate to protect the health and promote the general welfare of its citizens. It is equally well settled that the objects of this solicitude have the right, protected by the Fourteenth Amendment and similar provisions in the state constitutions, to follow such industrial pursuits and make such contracts as they choose. Unfortunately, "these correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the state to regulate the use of property and the …

Bankruptcy - Corporate Reorganization - Plan - Adequate Protection Of Claims - Due Process, Erwin S. Simon

Michigan Law Review

In proceedings for reorganization under Section 77B of the Bankruptcy Act, the debtor held real property valued at $245,025, while outstanding against the property there were first mortgage bonds of $445,000, second mortgage notes for $40,250 and a third mortgage note for $27,000. The court confirmed a plan which made no provision for junior lienors or stockholders, and to which they had not given their consent. On certiorari, granted by the Supreme Court, it was held, that since there was no equity in the property above the first mortgage, the claims of the junior lienors and stockholders had no …

Banks And Banking - Collections - Trust Or Debt, Michigan Law Review

Michigan Law Review

A certificate of deposit issued by A bank and owned by plaintiff was presented for collection in a routine clearance transaction between defendant bank and A bank. A bank paid for the several items presented with other items and a draft. The draft was dishonored. After both banks closed, defendant bank collected the amount of the draft from A bank as a preferred claim. Plaintiff seeks full payment of the certificate of deposit. Held, payment terminated the agency for collection and gave rise to a debtor-creditor relation, and, for this purpose, payment by draft was equivalent to any other …

Easements - Right To Lay Additional Pipes, Michigan Law Review

Michigan Law Review

Defendants had granted to the city of Lynchburg an easement to "lay, construct, operate, inspect, repair and perpetually maintain water or conduit lines with all the necessary fixtures and appurtenances . . . " Pursuant to this grant, the city had laid down a conduit of redwood staves which has now decayed. In this action, the city seeks to enjoin the defendants from interference with the laying down of a new cast-iron conduit which would require the utilization of an additional six feet of land. Held, that the parties had defined their rights under an indefinite grant, and the …

Grand Jury - Power Of Court In Pennsylvania To Direct A General Investigation -Where No Specific Crime Charged, Michigan Law Review

Michigan Law Review

In a criminal case the judge of a Pennsylvania trial court was erroneously informed that the committing magistrate had discharged the accused's accomplices. The judge thereupon charged the magistrate with "fixing," but after investigation merely censured the latter for (1) failing to require bail in certain cases, and (2) remanding one defendant to a trial court without jurisdiction. The judge expressly said that he had no reason to believe the magistrate had acted from any corrupt motive. He nevertheless told a grand jury that a magistrate's violation of law had come to his attention and ordered the jury to investigate …

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 …

Taxation -Federal Estate Tax-Interpretation Of Loss From "Other Casualty", Virginia M. Renz

Michigan Law Review

The Federal Revenue Act provides that losses incurred during settlement of an estate should be deducted when they arise from "fires, storms, shipwreck, or other casualty." Losses to the estate of the testator of the petitioner were caused by Great Britain's going off the gold standard. The petitioners contend this was a casualty within the meaning of the Revenue Act. Held, the language is to be construed according to the rule of ejusdem generis. This casualty is not of the same general kind or class as those specifically mentioned and therefore not within the act. Lyman v. Commissioner of …

Taxation - Situs Of Intangibles - Business Situs, Michigan Law Review

Michigan Law Review

A manufacturing corporation incorporated in Delaware and maintained a nominal office there, but had branch offices and factories in several states. Its principal office was in West Virginia. All contracts made by the branch offices were subject to approval by the home office and withdrawals from the bank deposits in the several states were under the control of the home office. A West Virginia statute placed an ad valorem property tax on corporations whose bank deposits and accounts receivable were "liable to taxation." The state court applied the statute to the bank deposits in banks outside the state and to …