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Articles 31 - 60 of 62
Full-Text Articles in Law
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Articles
IT is now more than thirty years since Justice Holmes in a brilliant and daring essay set on foot an inquiry which has revealed the remote beginnings of English equity. Equity and common law originated in one and the same procedure and existed for a long time, not only side by side, but quite undifferentiated from each other. Their origin is to be found in the system of royal justice which the genius of Henry II converted into the common law; but this royal justice was in the beginning as much outside of, or even antagonistic to, the ordinary judicial …
Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates
Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates
Articles
Four and one-half centuries later the "sovereign state" of Virginia sued the "sovereign state" of West Virginia to recover a sum of money alleged to be due upon the agreement of West Virginia to assume its proportionate share of the debt of the old state of Virginia. The suit was brought in the Supreme Court of the United States, which after prolonged consideration rendered judgment for the plaintiff. No execution or other compulsory process was issued, however. But now after delays for various reasons and pretexts urged by West Virginia the court is compelled to face the problem of what …
Privilege Of Enemy Aliens To Maintain Actions, Ralph W. Aigler
Privilege Of Enemy Aliens To Maintain Actions, Ralph W. Aigler
Articles
In his History and Practice of Civil Actions, Lord Chief Baron Gilbert (p. 205) states that alienage is a disability which must be pleaded to the action, "because it is forfeited to the King, as a rep-isal for the damages committed by the Dominion in enmity with him. In 1 Hale's Pleas of the Crown, (p. 95) it is said "That by the law of England debts and goods found in this realm belonging to alien enemies belong to the King, and may be seized by him," Y. B. 19 E 4, 6, is cited to that effect. The provisions …
Contingent Gifts And Incorporation By Reference, John R. Rood
Contingent Gifts And Incorporation By Reference, John R. Rood
Articles
The courts have had great difficulty in reconciling certain contingent gifts with the statutes requiring wills to be in writing duly executed. At first glance there appears no inconsistency, but in practice troubles accumulate.
Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour
Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour
Articles
One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will …
The Statute Of Uses And Active Trusts, Edgar N. Durfee
The Statute Of Uses And Active Trusts, Edgar N. Durfee
Articles
To explain the survival of uses, alias trusts, after the Statute of Uses, one is probably justified in assuming a sympathetic attitude toward this Equitable institution on the part of the Common Law Judges. Maitland, Equity, 29. But, however predisposed the Judges might be, they would have to satisfy themselves, perhaps others as well, that they were interpreting rather than nullifying the Statute. Only such uses could be saved as could be "distinguished." The case of the use raised upon a chattel interest is clear enough, as it was without the letter, and fairly without the mischief, of the Statute. …
Who Is An Alien Enemy?, Edson R. Sunderland
Who Is An Alien Enemy?, Edson R. Sunderland
Articles
One Gustav Muller, a native German, resided in England on May 20th, 1915. He had never been naturalized. He owned a leasehold house in England, and on the date just mentioned he executed a power of attorney to one John White to sell this leasehold house and make proper conveyance of the same. Six days later he was permitted by the British Government to return to Germany, and he started the same day, May 26th. He was known to be in Germany on June 11th, but the date of his arrival was unknown. On June 2 the leasehold was sold …
Anglo-Saxon' And 'Teutonic' Standards Of Justice, Edson R. Sunderland
Anglo-Saxon' And 'Teutonic' Standards Of Justice, Edson R. Sunderland
Articles
In The Kaiser Wilhelm II, 230 Fed. Rep. 717, the British shipbuilding firm of Harland & Wolff filed a libel against the steamship Kaiser Wilhelm II, owned by the North German Lloyd, a German corporation, for repairs made on the ship in libelant's shipyard in England. This suit was commenced before the United States entered the war, and the court made an order dismissing the libel on the ground that Great Britain and Germany had each enacted laws forbidding its subjects from making any payments to the subjects of the other, and as these enactments were merely declaratory of the …
Liability Of Corporations For Slander, Horace Lafayette Wilgus
Liability Of Corporations For Slander, Horace Lafayette Wilgus
Articles
S. entrusted by the president and general manager of a corporation with the business of obtaining a settlement from plaintiff for a mistakenly supposed shortage in his accounts with the corporation, falsely orally charged him with embezzlement. This charge was made to R., president of another corporation for which the plaintiff was working at the time, and as a step toward getting a settlement by the plaintiff. On the request for a directed verdict, by the defendant, the legal question was presented whether a corporation is liable for slander spoken by the agent of the corporation in the course of …
Partnership Entity And Tenancy In Partnership: The Struggle For A Definition, Joseph H. Drake
Partnership Entity And Tenancy In Partnership: The Struggle For A Definition, Joseph H. Drake
Articles
PARTNERSHIP is a legal entity formed by the association of two or more persons. This definition of a partnership as a person or entity represents what may be characterized as a generally accepted theory among American jurists at the time of its publication in 1893. But a later definition says: "A partnership is an association of two more persons." "A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership." The second definition shows that the Commissioners on Uniform State Laws have rejected the entity theory and coined a new term to describe partnership …
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
Articles
The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.
The Sheriff's Return, Edson R. Sunderland
The Sheriff's Return, Edson R. Sunderland
Articles
When William the Conqueror found himself military master of Britain, he was confronted by a governmental problem quite different from that which has usually accompanied foreign conquest. He did not subdue a nation already organized, substituting his power for that of its former ruler in the conventional way of conquerors. Britain was a geographical unit but politically and socially it was a congeries of loosely related communities. The natural law of survival of the fittest normally operates upon peoples as upon individuals, and develops centralized power as a means of self-preservation. But Britain had a substitute for this. The sheltering …
Rule Against Perpetuities As Applied To Options, John R. Rood
Rule Against Perpetuities As Applied To Options, John R. Rood
Articles
Does the rule against perpetuities render unlimited options void? This is a question which the English courts answered affirmatively some thirty-five years ago; new aspects of the question have been frequently presented to those courts since that time, and conclusions not easy to reconcile have been reached. It is believed that the present status of the law in England is that an option is like any other interest in land, void if it may arise at too remote a time, otherwise not. This conclusion is based on the decision in Borland's Trustees v. Steel Bros. & Co. [1901] 1 Ch. …
The Liability Of The Common Carrier As Determined By The Recent Decisions Of The United States Supreme Court, Edwin C. Goddard
The Liability Of The Common Carrier As Determined By The Recent Decisions Of The United States Supreme Court, Edwin C. Goddard
Articles
An understanding of the present day liability of the common carrier under conditions as they exist, especially in interstate shipments, is best reached by an historical journey from the early decisions of the Supreme Court of the United States to the end of the year just past.
The Inefficiency Of The American Jury, Edson R. Sunderland
The Inefficiency Of The American Jury, Edson R. Sunderland
Articles
What is proposed in the present article is to show that in attempting to preserve the independence of the jury in its exclusive juris- diction over questions of fact, the people and the courts in most American jurisdictions have departed from the common law practice and have introduced a principle calculated to undermine the very institution which they wish to strengthen. That is to say, through the rules prohibiting judges from commenting on the weight of the evidence, juries tend to become irresponsible, verdicts tend to become matters of chance, and the intricacy of procedure, with its cost, delay and …
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Articles
PRESIDENT BUTLER of Columbia University is reported to have said in an address before the New York Chamber of Commerce in 1911, that "the limited liability corporation is the greatest single discovery of modem times, whether you judge it by its social, by its ethical, by its industrial, or, in the long run--after we understand it and know how to use it,--by its political, effects." 1
Admiralty Jurisdiction And State Waters, John B. Waite
Admiralty Jurisdiction And State Waters, John B. Waite
Articles
The case of Ex parte Boyer1 closes with the statement that it "does not raise the question whether the admiralty jurisdiction of the district court extends to waters wholly within the body of a state, and from which vessels cannot so pass as to carry on commerce between places in such state and places in another state or in a foreign country; and no opinion is intended to be intimated as to jurisdiction in such a case." Nor does any other case appear directly to intimate such an opinion, unless it be that of Stapp v. Clyde2 wherein a state …
The Teaching Of Practice And Procedure In Law Schools, Edson R. Sunderland
The Teaching Of Practice And Procedure In Law Schools, Edson R. Sunderland
Articles
Procedure is merely the means of co-ordinating effort, of harmonizing differences, of offering every one equality of opportunity in offense and defense before the law. Without it there would be confusion, favoritism, and injustice. If the subject were viewed in this fundamental way, and were studied conscientiously as an incident and aid to the development and determination of the merits of controversies, the criticisms now so fiercely directed against it would largely disappear. In its use it is indispensable, in its abuse only does it cause trouble. A professional conscience to curb that abuse, and professional learning and skill to …
The Rule Of Certainty In Damage And The Value Of A Chance, Joseph H. Drake
The Rule Of Certainty In Damage And The Value Of A Chance, Joseph H. Drake
Articles
AIthough our text-books say that the rule of certainty is "more fundamental than any rule of compensation because compensation is allowed or disallowed subject to it," (cf. SEDGWICK, EL. or DAMAGES, p. 12) nevertheless the tendency of the courts seems to be to save the equitable principle of compensation at the expense of certainty. A striking illustration of this is found in a recent case in the Court of Appeal, Chaplin v. Hicks, C. A. [1911] 2 K. B. 786. The defendant, a theatrical manager, agreed to give positions as actresses to persons chosen by the votes of the readers …
Pleading Estoppel, W. Gordon Stoner
Pleading Estoppel, W. Gordon Stoner
Articles
No subject is fraught with more difficulties for the pleader than that of estoppel. The problems of "when" and "how" to plead seem never so perplexing as when they arise in connection with this subject. That these problems are not confined to any day or age is evidenced by the reports from the time of Lord COKE down to the latest advance sheets of the present day reporter systems, and the lawyers of no generation have been wholly agreed on their solution. No system of pleading yet established has been free from these questions and with each general change in …
Influence Of Social And Economic Ideals On The Law Of Malicious Torts, W. Gordon Stoner
Influence Of Social And Economic Ideals On The Law Of Malicious Torts, W. Gordon Stoner
Articles
"The existence and the alteration of human institutions," says DICEY, "must in a sense, always and everywhere depend upon the beliefs or feelings, or, in other words, upon the opinion of the society in which such institutions flourish."1 Undoubtedly, law, as much as any other human institution, has felt this influence of public opinion. The political, economical and ethical ideals of a people find expression in their laws. True it is that public opinion is usually, if not always, in the lead, but in a truly happy and contented society the distance is never great. As MAINE says, in progressive …
New Doctrine Concerning Contracts In Restraint Of Trade, Jerome C. Knowlton
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 …
English Law As An Exponent Of English History, Edson R. Sunderland
English Law As An Exponent Of English History, Edson R. Sunderland
Articles
It is not my purpose to unduly emphasize the light which the study of the laws of a people throws upon its character and development. The teaching of history should be broad enough to recognize the importance of all sides of national life. But I believe there has never been a sufficient appreciation of the real wealth of suggestive and illuminating material which is contained in the history of English law. For the English have been pre-eminently a legal race. In the study of Roman History Roman Law has always occupied a prominent place. The Romans made their reputation, so …
Law As A Culture Study, Edson R. Sunderland
Law As A Culture Study, Edson R. Sunderland
Articles
That acute observer and commentator on American institutions, James Bryce, in an oft-quoted statement in his American Commonwealth, pays a high tribute to the efficiency of American law schools. "I do not know if there is anything," he writes, "in which America has advanced more beyond the mother country than in the provision she makes for legal education." In passing this generous judgment, in which many other eminent Englishmen have concurred, he views our law schools simply as institutions for developing technical proficiency among students destined to fill the ranks of the legal profession. And this is, indeed, the principal …
Statute Of Uses And The Modern Deed, John R. Rood
Statute Of Uses And The Modern Deed, John R. Rood
Articles
To what extent does the modem conveyance of estates in land in the United States by deed derive its validity from the English Statute of Uses, 27 Hen. 8, c. IO? No doubt the student, and especially the teacher, is inclined to magnify the importance of mere matters of history, because it is so much easier to understand or explain many of the terms and doctrines of real property law by approaching them historically, and, indeed, many of them cannot otherwise be understood at all. And yet we all have this constant, serious, and often difficult task, of separating matter …
Ratification By An Undisclosed Principal, Edwin C. Goddard
Ratification By An Undisclosed Principal, Edwin C. Goddard
Articles
Omnis ratihabitio retrotrahitur, et mandato priori aequiparatur. Every ratification relates back, and is equivalent to a prior authority, is the second great maxim of agency, and has been said to be as well established and as simple of application as the first and fundamental one, qui facit per alium, facit per se. It was as well recognized in the Roman law, as it is in the common law. Whether the maxim ratihabitio mandato comparatur of the Roman lawyers and the early English cases is identical in meaning with the dogma ratihabitio mandato acquiparatur of Lord Coke, and of all English …
Authority Of Allen V. Flood, Horace Lafayette Wilgus
Authority Of Allen V. Flood, Horace Lafayette Wilgus
Articles
In the case of Allen v. Flood, one of the Lords asked this interesting question, "If the cook says to her master, 'Discharge the butler or I leave you,' and the master discharges the butler, does the butler have an action against the cook?" This, Lord Shand said, was the simplest form in which the very question in Allen v. Flood could be raised.4 And, like the original question, it puzzled the judges and Lords very much to answer.
Contracts Of Sale Of Merchandise--Fraud On The Vendor, Levi T. Griffin
Contracts Of Sale Of Merchandise--Fraud On The Vendor, Levi T. Griffin
Articles
This is an interesting topic to every jobbing house, and to every attorney concerned with mercantile collections. The law is pretty well settled on the general subject and the Treatises on Sales are plentiful. Among the best is that of Mr. Benjamin. Tiffany on Sales of the Hornbrook Series recently issued assumes also to state briefly the principles which control in these cases. At large commercial and metropolitan points, and among lawyers who have occasion to often deal with this question, there is perhaps not much difficulty in arriving at correct conclusions, and promptly enforcing the rights of a defrauded …
The "Law Reports", Nathan Abbott
The "Law Reports", Nathan Abbott
Articles
The period between the years 1860 and 1870 marks an interesting stage in the history of law reporting. Within this period a system of reporting that had existed for upward of three centuries came to an end, and an experiment was begun whereby it was hoped to produce reports not merely in a new way, but reports that were to be materially different in form and substance from those of the previous system. The conception of the enterprise and its successful accomplishment is due to the energy and discretion of one man, whose history of the affair, after twenty years …
Harboring Conspiracy, Henry W. Rogers
Harboring Conspiracy, Henry W. Rogers
Articles
That the American people should naturally sympathize with Ireland in its demand for home rule is to be expected from the very nature of our institutions and theory of government. We in this country are of the opinion that Ireland, in demanding from England the right to regulate its domestic affairs in its own way and by its own laws, presents an honorable and a just cause, which appeals to our sympathy and sense of right. But it makes no difference bow honorable and legitimate a cause may be in itself, if it be supported by means which are not …