Common Law Commons^™

Future Interests-Worthier Title Doctrine Applied To Remainder To Next Of Kin Where The Subject Matter Is Personalty, Margaret Groefsema S.Ed.

Michigan Law Review

The trustee bank petitioned for instructions as to the proper disposition of the remainder of a trust of personal property, the principal of which amounted to some $29,000 upon the life beneficiary's death in 1942. The donor had provided for a life estate in the income, the principal to go to the settler's statutory next of kin under the laws of intestacy of the state of Massachusetts in default of the exercise by the settler of a reserved power of appointment. The court, having held that a will which Nicolls, the settler, had executed in favor of various friends of …

Evidence - Admissibility Of Age In Hospital Record As Business Entry, Craig E. Davids

Michigan Law Review

Representing his birth date as 1866, deceased purchased from defendant insurance company in 1921 a policy on his life, which provided that in the event of any misrepresentation of age the insured's beneficiary would receive only that amount which a standard policy issued at his true age would stipulate for the premiums paid. In a suit by the beneficiary to recover on the policy, defendant attempted to prove that deceased was born at least as early as 1862. Among other evidence, defendant introduced a hospital record of deceased's visit to a particular institution in 1936 where he represented his age …

Fortescue's De Laudibus: A Review, Max Radin

Michigan Law Review

In this opus perfectissimum, Dr. Chrimes, whose book, English Constitutional Ideas in the Fifteenth Century, marks him as the man best fitted for the task, has filled one of the gaps which existed in the scientific examination of the sources of English law. We have Mr. Nicholl's Britton and Professor Woodbine's Glanvil and his still unfinished Bracton, Mr. Ogg's edition of Selden's Dissertatio, and the Hughes-Crump-Johnson edition of The Dialogue on the Exchequer. All these are admirable. There are left only St. Germain and Fleta, both of which cry aloud for an editor of the quality …

Husband And Wife--Memorandum On The Mississippi Woman's Law Of 1839, Elizabeth Gaspar Brown

Michigan Law Review

In retrospect, it seems a logical development that married women in the United States should have acquired substantial legal equality with men. The conditions of pioneer life, the relatively high sentimental value placed upon women, the increasing degree of social and domestic freedom which American women enjoyed-all were incompatible with the strict theories of the common law which placed a married woman and her property under the absolute control of her husband.

Constitutional Law-Due Process-Punishment For Acts Done Without Consciousness Of Wrongdoing, Benjamin M. Quigg, Jr. S.Ed.

Michigan Law Review

In the recent case of United States v. Dotterweich the United States Supreme Court (four justices dissenting) held the president of a drug jobbing company personally liable for violation of the Federal Food, Drug and Cosmetic Act on informations charging misbranding and adulteration of products. There was no evidence of any personal guilt on the defendant's part, nor was there any proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question. The disagreement among the members of the court was essentially one of statutory interpretation, but in view of the fact that …

The Scope Of A Civil Action, William Wirt Blume

Michigan Law Review

In the last fifty years the rules which deal with what Professor Millar happily has called "The Compass of the Cause" have shown "conspicuous advance." This advance is clearly reflected in the Rules of Civil Procedure of the District Courts of the United States, effective in 1938. It is the purpose of this paper, first, to present a complete analysis of the concept: scope of a civil action; second, to show the weaknesses of the codes in dealing with this concept; and, third, to indicate to what extent these, weaknesses have been remedied by the new …

The Bones Of Haddock V. Haddock, Harold Wright Holt

Michigan Law Review

It would not be fitting to say in the language of the stage that Williams v. North Carolina has drawn the curtain on Haddock v. Haddock. Rather we will shift the metaphor to say that the recent case from North Carolina has largely stripped the flesh from the earlier decision. Yet the bones of Haddock v. Haddock remain unbleached and unpulverized. Just as persons with mechanical turn of mind may frame from blocks of wood puzzles of readjustment and resetting, so courts in states that do not favor free and easy termination of marriage may still find in the …

Joint Adventure-Actions At Law For Share Of Profits, Hobart Taylor, Jr.

Michigan Law Review

Action in assumpsit for money due under a contract whereby defendant leased plaintiff's entire clothing factory for the manufacture of 20,000 coats for which defendant held a government contract. By the terms of the agreement, plaintiff was to receive one-half of the net profits. The agreement expressly stated that they were not to be partners. The coats were manufactured pursuant to the agreement. Held, a mere agreement to share profits is, between the parties, insufficient to create a partnership, and assumpsit may be maintained by the members of a joint adventure inter sese for the agreed share of profits. …

Corporate Proxies, Leonard H. Axe

Michigan Law Review

The earlier forms of corporations in England seem to have been political units and the normal mode of conferring corporate rights was by an issue of a charter from the crown, whereby a body of individuals was designated a corporation with the sovereign power to exercise appropriate privileges. Since the charter was issued by the crown, the corporation was considered a part of the government and each member of the corporation was entitled to one vote if given by him in person. As one writer has so well stated, this "was the result of a political philosophy which assumed that …

Trusts - Accumulation Of Income, James L. Mccrystal

Michigan Law Review

Testator left his estate in trust until twenty-one years after the death of two nieces, the trust income to be used first to pay several annuities and the remainder "to be re-invested by the trustee for the increase and benefit of this trust fund." At the expiration of twenty-one years after the death of both nieces the trust was to terminate and the estate to be distributed. The lower court held that, while the trust did not violate the rule against perpetuities nor the District of Columbia statute as to the suspension of the power of alienation, the trust income …

Criminal Law And Procedure - Conspiracy To Commit A Misdemeanor As A Felony, Michigan Law Review

Michigan Law Review

The defendant was indicted for conspiring to destroy the poles and wires of an electric public utility, the destruction of such property being a statutory misdemeanor. The indictment was prosecuted under the provision of the Michigan statutes which states that all crimes indictable at common law are punishable as felonies unless specifically declared otherwise by the statute. The crime of conspiracy comes under this "common-law offense" provision. Upon denial of his motion to dismiss, defendant sought mandamus to review the ruling. Held, an agreement to do an act made a misdemeanor by statute is a common-law conspiracy, and such …

Revocation Of Wills By Subsequent Change In The Condition Or Circumstances Of The Testator, Elizabeth Durfee

Michigan Law Review

Among the oldest rules in the law of wills are those by which a will is held to be revoked by implication by certain changes in the circumstances of the testator. The purpose of this paper is to investigate these rules. Special reference will be made to statutes, both those which deal generally with the subject and those which provide specifically for the effect of particular events, such as marriage; no attempt will be made, however to analyze the latter type of statute exhaustively. By way of introduction, a brief historical survey of the doctrine should be made.

Contracts - Arbitration And Award -Validity At Common Law Of Proceedings Void Under Arbitration Statutes, Edward H. Schlaudt

Michigan Law Review

Defendant contracted with plaintiff to grade an athletic field. The contract required all questions subject to arbitration thereunder to be submitted to statutory arbitration at the choice of either party. A dispute arose and at the plaintiff's demand three arbitrators were selected as provided in the contract. Plaintiff sued to collect an award granted in his favor. Defendant objected that both the contract of submission and the proceedings fell far short of the statutory requirements. Held, though the parties agreed to arbitrate under the statute, the proceedings pursuant to the contract fell so far short of statutory requirements that …

Banks And Banking - Right Of National Bank To Sue On Personal Guaranty To State Bank After Consolidation L Of State Bank With National Bank, William C. Whitehead

Michigan Law Review

Defendants guaranteed payment to a state bank of the notes and renewals made by a borrower. Shortly thereafter the state bank was consolidated with a national banking association. The borrower issued a renewal note to the consolidated bank for the indebtedness owing the state bank. This was followed by a consolidation with another state bank, the appointment of a receiver, and the sale of the consolidated bank's assets to plaintiff. In answer to the claim on the guaranty for payment of the renewal note, defendants declared that the obligation was not assignable and that the identity of the obligee was …

The Right Of Privacy, Louis Nizer

Michigan Law Review

It is only during the last half-century that the law has recognized the "right to be let alone"-the right under certain circumstances to protect one's name and physiognomy from becoming public property.

No mention of such a right will be found in the works of the great political philosophers and tract-writers of the seventeenth and eighteenth centuries-Hobbes, Locke, Rousseau, Montesquieu, Spencer, Paine. In discoursing on "natural rights," "the state of nature," "social contract," and "the inalienable rights of man," they were concerned only with the power of the state to abridge the liberties of the people. Society had not yet …

Appeal And Error - Order Granting A New Trial As An Appealable Order, Michigan Law Review

Michigan Law Review

By an Ohio statute a final order might be reversed, vacated, or modified on appeal. After verdict was returned plaintiff filed a motion for a new trial claiming misconduct on the part of the jury. The trial court granted the motion and the defendant appealed. Held, the granting of a motion for a new trial is not a final order and, therefore, not subject to review, except in cases where it clearly appears from the record that the trial court has abused its discretion in granting the motion. Petro v. Donner, 137 Ohio St. 168, 28 N. E. …

Marriage And Divorce - Power Of Court To Modify Decree For Alimony Or Property Settlement As Affected By Agreement Of The Parties, Roy L. Rogers

Michigan Law Review

Contracts settling the property interests of a husband and wife or providing for support of the wife or for both of these ends are no doubt valid in all jurisdictions where the parties may contract with each other if the purpose is not to facilitate divorce or future separation. Even at common law, separation agreements could be made, however, through the intervention of a trustee. If not invalid, the contract may ordinarily be enforced in an action on the promise. But, when a divorce is decreed, it is quite often the practice to incorporate in the divorce decree the provisions …

Taxation - Income Tax - Taxability Of Income Of Alimony Trust To Husband-Settlor-Rule Of Douglas V. Willcuts, Benjamin W. Franklin

Michigan Law Review

Three recent decisions of the Supreme Court of the United States, Helvering v. Fitch, Helvering v. Leonard, and Helvering v. Fuller, all involving an application of the rule of Douglas v. Willcuts, raise the question of what that rule means in its practical application. Stated briefly, that rule is that the income from a so-called alimony trust is taxable to the husband-settlor whenever it discharges a continuing obligation for him.

The Codification Of The French Customs, John P. Dawson

Michigan Law Review

A renewed attack on central problems of English legal history can gain fresh perspective from the history of French law. France and England entered the later middle ages with a common fund of legal and political institutions. Much of the area that was to be included in modern France was united with England under a common sovereign; political institutions were shaped by the same basic forces into similar forms of feudal organization; private law was largely composed of unformulated popular custom, remarkably similar even in detail. As early as the thirteenth century the tendencies toward divergence, both in law and …

Torts - Joint Tortfeasors - Husband And Wife - Torts Between Spouses - Immunity Of Third Persons, Michigan Law Review

Michigan Law Review

Plaintiff sued defendants, including plaintiff's husband, for jointly causing a false charge of adultery to be made against plaintiff in a divorce suit. The defendants' demurrer to the complaint was sustained in the trial court as to each and all of the defendants. Held, that although plaintiff's husband was immune from liability, a cause of action had been made out against all the rest of the defendants, and the judgment in their favor was reversed. Ewald v. Lane, (App. D. C. 1939) 104 F. (2d) 222.

The Powers Of A Court Of Equity In State Tax Litigation, Maurice S. Culp

Michigan Law Review

Hitherto a state taxpayer, otherwise meeting the jurisdictional requirements of a federal district court, could secure an injunction from such a court upon a showing that there was no adequate remedy at law in the federal district court, and this regardless of the legal or equitable remedies afforded by the state courts.

In view of this recent legislation, it becomes important to ascertain the new limitation upon the equity powers of the federal district courts in state tax litigation. Likewise, because of these new rigid limitations upon the jurisdiction of the federal courts, the attitude of the state courts of …

Executors And Administrators - Effect Of Testamentary Provisions On Executors' Fees, Michigan Law Review

Michigan Law Review

At the early English law an executor was entitled to the surplus of the personal estate after the payment of debts and legacies, but this practice nowhere prevails today. At common law the office of executor was regarded as honorary, to be performed without compensation unless the will expressly provided for compensation. It is doubtful if the common-law rule ever obtained in this country, where from a very early time it has been universally considered that executors are normally entitled to reasonable compensation not only to reward them for their time, labor and trouble, but also for the responsibility incurred …

Trading In Securities By Directors, Officers And Stock.Holders: Section 16 Of The Securities Exchange Act, Kenneth L. Yourd

Michigan Law Review

The prime objective of the Securities Exchange Act is the establishment and maintenance of a free and open market for trading in securities; a free and open market in the sense that the prices obtaining thereon represent an evaluation of worth based upon a full knowledge in all traders of all pertinent facts and circumstances. In an attempt to achieve a realization of the ideal concept of a free and open market, the framers of the Securities Exchange Act have been careful to bring within the purview of the enactment all elements which they believed in any way were reflected …

Appeal And Error - Reviewability Of An Order Granting A New Trial, Robert M. Warren

Michigan Law Review

When a trial court sets aside a verdict and grants a new trial, the order may or may not be reviewable depending on the jurisdiction. In some jurisdictions which permit a review, the aggrieved party must save an exception to the order and assign this ruling as error when an appeal is ultimately taken from a subsequent appealable decision. In other jurisdictions, he may take an appeal directly from the order.

This comment will discuss (1) the common-law practice which permitted no review of an order granting a new trial; (2) the practice allowing the aggrieved party to save an …

Bankruptcy -Trustee's Liability - Effect Of Requirement Of Deposit In Designated Depositary On Trustee's Common Law Duty Of Due Care, Russel T. Walker

Michigan Law Review

In a suit to charge a trustee in bankruptcy for the loss of funds of the bankrupt estate caused by insolvency of the depositary bank, the trustee contended that as he had fulfilled the requirement of section 61 of the Bankruptcy Act by depositing the funds of the estate in a "designated depositary," he could not be charged with liability for any loss occurring thereafter; he argued that section 61 repealed, by implication, the trustee's common-law duty of due care in the handling of estate funds after they were deposited in a "designated depositary." Held, the fact that the …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Reference has already been made to the difficulties arising when the widow has elected to take under the will, and for some reason or other, intestate property also remains to be disposed. Further difficulty arises in those cases where the widow elects to take against the will and yet claims to share in intestate property. Shall her claim be allowed under those circumstances?

Taxation - Federal Gift Tax - Taxability Of Interest Passing At Creation Of Tenancy By Entirety, Ben H. Dewey

Michigan Law Review

On September 20, 1933, petitioner transferred by deed realty owned by him in fee to himself and his wife as tenants by the entirety. The commissioner of internal revenue determined that the transfer constituted a taxable gift under the Gift Tax Act of 1932. Petitioner took an appeal to the Board of Tax Appeals. Held, with one dissent, that such creation of a tenancy by the entireties did not constitute a taxable transfer under the Gift Tax Act. Hart v. Commissioner, 36 B. T. A. No. 176 (Dec. 28, 1937).

Liens - Extent To Which Common-Law Artisan's Lien Has Been Supplanted By Statute, Arthur P. Boynton

Michigan Law Review

An artisan's lien is the right of a bailee, who by his labor, skill, or material adds value to the chattel of another at the request of the owner, directly or impliedly, to retain possession of the chattel until the reasonable value of his services has been paid. The right to this lien, which is a specific lien, is of common-law origin, and in the absence of anything inconsistent in the contract has long been extended to all artisans. This common-law artisan's lien, however, has been supplanted by statute in some respect in all but five states. In the other …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Before launching into the discussion proper, and in order to avoid confusion and misunderstanding later on, it is deemed wise at once to mark out boundaries within which it is proposed to confine the treatment of the subject here involved. Accordingly, in that which follows, attention will be centered largely on the necessity for election by a widow under modern statutes which allow her to take against her husband's will, and on the effects of her election or non-election upon her interest in her husband's estate. In so far as a surviving husband has identical rights, they will be adverted …

Restricted Testation In New Zealand, Australia And Canada, Joseph Dainow

Michigan Law Review

One of the long accepted differences between the common law and the civil law has been the freedom of testamentary disposition of the former as contrasted with the limitations of the latter. Thus, while the continental testator was limited in the amount of property that he could leave away from the members of his immediate family, the Englishman could cut them all off without a penny. In other common-law countries the same liberty was continued; but recent years have witnessed important departures.