Common Law Commons^™

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 …

Common Law Marriage-Divorce-Support Pendente Lite

Indiana Law Journal

No abstract provided.

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 …

The Future Of The Common Law, Robert C. Brown

Indiana Law Journal

No abstract provided.

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.

Abatement And Revival - Exception From Survival Statute Of Actions For Slander As Preventing Survival Of Action For Slander Of Title, Michigan Law Review

Michigan Law Review

Pending plaintiff's action for slander of title, defendant died. A statute provided that no action should abate by the death of either party thereto except actions for libel, slander, malicious prosecution, nuisance, or actions against a justice of the peace for misconduct in office. Held, the action abated, because, although slander of title was not expressly excepted from the operation of the statute, still the action of slander as specifically excepted by the statute embraces the action of slander of title. Billingsley v. Townsend, 132 Ohio St. 603, 9 N. E. (2d) 690 (1937).

Book Review. Gavit, B.C., Cases And Materials On An Introduction To Law And The Judicial Process, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.

Book Review. Cases On Conflict Of Laws (Lorenzen), Comparative Commentaries On Private International Law, And Cases On Conflict Of Laws (Harper And Taintor), Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Liability In Anglo-American Law For Damage Done By Chattels, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.

The Power To Carry On The Business Of A Decedent, Harry Adelman

Michigan Law Review

The continuation of a business for the sole purpose of making a profit is clearly beyond the scope of liquidating the estate of a decedent. It is rather a trust of the business, created for the benefit of the creditors of the decedent and persons entitled to share in the distribution of the estate. The business is managed as a normal going concern, on a somewhat permanent basis, rather than as a temporary means of preserving the value for an advantageous sale.

Libel - Right Of Privacy -Auction Sale Of Debts, Gerald M. Stevens

Michigan Law Review

A creditor put his claim into the hands of one Power, who held himself out as an advertiser of accounts for sale. Power threatened several times by letter to advertise the debtor's account for sale at auction unless it was paid immediately. No payment was made; and a "flaming orange handbill" was printed and circulated about the debtor's neighborhood. It offered for sale to the highest bidder the debtor's and twenty-three other accounts. It contained, further, the statement that all accounts were guaranteed correct and undisputed and a solicitation for merchants' accounts to be similarly disposed of. Thereupon the debtor …

Gratuitous Promises-A New Writ?, Warren L. Shattuck

Michigan Law Review

Under the early common law, the fact situations which presented actionable wrongs were limited in number and stereotyped into various writs which issued from the Lord Chancellor. Only as new writs were devised by him was it possible for new fact situations to achieve the dignity of justiciability and so raise legal rights and duties. But with the liberalization of pleading the recognition of new legal rights and duties became a judicial function. In consequence, the constant struggle of new fact patterns for a place in the law is now principally waged before the courts. In this struggle some fail, …

State Farm Mutual Automobile Insurance Company V. Marie H. Justis

Virginia Supreme Court Records, Volume 168

Supreme Court of Appeals of Virginia at Richmond

The Common Law Of Legislation, Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Joint Adventure-Extent To Which Partnership Law Applies, Merwin K. Grosberg

Michigan Law Review

The recent case of Chisholm v. Gilmer, in holding joint adventurers jointly liable on an obligation incurred by all the members thereof through a trustee who acted as agent for all the members, again opened up the problem of the nature of the joint adventure and the rights and liabilities of its members. When, in joint adventure cases, the relationship of the parties is not clearly determined by their contract, the courts have consistently looked to the law of partnership for aid in reaching a result. It is the purpose of this article to indicate the degree to which …

Trusts-Restated And Rewritten, Harry W. Vanneman

Michigan Law Review

Two books were published during the past year which are of the greatest importance to those of the legal profession who are interested in the law of trusts. Professor Bogert's seven volumes appeared first, followed shortly by The Restatement of the Law of Trusts by the American Law Institute, of which Professor Scott, of the Harvard Law School, was the reporter. Professor Bogert, of the University of Chicago Law School, was a member of the Institute's Committee on Trusts. Since 1927, therefore, when the Institute began work on the Restatement of Trusts, Professor Bogert apparently has been working …

Criminal Law And Procedure-Contempt Of Court-Sheriff Allowing Federal Prisoners To Escape From County Jail

Michigan Law Review

Information was filed against a sheriff for contempt in negligently permitting the escape of federal prisoners from his county jail. Held, the sheriff was guilty of contempt of the federal committing court. United States v. Fanning, (D. C. W. Va. 1934) 6 F. Supp. 412. Affirmed, Fanning v. United States, (C. C. A. 4th, 1934) 72 F. (2d) 929.

An Introduction To The Statute Of Uses, Wendell Carnahan

Kentucky Law Journal

No abstract provided.

Declaratory Judgments- Extension Of Protection Against Injuries To Personality

Michigan Law Review

The widespread acceptance of the declaratory judgment as a statutory supplement to common law and equitable remedies has raised some searching questions as to the relation between right and remedy in Anglo-American law. The declaratory judgment can operate in anticipation of specific wrongs that would be a basis for ordinary legal or equitable relief. It does not depend for its efficacy on the use of the familiar remedies of law and equity - that is, on damages, specific restitution in replevin and ejectment, and the injunction and specific enforcement in equity. The question may therefore be asked whether the development …

Trusts - Constructive Trusts - Breach Of Fiduciary Relation Between Husband And Wife With Respect To Oral Agreement Concerning Land

Michigan Law Review

In her last illness, Mrs. Jackson desired to transfer realty to her married daughter, plaintiff herein. To prevent creditors of the daughter's husband from reaching the property, Mrs. Jackson conveyed the land to her husband, Mr. Jackson, with the parol understanding that "he would see that Cora got it." Jackson failed to transfer the land and upon his death it passed under an ante-nuptial settlement to defendant, his second wife. In an action to recover the land, the court stated that defendant was in the position of a bona fide purchaser for value, and held that the statute of frauds …

Rights In Land - Lateral Support - Statute Increasing Common Law Rights And Duties - Constitutionality

Michigan Law Review

Plaintiff sued for damages to his building which collapsed during excavating operations on defendant's adjoining land. A Michigan statute makes it the duty of land owners excavating to a depth of 12 feet or more below grade level to furnish sufficient lateral support to protect adjacent land and structures thereon from injury "due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation," and imposes liability for injuries due to failure to comply with the act. The excavation on defendant's land, reaching a depth of 14 feet below grade …

Foreign Enforcement Of Actions For Wrongful Death, William H. Rose

Michigan Law Review

Actions for wrongful death have a long history in the common law. Homicide was once a private matter giving rise to the blood feud and later to the wergild, whereby a money substitute replaced private warfare. With the development of criminal law the crown took jurisdiction over all killings. At a time when all felonies carried with them the death penalty, forfeiture of chattels and escheat of lands, the right to sue for wrongful death was scarcely of practical importance. This was especially so since felony included negligent killing, and even an accidental killing required the king's pardon if …

Innkeepers - Statutory Construction - Hospital As Hotel

Michigan Law Review

Plaintiff hospital claimed a lien upon the personal effects of a deceased patient left in their possession. An Iowa statute defines a hotel, for the purposes of its operator's lien, as including "inn, rooming house, and eating house, or any structure where rooms or board are furnished, whether to permanent or transient occupants." The term "guest" is defined to include "any legal occupant of any hotel as herein defined." Held, that "structure" as used in the statute refers to one used for the entertainment of ordinary individuals, as in the case of the structures enumerated; and that a hospital, …

Stare Decisis And The Dead Hand Of The Common Law, Trixy M. Peters

West Virginia Law Review

No abstract provided.