Civil Law Commons^™

The English Constructive Trust:A Look Into The Future, D. W.M. Waters

Vanderbilt Law Review

In view of the history of the common law and of equity, a history shared by all common law jurisdictions, it would be nonsense to say that English law does not offer the deprived plaintiff relief. Of course, it does. What we have not been willing to do, however, is to rationalise the miscellany of remedies that exist. And, since we have not been prepared to rationalise, there are inconsistencies be-tween and within remedies, and a marked lack of development, particularly on the equity side. This has long been the complaint of the English lawyers who, since Lord Wright's first …

Summary Proceedings In Direct Contempt Cases, Thomas R. Allen

Vanderbilt Law Review

That the "power and majesty" of the law, personified by the court and its decrees, could not be lightly brushed aside even by a prince was a settled fact by the time of Shakespeare; it remains so today. But the proceedings by which such an offense may be punished is another matter. At the present time a large number of contempts are disposed of by summary proceedings. It was not always so, and recently a number of highly respected judges and writers have begun to argue that the practice should be discontinued. This revival of interest is the raison d'etre …

Equity -- 1960 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

While no decisions involving momentous developments in equity jurisprudence have been handed down during the past year, the Tennessee Chancery Courts have on several occasions demonstrated a tendency to free themselves from artificial restrictions on the operation of traditional equitable remedies. Illustrating this inclination are cases which resulted in decrees removing a cloud on title, granting partial specific performance of a land sale contract, awarding punitive damages, and granting injunctive relief against a county's perpetration of a nuisance. Another series of cases contributed some clarifying rulings regarding the scope of the right to jury trial in chancery proceedings.

Creditors' Rights And Security Transactions -- 1958 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Fraudulent Conveyances: In Nashville Milk Producers, Inc. v. Alston' a bill to set aside transfers of a herd of dairy cattle alleged that the debtor in 1953 purported to transfer the herd to his wife, and that in 1955 the wife purported to transfer the herd to their son.Both transfers were alleged to have been made for no consideration,or a consideration that was not fair and adequate. The bill also charged that the conveyances rendered the grantor insolvent, and were part of a general scheme participated in by all three defendants to hinder, delay and defraud existing and subsequent creditors. …

Equity -- 1958 Tennessee Survey, Theodore A. Smedley

Vanderbilt Law Review

Since Equity is a field of indefinite boundaries, it is to be expected that the cases discussed in this section of the survey involve a wide variety of issues. Of the thirteen decisions to be mentioned, four were suits for injunctions to restrain as many different types of alleged wrongs, three were suits to cancel or reform written instruments executed by mistake or fraud, two were suits to declare trusts, one was a suit for specific performance of a contract to sell land, one was a suit to enforce a promissory note, and two were suits turning on procedural factors.

Restitution -- 1958 Tennessee Survey, William Wicker

Vanderbilt Law Review

Civil remedies may be grouped under three classifications: torts, contracts, and restitution. The plaintiff's objective in a tort action is a recovery for his loss which resulted from the defendant's wrongful act, the measure of recovery being the amount of that loss expressed in dollars. The plaintiff's objective in a contract action is a recovery for a breach of the defendant's promise, the measure of recovery being the net addition to the plaintiff's estate which would have resulted had defendant performed his promise. Restitution is a giving back of what has been taken away unjustly. The plaintiff's objective in a …

Procedure And Evidence -- 1954 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Generally: The strict rules of pleading are not applicable in a will contest,' which is a proceeding sui generis and regulated by statute. Demurrer. A demurrer to a cross-bill in chancery on the ground that it "states no cause of action upon which relief can be granted" is a nullity, and should be stricken on motion.

Plea in Abatement: Where the chancellor upon hearing a plea inabatement of another action pending for the same cause, found that the cause was substantially the same, and granted plaintiff permission to file the bill in the later suit as an amended or supplemental …

Current Trends In The Business Of The Federal District Courts, Will Shafroth

Vanderbilt Law Review

Congestion in the dockets of many United States district courts in metropolitan centers has called attention to the effects on the judicial business of the great economic development of the past few years, a growth which far exceeds in extent that in any period of equal duration in our history. In the short space of thirteen years from 1940 to 1952 the market value of the output of goods and services produced by the nation's economy increased from 101 billions to 346 billions. Part of this phenomenal rise was due to a 90 percent increase in the cost of living, …

Federal Income Taxes And The Civil Fraud Penalty, Raymond Whiteaker

Vanderbilt Law Review

The drive against tax evaders is now in full swing after a complete reorganization of the Internal Revenue Service, and the new Commissioner has promised an efficient enforcement of all revenue laws. Although the effective administration of the federal income tax rests primarily upon the willingness of the taxpayer voluntarily to disclose his correct income, Congress has provided certain civil and criminal penalties to punish those who have not fulfilled their obligations to the United States Treasury. This article will deal only with the administration and operation of the civil fraud penalty.

The most severe civil penalty that may be …

Subrogation, Indemnity, Contribution And Election Of Remedies Aspects Of The Tort Claims Act, Fred Blanton

Vanderbilt Law Review

Dramatically altering the concept of sovereign responsibility in the field of injuries to person and property, the Federal Tort Claims Act of 1946 in action has progressed steadily by application and interpretation to emerge as one of the most, if not the most, important pieces of domestic legislation enacted during the past decade. This ascendency has transpired primarily because the overwhelming majority of courts have boldly taken a dynamic approach to the inevitable problems occurring and recurring in a day-to-day consideration of the multitude of factual permutations and combinations presented to them for analysis and decision under the Act. Generally …

Falsification As Contempt, Stephen D. Potts

Vanderbilt Law Review

The last twenty years have been witness first to an expansion and then to a retrenchment of constitutionally protected civil liberties. The exercise of the contempt power is an area in which constitutional limitations on modes of procedure are inapplicable so long as the power is used to preserve the judiciary.'

Contempts are either direct or constructive. Direct contempts are committed in the presence of the court whereas constructive contempts are committed outside the presence of the court. This distinction is significant in that direct contempts are punishable without a formulated charge, hearing or formal judgment of guilt. Constructive contempts …

A Study Of Interpretation In The Civil Law, Mitchell Franklin

Vanderbilt Law Review

Pound has indicated that comprehensively law connotes legal precepts, received legal ideals or ideological aims, and professional legal method or process.' Historically the interpretation of law in the main has been professional, such power being exercised by means of juristic ideas pertaining to legal method.

Hence Coke referred to the "artificial reason" of the English common law; and Windscheid said that the legal method of the Roman law was not a science, but an "art" (Kunst), which had to be learned through experience as well as through theory.

Past attempts to defeat such esoteric control of law have not been …

The Violation Of A Municipal Ordinance As A Crime, Stanley D. Rose

Vanderbilt Law Review

The county of Winnebago passed such an ordinance and McDonald was charged with a violation of it. McDonald demanded a jury, and Judge Schniege of the municipal court ordered it. Because no provision for a jury trial was in the ordinance, Keefe, the county district attorney, petitioned the circuit court for a writ of prohibition to prevent the enforcement of the municipal court's order for a jury trial. The circuit court denied the petition. On appeal, the supreme court reversed this denial. Judge Fairchild based his decision on the following chain of reasoning:

1. The power to define crimes is …