Common Law Commons^™

Corporations-Elections-Judicial Actions Of Inspectors Of Elections, Colvin A. Peterson, Jr. S. Ed.

Michigan Law Review

If the modern cases are to be judged in light of what the courts say, it is probable that Judge Tilghman's views are the weight of authority. While a few courts frankly admit that inspectors do act judicially at times, most of the courts continue to define the actions of the inspectors in ministerial terms. However, there are two areas within which the inspectors may exercise such unusual powers that they may be called judicial, namely, those relating to the ascertainment of (1) the validity of proxies and (2) title to stock. The scope of this comment is confined to …

Corporations-Appraisal Statutes-What Constitutes A Written Objection To Corporate Merger Scheme, Daniel A. Isaacson

Michigan Law Review

Plaintiff sent a letter to the president of a corporation, in which he held stock, revoking his proxy and stating that he would vote against a proposed merger with defendant corporation. Later, plaintiff demanded payment of the fair value of his shares pursuant to an appraisal statute which so permitted if a stockholder, dissatisfied with a merger plan," . . . objected thereto in writing . . . . " Held, the letter constituted a sufficient written objection for purposes of this statute. Wiswell v. General Waterworks Corporation, (Del. Ch. 1949) 66 A. (2d) 424.

Witnesses-Wife As Witness Against Husband In Prosecution Under Mann Act, James F. Gordy S. Ed.

Michigan Law Review

Defendant was convicted of having transported his wife in interstate commerce for the purpose of prostitution in violation of the White Slave Traffic Act. Defendant's wife testified to the various transportations which defendant had made of her and to her practicing of prostitution at their different destinations. Defendant contended that the trial court erred in permitting his wife, over his objection, to testify against him. On appeal, held, affirmed. So far as appellant's rights were concerned, the wife's testimony was competent evidence against him. Shores v. United States, (8th Cir. 1949) 174 F. (2d) 838.

Alternative Pleading: Ii, Roy W. Mcdonald

Michigan Law Review

In any save the most elementary of litigation, the practicing lawyer frequently encounters difficulty in estimating with confidence, in advance of the trial, what precise fact propositions may be established by the evidence. As a result, he desires to preserve for himself the maximum area in which to maneuver as the testimony unfolds. One device for assuring such flexibility is the use of alternative pleading. The present series of articles undertakes to depict the extent to which the pressure of this common professional experience is reflected in our civil practice.

Procedure-Contempt As Sanction To Enforce Delivery In Replevin, John A. Nordberg

Michigan Law Review

In a replevin action in a common pleas court the plaintiff, after filing a $200 bond for property later valued at $900, obtained possession of some household goods of the defendant under a fatally defective writ. On motion of the defendant the court dismissed the action and ordered the property returned. On appeal, plaintiff's action was again dismissed and he was directed to return defendant's goods. He ignored the order and was adjudged guilty of contempt. On appeal in the nature of certiorari from this conviction, held, reversed without prejudice. The order was void since the court had lost …

Alternative Pleading: I, Roy W. Mcdonald

Michigan Law Review

The present series of articles seeks to test the extent to which the dictates of this common professional experience have influenced the statutes, rules, and precedents which govern our civil practice. As a background for a review of procedures typical of the code and federal practice within the United States, it will be useful initially to consider briefly the English practice during the past century and a half. The English procedures, as they existed at the end of the eighteenth century, though everywhere locally modified and simplified in some respects, formed authoritative guides for the practices of most of the …

Libel And Slander-Testamentary Libel, Charles Hansen S.Ed.

Michigan Law Review

Although the right to recover for injury from admittedly defamatory matter would seem to be clear, the law imposes a series of obstacles when the offending statements are embodied in a will. Of the few cases which have arisen in this area, a recent decision, Carver v. Morrow, serves to illustrate the general problem. In this case, plaintiff claimed that portions of testatrix' will defamed him. After the will was probated, he brought an action against testatrix' executors on the ground that publication had been effected by probate, and that therefore a cause of action in libel existed against …

Torts-Family Relationship-Child's Right To Recover For Enticement Of Parent From Home, William H. Lowery

Michigan Law Review

Plaintiff, a six year old girl, sued to recover damages alleged to have been sustained as a result of defendant's enticing her mother from the family home. Plaintiff contended that as a child and member of the family she had a legally protected right to maintenance of the family relationship. Defendant answered that no tort had been committed, since no right in the plaintiff was recognized at common law and that to recognize such a right would amount to judicial legislation. From a judgment in favor of plaintiff, defendant appealed. Held, affirmed. Allowing a child a right of action …

Future Interests-Common Law Rule Against Perpetuities Not In Force In Idaho-Applicability Of Statute Against Suspension Of Power Of Alienation To Option Contract, Howard W. Haftel S.Ed.

Michigan Law Review

Seller contracted to give purchaser sixty days notice of his intention to sell certain real property, purchaser to have power, in that event, to buy the property for a stated price within the sixty days. If the purchaser failed to exercise the option, seller was then free to convey the property to anyone. Alleging that seller had conveyed the land to others without notice to him, purchaser sued to have this conveyance set aside and the option specifically enforced. The lower court sustained a general demurrer to the complaint. On appeal, held, reversed. The statutory rule against restraints on …

Adoption - Right Of Inheritance In Absence Of Legal Adoption-Specific Performance Of Contract To Adopt And Other Remedies, James C. Mordy

Michigan Law Review

Adoption was unknown at common law. Modern statutes permitting adoption are largely derived from Roman ideas, which were introduced into this country first through the civil law of Louisiana and later by statutes, beginning with Massachusetts in 1851.

Under the English common law, the only persons capable of inheriting property were blood relations of the deceased. On the other hand, most modern adoption statutes permit inheritance by adopted children equally with natural children. Adoption being purely statutory, the early cases denied the right of inheritance by supposedly adopted children when the statute was not strictly followed. Though still purporting to …

Corporations-Appraisal Statutes-Exclusiveness Of Statutory Remedy, William R, Worth

Michigan Law Review

Defendant corporation's charter provided for retirement 'of preferred stock at par plus accumulated dividends, before payment could be made to common stockholders, in the event of dissolution or "recapture" of its assets by the enfranchising city. Under authority of a majority vote of its stockholders, the corporation conveyed all its assets to defendant City of Quincy, the enfranchising city. Defendants offered to pay preferred stockholders only $150 per share, although par plus accumulated dividends amounted to $205 and some common stockholders had already received $5 per share. Plaintiffs, preferred stockholders, sued to secure full payment, but the trial court held …

Federal Courts-Granting Of New Trial On Initiative Of The Court, William F. Snyder S. Ed.

Michigan Law Review

Following conviction for violation of a federal statute, petitioner was granted his release on a writ of habeas corpus by a federal district court, on the basis of uncontroverted testimony that his counsel had not been present when the jury returned its verdict. Within ten days of this release, a motion for rehearing was filed, supported by affidavits that his counsel actually had been present. On subsequent hearing, the court set aside its former order and remanded petitioner to custody, on the theory that his release was obtained by means of a fraud on the Court. The present action was …

Future Interests-Rule As To Remoteness Of Vesting In California, Howard W. Haftel S. Ed.

Michigan Law Review

T devised the income of a trust to his unmarried daughter for life. If at her death there were living issue of the daughter, the income was to be distributed to such issue until 24 years after T's death. The trust was then to terminate, unless issue, who had been living at T's death, should survive the 24-year period, in which event the income was to continue to be distributed until the death of such issue. It was further provided, "if my said daughter survives me, but at the time of her death leaves no issue of hers …

Future Interests-Worthier Title Doctrine, David H. Armstrong S. Ed.

Michigan Law Review

Plaintiff created an irrevocable trust of $75,000, reserving the income to himself for life and directing distribution of the corpus upon his death to his heirs according to the California laws of succession in existence at his death. Later he sued to terminate the trust on the theory that since the worthier title doctrine prevented creation of a remainder in his heirs, he was sole beneficiary. The intermediate California appellate court held that the worthier title doctrine was inapplicable because of a California statute changing the word "heirs" from one of limitation to one of purchase. Therefore, the outstanding remainder …

Illegal Conditions And Limitations: Effect Of Illegality, Olin L. Browder, Jr

Michigan Law Review

IN earlier articles the writer undertook to explore that miscellaneous and somewhat neglected field of law in which public policy is held to nullify the efforts of persons to impose certain types of conditions and limitations on dispositions of their property.' Such provisions most commonly take the form either of conditions subsequent or executory limitations, but occasionally appear as conditions precedent or special limitations. Unlike provisions which run afoul of the rule against perpetuities or the rules against restraints on alienation, the provisions in question usually prescribe conduct on the part of beneficiaries which is not directly related to the …

Finders-Application Of Statute To Finder Of Treasure Trove, Zolman Cavitch

Michigan Law Review

Defendants, a church committee, procured bundles of rags which were distributed to women who wove the rags into rugs. One such bundle was delivered to plaintiff who found $2100 in bills concealed therein. Plaintiff took the money to defendants, but no claimant appeared. A statute provided that a finder of lost money or goods having a value of $3.00 or more must give notice in a prescribed manner, or, failing to do so, be liable to the town in which found for one-half the value of the goods and for the other half to the person who should sue for …

Workmen's Compensation Acts-Denial Of Common Law Remedy For Associated Injuries Not Covered By Act, Colvin A. Peterson, Jr.

Michigan Law Review

While employed by defendant, plaintiff suffered severe bums and received compensation for a permanent partial disability under the applicable workmen's compensation act. He then brought an action for damages for disfigurement, not compensable under the act, on the theory that acceptance of statutory compensation did not deprive him of his common law remedy for injuries not within the scope of the act. Held, the statutory remedy is exclusive; plaintiff cannot recover for associated injuries outside the act. Morgan v. Ray L. Smith & Son, Inc., (D.C. Kan. 1948) 79 F. Supp. 971.

Mr. Justice William Johnson, Jurist In Limine: Dissent And The Judging Faculty, A. J. Levin

Michigan Law Review

There is little more in the legal literature on the subject of dissent than, on the one hand, the feeling that somehow it helps to present more than one side of a question and, on the other, that dissent is confusing and unsettling, and, therefore to be avoided. The part that dissent has played in preventing "history" from becoming the routine repetition of events, the function it fulfills in saving mankind from a mechanical adherence to an authoritarian concept of society, the psychodynamic need of the individual for self-expression-particularly evident in democratic societies-these and other related approaches have had not …

Theory Of Pleading A Survey Including The Federal Rules, William Wirt Blume

Michigan Law Review

In an often-quoted report of a committee of the American Bar Association, Roscoe Pound stated: "Pleadings have four purposes: (1) The first is to serve as a formal basis for the judgment. This is the oldest function, and one that goes back before the time of rational, as distinguished from purely mechanical trial of issues. . . . (2) Another is to separate issues of fact from questions of law .... (3) Another is to give litigants the advantage of a plea of res judicata if molested again for the same cause .... (4) Finally, pleadings exist to notify parties …

Domestic Relations - Statutory Abolition Of Certain Causes Of Action, George A. Rinker S.Ed.

Michigan Law Review

ln response to widespread and vigorous criticism of the abuses practiced through the use of the action at law for breach of promise to marry, and to a lesser extent, the actions for alienation of affections, criminal conversation, and seduction, several states enacted legislation designed to eliminate the evils complained of by abolishing some or all of those causes of action. The purpose of the present discussion is to analyze and compare the various statutes, and to indicate how they have fared in the courts; in short, to survey the whole reform program as it stands twelve years after the …

Criminal Law-New Trial-Absence Of Accused From Trial Because Of Attorney's Negligence, Alan Goldstein

Michigan Law Review

Defendant, represented by an attorney, was ordered, under an appearance bond, to appear at the November term of the court of general sessions to answer to an indictment for assault and battery with intent to kill. The indictment was not prepared during the November term, and at the end of the term the court ordered all those whose cases were not called to appear at the next term of court. At the February term defendant's case came up, but his attorney had apparently failed to read the court calendar, as neither the defendant nor the attorney knew that the trial …

Future Interests - Powers Of Appointment- Effect Of Bankruptcy Of Donee Of General Testamentary Power, Albert B. Perlin, Jr.

Michigan Law Review

By her will, X established a spendthrift trust, appointing Y and a trust company as co-trustees. In addition to receiving the income from the trust during his life, Y was given a general testamentary power to appoint the corpus; in default of appointment the corpus was to be divided equally among Y's issue. After X's death Y filed a voluntary petition in bankruptcy, listing the above interest as that of a beneficiary of a spendthrift trust, "value none." Before Y's death the trustee in bankruptcy purported to sell to plaintiff, who was not a creditor of Y …

Gifts - Causa Mortis -Automobiles - Effect Of Statute On Transfer Of Title By Gift And Will, Stephen A. Bryant

Michigan Law Review

Plaintiff filed a bill in chancery seeking a declaration of rights with respect to an automobile to which she claimed title by reason of a gift causa morris. Although the evidence offered by plaintiff on trial tended to support a valid common law gift causa mortis, defendant contended that the gift was ineffective because of the failure of the donor to comply with a statute which stated that "in the event of the sale or other transfer . . . of the ownership of a motor vehicle for which a certain certificate of title has been issued . . . …

Equity-Disinterment Of Dead Body Buried In Another's Land, Richard H. Conn

Michigan Law Review

Complainant sought a decree in equity compelling defendant, administratrix of the estate of one Abram London, to remove the body of deceased from a grave on land belonging to complainant. Complainant had purchased the land in 1934, but through error of the cemetery officials it was resold to London in 1944. London's wife was buried in the adjacent plot. Defendant contended that the relief requested would transgress London's wish to be buried adjacent to his wife. Held, decree granted. The body of a person buried in a grave belonging to another is not properly buried, and the court will …

Libel-Limitation Of Actions-"Single Publication Rule" Extended To Include Books, W. M. Myers

Michigan Law Review

In November, 1941, defendant book publishers commenced distribution of a book containing allegedly libelous statements concerning plaintiff. Thereafter, there were seven additional printings, the last in December, 1943, distribution of which began in March, 1944. Although more than 12,000 copies of the book were sold prior to this reprinting, only 60 copies were sold from stock during the year immediately preceding July 2, I 946, the date plaintiff instituted his action. To determine whether the action was barred by the statute of limitations, the following question was certified to the New York Court of Appeals: "Do sales from stock by …

Bailments-Delivery Of Possession-Liability Of Shopkeeper For Loss Of Article Left In Reception Room, Myron J. Nadler

Michigan Law Review

Without the knowledge of defendants, plaintiff hung her coat on a hook provided for wraps in the unattended reception room of defendants' beauty shop. Upon leaving, plaintiff returned to the reception room but was unable to find her coat. Judgment for its value was recovered in the lower court upon the theory that defendants were bailees of the coat and had been negligent in caring for it. Held, reversed. No bailment existed because there was no change of possession of the coat sufficient to constitute a delivery. Theobald v. Satterthwaite, (Wash.1948) 190P. (2d) 714.

Corporations - Liability Of Directors For Failure To Enforce Corporate Right By Section 16b Of Securities Exchange Act, Bernard Goldstone

Michigan Law Review

Plaintiff brought a stockholder's derivative suit against the directors of X corporation, alleging that they wilfully failed to demand short term profits made in the sale of the corporation's securities by an officer of the corporation. These profits were recoverable by the corporation pursuant to section 16B of the Securities Exchange Act of 1934. Plaintiff further alleged that as a result of the directors' failure to sue, the statute of limitations barred recovery of these profits, giving rise to a common law action against the directors for waste. Defendants moved to dismiss. Held, motion granted. Directors were not liable …

Judges--Motion For New Trial--Death Of Trial Judge Before Hearing On Motion For New Trial, Albert B. Perlin, Jr.

Michigan Law Review

Judgment was entered upon a jury verdict for the plaintiff. Defendants thereupon filed their intention to move for a new trial, but before the motion could be heard the trial judge died and assignment was made for hearing before another judge of the same court. Section 661 of the California Code of Civil Procedure directed that, "The motion for new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county …

Wills-Bequests Of Annuities-Right Of Legatee To Receive Principal In Lieu Of Annuity, Daniel W. Reddin Iii S.Ed.

Michigan Law Review

Decedent left a will in which she made a bequest of $3000, $1000 to be paid in cash and the balance to be invested by her executor in annuities to be purchased from certain specified companies. In his final report, which was upheld by the district court, the executor expressed his belief that the legatee had the right under this will to elect either to receive the entire bequest in cash or to have the designated part invested in the specified annuities, and stated that since the legatee had elected to receive the cash, the entire $3000 would be distributed …

Corwin: Liberty Against Government, Michigan Law Review

Michigan Law Review

A Review of LIBERTY AGAINST GOVERNMENT. By Edward S, Corwin .