Digital Commons @ UM Law

Maryland Law ReviewVolume 1 | Issue 2 Article 5Action in Maryland for Wrongful Death Causedand Occurring Elsewhere - Davis v. RuzickaFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Conflicts of Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationAction in Maryland for Wrongful Death Caused and Occurring Elsewhere - Davis v. Ruzicka, 1 Md. L. Rev. 162 (1937)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss2/5CASENOTES AND COMMENTSvantages accruing thereto. It guarantees a degree of jus-tice seldom, if ever, approached in the application of theharsh and strict Federal rule. It makes for certainty whereotherwise only uncertainty would exist."ACTION IN MARYLAND FOR WRONGFUL DEATHCAUSED AND OCCURRING ELSEWHERE-DAVIS V. RUZICKA'An action was brought in Maryland by an administra-trix for the wrongful death of her intestate caused andoccurring in the District of Columbia. The Death Statuteof the District2 enables the personal representative of thedeceased to sue for the benefit of the next of kin and limitsrecovery to $10,000. The Maryland Death Statute author-izes a suit in the name of the State for the benefit of certainrelatives in proportions to be determined by the jury andwith no limit as to the amount of recovery.' This is theMaryland statute of the Lord Campbell's Act type whichprovides compensation to near relatives for the loss of thebenefits calculated to result to them from the continuedliving of the deceased. Another Maryland statute4 enablesthe personal representative of the deceased to sue for thebenefit of the estate for such injuries and suffering as weresustained by the deceased in his life time, viz., sufferingbetween the time of the fatal injury and death. This lattertype of action is not involved in the instant case. The Courtof Appeals affirmed a judgment for the defendant, statingthat suit may be brought in Maryland for a wrongful deathelsewhere only where the statute of the jurisdiction wherethe injury and death occurred is similar in its design andpurpose to that of Maryland." To bolster the conclusion reached it is interesting to notice the lan-guage in the case of Heironimus v. Sweeney, 83 Md. 146, 159, 34 Atl. 823(1896). There the Court, in discussing various views, had this to say,"Other Courts have held that although the money obtained under ultravires contracts must be returned to the party to whom it rightfully be-longs; yet an action cannot be maintained on the contract itself." TheCourt then cites several Supreme Court cases in support of this doctrine,and then continues, "But whether an action is brought on the contractor the equitable grounds which show that the plaintiff ought ex aequo etbono to recover, the object which the law seeks to accomplish is the same."I - Md. -, 183 Atl. 569 (1936).District of Columbia Code, Title 21, Secs. 1-3.'Md. Code and Code Supp., Art. 67, Secs. 1, 2.'Md. Code Supp., Art. 93, Sec. 106. See also Md. Code Supp., Art. 75,Sec. 29.MARYLAND LAW REVIEWThe Court felt bound by its similar decisions in Ash v. B.& 0. R. R. Co.,' and London Guarantee and Accident Co. v.Balgowan Steamship Co.,6 .The Maryland doctrine is in accord with a group of earlycases decided when there was a tendency to restrict the en-forcement of so-called foreign-created rights, includingTexas & P. R. Co. v. Richards.' It is opposed, however, bymore modern cases, Dennick v. Central R. R. of NewJersey,8 and Loucks v. Standard Oil Co. of New York.9 Itis likewise opposed by the Restatement of Conflict of Laws,"and the uniform views of the commentators in the field."These take the stand that the claim for wrongful death, likeother tort claims, is to be governed by the law of the place ofwrong without regard to the similarity of the statutes (sub-ject of course, to applicable general exceptions such as arefound in the Restatement of Conflict of Laws). 2 Nor doesthe Maryland Court's strict application of the similaritydoctrine accord with the majority of those cases stating therule in the same terms. The general tendency is to followthe fundamental Conflict of Laws policy of recognition andto look to the similarity of the purpose of the statutes in-volved and overlook procedural and non-substantial differ-ences such as have been taken as sufficient to bar recovery inMaryland.'8It should be observed that the United States SupremeCourt, while adhering to the doctrine of similarity of stat-utes, has followed the liberal view of overlooking technicaldissimilarities. In Stewart v. B. c 0. R. R. Co.,14 amongother cases, it has sustained a suit in the District of Colum-bia for a wrongful death occurring in Maryland. Likewise,the United States District Court for Maryland, in treating5 72 Md. 144, 19 At. 643 (1890).0 161 Md 145, 155 Ati. 334, 77 A. L. R. 1302 (1931) (noted in (1931) 80U. of Pa. L. Rev. 128). Cf. Dronenburg v. Harris, 108 Md. 597, 608, 71 Atl.81 (1908).' 68 Tex. 375, 4 S. W. 627 (1887) and collection of cases 56 L. R. A. 202,203, note.8 103 U. S. 11, 26 L. Ed. 439 (1880).0 224 N. Y. 99, 120 N. E. 198 (1918)."0 Sec. 392 (a).11 Goodrich, Conflict of Laws, sees. 99-102; Beale, Conflict of Laws, secs.391-392; Rose, Foreign Enforcement of Actions for Wrongful Death (1935)33 Mich. L. Rev. 545; Note, Conflict of Laws, Enforcement of Death byWrongful Act Statutes in Courts of Another State (1933) 13 B. U. L. Rev.521."Sees. 607-620.3Hanna v. Grand Trunk R. Co., 41 Ill. App. 116 (1891); Stewart v.Baltimore & 0. R. Co., 168 U. S. 445, 42 L. Ed. 537, 18 S. Ct. 105 (1897)Annotation, 77 A. L. R. 1311.uSupra note 13.CASENOTES AND COMMENTSthe matter as one of general law which the Federal courtsmust determine for themselves, has allowed recovery 5 fora wrongful death in West Virginia under the same statuteswhich had been held too dissimilar by the Maryland Courtin Ash v. Baltimore & Ohio R. Co.'6This note has confined its statements to the generalbroad principle of recognition or non-recognition of foreigndeath claims and the doctrine of similarity of statutes calledfor by the Maryland cases, without attempting to indicateother difficulties in securing recognition of the foreign deathclaims, such as the penal character of the law of the place ofinjury, right of action given to a party who could not sue inthe forum, etc. Discussion of such phases appears in thevarious secondary sources referred to above, a close readingof which will reveal an ever increasing tendency on the partof courts to liberalize along the lines of a broader recogni-tion of foreign claims, even to the extent of reversingdirectly or indirectly former holdings. Instances of thelatter are seen in several cases. 7The Maryland Court's adherence to the similarity doc-trine results in it being possible for tortfeasors from otherstates to escape liability for wrongful deaths caused by themby simply removing their property and persons to the safehaven of M1aryland. One basic peculiarity of our wrongfuldeath statute (noninal action in the name of the State asplaintiff) may cause our statute to be held dissimilar to thestatutes of almost all other states. Thus it may be thatMaryland provides a haven of refuge for the persons andproperty of those who come here after killing people else-where. For, assuming lack of requisite "similarity" ofstatute, the only hope that the next of kin of the victim canhave is to sue the tortfeasor in a state (if any) where per-sonal judgment may be rendered against him, and then tosue him in Maryland upon that judgment in order to haveaccess to his property located in Maryland.One writer on the general subject," writing at a timewhen the London Guarantee case was the latest Marylandcase on the subject, had this to say about the similarity doc-15Weissengoff v. Davis, 20 F. 16 (1919).'5Supra note 5."Loucks v. Standard Oil Co., supra, note 9; Richardson v. New YorkCentral R. R., 98 Mass. 851 (1867) ; Walsh v. N. Y. & N. E. R. R. Co., 160Mass. 571, 573, 36 N. E. 584, 39 Am. St. Rep. 514 (1893) ; Hanlon v. Leyland& Co. Ltd., 223 Mass. 438, 111 N. E. 907, L. R. A. 1917 A., 34 (1916) ; Dauryv. Ferraro, 108 Conn. 386, 143 Ati. 630 (1928) ; Wellman v. Mead, 93 Vt. 322,107 Atl. 396 (1919).IsRose, Foreign Enforcement of Actions for Wrongful Death (1935) 33Mich. L. Rev. 545, 560-1.164MARYLAND LAW REVIEWtrine: ". . . the rule persists merely as one of the law'sanachronisms which should be consigned to the limbo oftime-worn dogma." For a footnote to this statement, thiswriter remarked about the doctrine and about the LondonGuarantee case: "But, alas, even so moribund a doctrineis not thus easily relegated. In a recent Maryland case(the London Guarantee case) it appears as serenely asthough the light of modern legal reasoning had not dis-owned it."It would seem that the situation is ripe for statutoryreform. Why should not there be a statute passed per-mitting suits to be brought in Maryland to collect damagesfor the wrongful death of persons occurring elsewhere?Such a statute could well provide rules for resolvingproblems of dissimilarity, so long as the law applicable tothe tort should afford a substantial right of action for thedeath.' 9 In the event of statutory reform to repeal the ruleof Davis v. Ruzicka and its precedent cases, thought mightwell be given also to reforming the internal details of ourown wrongful death laws. Is there any real argument forpreserving the distinction between the separate actions forthe death itself and for the suffering endured by the victimbetween the time of the fatal accident and the ensuingdeath? For that matter, what justification is there for thepresent rule requiring the action of the former type to bebrought in the name of the state as nominal plaintiff?VENUE OF SUIT AGAINST DOMESTIC CORPORA-TION. M. J. GROVE LIME CO. V. WOLFENDEN.1The M. J. Grove Lime Company, a Maryland corporationhaving its principal office in Frederick County, was sued inthe Superior Court of Baltimore City for damages arisingout of an automobile accident in Frederick County. Thesole activities of the corporation in Baltimore City consistedof the solicitation of orders, which were subsequently ac-19 The statute proposed by the Bar Association of Baltimore City, DailyRecord, February 2, 1937, and Ibid., February 3, 1937, does not go thisfar. It merely seeks to make it possible to bring suits In Maryland forwrongful deaths caused elsewhere. It provides that the "Courts of thisState shall apply the law of such other State, District of Columbia, orterritory of the United States, to the facts of the particular case, asthough such foreign law were the law of this state . . ." and that localrules of pleading and procedure shall apply to the end that they shall"give effect to the rights and obligations created by and existing underthe laws of the foreign jurisdiction..." where the tort occurred.SMd.- , 188 Atl. 794 (1937).

Action in Maryland for Wrongful Death Caused and Occurring Elsewhere - Davis v. Ruzicka

Appraisal of Shares of Dissenting Stockholders in Consolidation - American
General Corporation v. Camp, et al.

Loan Distinguished from Agency - Liability of Lender as Principal on Contracts Made by Borrower with Third Parties - Commercial Credit Co. V. L. A. Benson Co.

Maryland Law ReviewVolume 1 | Issue 4 Article 3Editorial SectionFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrThis Editorial Section is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been acceptedfor inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationEditorial Section, 1 Md. L. Rev. 317 (1937)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss4/3Maryland Law ReviewPublished in December, February, April, and June by Maryland Law Review, Inc.Copyright, 1937, by Maryland Law Review, Inc.$2.00 Per Volume 75 Cents Per NumberEDITORIAL STAFFJOHN S. STRAHORN, JR., Faculty EditorJOHN RrrCIE, III, Assistant Editor and Business ManagerALLEN E. BuzZELL, Chairman, Student Editorial BoardADVISORY EDITORIAL BOARDALEXANDER ARMSTRONG H. H. WALKER LEWISROBERT R. Bowis: ARTHUR W. MACHENFREDERICK W. BRUNE CHARLES C. MARBURYHERBERT M. BRUNE, JR. WILLIAM L. MARBURY, JR.ROBERT R. CARMAN CHARLES MARKELLHOWARD H. CONAWAY EDGAR G. MILLER, JR.PAUL L. CORDISH AMBLER H. MossW. PAGE DAME, JR. REUBEN OPPENIIEIMERJOSEPH C. FRANCE NORWOOD B. ORRICKHILARY W. GANS CHARLES R. POSEY, JR.CHARLES McHENRY HOWARD ROSZEL C. THOMSENSYLVAN HAYES LAUCHHEIMER HERBERT T. TIFFANYCHARLES T. LEVINESS, III F. W. C. WEBBAnd the part-time and full-time faculty members of theUniversity of Maryland Law School.STUDENT EDITORIAL BOARDIRVING J. APPLEFELD WILLIAM S. JAMESTALBOT W. BANKS BERNARD S. MEYERALLEN E. BUZZELL JAMES C. MORTON, JR.RICHARD E. CULLEN JOHN G. ROUSE, JR.S. RAYMOND DUNN JESSE J. RUBINSHERLEY EWING BENSON J. SAKSCLIFFORD H. GRAVES EDWARD A. SCHAUB, JR.EDWARD D. HIGINBOTHAM J. EDWARD TYLER, IIICONCERNING THE REVIEWThe REvIEw announces the election of Mr. Bernard S.Meyer, of next year's Third Year Day Class, as Chairmanof the Student Editorial Board for 1937-1938. New mem-bers of that Board, to succeed those who have graduated,will be chosen during the Summer and announced in thefirst issue next year.EDITORIAL SECTIONAmong the statutes passed at the 1937 session of theLegislature were two changing the rules of cases which hadbeen adversely commented upon in the pages of the REVIEW.Chapter 303 provides that birth of a child alone shall notrevoke a will executed after marriage. It thus changesthe rule of the case of Karr v. Robinson which had beendiscussed in the article by Mr. Lentz at page 32 of thisvolume of the REVIEW. Chapter 495 provides that suitsmay be brought in Maryland under the wrongful death stat-utes of the states where the deaths complained of may haveoccurred. This changes the rule of Davis v. Ruzicka whichwas discussed in a casenote appearing at page 162 of thisvolume of the REVIEw. While in each instance the move-ment for statutory reform had ante-dated the REVIEW'Smention of it, yet the REVIEW was at least able to play aminor part by recording the dissatisfaction with the rulesas they had existed theretofore.It is planned to carry in an early number of next year'svolume a survey of the public general legislation enactedat the recent sessions of the Legislature.NEWS OF THE BAR ASSOCIATIONSAs this number of the REVIEW goes to press the Mary-land State Bar Association is planning to hold its Forty-second Annual Meeting at Atlantic City, N. J., on June 24,25 and 26, 1937.NEWS OF THE LAW SCHOOLJ. Wallace Bryan, Esq., of the part-time faculty, hasbeen appointed a member for 1937 of the Committee onPublic Utility Law of the American Bar Association.The Third Annual Law School Banquet was held at theChesapeake Club on May 1, 1937. Hon. W. Calvin Chesnutserved as toastmaster. The speaker of the evening wasHon. James M. Landis, Chairman of the Securities andExchange Commission and Dean-elect of the Harvard LawSchool.MARYLAND LAW REVIEWThe annual Honor Case in the Practice Court was heldon Tuesday evening, May 4, in the Auditorium of the LawSchool. The participants were Messrs. Clifford H. Graves,E. William Carr, and Earl M. Dixon of the Fourth YearEvening Class, and Mr. James C. Morton, Jr., of the ThirdYear Day Class. Mr. Morton was awarded the prize forthe most lawyer-like presentation of his case.At the Annual Commencement of the University heldat College Park on Saturday, June 5, a class of forty-ninewas graduated from the Law School. First honors in theDay Division went to Mr. Allen E. Buzzell, who has servedthe year just past as Chairman of the Student EditorialBoard of the REVIEW. Similar honors in the Evening Divi-sion were awarded to Mr. Clifford H. Graves, a member ofthe Student Board.Professor Ritchie of the full-time faculty will spend thesummer teaching the courses in Creditors' Rights andCredit Transactions at the Summer School of the Univer-sity of Chicago Law School.A recent alumnus of the Law School has been engagedin translating the various Japanese Codes into English.Mr. W. J. Sebald, LL.B., 1933, who is practicing law inKobe, Japan, has already translated the Civil and the Crim-inal Codes and plans to do others. Mr. Sebald has verykindly sent copies of his translations to the Law SchoolLibrary.319

Editorial Section

Maryland Law ReviewVolume 2 | Issue 1 Article 12Book ReviewFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrThis Book Review is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationBook Review, 2 Md. L. Rev. 83 (1937)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol2/iss1/12Book ReviewsTHE HISTORY AND DEVELOPMENT OF THE FOURTH AMEND-MENT TO THE UNITED STATES CONSTITUTION. By Nelson B.Lasson. The Johns Hopkins Press, 1937. Pp. xiv, 154.In his brief preface, Dr. Lasson states that "It has beenhis endeavour to examine carefully the history of the amend-ment' and to survey analytically the cases decided by thefinal authority on the interpretation of the guaranty, theSupreme Court of the United States." The author has con-fined his efforts to that aim with possibly a too narrow inter-pretation of the "survey analytically."The monograph consists of four chapters.2 Chapter I,after a brief consideration of some safeguards thrownaround the privacy of the home in Jewish and Roman times,is a historical account of the limitations (or lack thereof)imposed upon official search and seizure in England prior tothe American revolution. While the common law developeddoctrines as to the illegality of general warrants, whetherfor the arrest of persons or the seizure of property, thelimitations seem to have been only for action under judicialorder. Arbitrary executive action or action under specialstatute was unrestrained. The resulting ruthless searchesof private homes and indiscriminate arrests led to the crea-tion of a public opinion in England which was to raise theprotection against unreasonable searches and seizures to aprinciple of constitutional dignity, recognized by Parlia-mentary declaration in 1766.Chapter II is presumably intended to continue this his-torical account for the American colonies, where the chiefabuses resulted from the "writs of assistance" used byBritish officials to enforce the onerous trade regulations ofthe mother country. Unlimited as to time, these warrantsto search all places suspected of storing smuggled goods andto break open suspected packages became the center of pro-' United States Constitution, Amendment IV: "The right of the peopleto be secure in their persons, houses, papers, and effects, against unreason-able searches and seizures, shall not be violated, and no Warrants shallissue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or thingsto be seized."I Chapter I. Early Background (38 pages); Chapter II. Writs of As-sistance in the Colonies (28 pages) ; Chapter III. The Fourth Amendment(27 pages); Chapter IV. Development of the Principle by the SupremeCourt (38 pages).MARYLAND LAW REVIEWlonged legal debate in Massachusetts Bay and provokedresistance by force.3  The author acutely points out thatwhile the writs were being used against objecting colonists,opinions were handed down in the English courts (not pub-lished in the colonies) "which in effect held illegal everysearch and seizure ever made in the colonies under a writof assistance." 4After reviewing the actual precedents for the fourthamendment set up in the Bill of Rights to the various orig-inal State constitutions, Chapter III deals with the draftingand passage of the Amendment (along with the other firstnine amendments) in response to the call of public opinionwhen the constitution was submitted for ratification withoutany stated protection for those individual rights which thecolonists considered so important. An interesting observa-tion is that the wording of the amendment,5 emphasizing aseparate prohibition against unreasonable searches andseizures as well as the one against the issuance of generalor unsworn warrants was the result of a change made by thecommittee on arrangement after the House of Representa-tives had approved the amendments. The Chairman of theCommittee, Representative Benson of New York, had urgedthe same change unsuccessfully during the debate in theHouse and the amendment had come to the Committeeworded so as to make the principle of freedom from unrea-sonable searches and seizures a mere premise to a positiveinhibition against the issuance of general warrants.' Thecommittee's change was quite important in securing clearpronouncement of the broader principle.Chapter IV considers each of the leading Supreme Courtcases and their interpretation of the Amendment. Here, asin the previous chapters, Dr. Lasson's collection of materialseems to be complete and his presentation of it accurate.However, he does not summarize his conclusions from it orstate any general criticism of the development by the courts.Although the arrangement of the cases tends to indicate ascheme of classification more than merely chronological, theauthor does not in any single place state what this is. Thereader is left to make his own outline and to draw his own3 They expired at the death of the sovereign during whose reign theywere issued.'P. 65.5 Supra, note 1.The wording originally accepted by the House of Representatives was:"The right of the people to be secure in their persons, houses, papers, andeffects shall not be violated by warrants issuing without probable cause"etc. The part italicized was changed. Cf. footnote 1, supra.BOOK REVIEWSconclusions. Some attempt at summary plus a definite ex-pression of opinion by the author as to the extent to whichthe judicial application of the amendment has carried outits purpose as well as to its possible future course wouldhave made the book more complete and more interesting.Also, it would have achieved a better balancing of materials.With ninety-three pages spent on the historical backgroundand the passage of the Amendment, only thirty-eight areused in telling of the Amendment 's development.7Speaking of things which one might like to have seen in-cluded, it might be observed that leading lower federal courtdecisions as well as those of state appellate courts (assum-ing there were relevant ones) might have provided inter-esting material on the solution of problems not yet deter-mined by the Supreme Court. A survey of the interpreta-tions of similar provisions of State Constitutions might havesupplied helpful bases for comparison and criticism.8 Also,it would have been of interest to see the extent to which pro-tections have been added by statute where the courts haverefused them under the Amendment. For example, whilethe Supreme Court has held that the amendment does notpreclude the use of evidence acquired by "wire-tapping", acase was recently argued and has since been decided restingon the theory that this is proscribed by the CommunicationsAct of 1934.10 However, the failure to include matters thatwe should like to know more about should not take from Dr.Lasson 's work the credit deserved for his doing a workman-like job on his task as set out in the Preface. The thoroughcollection and analysis of the Supreme Court cases decidedunder the Fourteenth Amendment along with a completehistorical survey of the colonial and English background ofthe amendment is a valuable contribution to political andlegal literature. That it is a limited contribution is perhapscharacteristic (too characteristic) of the modern doctoraldissertation.-G. KENNETH REIBLICH.*7 Supra, note 2.a The contents of similar provisions of State Constitutions preceeding ourNational Constitution are included in Chapter III as Indicated earlier inthis review.0 Olmstead v. United States, 277 U. S. 438, 72 L. Ed. 944, 48 Sup. Ct 564(1928).10 Nardone, et al., Petitioners, v. U. S., 5 U. S. Law Week 404. The deci-sion was handed down on December 20, 1937, after this number of theREvmw had been set in type. The Court held that the Act made such evi-dence inadmissible.* Professor of Law, University of Maryland School of Law.MARYLAND LAW REVIEWPRINCIPLES OF CONFLICT OF LAWS. By George WilfredStumberg. Chicago. The Foundation Press 1937. Pp.xl, 441.Ten years ago there was a dearth of American materialon Conflict of Laws. Story's classic treatise was ancient.Minor's short text-book was even then a quarter of a centuryold and the latest edition of Wharton was almost as farback. There were the two standard law -school casebooks byBeale and Lorenzen. Across the water there were theEnglish text-books by Westlake and Dicey.The intervening decade has been a fruitful one for Amer-ican material in the field. First came the Goodrich horn-book. New editions of the older casebooks have appearedand there are three new ones, one by Carnahan, another byCheatham, Dowling, and Goodrich, and the third by Harperand Taintor. The Restatement of the subject by the Amer-ican Law Institute has been completed. It has been followedby local annotations, by Professor Beale's three volumetreatise explaining it, and by a host of law review articlesreviewing, damning, counter-damning, and, occasionally,praising it. The latest publication in text-book form is thisone, prepared by Professor Stumberg of the University ofTexas Law School.This book, while published in a series designed for uni-versity students, possesses, nevertheless, considerable utilityfor the lawyer and judge who must deal with problems im-pinging on two or more states and thus creating difficultiesusually denoted "Conflict of Laws" problems. As theauthor admits, the size of the book precluded exhaustivecitation of cases; yet an examination of the useful and con-venient table of cases and a survey of typical footnotes dis-closes that he managed to cite more cases than one wouldexpect in a book of such size. He has, furthermore, givenaccess to still more of such basic material by referring thereader to the contents of legal periodicals and to collectionsof cases in leading case series annotations.The author performs a double service with respect to hisreflection of the doctrinal quibblings about the underlyingtheory of the Conflict of Laws. He recognizes the existenceof a clash between divergent schools of thought in this re-gard without adhering to the doctrines of any one group.In his introductory chapter he states the various positionsof the scholars in the field and thus seeks to convey to theaverage reader what " the shouting is all about " in the moreBOOK REVIEWSlearned circles. He enables the interested reader to seekcomplete enlightenment from the periodicals referred to. Atthe same time he refrains from over-emphasizing the doc-trines of any one school of thought (whether Restatementor anti-Restatement, comity or vested rights, expediency,local law, or what) and thus makes his presentation of ma-terials more useful to the average reader who wants somefeel of how courts have been deciding cases in the past andmight decide them in the future. To have adhered to thedoctrines of any one school in the matter might have madehis book more interesting in the field of scholarly polemics,but it would have detracted from its usefulness as a prac-tical tool for student or lawyer.The book preserves the traditional chapter on domicil,putting it immediately after the introduction, as was cus-tomary before the recent "realist" movement called for itsabolition as a separate concept and its distribution amongthe other subjects in which domicil might be relevant. Histreatment of the capacity of a married woman to acquire aseparate domicil, for instance, presents interestingly thetrend in American law toward permitting it more freely.The subjects usually collected under "Jurisdiction andProcedure" are divided into four chapters next followingas: Legislative Jurisdiction, Jurisdiction of Courts, Judg-ments (including Sister State Judgments), and Procedure.Extensive treatment is made of the growing concept of per-sonal jurisdiction based on acts done and business trans-acted within the state, such as by non-resident motorists andforeign corporations.The next two chapters on Torts (including Workmen'sCompensation) and Contracts cover the usual materialfound under such headings in the Conflicts field. Followingthese are two chapters covering the difficult questions aris-ing in the Domestic Relations field. The book ends with aseries of chapters on Business Organizations, Property,Testate and Intestate Succession, and Administration ofEstates.The topical index is rather brief and, therefore, less help-ful than otherwise. A lengthy list of leading articles in thelegal periodicals aids the frequent citation of them in thefootnotes in making this material, more valuable in thisfield than in others, available to the readers.Mr. Stumberg's style is very readable and he makes hispresentation more attractive to the average reader by incor-88 MARYLAND LAW REVIEWporating into his discussion the facts of well known cases.That he did this, instead of trying to dabble in high flowndoctrinal disquisitions, makes the book of practical value tothe average student and practicing lawyer. Conflictingviews are presented; the Restatement is discussed withoutbeing followed blindly; sound knowledge of the periodicalliterature and doctrinal differences is reflected; and yetthere results a workaday book. More books of this typeshould be published.

Book Review

Maryland Law ReviewVolume 1 | Issue 3 Article 9Further Concerning the Double Liability of BankStockholders. Stockholders of People's Banking Co.V. Sterling (Ghingher V. Bachtell)Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Bankruptcy Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationFurther Concerning the Double Liability of Bank Stockholders. Stockholders of People's Banking Co. V. Sterling (Ghingher V. Bachtell), 1 Md.L. Rev. 270 (1937)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss3/9CASENOTES AND COMMENTSIf the rule of corroboration in divorce cases has these twoalternative policies it would seem that the one to emphasizein the separate maintenance cases is the one involving thedanger that is likely to be present, i. e., a trumped upcharge, rather than the one involving a danger impossibleof being involved, viz., collusion.Thus it would seem that, rather than to grant relief tothe wife on but slight corroboration, as the Heinmuller,Engelberth and Roeder cases permit, or to require no cor-roboration, as does the Wiegand case, the rule should be togive full and vigorous effect to the statement in the Silver-berg case, standing alone, and to require corroboration tothe utmost, in view of the fact that one of the two dangerssought to be avoided by the rule is present in separate main-tenance cases as much as is ever likely. If the requirementof corroboration is generally sound it would seem appro-priate to demand it to the utmost in separate maintenancecases where collusion is entirely unlikely but where moti-vated false accusations are very likely. It does not disposeof the problem to repeat the shibboleth, appropriate enoughfor divorce cases as such, that if the nature of the case pre-cludes collusion the corroboration need be but slight. Thereis more to the problem than the danger of collusion.FURTHER CONCERNING THE DOUBLE LIABILITYOF BANK STOCKHOLDERS. STOCKHOLDERSOF PEOPLE'S BANKING CO. V. STERLING(GHINGHER V. BACHTELL)'In a case' previously noted in the REVIEW8 the Court ofAppeals of Maryland reversed the trial court and held itproper to assess "double liability" against bank stock-holders for debts of the bank incurred prior to their becom-ing owners of the stock. The stockholders appealed to theSupreme Court of the United States alleging that the applic-able statute, as interpreted by the Maryland Court, im-1 57 S. Ct. 386 (1937). The companion case of Stockholders of Hagers-town Bank and Trust Co. v. Sterling was decided in the same opinion.9 Ghingher v. Bachtell, 169 Md. 678, 182 Atl. 558 (sub nom. Ghingher v.Stockholders of People's Banking Co.) (1936). The companion case in theMaryland Court of Appeals was Ghingher v. Kausler, 169 Md. 696, 182 Atl.566 (sub norm. Ghingher v. Stockholders of Hagerstown Bank and TrustCo.) (1936).8 Note, Double Liability of a bank stockholder for a debt of the bank in-curred before his ownership of the stock (1936) 1 Md. L. Rev. 95.MARYLAND LAW REVIEWpaired the obligation of contracts previously made and'was,therefore, unconstitutional. Held: Affirmed. The provisionof the Maryland Constitution was of itself effective to im-pose double liability on bank stockholders but it did not takefrom the legislature (or in the absence of any statute, fromthe courts) the power to provide statutory remedies ormeans of enforcing the constitutional provision. The pre-vious statutory method of enforcement provided did notexhaust the power of the legislature over the matter. Thelater Maryland statutes proceeded under do not impair theobligations of any contract with the stockholders despitethe fact that the statutes in force at the time they becamestockholders permitted only an action by the creditors,against only those stockholders who were such when thedebt was created, and subject to set-off and counterclaim,whereas the subsequently enacted statutes permitted anaction by the receiver, against all stockholders regardlessof when they became such, and without offsets and counter-claims. It was pointed out that it would not impair the con-tract for the State Court to give a new meaning to thepreviously existing provision of the State constitution, solong as the new meaning was the product of the independentjudgment of the Court and not adopted because the laterstatute required it. It was further pointed out that thestatute in force at the time the stockholders became suchprovided that it should be subject to repeal or alterationand that even if the statutes should be unconstitutional theburden would be on the stockholders to show (which theyhad not done) that any of the debts sought to be enforcedexisted before the later statute took effect. It was alsopointed out that all the stockholders in the second caseacquired their shares after the enactment of the lateststatute regulating the double liability.The Court pointed out that the enumerated changes inthe laws governing the enforcement of the double liabilitydid not impair the obligations of contracts, first, because thechanges were directed toward the implementing remedies,and, second, because of the reserved power of alteration orrepeal. It was pointed out that the first remedy provided(suit by creditor against stockholder) proved to be unwork-able and that subsequently the Maryland Legislature pro-vided another remedy which was less unwieldy and con-fusing (collection by the receiver for the benefit of theassets of the closed bank). This was merely the substitutionof another remedy for the same substantive liability.CASENOTES AND COMMENTSThe Court pointed out, for that matter, that the reservedpower of alteration or repeal would have even permitted asubsequent enlargement of the substantive liability of thestockholders. It was also pointed out that the double lia-bility provision of the Maryland Constitution was a mini-mum, and not a maximum, liability and did not prevent thelegislature from setting up a more onerous form of liabilityof its own force.The Court distinguished a case much relied on by theappellants by pointing out that in that case creditors werecomplaining of the destruction of a cause of action, whereasin the principal case the debtors were complaining. It waspointed out that there was not even any proof that anycreditors would be damaged by the changes and it wasfurther suggested that, in the ordinary course of business(under the "first in, first out" rule) it was highly improb-able that there remained any creditors of the banks whosedeposits were made prior to the statutory changes of 1910and not yet withdrawn.It is interesting to note that the opinion in the case in theCourt of Appeals of Maryland dealt more with the questionwhether the "double liability" could be assessed for a debtincurred before the stockholder acquired his stock while thatin the Supreme Court of the United States devoted itself tothe matter of the constitutionality of the change of themethod of enforcing the double liability. Almost all of thestockholders in one case, and all in the other, became suchafter the latest change was made in 1910. Apparently thosewho had become stockholders after 1910 were relying on thepoint that the whole statute was unconstitutional because ofthe effect it had on those who were already stockholderswhen it was passed. As the Court pointed out, a rulingagainst those who became stockholders before 1910 was allthe more one against those who became so subsequently.272

Further Concerning the Double Liability of Bank Stockholders. Stockholders of People\u27s Banking Co. V. Sterling
(Ghingher V. Bachtell)

Gump, George

English

The Meaning of  General  Powers of Appointment Under the Federal Estate Tax

Maryland Law ReviewVolume 1 | Issue 1 Article 8Constitutional Law - Municipal Bankruptcy Act -Encroachment Upon State Powers - Ashton v.Cameron County - Water Improvement DistrictNo. 1Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Bankruptcy Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationConstitutional Law - Municipal Bankruptcy Act - Encroachment Upon State Powers - Ashton v. Cameron County - Water ImprovementDistrict No. 1, 1 Md. L. Rev. 91 (1936)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss1/8MARYLAND LAW REVIEWformality of an amendment is needed, if the proof subse-quently shows that a prayer for partial divorce should havebeen made instead of or in addition to one for absolutedivorce.CONSTITUTIONAL LAW - MUNICIPAL B A N K -RUPTCY ACT-ENCROACHMENT UPON STATEPOWERS--ASHTON V. CAMERON COUNTYWATER IMPROVEMENT DISTRICT NO. 11A Texas water improvement district filed a petition ina Federal District Court for a readjustment of its debtsunder the Municipal Bankruptcy Act of May 24, 1934,2 al-leging insolvency and inability to meet its obligations asthey matured. The petition alleged that more than 30 percent of the bondholders had accepted the plan of adjustmentsubmitted for confirmation and that ultimately more thantwo-thirds would do so. Owners of more than 5 per cent ofoutstanding bonds intervened and moved to dismiss thepetition. Held (four justices dissenting), the MunicipalBankruptcy Act was an unconstitutional encroachment uponState governmental powers; the fiscal affairs of a Statepolitical sub-division cannot be subjected to the control ofthe Federal government, irrespective of consent having beengiven thereto by the State.The case presents an interesting development in the in-terrelationship of the State and Federal governments underour constitutional system,-particularly in view of theunanimous decision in Baltimore National Bank v. StateTax Commission, with which it is difficult to reconcile thereasoning of the majority of the Court, and which is men-tioned in the dissenting opinion only.The Act, in authorizing State political sub-divisions topetition for a readjustment of their obligations, specificallyprovided in section 80(c)' that the Court should not, by anyorder or decree, interfere with any of the political or gov-- U. S. -, 80 L. Ed. 910, 56 S. Ct. 892 (1936) ; rehearing denied, October12, 1936, 4 U. S. L. Wk. 146, 57 S. Ct. 15 (Mem.).2 11 U. S. C. A., sec. 301-303.- U. S. -, 80 L. Ed. 388, 56 S. Ct. 417 (1936).'11 U. S. C. A., sec. 303 (c).CASENOTES AND COMMENTSernmental powers of the taxing district, or any of the prop-erty or revenues of the district necessary for essential gov-ernmental purposes; and in section 80(k)5 that nothing inthe Act should be construed to limit or impair the power ofa State to control any political sub-division in the exerciseof its political or governmental powers, including the powerto require approval of any petition or readjustment plan;written approval of any agency established by a State toexercise supervision over the fiscal affairs of any politicalsub-division was expressly required for the reception of apetition filed under the Act, or the putting into effect of anyplan of readjustment.'The District Court, in dismissing the Improvement Dis-trict's petition, proceeded upon an analogy to the cases deal-ing with the exercise of the Federal taxing power uponState governmental agencies, and pointed out that the Statehere had given no permission to the Federal government toextend the provisions of the Bankruptcy Act to its-politicalsub-divisions.7 Subsequently, however, Texas passed astatute8 expressly authorizing all political sub-divisions inthe State to proceed under the Federal Act. This was ap-parently viewed as unnecessary by the Circuit Court of Ap-peals, which in reversing the District Court, held that theAct was obviously not intended to interfere with any sov-ereign rights of the State, and said that the consent in ad-vance of the State was not essential in order to enableits political sub-divisions to take advantage of the law.'In any event, the issue, as presented to the SupremeCourt, was whether Congress had power to permit Statepolitical sub-divisions to become, with the consent of theirState, voluntary bankrupts.In refusing to recognize such power, the majority ofthe Supreme Court, like the District Court, relies upon the11 U. S. C. A., sec. 303(k).6 For the conditioqs leading to the passage of the Act, see the dissentingopinion; see, also, Dimock, Legal Problems of Financially EmbarrassedMunicipalities (1935) 22 Virginia L. R. 39."In re Cameron County water Improvement District No. 1, 9 F. SupP.103, 106 (S. D. Tex. 1934) ; see note (1935) 35 Columbia L. R. 428.8 Tex. Laws 1935, c. 107.'Cameron County Water Improvement District No. 1 v. Ashton, 81 F. (2)90 (C. C. A. 5th, 1936).MARYLAND LAW REVIEWanalogy furnished by such cases on the taxing power asCollector v. Day, ° and Indian Motorcycle Co. v. UnitedStates." Clearly, the argument runs, the Federal govern-ment could not have taxed the bonds of the respondent,since this would constitute an unwarranted interferencewith State fiscal matters; and the power to legislate as tobankruptcies, being of no higher rank or importance thanthe power to tax, must be subject to the same limitation im-plied by the necessity of preserving the governmental inde-pendence of the States. Congress having no power to act,cannot be given such power by the consent or submissionof the States, citing United States v. Butler.'2Somewhat parenthetically, the Court observes that sincethe States were without power to make the readajustmentscontemplated by the Act directly, in view of the Constitu-tional prohibition against impairing the obligation of con-tracts, they could not accomplish the same result indirectlyby giving permission to Congress to act.That Congress could not validly have provided for in-voluntary bankruptcy proceedings against State politicalsub-divisions would seem to follow from the cases dealingwith the power to tax." The analogy, at least, is close,since in either case there would be presented an assumptionof control on the part of the Federal government over theexercise of State governmental functions, against an un-willing and objecting State. In the instant case, however,the State, so far from objecting, is actively seeking Federalaction. 4 The Act in section 80(k) leaves it entirely withinthe power of a State to prevent the assumption of controlby the Federal courts, which was regarded in Massachusettsv. Mellon 5 as sufficient answer to a State's contention that'011 Wall. 113, 20 L. Ed. 122 (1870).11283 U. S. 570, 75 L. Ed. 1277, 51 S. Ct. 601 (1930)."297 U. S. 1, 80 L. Ed. 287, 56 S. Ct. 312 (1936).ICf. Hopkins Federal Savings & Loan Association v. Cleary, 296 U. S.315, 80 L. Ed. 209, 56 S. Ct. 235 (1936). See, however, for an argument tothe contrary, note (1936) 31 Illinois L. R. 383; and cf. United States v.California, 297 U. S. 175, 80 L. Ed. 367, 56 S. Ct. 421 (1936), and Board ofTrustees of the University of Illinois v. United States, 289 U. S. 48, 77L. Ed. 1025, 53 S. Ct. 509 (1933)."Ten states filed a brief, as amici curiae, in support of the petition for arehearing. 4 U. S. Law Wk. 73.262 U. S. 447, 67 L. Ed. 1078, 43 S. Ct. 597 (1923).CASENOTES AND COMMENTSits field of governmental power had been invaded throughthe exercise of the Federal spending power.In any event, there is no apparent reason why, in ques-tions rising out of our dual system of government, the rulesshould differ in the case of an invasion by the Federal gov-ernment in the field of State power and in the case of an in-vasion by the State in the field of Federal power. Yet itwas specifically held in Baltimore National Bank v. StateTax Commission, supra, that a Federal governmental in-strumentality may be subjected to the State taxing powerif the Federal government consents thereto." Presumably,the same result would obtain, if, under like conditions, aState governmental agency were subjected to Federal taxa-tion. If so, we have the anomalous result, that the Statemay voluntarily subject its political sub-divisions to theburden of Federal taxation, but may not voluntarily obtainfor them the benefit of Federal bankruptcy laws. If not,we have an equally anomalous result, in that Federal gov-ernmental agencies may be, with Federal consent, taxed bythe State, but that State governmental agencies, may not betaxed by the Federal government even with the consent ofthe State; the reason for the immunity from taxation ineither case being precisely the same.If, however, the power of the Federal government to ex-tend the benefits of the Bankruptcy Act to State politicalsub-divisions, is to be based upon the consent of the State,there would seem to be much force in the suggestion that theStates would thereby be enabled to evade the express prohi-bition of Art. 1, section 10 of the Constitution. The dissent-ing opinion argues that any impairment of existing con-tracts is effected by the decree of the Federal Court approv-ing a plan of composition and not by the law of any State.But if the consent of the State is necessary before the Fed-eral Court may rightfully act, it would seem more true thatthe impairment is in the first instance caused by the State,since it is the State's Act (in the instant case the Texas stat-10 The Court said: "Taxation by state or municipality may overpass theusual limits if the consent of the United States has removed the barriers orlowered them".MARYLAND LAW REVIEWute of 1935) which alone is effective to enable the scalingdown of the obligations of its political sub-divisions, Thatthe State could not directly authorize this is clear.17DOUBLE LIABILITY OF A BANK STOCKHOLDERFOR A DEBT OF THE BANK INCURRED BE-FORE HIS OWNERSHIP OF THE STOCK-GHINGHER V. BACHTELL'Appellant, receiver of an insolvent bank, petitioned thetrial court for an order adjudging that the stockholders, in-cluding the appellees, should be required to pay to the re-ceiver sums equal to the par value of the stock held, underthe "double liability" of stockholders in State banks. Thetrial court passed a summary order to that effect, whichorder the appellees petitioned to have rescinded. The pe-tition for rescission specifically contested the liability of thestockholders for such debts of the bank as were incurred attimes when the petitioners were not then stockholders. Thispetition alleged "That the statutes of Maryland under andby virtue of which said order of assessment was passed, im-pair the obligation of contracts, are discriminatory and de-prive your petitioners of equal protection of the law, de-prive your petitioners of property without due process oflaw, and otherwise contravene the provisions of the Consti-tutions of Maryland and of the United States." The trialcourt granted the petition for rescission of the summaryorder and the receiver appealed. Held: Decree reversedand cause remanded with costs to the appellant.The ruling of the trial court limited the double liabilityof stockholders at the time of receivership to debts of thebank contracted during the period of such stock ownership.The ruling of the Court of Appeals held them liable for alldebts of the bank regardless of when such debts were in-curred.Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529 (1819).164 Md. 678, 182 Atl. 558 (1936). Appeal pending in the Supreme Courtof the United States, No. 298, October Term, 1936.

Constitutional Law - Municipal Bankruptcy Act - Encroachment Upon State Powers - Ashton v. Cameron County - Water Improvement District No. 1

Page, Charles G.

Latent Equities in Maryland

Maryland Law ReviewVolume 1 | Issue 1 Article 1Title PageFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrThis Front Matter is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationTitle Page, 1 Md. L. Rev. 1 (1936)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol1/iss1/1MarylandLaw ReviewVOLUME ONE1936-1937Published ByMaryland Law Review, Inc.Redwood and Greene StreetsBaltimore, MarylandIn Co-operation with:Maryland State Bar AssociationBar Association of Baltimore CityJunior Bar Association of Baltimore CityUniversity of Maryland School of LawCopyright 1936-1937 byMARYLAND LAW REvIEw, INC.

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Action in Maryland for Wrongful Death Caused and Occurring Elsewhere - Davis v. Ruzicka

Appraisal of Shares of Dissenting Stockholders in Consolidation - American General Corporation v. Camp, et al.

Loan Distinguished from Agency - Liability of Lender as Principal on Contracts Made by Borrower with Third Parties - Commercial Credit Co. V. L. A. Benson Co.

Editorial Section

Book Review

Further Concerning the Double Liability of Bank Stockholders. Stockholders of People\u27s Banking Co. V. Sterling (Ghingher V. Bachtell)

The Meaning of General Powers of Appointment Under the Federal Estate Tax

Constitutional Law - Municipal Bankruptcy Act - Encroachment Upon State Powers - Ashton v. Cameron County - Water Improvement District No. 1

Latent Equities in Maryland

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