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Michigan Law Review

Journal

1954

Articles 1 - 30 of 141

Full-Text Articles in Law

Conflict Of Laws - Penal Provisions In Foreign Law - Liability Of Shareholders In De Facto Corporation, James M. Potter S.Ed. Dec 1954

Conflict Of Laws - Penal Provisions In Foreign Law - Liability Of Shareholders In De Facto Corporation, James M. Potter S.Ed.

Michigan Law Review

Defendants, residents of Tennessee, while attempting to form a corporation under the laws of Arkansas, inadvertently failed to file the articles of incorporation with the county clerk, although they were filed with the Secretary of State of Arkansas. The resulting business association was an Arkansas de facto corporation. Under Arkansas law the shareholders of a de facto corporation are personally liable for the debts of the corporation. Plaintiff, a creditor who dealt with the corporation, sued in a Tennessee court and asked that the Arkansas rule be applied. The trial court refused to do so on the ground that it …

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Legislation - Requirement Of Definiteness In Statutory Standards, Robert B. Krueger S.Ed. Dec 1954

Legislation - Requirement Of Definiteness In Statutory Standards, Robert B. Krueger S.Ed.

Michigan Law Review

While it is universally recognized that definiteness in statutory standards is a condition prerequisite to the application of a statute, there is no agreement among either the courts or the writers as to the theory behind this requirement. However, common elements in each of the two prevalent theories indicate certain factors which may well be decisive on the question of definiteness in any given case. The purpose of this comment is to explore the practical implications of the interplay of these various factors and theories.

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Constitutional Law - Federal Occupation Of Field Of Control Of Subversives, John C. Hall S.Ed. Dec 1954

Constitutional Law - Federal Occupation Of Field Of Control Of Subversives, John C. Hall S.Ed.

Michigan Law Review

Defendant was chairman of the Communist Party for the western district of Pennsylvania. He was charged with willfully advocating the violent overthrow of the United States Government, and his conviction under state statute was sustained by the superior court. On appeal, held, reversed. The federal Smith Act pre-empted the field of control of subversive activities and the state law is therefore void. Commonwealth v. Nelson, 377 Pa. 58, 104 A. (2d) 133 (1954).

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Evidence - Statutory Rape - Right Of Accused To Compulsory Blood Test Of Prosecutrix And Child, Edward Pastucha S.Ed. Dec 1954

Evidence - Statutory Rape - Right Of Accused To Compulsory Blood Test Of Prosecutrix And Child, Edward Pastucha S.Ed.

Michigan Law Review

Defendant was convicted of statutory rape on the strength of complaining witness' uncorroborated testimony. Testimony of the prosecutrix was to the effect that she had had sexual relations with defendant only once, that she had become pregnant and had given birth to a child prior to the trial, and that she had had sexual relations with no other men. Defendant moved for an order requiring that blood tests be taken of the child and the mother. The motion was denied. On appeal, held, affirmed. Assuming power, absent statute, to compel the taking of blood-grouping tests, the trial court did …

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Crosskey And The Constitution: A Reply To Goebel, Sylvester Petro Dec 1954

Crosskey And The Constitution: A Reply To Goebel, Sylvester Petro

Michigan Law Review

The immediate purpose of this paper is to demonstrate the inadequacies of the most embittered of the reviews of Crosskey's book which I have read, "Ex Parte Clio,'' written by Professor Goebel (hereinafter sometimes referred to as "the reviewer"). Demonstrating these things will involve repeated reference to the thesis and the methodology of the book, and comparison of the book with the contentions advanced by the reviewer. The reading will probably be as tedious as the writing has been, but that cannot be helped, for the longer aim of this paper cannot be achieved in any other manner. That aim …

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Impact Of The Commercial Code On Liability Of Parties To Negotiable Instruments In Michigan, Roy L. Steinheimer Jr. Dec 1954

Impact Of The Commercial Code On Liability Of Parties To Negotiable Instruments In Michigan, Roy L. Steinheimer Jr.

Michigan Law Review

Since the Uniform Commercial Code is now effective in Pennsylvania and is under active consideration by official bodies in other states, it seems appropriate to investigate in some detail the impacts which this proposed legislation would have upon the accumulated business, legislative and judicial understanding and experience in the commercial law area in a specific jurisdiction. As an illustration of the problems which will be faced by judges, lawyers and businessmen in any jurisdiction which adopts the code, the writer has chosen to analyze some impacts which the code would have on commercial law in Michigan. Space limitations make it …

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Released Time And Religious Liberty: A Further Reply, Paul G. Kauper Dec 1954

Released Time And Religious Liberty: A Further Reply, Paul G. Kauper

Michigan Law Review

In his "Reply" to the writer's review of his excellent book, Mr. Pfeffer has singled out the part of the review in which the writer discussed the released-time problem and the position taken by Mr. Pfeffer with respect thereto. To prolong the arguments over this matter in the pages of this Review would he unprofitable, hut the writer feels that a few comments on Mr. Pfeffer's reply would not he out of order.

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Bills And Notes - Ficticious Indorsee - Immaterial Alteration, Lawrence N. Ravick S.Ed. Dec 1954

Bills And Notes - Ficticious Indorsee - Immaterial Alteration, Lawrence N. Ravick S.Ed.

Michigan Law Review

Thomas and Betty Gallegos asked defendant bank for a loan to purchase an automobile from Schneider Motors. Defendant gave them a cashier's check for $1,000 payable "To the order of Betty J. and Thomas Gallegos." To assure itself that the check would be used to purchase the car, the bank, before delivering the check to the payees, had them indorse it "to the order of Schneider Motors," signed "Betty J. and Thomas Gallegos." The Gallegoses then went to Schneider Motors, but a partner of that firm refused to accept the check and returned it to Thomas Gallegos. Having taken it …

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Federal Procedure - Venue - Right Of Alien Under Diversity Of Citizenship Clause Of 28 U.S.C. § 1391 (A), Richard M. Adams Dec 1954

Federal Procedure - Venue - Right Of Alien Under Diversity Of Citizenship Clause Of 28 U.S.C. § 1391 (A), Richard M. Adams

Michigan Law Review

Plaintiff, a citizen of France and resident of New York City, sought a declaratory judgment and restraining order against several defendants residing in different states. On the theory that a suit involving a citizen of France and citizens of the United States constituted "diversity of citizenship" under 28 U.S.C. § 1391 (a), and therefore could be brought where all of the plaintiffs or all of the defendants resided, the action was laid in the federal district court of New York where the plaintiff resided. Defendant moved for dismissal on the ground that this was "alienage," not "diversity of citizenship" as …

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Negligence - Duty Of Care - Effect Of Public Carrier's Financial Capacity On Liability, John E. Riecker S.Ed. Dec 1954

Negligence - Duty Of Care - Effect Of Public Carrier's Financial Capacity On Liability, John E. Riecker S.Ed.

Michigan Law Review

Plaintiff sustained injuries when she fell between defendant's subway car and a platform directly opposite the car door. The cause assigned was the pressure from the closely packed crowd of subway passengers during a rush hour which resulted in plaintiff's being "carried by the crowd" into a position of danger. Defendant had shifted extra guards to the overcrowded area. No evidence of disorderliness or gang action appeared. In an action for damages due to defendant's negligence in failing to control the crowd, held, for defendant. Callaghan v. New York City Transit System, 204 Misc. 236, 125 N.Y.S. (2d) …

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Corporations - De Facto Existence - Necessity Of Good Faith Attempt To Incorporate Under And Of Colorable Compliance With Incorporation Statute, Richard R. Dailey Dec 1954

Corporations - De Facto Existence - Necessity Of Good Faith Attempt To Incorporate Under And Of Colorable Compliance With Incorporation Statute, Richard R. Dailey

Michigan Law Review

Defendant, a purported holding corporation, was organized in 1922 before the enactment of a state statute authorizing such corporations. The articles of incorporation stated that the purpose of the corporation was "to acquire, own and hold" shares of stock in a realty company. There was actual user of corporate power by the defendant under this attempted incorporation until the time of this suit in 1954. The legislature in 1941 amended the incorporation statute to authorize incorporation of a holding company, but no action was taken by the defendant pursuant to this amended statute. In an action for a declaratory judgment, …

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Real Property - Easements - Right To Take Water From A Pond As Absolute, Exclusive Profit In Gross, Stephen J. Martin S.Ed. Dec 1954

Real Property - Easements - Right To Take Water From A Pond As Absolute, Exclusive Profit In Gross, Stephen J. Martin S.Ed.

Michigan Law Review

One Divine owned a small natural lake and a mill nearby. He dammed the lake, and ran a pipe from it to his mill. At times he sold water after it left the mill to defendant's assignor, who owned a hotel near the mill. In 1919 Divine sold the lake to plaintiff's assignor, reserving to himself the right to dam the lake and draw off water from it, so long as the level stayed between high and low water marks. Then Divine sold the mill lot to defendant's assignor, who closed it down, but continued to take water through the …

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Workmen's Compensation - Injuries Arising Out Of And In The Course Of Employment - Employer Furnishing Transportation And Employee Carrying Work To Do At Home As Exceptions To Coming And Going Rule, James W. Beatty S.Ed. Dec 1954

Workmen's Compensation - Injuries Arising Out Of And In The Course Of Employment - Employer Furnishing Transportation And Employee Carrying Work To Do At Home As Exceptions To Coming And Going Rule, James W. Beatty S.Ed.

Michigan Law Review

Decedent, a member of the Public Service Commission, was fatally injured in an accident while traveling between his place of employment and his home. He was driving an automobile furnished by the state, which bore the expenses of maintenance and operation. Decedent had with him certain files to work on at his home, his custom being to devote a part of each weekend to matters connected with his employment. Plaintiff as widow brought an action for death benefits under the Workmen's Compensation Act. The Workmen's Compensation Commission entered an award for the plaintiff. On appeal by the state, held, …

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Partnership - Dissolution On Death - Right Of Representatives Of The Deceased Partner To Share In Good Will, Richard M. Adams Dec 1954

Partnership - Dissolution On Death - Right Of Representatives Of The Deceased Partner To Share In Good Will, Richard M. Adams

Michigan Law Review

Plaintiff sought a judgment against the administrator of his deceased partner to compel the conveyance of the deceased's one-half interest in the partnership assets. Under the terms of the partnership agreement the surviving partner had the right to buy out the interest of the deceased partner at its "then book value." The administrator contended that good will was a valuable partnership asset, even though not carried on the books, and should be taken into account in determining the price of the deceased's interest. On appeal from a judgment for plaintiff, held, affirmed. By setting the price of the deceased's …

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International Law - Sovereign Immunity - Act Of State, Arthur M. Wisehart S.Ed. Dec 1954

International Law - Sovereign Immunity - Act Of State, Arthur M. Wisehart S.Ed.

Michigan Law Review

In 1953 the government of Peru authorized the issuance of scrip certificates to holders of certain of its bonds. Plaintiffs were members of a class of former bondholders who were not among the distributees of the scrip under the terms of the Peruvian enabling act. They alleged that they were entitled to share in the scrip by reason of contracts with the government of Peru and that defendants tortiously had induced Peru to breach these contracts by excluding the plaintiffs from the terms of the legislative enactment. The defense interposed was that litigation of the cause would make it necessary …

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Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: Ii, Bertel M. Sparks Dec 1954

Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: Ii, Bertel M. Sparks

Michigan Law Review

After there has been a contract to make a will it is often said that the promisor is a trustee of the property for the use of the promisee. This statement is usually offered as a reason for or an explanation of the relief granted in a particular case, without any indication as to how such a premise was arrived at and without any consideration of other possible results that might How from the designation of the relationship as a trust.

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The Law School 1954-55, E. Blythe Stason Dec 1954

The Law School 1954-55, E. Blythe Stason

Michigan Law Review

Another school year has become a part of the record of history, and again I wish to take advantage of the pages of the Law Review for the purpose of reporting some of the principal items of interest that have arisen in connection with the program of the law school. In this year's report, after dealing with current matters of interest, I wish to speak especially concerning certain aspects of the future of legal education at Michigan.

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Future Interests - Effect Of Change Of Conditions On Rights Of Entry And Possibilities Of Reverter Created To Control The Use Of Land, Rinaldo L. Bianchi Dec 1954

Future Interests - Effect Of Change Of Conditions On Rights Of Entry And Possibilities Of Reverter Created To Control The Use Of Land, Rinaldo L. Bianchi

Michigan Law Review

It is the purpose of this comment to examine the skills which courts have developed to avoid inequitable results which might arise from forfeiture of estates, and, further, to attempt to demonstrate that judicial opinion may be in a transitional stage, tending to incorporate into law the equitable doctrine of change of conditions in disposing of cases involving rights of entry and possibilities of reverter.

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Federal Procedure - Juries - Attacking Release For Fraud In Action At Law, James W. Beatty S.Ed. Dec 1954

Federal Procedure - Juries - Attacking Release For Fraud In Action At Law, James W. Beatty S.Ed.

Michigan Law Review

Plaintiff brought an action to recover damages for personal injuries. Defendant filed an answer and asserted that plaintiff had executed a release in full for all claims against the defendant. In his reply plaintiff admitted that he had executed the release, but claimed that it was obtained by fraud on the part of the defendant. The district court granted defendant's motion to deny a jury trial on the ground that the matter of determining the validity of a release was properly cognizable in equity and that therefore plaintiff was not entitled to a jury trial on this issue. On appeal …

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Labor Law - Authority Of National Labor Relations Board To Require Reaffirmation Of Non-Communist Affidavit, Richard Z. Rosenfeld Dec 1954

Labor Law - Authority Of National Labor Relations Board To Require Reaffirmation Of Non-Communist Affidavit, Richard Z. Rosenfeld

Michigan Law Review

Section 9(h) of title I of the Labor-Management Relations Act requires that officers of unions which desire access to NLRB facilities file non-Communist affidavits with the Board. During the effective period of appellee unions' compliance with this requirement, the Board referred certain affidavits to the Department of Justice for investigation. After the suspected officers had refused to testify concerning the truth or falsity of their affidavits in subsequent grand jury proceedings the Board issued a Notice and Order requiring the officers to reaffirm the truth of the prior affidavits and to attest to non-membership in the Communist Party since filing …

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Negligence - Causation - Liability Under Statute For Injury Resulting From Fire Started By Railroad Locomotive, Howard. N. Thiele, Jr. S.Ed. Dec 1954

Negligence - Causation - Liability Under Statute For Injury Resulting From Fire Started By Railroad Locomotive, Howard. N. Thiele, Jr. S.Ed.

Michigan Law Review

Sparks from defendant's train started a fire on defendant's right of way which spread toward plaintiff's farm. Plaintiff, in an attempt to contain the fire, plowed a fire guard along the edge of his property. While driving his tractor to a safe place after completing the last furrow, he ran over a root or limb which flew up and struck him in the eye, causing blindness. In the trial court plaintiff recovered from the railroad under an Oklahoma statute which specified that "Any railroad company operating any line in this state shall be liable for all damages sustained by fire …

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Biskind: How To Prepare A Case For Trial, And Lake: How To Win Lawsuits Before Juries, Charles W. Joiner Nov 1954

Biskind: How To Prepare A Case For Trial, And Lake: How To Win Lawsuits Before Juries, Charles W. Joiner

Michigan Law Review

A Review of How to Prepare a Case for Trial. By Elliott L. Biskind; How to Win Lawsuits Before Juries . By Lewis W. Lake

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Product Competition In The Relevant Market Under The Sherman Act, David Macdonald Nov 1954

Product Competition In The Relevant Market Under The Sherman Act, David Macdonald

Michigan Law Review

The correct delimitation of the relevant market is the problem to be examined here. First the legal development of market concepts will be traced. Then, with the objective of coalescing the legal and economic concepts of .the market, a test will be proposed with which to measure the correct market in any given case.

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Admiralty- Conflict Of Laws - Application Of The Jones Act, Robert B. Fiske, Jr. S.Ed. Nov 1954

Admiralty- Conflict Of Laws - Application Of The Jones Act, Robert B. Fiske, Jr. S.Ed.

Michigan Law Review

Admiralty traditionally did not give a seaman a right of action for negligence unless it could be attributed to the unseaworthiness of the vessel. An injured seaman was limited to two remedies: an action for maintenance and cure, or an action based on -unseaworthiness. To remedy this situation, Congress in 1920 passed the Jones Act. This act was framed in terms of "any seaman who shall suffer personal injury in the course of his employment," and gave to such seamen all the rights granted by statutes modifying or extending the common law right or remedy in cases of personal injury …

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Release Time And Religious Liberty: A Reply, Leo Pfeffer Nov 1954

Release Time And Religious Liberty: A Reply, Leo Pfeffer

Michigan Law Review

In his generous article-review of this writer's book, Church, State, and Freedom, Paul G. Kauper justified the decision of the United States Supreme Court in Zorach v. Clauson on the basis of its prior decision in Pierce v. Society of Sisters. In the Pierce case, it will be remembered, the Supreme Court invalidated an Oregon statute whose purpose it was to require attendance of all children at public schools. In Zorach v. Clauson, the Court upheld the validity of a New York statute that permitted public schools to release children for one hour weekly to receive religious …

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Securities - Sufficiency Of The Property Description And Its Relations To The Notice Provided By A Recorded Chattel Mortgage, Judson M. Werbelow S.Ed. Nov 1954

Securities - Sufficiency Of The Property Description And Its Relations To The Notice Provided By A Recorded Chattel Mortgage, Judson M. Werbelow S.Ed.

Michigan Law Review

The primary aims of this comment are to point out what the law requires in the nature of description, to analyze the value of these requirements in the light of the recording acts, to examine possible alternative security devices, and to suggest some useful steps that may be taken to augment the present system.

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Banks And Banking - Validity Of Exculpatory Clauses In Stop-Payment Orders, Lawrence N. Ravick S.Ed. Nov 1954

Banks And Banking - Validity Of Exculpatory Clauses In Stop-Payment Orders, Lawrence N. Ravick S.Ed.

Michigan Law Review

Plaintiff, a depositor in defendant commercial bank, in seeking to stop payment of his check, executed and left with the bank a printed form supplied by the bank, entitled ''Request to Stop Payment of Check." Among the terms of the paper was a provision which constituted a release of the bank from all liability should it pay the check through "inadvertence, accident or oversight." The bank subsequently honored the check and charged its amount against the plaintiff's account. Plaintiff demanded that the defendant refund this amount, but the defendant refused to do so. Plaintiff thereupon brought an action against the …

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Civil Procedure - Venue - Forum Non-Conveniens, Richard S. Weinstein S.Ed. Nov 1954

Civil Procedure - Venue - Forum Non-Conveniens, Richard S. Weinstein S.Ed.

Michigan Law Review

Plaintiff, an Indiana corporation not authorized to do business in New York, brought an action in New York, aided by attachment, against Indiana residents on a contract that was made, was to be performed, and allegedly was breached in Indiana. On the basis of the doctrine of forum non conveniens the defendants moved to vacate the warrant of attachment and to dismiss the complaint. The lower court denied the motion. On appeal, held, reversed. Under the doctrine of forum non conveniens, the lower court should have exercised its discretion to refuse to entertain the action. Central Pub. Co. vs. …

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Constitutional Law - Due Process - Enforced Collection Of State Use Tax From Nonresident Vendor, John Leddy S.Ed. Nov 1954

Constitutional Law - Due Process - Enforced Collection Of State Use Tax From Nonresident Vendor, John Leddy S.Ed.

Michigan Law Review

Appellant is a Delaware corporation engaging in the retail furniture business in Delaware. It has no place of business in Maryland, nor does it solicit orders in that state. It does not accept mail or phone orders from Maryland, nor does it advertise in any Maryland publications. The only contacts which the appellant has with Maryland customers, aside from direct dealings at appellant's retail store, are occasional direct mail advertisements, which it sends to all of its customers wherever located, and deliveries of goods purchased by Maryland customers. These deliveries are either made by commercial carrier or by appellant's own …

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Constitutional Law - Search And Seizure - Evidence Of Prior Search As Bearing On Credibility Of Defendant's Testimony, Ira A. Brown, Jr. Nov 1954

Constitutional Law - Search And Seizure - Evidence Of Prior Search As Bearing On Credibility Of Defendant's Testimony, Ira A. Brown, Jr.

Michigan Law Review

In 1952 petitioner was indicted in a federal court, charged with illegal sales of narcotics. During direct examination by his counsel, petitioner denied ever having had possession of narcotics. On cross-examination by the government, petitioner repeated his denial and continued to do so even when the government questioned him, over his objection, concerning a heroin capsule unlawfully seized in his home in 1950. Evidence of the unlawful seizure in 1950 had been ruled inadmissible in an earlier trial. Petitioner's denials were squarely in conflict with an affidavit he had filed at the earlier trial. In rebuttal, the government introduced testimony …

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