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Articles 11131 - 11160 of 11521
Full-Text Articles in Law
Sales: Liability For The Presence Of Mice And Other Uncommon Things In Food, John B. Waite
Sales: Liability For The Presence Of Mice And Other Uncommon Things In Food, John B. Waite
Articles
A group of recent decisions presents a somewhat farcical conformity with Montesquieu's thesis that "law" may vary with time and geography. It strikingly illustrates, also, the importance of the particular theory of liability upon which a suit is predicated. The unusual similarity in detail of the operative facts of these cases lends peculiar emphasis to the difference in the judgments rendered.
Patent Law: Secret Use As Affecting Right To A Patent, John B. Waite
Patent Law: Secret Use As Affecting Right To A Patent, John B. Waite
Articles
An unusually obvious piece of judicial legislation, of practical importance to the manufacturing world, was promulgated in the case of Macbeth-Evans Glass Co. v. General Electric Co., 246 Fed. 695. The facts were that in 1903 Macbeth had invented a process for making glass. Since that time the plaintiff company, of which Macbeth was president, had been using that process. This use had, however, been "secret". In 1910 an employee of the plaintiff revealed the process to the Jefferson Glass Co., which at once began to use it, but on application of the Macbeth Co. the state court enjoined the …
Stare Decisis - Liability Of Municipal Corporations For Tort, Edson R. Sunderland
Stare Decisis - Liability Of Municipal Corporations For Tort, Edson R. Sunderland
Articles
Courts are charged with the duty of declaring the law. They are also required to decide cases. Either one of those functions might be performed with comparative ease if it were divorced from the other, but when the court is simultaneously obliged to do both, the difficulties are very apparent. To decide a case and at the same time to declare the law means that the court is required to generalize every legal proposition upon which it acts in making its decision. But judges are not omniscient. Who can so fully understand the logical implications and the latent possibilities of …
Presumptions--Burden Of Proof, Victor H. Lane
Presumptions--Burden Of Proof, Victor H. Lane
Articles
The case of Gillett v. Michigan United Traction Co. (Michigan, April 3rd, 1919), 171 N. W. 536, arose out of the following facts: Plaintiff, driving a Ford car with the curtains down, turned from the curb at the side of the street where he had stopped, to cross the interurban car tracks which ran through the center of the street in the city of Marshall, and as he drove his machine upon the track was struck by an interurban car and seriously injured. The evidence established beyond question, negligence of the defendant, by showing that the car was, at the …
Enemy Alien Litigants In The English Law, Edwin D. Dickinson
Enemy Alien Litigants In The English Law, Edwin D. Dickinson
Articles
It is said that as a general rule an enemy alien cannot bring an action in the English courts. "And true it is, that an Alien enemie, shall maintaine neither reall nor personall action, Donec terrae fuet' communes, that is untill both Nations be in peace." COKE oN LITTLETON, (2 ed.) L. 2, c. 11, sec. 198. LORD STOWELL'S famous dictum in The Hoop (1799), 1 C. Rob. 196, 200, is regarded as a classical statement of the doctrine: "In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to …
The Scintilla Rule Of Evidence, Edson R. Sunderland
The Scintilla Rule Of Evidence, Edson R. Sunderland
Articles
In analyzing the reasons why "trial by jury has declined to such an extent that it has come in many cases to be an avowed maxim of professional action,--a good case is for the court; a bad case is for the jury,"-JUDGE DILLON, in his LAWS AND JURISPRUDENCE, pp. 130-2, credits "the false principle known as the scintilla doctrine" with a large degree of responsibility.
A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland
A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland
Articles
In a recent opinion of the Supreme Court of the United States Justice Holmes makes this interesting observation:- "The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun." Paraphrased, the statement comes to this: In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential.
Witness--Competency Of An Allopathic Expert In The Field Of Homeopathy--Opinion On Very Fact The Jury Must Determine, Victor H. Lane
Witness--Competency Of An Allopathic Expert In The Field Of Homeopathy--Opinion On Very Fact The Jury Must Determine, Victor H. Lane
Articles
Van Sickle v. Doolittle, (Ia., 1918), 169 N. W. 141, was an action for malpractice against a physician of the homeopathic school of medicine. Upon the trial, a physician of the allopathic school was called, and after testifying that he was unskilled in the science of homeopathy, was allowed to testify that the treatment shown to have been given to the patient by defendant, would produce no physiological effect, and that proper treatment required the giving of such medicines as would produce such effect. This was held error upon the ground that the defendant was called to treat the patient …
Termination Of A Continuing Guaranty, Edgar N. Durfee
Termination Of A Continuing Guaranty, Edgar N. Durfee
Articles
Several persons jointly and severally guaranteed to a bank the present and future obligations of a customer, stipulating that "the bank may grant extensions without lessening the liability" of the guarantors, that "this shall be a continuing guaranty, and shall cover all the liabilities which the customer may incur or come under until the undersigned, or the executors or administrators of the undersigned, shall have given the bank notice in writing to make no further advances on the security of this guaranty," and that "this guaranty shall not be affected by the death of the undersigned." One of the guarantors …
Is A Contract Necessary To Create An Effective Escrow?, Ralph W. Aigler
Is A Contract Necessary To Create An Effective Escrow?, Ralph W. Aigler
Articles
WHERE land has been sold and both parties are desirous of protecting themselves pending full payment of the purchase price, there are two common ways of accomplishing their purpose without any change in legal ownership. There may be (1) a contract of sale properly evidenced so as to be enforceable, and (2) a deed executed by the vendor and placed "in escrow." Sometimes one method is preferred, sometimes the other. If the former is adopted, it is, of course, vitally important that the contract comply with the formal requirements of the law; in the latter there has been some difference …
Sociological Interpretation Of Law, Joseph H. Drake
Sociological Interpretation Of Law, Joseph H. Drake
Articles
It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New …
Admission To The Bar, Edwin C. Goddard
Admission To The Bar, Edwin C. Goddard
Articles
This article is written in the belief that the hour is here when some changes in admissions to the bar should be urged and urged again, when some things often thought and discussed in certain assemblies should be openly and frankly talked over with the profession at large.
Acquiring Jurisdiction In Garnishment Proceedings, John R. Rood
Acquiring Jurisdiction In Garnishment Proceedings, John R. Rood
Articles
Garnishment is a proceeding provided by statutes found in every state, for the purpose of laying hold of something belonging to a defendant or judgment debtor but actually in the hands of someone else, and appropriating it to pay the debt due from the defendant or judgment debtor. If the proceeding is instituted ancillary to a pending suit, and before judgment, it is a species of attachment. If it is issued ancillary to a judgment already recovered it is a species of execution. If the third person summoned as garnishee is merely bailee of property belonging to the judgment debtor …
Joy Riding, Simple And Compound, Edgar N. Durfee
Joy Riding, Simple And Compound, Edgar N. Durfee
Articles
The wrongful use of another's automobile, even though accompanied by a trespassory taking, cannot, if followed by a return to the owner or an abandonment, be easily brought within the definition of larceny at common law or under the ordinary larceny statutes, because of the requirement of intent to deprive the owner permanently of his property. Smith v. State, 146 S. W. 547; State v. Boggs (Iowa, 1917), 164 N. W. 759; McClain, Criminal Law, § 566. Of course, such intent, at the time of taking, might be found in spite of return or abandonment, though it is doubtful whether …
Training For A Profession--Law, Ralph W. Aigler
Training For A Profession--Law, Ralph W. Aigler
Articles
So long as human conduct and relations must accord with pre-established and determinable rules, the study of law, and the practice thereof, will be of absorbing interest. When we consider futher that our government is one of law, and the the positisions of highest responsibility therein are such that training in law is peculiarly desirable, it is not at all surprising that many young men have taken to the legal profession.
Full Faith And Credit And Jurisdiction, Willard T. Barbour
Full Faith And Credit And Jurisdiction, Willard T. Barbour
Articles
The judgment of a sister state, when assailed by collateral attack, is often said to occupy a position intermediate between foreign and domestic judgments. Though the older American cases were inclined to examine into the merits of any foreign judgment, the present tendency is toward the adoption of the English view according to which a foreign judgment may be attacked collaterally only for want of jurisdiction or fraud. Dicey, Conflict of Laws (ed. 2) Ch. XVII; see note to Tremblay v. Aetna Life Insurance Co., 97 Me. 547, in 94 Am. St. Rep. 521, 538. But whereas any statement of …
Acquiring Jurisdiction Without Personal Service, Seizure Of Aid Of Statute, John R. Rood
Acquiring Jurisdiction Without Personal Service, Seizure Of Aid Of Statute, John R. Rood
Articles
It is often assumed that courts can acquire jurisdiction only by personal service to give jurisdiction in personam, or by a seizure to give jurisdiction in rem; but it is not so. The assumption is induced no doubt by the fact that in the ordinary common law actions jurisdiction is acquired in that way. Mr. Justice Field very distinctly pointed out in the case of Pennoyer v. Neff (1877), 95 U. S. 714, that it was not the fact that the land was not seized that rendered the judgment void. It was the fact that the land was not the …
Performance Of An Existing Obligation As Consideration For A Promise, John B. Waite
Performance Of An Existing Obligation As Consideration For A Promise, John B. Waite
Articles
The dictum that if there be nothing in a rule flatly contradictory to reason the law will presume it to be well founded, and that the office of the judge is "jus dicere and not jus dare", is responsible for much agony of construction and tortious logic on the part of courts torn by desire to evade it in the interest of modern ideas of right. There is a trilogy of accepted legal principles which it has been particularly difficult for the courts to adhere to in spirit or to repudiate in letter. They are the propositions, that for a …
Substitutional Gifts To Classes, John R. Rood
Substitutional Gifts To Classes, John R. Rood
Articles
In some recent cases we have fresh reminder of the futility of Sir William Grant's distinction between original and substitutional gifts, a rule over which courts have quarreled and disagreed ever since it was promulgated, and which never was applied to the exclusion of anyone without disappointing the wish of the testator. In speaking of this rule in Re Hickey, [1917], 1 Ch. D. 601, 604, Neville, J., says: "The alleged principle seems to be that the meaning of the word 'substitute' involves the idea of replacing one thing by another. One cannot 'substitute' something for nothing. The proposition appears …
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 …
Cost Of Public Justice, John R. Rood
Cost Of Public Justice, John R. Rood
Articles
The common citizen who becomes victim of a wrong and seeks redress in the courts of America soon finds by bitter experience that it is better to bear those ills we have than go to law. The expense is more than the thing is worth. The result depends on who has the longest purse, the most endurance, and the shrewdest lawyer, and little on the merits of the case. When he gets to court he finds his remaining money is being spent, not in the trial of his case, but in deciding whether an absque hoc is a sine que …
The Content Of Covenants In Leases, Ralph W. Aigler
The Content Of Covenants In Leases, Ralph W. Aigler
Articles
Among the many troublesome problems in law those arising out of "covenants running with the land" are not the least It is quite clear that in order for a covenant to "run" there must be an intimacy of relationship between it and the land, or. more properly, the estate, with which it passes. It is, then, vitally important to consider in each case the subject matter, the content of the covenant, and this matter of relationship.
Child Labor Law Case, Commerce Power Of Congress And Reserved Powers Of The States, Henry M. Bates
Child Labor Law Case, Commerce Power Of Congress And Reserved Powers Of The States, Henry M. Bates
Articles
The decision in the Child Labor Law case, Hammer v. Dagenhart, - U. S. -, 62 L. ed. -, decided June 3, 1918, would have caused much less surprise twenty-five years ago than it did when announced last June, for it is based upon two constitutional provisions concerning which the much wider and more varied experience of the last quarter century had developed theories, better defined and sounder than those of the earlier period. Those two provisions are the Tenth Amendment regarding the powers reserved to the States and the Commerce Clause. There has been an astonishing amount of faulty …
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. …
The Writ Of Prohibition - Procedural Delay, Edson R. Sunderland
The Writ Of Prohibition - Procedural Delay, Edson R. Sunderland
Articles
A disheartening recrudescence of procedural red-tape is found in a recent decision of the Supreme Court of Ohio. A contest arose over the jurisdiction of the Public Service Commission to fix telephone rates in Cleveland. The Commission was engaged in a determination as to the reasonableness of a schedule of rates filed by the telephone company, when a petition was filed in the Common Pleas Court for an injunction against the charging of rates other than those fixed by a city ordinance. Believing that under the statute the Public Service Commission had exclusive jurisdiction over the subject of rates, and …
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 …
Effectiveness Of Oral Contracts, Within The Statute Of Frauds, John B. Waite
Effectiveness Of Oral Contracts, Within The Statute Of Frauds, John B. Waite
Articles
In Morris v. Baron and Co., (House of Lords, 1917), 87 L. J. R. (K. B.) 145, plaintiff and defendant had entered into a contract of sale and plaintiff, as vendor, had delivered part of the goods agreed upon. Delivery of the remainder would have been a condition precedent to any recovery by the plaintiff. This contract, however, was followed by a second one, not in writing, whereby plaintiff was absolved from delivering the rest of the goods, but by which he agreed that he would deliver them if the defendant should so request. Thereafter plaintiff brought this action for …
The Federal Bankruptcy Act And Its Effect On State Insolvency Laws, Evans Holbrook
The Federal Bankruptcy Act And Its Effect On State Insolvency Laws, Evans Holbrook
Articles
Since Sturgis v. Crowninshield, 4 Wheat. 122, it has been clear that State Insolvency Laws were valid (within certain well-defined limits) during the non-existence of a Federal Bankruptcy Act, and that upon the enactment of a Federal Bankruptcy Act the State laws were superseded and suspended so far as they were in conflict with the Federal legislation. The difficulty has been in determining when there was such conflict, and it has arisen in various ways. For instance, the Federal Bankruptcy Act permits any natural person to become a voluntary bankrupt, but provides that no involuntary proceedings shall be taken against …
Insurance Policies As Assets In Bankruptcy, Evans Holbrook
Insurance Policies As Assets In Bankruptcy, Evans Holbrook
Articles
The Supreme Court of the United States, in the recent case of Cohen v. Samuels, 38 Sup. Ct. 36, has put an end to a method, approved by some of the lower Federal Courts, whereby a person could create a fund which would be completely under his control but which would nevertheless be protected against any claim on the part of his trustee in bankruptcy. The circumstances in the principal case were as follows: Samuels had taken out ordinary life insurance policies, with the usual provisions as to loan and surrender values, payable to certain of his relatives as beneficiaries, …