Law Commons^™

Libel And Slander-Fair Comment

Michigan Law Review

The plaintiff sued the defendant publisher for an alleged malicious attack on him as the coach of the local high school football team. The newspaper article in question, after reciting several defeats suffered by the local aggregation, declared that the players were not well versed in the fundamentals of the game, that the system of plays furnished them was exceedingly antiquated, and that their latent ability had not been brought out by proper coaching. Held, judgment of non-suit reversed, as the plaintiff can recover on proof of express malice. Hoeppner v. Dunkirk Printing Co. (N. Y. 1930) 172 N.E. …

Sales-Conditional Sales-Resale By Seller

Michigan Law Review

Plaintiff bought fourteen cabs from defendant on a conditional sate contract, and after paying more than fifty per cent of the purchase price defaulted in his payments. Defendant then retook possession of the cabs and undertook to foreclose plaintiff's interest therein by a resale at public auction, as required by the Uniform Conditional Sales Act, in force in the jurisdiction. The specific requirements of the Act relative to notice of the sale were complied with, but the notices did not state where the cabs were being kept, and at the time of the sale they were in a garage miles …

Insurance-Misrepresentations-Insertion Of False Answers By Medical Examiner

Michigan Law Review

If an applicant for life insurance, in answering the many questions put to him by the company's medical representative, tells the truth, but the examiner, in recording the answers, distorts them without the knowledge of the insured, may the beneficiary or the personal representative of the insured show this distortion by parol, and collect on the policy in spite of the presence of false written answers in the application? The New York court of appeals, in the very recent case, Minsker v. John Hancock Mutual Life Insurance Co., 254 N. Y. 333, 173 N.E. 4, answers this question in …

Covenants--Mistake Of Law--Warranty Against

Michigan Law Review

The Municipal Metallic Bed Mfg. Co. leased a building from Dobbs in reliance on his representation that it was not illegal to manufacture in said building, and the lease contained a warranty to that effect, and a promise to indemnify the Bed Co. for any loss sustained in case it should prove illegal to use the building for the purpose intended. It later proved that due to the New York building code the building could not be used for manufacturing, and the Bed. Co. sued for the loss it sustained as a result. Held, plaintiff could recover on the …

Crimes--Acts Done In Commision Of Felony-Common Design

Michigan Law Review

A group of rioting convicts freed the defendants from their cells in Auburn Prison. The defendants joined in a demand on the prison authorities for liberty to leave the prison safely, and in a threat, in case of resistance to their efforts and demands, to kill the warden and seven guards, who had been captured and disarmed and were held as hostages. The prison authorities adopted a ruse. They permitted the convicts to go into the guard room with the captured personnel, where gas bombs were then discharged. Six to a score of shots were fired, all coming, according to …

Mortgages-Foreclosure-Default In Interest

Michigan Law Review

Plaintiff was a mortgagee of certain real property. A clause in the mortgage provided that the whole amount should become due after default for twenty days in the payment of any installment of interest. Through an arithmetical error of its clerk, the defendant corporation, owner of the equity of redemption, paid $401.87 less than the amount of interest due on one installment. The total interest due was $4621.56. The clerk discovered the error and notified the mortgagee that it would be corrected as soon as the president of the corporation, who alone was authorized to sign checks, returned from Europe. …

Limitation Of Actions-Effect Of Fraudulent Concealment

Michigan Law Review

Plaintiff sued in equity for a money judgment on defendant's promissory notes. Defendant had fraudulently represented that her husband's estate was liable on these notes, inducing plaintiff to sue the estate and thus delay for more than six years in starting suit against defendant. Plaintiff had sued defendant at law on the notes, defendant had pleaded the statute of limitations, and plaintiff had discontinued. Held, that plaintiff could recover a money judgment in equity, since the remedy at law was barred by the statute of limitations. Dodds v. McColgan (N. Y. App. Div., 1930) 241 N. Y. S. 584.

Corporations-Basis For Preemptive Rights

Michigan Law Review

Defendant corporation's authorized capital stock consisted of 800 shares of common stock, 76 shares of which remained unissued. Over the objection of the plaintiff, the directors of the corporation authorized the issue of 50 shares of the 76 to a salesman in satisfaction of a debt due him from the corporation, the remaining 26 shares to one of the directors for cash with which to meet corporate indebtedness. No contest for corporate control was afoot. No opportunity was given to the shareholders generally to purchase such shares. Later the faction of the individual defendants to whom said 26 shares had …

Garnishment-Foreign-Double Liability

Michigan Law Review

Plaintiff, a resident of New York, obtained a judgment in Connecticut against El Saieh, a resident of Haiti, the court in that action obtaining jurisdiction by garnishment of a debt owed El Saieh by defendant, a Connecticut corporation, which was served with garnishment process, and admitted an obligation to El Saieh based on a policy of fire insurance issued through its agency in Haiti on a stock of goods located there. Plaintiff then sought to enforce the judgment against the defendant garnishee, which set up a defense of double liability, contending that under the laws of Haiti it was absolutely …

Trusts-Apportionment Of Extraordinary Dividend From Sale Of Property By Realty Company Between Life Tenant And Remainderman

Michigan Law Review

After death of the testator, leaving his wife shares in a realty company as part of the residue of his estate in trust to receive the rents, profits, and income of the same for her natural life, the company sold the greater portion of its property and declared a cash dividend of 100 per cent. Held, that it belonged to the remainderman and not the life beneficiary. In re Jackson's Will, 239 N. Y. S. 362.

Trusts-Degree Of Duty To Which A Trust Is Bound

Michigan Law Review

In an accounting proceeding certain objectors sought to surcharge the Fulton Trust Company of New York, as testamentary trustee, for loss in the trust fund due to the retention of securities taken over from the executors at the time the trust was set up, seven years previous to the accounting. The securities, consisting of stocks in sugar companies, had greatly decreased in value. The trustee was not charged with having acted in bad faith, but with negligence in having retained the securities, although authorized to do so by the will. Held, that much more was expected from a trust …

Liability Of Landowner To Pedestrians-Negligence-Independent Contractor

Michigan Law Review

Two recent cases present interesting situations involving the liability of a landowner for injuries to pedestrians occasioned by falling street signs.

A Rational Theory For Joinder Of Causes Of Action And Defences, And For The Use Of Counterclaims, William Wirt Blume

Michigan Law Review

In discussing, first, the joinder of actions it will be convenient to consider three groups or classes of cases:

Class I : Where one plaintiff (or joint plaintiffs) unites in a single proceeding two or more causes of action against one defendant (or joint defendants).

Class 2: "Where two or more plaintiffs, each having a cause of action against the same party (or parties), unite their causes of action in one proceeding.

Class 3: Where one plaintiff (or joint plaintiffs) having several causes of action, each against a different party, unites them in one proceeding.

In considering each group or …

Unrecognized Government Or State In English And American Law (Part 2), Edwin D. Dickinson

Articles

PROBABLY no one in the British Empire or the United States would question the doctrine that it belongs exclusively to the political departments to recognize new governments or states. The difficulties involved are those which arise in the application of a doctrine so broadly stated. Not every situation involving an unrecognized government or state requires the decision of a question of recognition. If the decision of a political question is not involved, then it is entirely proper for the courts to take cognizance of a mere de facto government or state. In what situations may the courts appropriately take account …

Unrecognized Government Or State In English And American Law (Part 1), Edwin D. Dickinson

Articles

From the decision of this novel case, reported as Pelzer v. United Dredging Co., we may infer that the New York courts regard unrecognized Mexico as a sort of legal vacuum. In granting the corporation's motion for judgment on the pleadings, the Supreme Court said: "The administratrix plaintiff is an officer of a foreign court. It is syllogistically true that if the foreign court has no recognized power here she may not assert a right derived through her appointment therefrom. The Mexican government is not de facto here, since recognition alone can make it so. It may have all the …

Perpetuity Statutes, Edwin C. Goddard

Articles

THE common law of perpetuities is one of the most interesting examples of almost pure judicial legislation. De Donis, The Statutes of Uses and of Wills, but gave wider scope to the development by the courts of rules of law to thwart the attempt of the great landowners to tie up their landed estates in their families in perpetuity. One body of rules to this end limited restraints upon alienation, another the creation of future interests vesting at too remote a period. Restriction of restraints upon alienation, and the rule against perpetuities, these two were developed for the same end, …

Extension Of Judicial Review In New York, Edward S. Corwin

Michigan Law Review

There are several reasons why it should be worth while to investigate the operation of the most unique of American governmental institutions in the most important state of the Union. For one thing, in the person of Chancellor KZN" New York furnished one of the founders of American Constitutional Law, while at the same time it was KzNT's fame that early gave New York decisions the importance they still retain in great part in the field of citation and precedent. Again it was YNT'S influence that inclined the fresh shoot of constitutional jurisprudence in New York in a conservative direction, …

The Michigan Judicature Act Of 1915, Edson R. Sunderland

Articles

IN 1848 a wave of reform in judicial procedure began to sweep over the United States. In that year the legislature of New York enacted the Code of Civil Procedure, a statute of far-reaching importance, for it became the source of and the model for similar legislation in almost two-thirds of the States in the Union.

Taking Of Equitable Easements For Public Use, Edgar N. Durfee

Articles

The case of Flynn v. New York &c Railway Co., decided by the Court of Appeals of New York in April last, involves the right of an owner of land to which is appurtenant a so-called equitable easement, arising under a covenant restricting the use of other land, to compensation upon the taking of the servient land for a public use inconsistent with the restriction. A tract of land was laid out in accordance with a plan, and all, lots therein were sold and conveyed by deeds containing covenants, inter alia, that, "No building or structure for any business purpose …

Mortgagee In Possession In New York And Michigan, Edgar N. Durfee

Articles

It is interesting to observe how tenaciously the old common law of mortgages has persisted in the state of New York, the very cradle of the modem lien theory of the mortgage. As early as 1802 Chancellor KENT began the importation into that state of Lord MANSFIELD'S Civil Law doctrines of mortgage. Johnson v. Hart, 3 Johns. Cas. 322. In 1814, in the case of Runyan v. Mersereau, 11 Johns. 534, the lien theory definitely triumphed over the old law. In other cases, both before and since the statute of 1828 denying ejectment to the mortgagee, the details of mortgage …

New Doctrine Concerning Contracts In Restraint Of Trade, Jerome C. Knowlton

Articles

Is a covenant in restraint of a particular trade and unlimited as to space against public policy and therefore void and unenforceable? Long ago an English judge, in speaking of the making of contracts, protested against arguing too strongly upon public policy. "It is a very unruly horse, and, when once you get astride it, you never know where it will carry you."1 Right he was and is, and the judge who would keep his saddle must be a good rider, for the horse shies badly on the way at every new condition in trade and commerce, occasioned by recent …

Freedom Of Contract, Jerome C. Knowlton

Articles

The liberty mentioned in the Fourteenth Amendment of the Federal Constitution "means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary …

How May Presidential Electors Be Appointed?, Bradley M. Thompson

Articles

For more than half a century presidential electors have been chosen upon a general ticket in all the states. This was not the uniform practice at first. Judge Cooley in the last number of the JOU11NAL makes it clear that at least four different methods were at first adopted, one of them, the "district system," being that selected by the last legislature of Michigan. Following Judge Cooley's article is one by Gen. B. M. Cutcheon attacking this system on two grounds: First, that it is in conflict with the Constitution of the United States; and, secondly, that it is mischievous …