Common Law Commons^™

Civil Procedure - Joinder Of Statutory Causes Of Action With Common Law Negligence Where There Are Different Parties Defendant, George W. Marti

Michigan Law Review

Plaintiff brought an action against defendant for injuries received in an automobile accident caused by defendant's negligence in driving while intoxicated. She sought to join with this claim actions against several bar owners under a statute providing for liability of bar owners for injuries caused by one to whom they had unlawfully sold alcoholic beverages. One of the defendant bar owners moved to dismiss for misjoinder or to compel an election of causes on the ground that since only compensatory damages could be recovered against the defendant-consumer upon common law negligence, and both exemplary and compensatory damages could be recovered …

Husband And Wife - Right Of Wife To Sue For Loss Of Consortium Due To Negligent Injury To Husband, James M. Porter S.Ed.

Michigan Law Review

Plaintiff brought an action for loss of consortium with her husband, allegedly due to defendant's negligent injury of the husband. In a prior suit the husband's cause of action against the defendant had been settled and dismissed with prejudice. The trial court dismissed the present suit for failure to state a cause of action. On appeal, held, reversed. The wife has a valuable property right of consortium. Iowa statutes pertaining to the rights of married women clearly indicate the intent of the legislature to remove the common law bar of coverture that prevented a wife from maintaining an action …

Judicial Review In Europe, Gottfried Dietze

Michigan Law Review

The years following the Second World War witnessed a wave of constitution making in Europe. In East and West alike, popular government was instituted through new basic laws. But whereas the constitutions of Eastern Europe established a Rousseauistic form. of democracy through the creation of an omnipotent legislature, those of the West, while reflecting a belief in parliamentary government, to a larger or smaller degree limited the power of the legislature through the introduction of judicial review. This acceptance of judicial review can be attributed mainly to two factors. It sprung from a distrust of a parliamentarism under which, during …

Wills - Execution - Attestation, Max H. Bergman

Michigan Law Review

Prospective witnesses to a will saw the testatrix standing in an adjoining room engaged in writing. Soon thereafter, the testatrix asked them to come in and sign a paper. Her name had already been written on the document, and she neither signed it in the witnesses' presence nor in any manner indicated the writing to be her will. The witnesses read enough of the document, however, to know it was a will, before subscribing it in the presence of the testatrix and one another. Three of the testatrix' sons objected to the probate of the will on the ground that …

Schwartz: The Code Napoleon And The Common Law World, J. G. Castel

Michigan Law Review

A Review of The Code Napoleon and the Common Law World. Edited by Bernard Schwartz.

Estoppel And Crown Privilege In English Administrative Law, Bernard Schwartz

Michigan Law Review

Perhaps the most anachronistic doctrine in Anglo-American public law is that of sovereign immunity. Under it, the State is placed in a privileged position of immunity from the principles of law which are binding upon the ordinary citizen, unless it expressly consents to be bound by such principles. In Anglo-American law the infallibility attributed to the King in the days when he was personally sovereign has been more recently recognized in the State, which the Crown now merely personifies. Thus, even today, and even in the American democracy, the basic principle of public law is that the King can do …

Wu: Fountain Of Justice, Thomas E. Davitt S.J.

Michigan Law Review

A Review of Fountain of Justice. By John C.H. Wu.

Dispositions Of Property To Unincorporated Non-Profit Associations, Harold A.J. Ford

Michigan Law Review

The aim of this article is to examine the ways in which courts in common law countries have given this assistance and the problems they have encountered in regard to property transactions.

The Martial Deduction And Equalization Under The Federal Estate And Gift Taxes Between Common Law And Community Property States, Paul E. Anderson

Michigan Law Review

In 1948, as the culmination of much dissatisfaction with the treatment of community property under the federal estate and gift tax laws, Congress adopted a new formula for the treatment of gifts and bequests between spouses; this formula was known as the marital deduction. It has remained practically unchanged since its adoption and still stands as an integral part of our federal estate and gift tax structure.

The basic purpose of the deduction was to provide equalization in estate and gift tax treatment between spouses residing in community property states and those residing in common law property states. The plan …

Lawson: A Common Lawyer Looks At The Civil Law, F. S. C. Northrop

Michigan Law Review

A Review of A Common Lawyer Looks at the Civil Law. By F. H. Lawson.

Conflict Of Laws - Torts - Proper Party Plaintiff In Wrongful Death Actions, John M. Webb

Michigan Law Review

The purpose of this comment is to examine the differing solutions and determine the vitality of the common law rule in wrongful death actions.

Creation Of Joint Rights Between Husband And Wife In Personal Property: I, R. Bruce Townsend

Michigan Law Review

Joint ownership of personal property in recent years has become a common practice--one to which husband and wife are especially addicted. The topic is worthy of more than academic concern as demonstrated by the public use of joint titles in the acquisition of all kinds of personal assets, particularly investment securities. A casual conversation with almost any banker would disclose that a very high percentage of accounts owned by married people are held jointly with their spouses. The current popularity of dual ownership, for example, is reflected in the marketing policy of the United States Treasury in the sale of …

Legal History-Joseph Story's Anonymous Law Article, John C. Hogan

Michigan Law Review

The first edition of the Encyclopedia Americana (1829-1833) contains numerous articles on a wide variety of legal subjects, including such topics as Common Law, Jury, Equity, etc. The identity of the author of these articles is not disclosed. There is an occasional footnote, however, which declares: "this article prepared by an eminent American jurist." This suggested the possibility of a lively and interesting manhunt--a search for the "eminent American jurist" who agreed to submit articles on law for the Encyclopedia, but who preferred to remain anonymous.

The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris

Michigan Law Review

It is the purpose of this article to examine the history and origin of the wills branch of the worthier title doctrine, to ascertain the extent of its application and the manner of its application, to determine the legal consequences flowing therefrom, and to consider the desirability of its continued existence.

Simes: Public Policy And The Dead Hand, W. Barton Leach, John H.C. Morris

Michigan Law Review

A Review of PPublic Policy and the Dead Hand. The Thomas M. Cooley Lectures, Sixth Series. By Lewis M. Simes.

Real Property - Elimination Of The Straw Man In The Creation Of Joint Estates In Michigan, Edward H. Hoenicke S.Ed.

Michigan Law Review

That joint ownership is a popular form of holding title to real property is undeniable. A husband and wife are especially likely to consider this form of ownership as "natural" and desirable because it emphasizes the concept of marriage as a partnership and gives both partners control over and ownership in the family property. In addition to these factors, joint ownership is popular because of the right of survivorship which is incident to it. In this feature the layman sees, or thinks he sees, the opportunity to avoid a probate proceeding, the estate tax, and the lawyer's fee. It is …

Husband And Wife -- Personal Tort Actions Between Spouses -- Statutory Construction, Robert B. Olsen S.Ed.

Michigan Law Review

Following an interlocutory divorce decree, and while the parties were living apart from one another, defendant allegedly assaulted the plaintiff. The trial court dismissed her complaint on the ground that no action could be brought by one spouse against the other for personal torts committed during coverture. On appeal, held, reversed, three judges dissenting and one concurring. The Judicial Code and the Husband and Wife Statutes of Utah, when considered together, entitle a married woman to maintain an action against her husband for injuries intentionally inflicted upon her. Taylor v. Patten, 2 Utah (2d) 404, 275 P. (2d) …

Federal Procedure - Availability Of Coram Nobis In Federal Cases Involving Right Of Counsel, John Leddy S.Ed.

Michigan Law Review

ln 1939 Robert Morgan pleaded guilty to a charge of mail theft and was sentenced by a federal district court to four years imprisonment. He served the term and was released. In 1950 he was convicted of a crime in New York state and sentenced as a second offender because of his previous federal conviction. In 1952 he made application to the district court of original sentence for a common law writ of coram nobis, seeking an order vacating and setting aside his conviction by that court on the ground that he was not given assistance of counsel and had …

Evidence-Privilege-Right Of Third Person To Assert Privilege As To Accident Report Made Confidential By Statute, Richard W. Young S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for injuries sustained when the automobile in which she was a passenger collided with that operated by the defendant. Defendant questioned a police officer, who had filed the accident report, concerning statements made to him by the driver of the vehicle in which the plaintiff was riding. The trial court permitted this testimony over the plaintiff's objection that these statements were privileged under an Iowa statute purporting to make written accident reports confidential and inadmissible in evidence. On appeal after a verdict was returned in favor of the defendant, held, reversed. The statute can …

Divorce For Temperamental Incompatibility, Lester B. Orfield

Michigan Law Review

One not acquainted with American or Continental legal history might conclude that temperamental incompatibility as a ground for divorce is a novel and radical innovation. In fact, such divorces have been possible from the beginning of our history. Legislatures granted divorces until the last quarter of the nineteenth century. 'We are told that the legislature was appealed to in cases that were too flimsy or too whimsical for the courts."

About a century ago and for more than a generation later at least nine states had "omnibus clauses in their divorce statutes broad enough to include incompatibility of temper." No …

Legislation-Statutory Construction-Validity Of Canon That Statutes In Derogation Of The Common Law Should Be Strictly Construed, Alan Reeve Hunt S.Ed.

Michigan Law Review

Plaintiffs brought suit to recover damages for the death of their adopted son under the Mississippi wrongful death act, which provides that an action may be brought by "the parent for the death of the child." The defendants incorporated in their answer a special plea that the statute does not vest a cause of action in adoptive parents. On appeal from a judgment sustaining this plea, without prejudice to the rights of the deceased's natural parents to bring another action, held, affirmed. The Mississippi wrongful death statute gives a right of action to natural parents only. Boroughs v. Oliver …

Constitutional Law - Censorship Of Obscence Literature, Donald M. Wilkinson, Jr. S.Ed.

Michigan Law Review

The right to a free expression of ideas, without interference from governmental authorities, is inherent in the very nature of a democracy. On the other hand, it is also clear that the greater interests of the state at large will conflict with certain forms of expression, and in such circumstances obviously the former must prevail. It is the purpose of this comment to discuss the constitutional limitations on the governmental suppression of literature on grounds of obscenity.

Is The Rule Against Perpetuities Doomed?, Lewis M. Simes

Michigan Law Review

Few rules of the common law have shown such amazing vitality as the rule against perpetuities. Emerging in the Duke of Norfolk's Case in 1682, as a rule to restrict unbarrable entails in land, it is now applied, not only to interests in land, legal and equitable, but also to personal estate, tangible and intangible, including beneficial interests in trusts. It is regarded as a part of the common law of nearly every English speaking country, except a few of the United States where statutory substitutes have been provided. Since 1930, statutory substitutes have been abolished and there has been …

Labor Law-Labor-Management Relations Act-Anti-Featherbedding Provision, Walter H. Weiner S.Ed.

Michigan Law Review

The typographers union insisted that newspaper publishers, upon using advertising mats as molds for metal castings from which to print advertisements, pay typesetters, at regular rates, for setting up duplicate forms for such advertisements in the same manner as though mats were not used, which duplicate forms are ordinarily melted down without having been used. The musicians union insisted that a theater employ a local orchestra, as a condition of the union's consent to the local appearance of traveling bands, to play overtures, intermissions and chasers. The publishers association and the theater challenged these demands as attempts to exact payments …

Treaties Governing The Succession To Real Property By Aliens, Willard L. Boyd, Jr.

Michigan Law Review

Under customary international law no nation has the duty to grant to aliens the right to hold real property. Although international law accords to an alien the privilege of participating in the economic life of the state of his residence, this privilege does not encompass the right to hold real property. The right to succeed to and hold real property is a matter solely within the competence of a nation. It is for each nation exclusively to regulate the acquisition and tenure of real property. National authority in this regard can be traced to the concept that the sovereign may …

Rights Accruing To A Husband Upon Marriage With Respect To The Property Of His Wife, James W. Day

Michigan Law Review

Attention is directed in this article to the principles of the common law and the features of the subsequent developments that are believed to be of greatest current value either because the particular doctrine still persists or because it aids in the evaluation of a precedent for use in a legal background that differs from that of the period or jurisdiction in which the decision was rendered.

Advancements: I, Harold I. Elbert

Michigan Law Review

The purpose of this monograph is to consider the afore-mentioned topics and other questions inherent in the doctrine of advancements. Different interpretations in the various states will be discussed. The principal objectives of the work are to make a comparative study of advancement legislation and to state the law as it actually exists as a basis for determining whether it can be improved.

Corporations-Right Of Hostile Stockholder And Director To Examinethe Books And Records Of Corporation, Charles R. Gibson S.Ed.

Michigan Law Review

Plaintiff was a minority stockholder and director in Pascal Company. She sought to inspect the books and records of the corporation relating to marketing practices, sales and customers, but was prevented from doing so by the defendant, who is the president and majority stockholder of the corporation. Plaintiff thereupon brought an action for a writ of mandamus to compel the defendant to permit such inspection. The defense was that plaintiff had a scheme to interfere with, harass and sabotage the business by contacting distributors and customers, and by making information regarding the business available to competitors. The lower court dismissed …

Negligence-Duty Of Care-Determination Of Plaintiff's Status Under Guest Statute, Donald M. Wilkinson, Jr.

Michigan Law Review

Plaintiff, a boy scout, was assisting in a paper collection for the benefit of his troop, and while so doing, was injured when he attempted to regain his position on a utility trailer attached to the assistant scoutmaster's automobile. Plaintiff brought suit against the assistant scoutmaster, alleging negligent operation of the automobile. Defendant's motion for judgment on the pleadings was granted in the lower court, but this ruling was reversed in the court of appeals. On appeal to the Supreme Court of Ohio, held, affirmed, three judges dissenting. Defendant was deemed to have been benefited by plaintiff's activities to …

Negligence-Federal Employer's Liability Act-Extension Of The Safe Place To Work Doctrine, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff, a lumber inspector employed by the defendant railroad, was inspecting railroad ties on a dock owned by an independent lumber company. The employees of the lumber company had piled the ties so that the ends were either flush with or protruded over the edge of the dock. In order to inspect the ends, the plaintiff assumed a ''bent-over" position in which his right foot was on the edge of the dock, his left hand on the pile and his left foot suspended in the air. After losing his balance, he placed his left foot on the dock where it …