CSJornfU SJam BrJionl ICibtary Cornell University Library KF 280.W94 1894 The study of cases :A course of instruct 3 1924 024 520 607 The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024520607 THE STUDY OF CASES. To accompany this volume. CASES FOR ANALYSIS. Materials for Practice in Read- ing and Stating Reported Cases, Composing Head-Notes and Briefs, Criticising and Comparing Authorities, and Com- piling Digests. By Eugene Wambaugh, LL. D. THE STUDY OF CASES. A COURSE OF INSTRUCTION IN READING AND STATING REPORTED CASES, COMPOSING HEAD-NOTES AND BRIEFS, CRITICISING AND COMPARING AUTHORITIES, AND COMPILING DIGESTS. BY EUGENE VJijAJVIBAUGH, LL.D., PROFESSOR OF LAW IN HARVARD UNIVERSITY. SECOND EDITION. BOSTON: LITTLE, BROWN, AND COMPANY. 1894. Copyright, 189^, 1894, By Kugene Wambaugh. John Wilson and Son, Cambridge, U. S. A. TO ONE WHOM AN APT DESCRIPTION HAS CALLED "VIRUM INDOLE LIBERALI, INGENIO ACUTO, USU RERUM MUI^ TISQUE LITTERIS CULTUM, JURISPRUDENTIAE APUD NOS PROFESSOREM, IN DISSERENDO FACUNDUM, IN SCRIBENDO LUCULENTUM, IN UTROQUE INGENIOSUM ATQUE SANUM," — TO JAMES BRADLEY THAYER, LL.D., Weld Professor of Law in Harvard University^ . BTfjis Foliime is fflEBtcateU BY A PUPIL AND COLLEAGUE. PREFACE TO THE FIRST EDITION. The aim of this volume is to teach students the methods by which lawyers detect dicta and deter- mine the pertinence and weight of reported cases. The most important points as to those methods are explained in the general view with which the volume opens. As the methods cannot be mastered without practice, the remainder of the volume is devoted to cases for study. The intention is that the student shall state the cases, discover the doctrines of law established by them, compose head-notes, point out dicta, make all possible comments as to the weight of the decisions, and compile a digest. Simple cases have been placed near the beginning of the volume, and an attempt has been made to lead the student by easy steps to the rather difficult cases with which the volume closes. Without material departure from that plan, the cases on related points of law have been placed together and have been arranged chro- nologically; and thus the student has been aided to compare cases and to trace the growth of law. January if, 1892. PREFACE TO THE SECOND EDITION. In the preface to the first edition it was explained that the aim of the volume is to teach students the methods by which lawyers detect dicta and determine the pertinence and weight of reported cases, and that the plan includes both a general statement of the methods pursued by lawyers and a collection of cases intended to serve as material for experiments by the student In the second edition that aim is retained, and the same plan of combining a theoretical state- ment with practice is pursued; but to the original plan is now added an attempt to teach by example. Accordingly, an attempt is now made to present for study cases that not only afford suitable material for the beginner's experiments in detecting dicta, fram- ing head-notes, and comparing and criticising author- ities, but also afford, in the arguments of counsel or in the opinions of the judges, suggestive illustrations of the way in which skilled persons perform this same work. Further, in the theoretical chapters the text is now illustrated by inserting in the foot-notes quotations, ancient and modern, showing the point vii PREFACE. of view from which English and American lawyers have always regarded precedent. For use in a more extended course, a companion volume has been prepared, entitled Cases for An- alysis, which contains nothing but cases, and presents among many others the cases given in the first edition of The Study of Cases. To prevent possible con- fusion, it seems necessary to explain the respective fields of the two volumes. The Study of Cases is intended solely to give training in the methods of using authorities ; and in preparing the introductory text and in selecting and annotating the cases, no attempt has been made to give prominence to the doctrines of any one branch of law. Cases for Analysis, on the other hand, though having for its principal purpose training in the methods of using authorities, is composed of cases selected and anno- tated in such a manner as to serve, if so desired, as helps in a course of study partly devoted to the mastery of elementary topics in Contracts or in Torts. Thus the volumes differ in detail; and yet each of them is intended to aid the beginner to lay a foun- dation for thorough knowledge of the ways in which reported cases are to be discovered, summarized, combined, attacked, supported, and otherwise utilized for the purposes of the practical lawyer. Each vol- ume is complete in itself If both volumes are used, it is practicable to use them simultaneously or to cause either one of them to precede the other; but it is preferable to begin with Cases for Analysis, viii PREFACE. especially if the student has an instructor's aid, for the use of that collection will give the beginner the greater amount of actual practice with cases and will tend to prevent his laying too great stress upon the mere reading of the theoretical and didactic matter that necessarily finds place in the first book of The Study of Cases. October 31, 1894, ix TABLE OF CONTENTS. BOOK I. GENERAL VIEW. CHAPTER I. PRELIMINARY TOPICS. PAGE 5 I. The Purpose of the Volume : Law and Fact: Reports as distinguished from Trials i 2. The Purpose of the General View or Summary ... 4 3. The Way to use the Cases : Reading and Stating Cases : Writing Head-Notes : Comparing Cases ; Compil- ing a Digest 5 CHAPTER II. HOW TO FIND THE DOCTRINE OF A CASE. j 4. Ascertaining the Doctrine 8 I. The court's duty to consider the actual case. i 5. First Principle: The Court's Duty to decide the very Case : Hypothetical Cases 8 6. Difficulty that two Cases are never identical 14 2. The necessity of uniformity. i 7- Second Principle : The Court's Duty to follow a general Rule 15 8. The consequent Necessity for eliminating unessential Cir- cumstances *.... 15 9. At least four Propositions involved in every Case ... 16 xi TABLE OF CONTENTS. § 10. Difficult to discriminate between essential and unessential Circumstances i6 n. A Test for determining whether a Case is a Precedent for a given Doctrine 17 12. An indispensable Mark of the Doctrine of a Case . . 18 3, The words of the court. § 1 3. The Opinions of the Judges : Dicta and their Weight . 18 14. Weight of Words expressing the strict Doctrine of a Case 19 15. Inability of the Court to make an unnecessary Proposi- tion the Doctrine of a Case 23 i6. Third Principle : The very Words of the Court not the Doctrine of the Case 24 4. The effect op the court's ignoring possible doctrines. § 17. Fourth Principle: Doctrine in the Mind of the Court: Necessity for Deliberation : Familiar Doctrines o&en not expressed : Extraordinary Circumstances : Gen- eral Language 24 18. Power of the Court to prevent the Deducing of Doc- trines 28 19. Consequent Necessity for an Examination of the Opin- ion . . . 28 20. Summary : The Four Keys to the Discovery of the Doc- trine of a Case 29 21. The Marks essential to the Doctrine of a Case .... 29 CHAPTER III. CASES INVOLVING SEVERAL QUESTIONS. § 22. Cases involving more than one Doctrine : Dependent Propositions . . 30 23. Independent Propositions ; Case involving two or more separate Questions 31 24. Several Questions brought to the Court: Lower Court sustained 31 25. Several questions brought to the Court: Lower Court reversed 32 26. Summary 33 CHAPTER IV. HOW TO WRITE A HEAD-NOTE. § 27. The Authorship and Weight of Head-Notes 35 28. Head-Notes stating several Doctrines 36 xii TABLE OF CONTENTS. PAGE §29. Head-Notes of the long Form : Dicta; Catch- Words . 36 30. Head-Notes of intermediate Form 36 31. Head-Notes of the short Form : Objection to them . . 37 32. Other Forms ; Different Forms for different Cases . . 37 33. Examples '. 39 34. The Value of Skill in preparing Head-Notes 41 CHAPTER V. HOW TO CRITICISE CASES. § 35. Importance of Criticism 42 36. Many Grounds : Objections not of same Weight ... 42 §37 38 39. 40. 41 1. The nature of the report. Unreported Cases 43 Newspaper Reports 43 Reports of low Standing 45 Inharmonious Reports 45 Scanty Reports 46 2. The arguments of counsel. § 42. Thoroughness of Argument 46 3. The opinion. § 43. No Reasons : No Citations 47 44. Brevity 47 45. Per Curiam 47 46. Court's Opinion by dissenting Judge . . . . . .48 47. Divided Court 48 48. Judges concurring in Result but not in Reasoning ... 50 49. Unconscious Overrulings 50 50. Failure to notice contrary Decisions in Other Jurisdic- tions 5° 51. Relying upon misunderstood or overruled Cases ... 51 52. Relying upon unsustained Text-Books 5^ 53. Inartistic Reasoning : Stare Decisis 52 54. Local Law 53 55. Dictum . . .' 53 56. Going off on another Point : Several Points 54 57. A Point not argued and not perceived 55 58. Other Objections : Precise Point : General Language : Distinguishing Cases . 55 59. Weight of a criticised Opinion : Home and other Juris- dictions S^ xiii TABLE OF CONTENTS. PAGE 4. The nature of the question/ § 60. Case of first Impression 56 6t. Peculiar Circumstances; Politics 57 62. Ex Parte 61 5. The Court. § 63. Lower Courts ... 62 64. Some Courts not liighly esteemed : Unusual Question : Remote Jurisdictions 63 65. Reversed : Courts often granting Rehearings 64 6. Subsequent state of the law. § 66. Overruled . 64 67. Obsolete 65 68. Not followed 66 CHAPTER VI. COMBINING AND COMPARING CASES. § 69. When Combination and Comparison of Cases must be undertaken 67 70. The Method of combining Cases 67 71. Combinations made unconsciously 68 72. Hypothesis : Comparison 69 CHAPTER VII. THE GROWTH OF LEGAL DOCTRINE. §73 74- 75' 75. 77 78 79' ;8o. 81 82 83 84. Applying established Doctrines 73 New Doctrines needed 73 The Law grows .... ... . . . 74 Does Law grow by judicial Legislation ? 74 The Lawyers' View 75 The analytical Jurists' View 77 Neither View essential . . 80 CHAPTER VIII. the importance OF THE UNWRITTEN LAW. The BulkinesB of the unwritten Law » < . 81 The Importance of the unwritten Law 82 Unwritten Law supplementing Written Law 83 Codification Continued Need of Case Law 86 Summary 90 xiv TABLE OF CONTENTS. CHAPTER IX. THE RESPECT FOR AUTHORITY. PAGE § 85. The Degrees and Kinds of Authoritaf iveness 95 86. Imperative Autliority .... 95 87. The Justification for Imperative Authority . . . 96 88. Persuasive Authority . 98 89. The Justification for Persuasive Authority . . . 100 90. Distinction between Imperative and Persuasive Author- ity: Illustrations 100 91. Quasi-Authority . .... 102 92. The Justification for Quasi-Authority . . . . . 103 93. Stare Decisis . 104 94. The Power to Overrule I05 95. The Conflict 106 96. The Result 108 97. Utility of classifying the Kinds of Authority 109 CHAPTER X. REPORTS. §98. The earliest Reports . no 99. The Reporter's Aim 116 100. The Selection of Cases 117 loi. The Titles of Cases ... 119 102. The Head-Notes I20 103. The Statements 120 104. The Arguments 12 1 105. The Opinions 122 106. The Opinions, continued : Majority Opinions .... 122 107. The Opinions, continued: Dissenting Opinions ... 125 108. The Judgments, or other Results of the Litigation . . 125 109. Official Reports ... . 126 CHAPTER XL DIGESTS. i no. The Abridgments 128 nt. The English Digests 129 112. The American Digests ... 129 113. .Special Digests 130 1 14. The Plan of a Digest 130 iii;. Classification. ... . 130 116. The Form of the Paragraphs 131 117. The Order of the Paragraphs 132 118. Other Details 132 XV TABLE OF CONTENTS. CHAPTER XII. BRIEFS. PAGE 5 119. Briefs in England and in America 134 120. The Statement 134 121. The Questions . .... .... ... 135 122. The Argument: Independent Arguments . . . 135 123. The Argument, continued : A Chain of Propositions . 136 124. The Argument, continued : Familiar Law ..... 136 125. The Argument, continued: The Order of Propositions . 137 126. The Argument, continued: The Support of Proposi- tions 137 127. The Argument, continued ; Attacking the Adversary . 138 128. Finding Authorities 138 129. Abstracting Authorities 139 130. Selecting Authorities 140 131. Revision: Summing up 141 BOOK II. CASES FOR STUDY. Case i. — State?'. Baughman 1^2 Case 2. — Houston v. Williams 148 Case 3, — Webb v. Bell 1 53 Case 4. — Simpson w. Hartopp ... 154 Case 5. — Storey v. Robinson 160 Case 6. — Buchner ». C, M. & N. W. Ry 161 Case 7. — Miller w. Race . i^e Case 8. — Gibbon z/. Paynton iS r Case 9. — Tinkler t;. Poole loo Case 10. — Forward v. Pittard iq-5 Cask II. — Burke Z'. Jones 202 Case 12. — Hilliard z/. Richardson , . 216 Case 13. — In re Walker . 236 Case 14. — Callender v. Keystone Mutual Life Insurance Co. . 246 Case 15. — Towle i/. Forney . . . 21:3 Case 16. — Gelpcke v. Dubuque . . . . ..... 260 Case 17. — Farrior z^. New England Mortgage Co. 308 APPENDIX I, Regnal Years 3,7 APPENDIX H. Terms of Court ojo APPENDIX III. Abbreviations ] 3., INDEX 325 xvi TABLE OF CASES. PAGE Adams v. Lindsell 66 Alexandra, The 44 Aud V. Magruder 252 Baltimore & Ohio Railroad Co. V, Baugh ... . . 102 Baltimore & Ohio Railroad Co. V. Kent . . 119 Beamish v. Beamish ... 49, loi Beckham v. Drake 10 Bole V. Horton ... 42, 53 Boteler v, Allington .... 61 Brett V. Rigden 21 Brookes and Earl of Rivers, In- ter ... . .... 61 Buchner v. C, M. & N. W. Ry 19, 16' Burgess v. Seligman . . 102, 308 Burke v. Jones 42, 202 Butler V. Duncomb .... 104 Butler V. Van Wyck . . . 105 Cage V. Acton 22 Caledonian Railway Co. v. Walk- er's Trustees . . . . loi Callender v. Keystone Mutual Life Ins. Co 246 Card V, Hope 56 Carroll v. Carroll's Lessee . . 17 Chandos v. Talbot 104 Clark V. Thomas . . -34 Clarke i/. Western Assurance Co 48, 51 Cohens v. Virginia .... 19, 27 PAGE Commonwealth v. Hartnett . 78 Cooke V. Eshelby 35 Oalby V. India and London Life Assurance Co 66 Dartmouth College v. Wood- ward 57 Detroit V. Detroit City Ry. Co. 59 Dimes v. Junction Canal ... 60 District Attorneys, In re . . . 13 Dodge _& Stevenson Mfg. Co., In re 61 Doe V. Hicks 61 Dubuque u. Illinois Central R. Co. ... . . 22, 49, 50 Durant v, Essex County ... 49 Eustis K. Bolles 55 Evans' Case 53 Farrington v. Knightly . . . 104 Farrior v. New England Mort- gage Security Co. ... 78, 308 Fisher v. Prince 22 Fletcher v. Sondes 82 Forward v. Pittard 193 Fougue V. Burgess 39 Fouts V. The State 26 Gelpcke v. Dubuque ... 78, 260 German Nat. Bank v. Nat. State Bank , ... 65 Gerrard v. Gerrard ..... 104 Gibbon v, Paynton .... 185 xvii TABLE OF CASES. PAGE Gifford V. Livingston .... 252 Gillet V. Phillips 47 Godsall V, Boldero 66 Goodriglit V. Rich 62 Goodright v. Wright .... 104 Greaves v. Maddison .... 104 Grifftlis, Ex parte 153 Harrow v, Myers 253 Henderson v. Folkestone Water- works Co . 315 Hilliard Zf. Richardson . . . 42,216 9olliday v. Brown 35 Houston V. Williams ... 20, 148 Howard v- Albany Ins. Co. . . 48 Howard Ins. Co. v. Scribner . 51 Insurance Co. v. Mosley ... 42 Justices, Answer of the (148 Mass. 623) 13 (150 Mass. 598) .... 13 Justices, Opinion of the (5 Met. 596) 13 (126 Mass. 557) ... 13 Kent V Railroad Co. . . . " . 119 King V. Hoare . .... 99 Leavitt v. Blatchford . . 42, 47, 106 Miller v. Miller 48 Miller v. Race 175 Mirehouse ». Rennell .... 76 Moore v. The State .... 26 Morse v. Goold ... . . 49 Murdock v. City of Memphis . 54 Nordenfelt v. Nordenfelt ... 39 Ogden V. Insurance Co. ... 51 Osborne v. Morgan .... 45 Pearce v. Atwood 60 Peck V. Freeholders .... 60 Pole V. Fitzgerald .... 58 Price V, Easton 50 Priority of Legislative Appro- priations, In re 13 Queen v. Hepburn 57 xviii PAGE Rayner v. Mowbray .... 104 Regina v. Ramsey 42 Reniger u. Fogossa ... 21 Richardson v. Mellish . . 27, 55 Rohrbach v. Germania F, Ins. Co 19 Rotch V. Edie 63 Royal Ins. Co. v. Roedel . 48 Rumsey ». N. Y. & N. E. R. R. Co 51 Rutland v, Rutland .... 104 Scaramanga v. Stamp ... 100 Scott V. Sandford . ... 10 Senate, Matter of the Applica- tion of the . - . . . 148 Shaw V. G. W. R. Co. . . . 55 Sheffield Banking Co. v. Clay- ton Simpson v. Hartopp Sloat V. Insurance Co. Speight V. People State V. Baughman State V. Clarke . State V. Pugh . Storey v. Robinson Swift V. Tyson . . 236 • • »54 • ■ 51 • ■ 153 8> 13. 142 19 10, 26, 64 160 102 Taylor's Adm*r v^ Spindle Thorp V. Thorp .... Tinkler f. Poole . . Towle V Forney . . . United States v. Coolidge United States v. Hudson , Vaughn v. Harp Vyse V, Wakefield Walker, hi re . . . . Walker v^ Cincinnati . . Webb V. Bell . . . Woodruff V. Parhani Woodruff V, Woodruff Wright V. Nagle . . Y. B. II H. IV. 37 a. . . Young Ah Gow, Ex parte 42 45 190 253 47 47 153 50 236 64 153 78, 3>5 28 . 46 56 THE STUDY OF CASES. BOOK I. GENERAL VIEW. CHAPTER I. PRELIMINARY TOPICS. § 1. The Purpose of the Volume : Law and Fact: Reports as distinguished from Trials. This volume is intended to be used by law students as a means of learning by practice, rather than by precept, how reported cases should be read, digested, criticised, and compared. By actually studying cases, and not by reading about the proper way of studying them, one best learns how they ought to be treated. Hence the student is urged to plunge promptly into the cases printed in the second book, or into some other collection of cases for students.^ The ^ The cases in the second book are chiefly cases in which the topics found in the first book are discussed by counsel or the court. In a companion volume, entitled Cases for Analysis, are gathered cases turning chiefly on points in Contracts or in Torts, and giving occasion to put into practice the matter of this volume. With Cases for Analysis, rather than with the cases in the second book of this volume, should begin the work of the student who intends to pursue the study of cases thoroughly, or who wishes the study of cases to supplement a text-book course in Contracts or in Torts. I I § I THE STUDY OF CASES. only part of the volume intended to be read by the student before he studies his first case is this preliminary chapter. Undoubtedly the beginner well knows that a volume of law reports gives accounts of actual litigation ; but he may not know why a volume of law reports differs so vastly from accoimts of the same litigation contained in newspapers. Tne diiference between these two sorts of accounts results largely from the distinction between law and fact, — a dis- tinction not always easy to take, but nevertheless in the main obvious enough. A question of fact asks whether certain events have happened.^ A question of law asks whether from the happening of certain events there result rights ' Facts include both physical and mental phenomena. Physical phenomena, e. g. the presence, color, and size of objects, are cognizable by the senses; but meital phenomena, e. g. knowledge or intention, are directly cognizable by consciousness only, and hence by persons not experiencing them must be indirectly inferred from reasoning upon physical phenomena conceived to be causes, accompaniments, or effects of such mental phenomena. Even some physical phenomena are not actually perceived by the senses, but are inferred from other physical l^henomena. For example, when X says that he saw Y kill Z, X really means that he saw Y point a gun towards Z, and that he heard a discharge, and that he saw Z fall dead, and that Y's acts were the only apparent cause of Z's death, and that consequently X believes Y killed Z ; and that this is not perception but is inference is obvious enough when one reflects that a person ignorant of firearms would give a very different account of the transaction. So, too, when the question is whether certain conduct is negligent, the standard assumed for com- parison, the care taken by a man of ordinary prudence, is obviously an intricate conception not derived from one perception of phenomena. Vaughan w. Menlove, 3 Bing. N. C. 468, 475 (1837),/^?- Tindal, C.J. ; Commonwealth v. Pierce, 138 Mass. 165, 176 (1884),/^/- Holmes, J; Holland's Jurisprudence (6th ed.), 9S-101. Negligence, it should be noticed, is not a mental state, save in a negative sense, the sense, namely, in which it is conceived as excluding an active intention to do a wrongful act. Holland's Jurisprudence (6th ed.), 97-101 ; Markby's Elements of Law, §§ 225-230, 6S0-685. 2 PRELIMINARY TOPICS. § I which a court will recognize or enforce.^ A law, in short, is a rule to the effect that when facts of a certain nature exist the courts will recognize or enforce certain rights and liabiUties. Further, a fact, an event, occurs but once; but a law, a rule, reappears upon innumerable occasions. Tiiat an event has happened is slight indication that a similar event will happen again ; and if a similar event does happen, still it is merely a similar event, and not the same one. On the other hand, that a rule of law has been applied once is an indica- tion both that there is such a rule, and that when similar facts arise the same rule, not a somewhat similar one, will be applied. To the public, the minute details of the facts shown by the evidence, even the very words and appearance of wit- nesses, and of counsel and of judges, may be of interest, because strange or dramatic ; and to this public interest the newspapers appeal. To lawyers, however, at least after the case is decided, almost the sole interest of the case resides in the points of law, the facts ceasing to be important save in so far as they present problems for the application of rules ; and therefore the law reports give simply such an account of litigation as will indicate what problems of law arose and what rules were applied.^ Sometimes, it is true, the facts of a case are so novel and interesting as to cause it to become a cause celebre, or the examination of witnesses is conducted with peculiar skill, or the addresses of counsel are extraordinarily striking ; and then even lawyers wish a permanent account similar to the one contained in a news- paper, the result being an account termed a trial, usually containing a transcript, word for word, of the questions addressed to witnesses, their answers, the addresses by 1 J. B. Thayer, " Law and Fact," 4 Harvard Law Rev. 147 (1890); largely reprinted in Thayer's Cases on Evidence, 143-154. " See § 99. 3 § I THE STUDY OF CASES. counsel, and tlie judge's charge to the jury ; but the volumes of trials are comparatively few and are seldom used.^ A report of a case usually consists of six parts : (i) the title of the case, which title usually contains the names of the parties;^ (2) a head-note or syllabus, in which the re- porter, or sometimes a judge of the court, indicates the point of law for which the case is by him considered to be an authority;' (3)3 statement, usually by the reporter, but sometimes by a judge, of the nature of the litigation and the manner in which the case reached the court whose action is reported, including as elaborate an account of the pleadings and of the evidence as may be necessary in order to show what question was presented to that court ; * (4) an abstract of the arguments of counsel ; * (5) the opinions of the judges ; ' (6) a memorandum of the disposition made of the case in that court.' § 2. The Purpose of the General View or Summary. Although many rules of pleading and procedure attempt to bring about a separation of questions of law from questions of fact,' and although the opinions of the judges and the 1 The most famous collection of trials is the series containing English trials for treason and the like, entitled Howell's State Trials. ^ See § lOi. When a title is written or printed, the usual form is (the plaintiff) v. (the defendant). This is usually read as against . 8 See §§ 27-33, 102. 4 See § 103. 5 See § 104. 6 See §§ 105-107. ' See § 108. This memorandum is usually printed in italics at the very end of the case. 8 In procedure at law, as distinguished from procedure in equity, the most usual methods of originally raising questions of law and separating them from questions of fact are these : — (i) Demurrer. (2) Objections to the admissibility of evidence. 4 PRELIMINARY TOPICS. § 3 labors of the reporter give great assistance in determining the point of law decided, it must not be inferred that it is always easy to discover the proposition of law for which a reported case is authority, nor the weight of the case. Many reported cases are difficult to analyze, and all must be examined with care. The method of determining the doctrine and the weight of a case may appear easy when mastered ; but it cannot be mastered without attentive study, and hence this volume has been prepared as an aid. The first book gives a general view of the subject. The student may find it to his advantage to refer to the first book from time to time, but he will do well to postpone the consecu- tive reading of it until he has studied the cases, for by studying the cases with the aid of a competent teacher he will most easily and most thoroughly master the principles of which the first book is a mere summary. § 3. The Way to use the Cases : Reading and Stating Cases : Writing Head-Notes : Comparing Cases : Compiling a Digest. The student should begin by reading the first case rather rapidly from end to end, his purpose being to get a general (3) Motion for a nonsuit ; or demurrer to the evidence ; or motion to take the case from the jury by means of a peremptory instruction to find for one party or for the other. Smith's Action at Law, (i2th ed.) 137-139; 2 Thompson on Trials, §§ 2245-2271. (4) Objections to the charge. (5) Special verdict. 3 Bl. Com. 377. (6) Agreed statement of facts. (7) Motion for new trial. (8) Motion for judgment non obstante veredicto, or motion in arrest of judgment. (9) Writ of error. 3 BI. Com. 406-4:1. The third, sixth, and seventh methods do not always prevent discussions as to weight of evidence ; and, indeed, the first, eighth, and ninth methods are the only ones that invariably present merely ques- tions of law. By adopting the appropriate procedure, a question of law raised by any method may be taken to a higher court. 5 § 3 THE STUDY OF CASES. idea of the purport of the case. He should then read the case again, looking up in a law dictionary or elsewhere the meaning of all abbreviations, technical words, and obscure expressions, and not stopping until he is sure that he under- stands the whole case. This does not mean that the student is to stop upon each sentence until he understands it. It is not necessary or right to attempt to understand each sentence by itself. Sentences are not written in that way. Each sentence lies in the writer's mind as part of a context ; and as the writer views each sentence in connection with what goes before and after, the reader should do likewise. By taking sentences in their natural connection with one another and by keeping in mind the subject under discus- sion, the case can be mastered even though there remain an obscure sentence here and there. The chief things the student seeks are the points presented to the court whose opinion is reported, and the propositions of law for which the decision is authority. Having made up his mind as to these matters, the student should next, with the book open before him, make a brief oral statement of the case, omit- ting none of those facts as to the pleadings, the evidence, or the procedure, which may be necessary to show what the points were and how they came before the court whose opinion is reported, and in conclusion he should give the result and the reasons upon which the court relied. He should then write a head-note containing the points of law for which the decision is authority, omitting dicta} He 1 See §§ 28-33. " The student would find it an admirable exercise to endeavor to frame his own marginal abstract of a case, and then compare it with that of the reporter. A little practice of this kind would soon enable him to detect the points of a case, — to seize upon its true bearings ; and this ... is one of the most distinguishing characteristics of what may be termed a legal or judicial mind." Warren's Law Studies (3d ed). 1307. See also Sir Matthew Hale's preface to RoUe's 6 PRELIMINARY TOPICS. § 3 should test the accuracy of his head-note in every possible way, attacking it as an enemy might.^ Finally, he should consider whether the decision is right, and whether it con- flicts with other decisions to which he has access. After treating all the cases in this way, the student will be in a position to systematize his knowledge regarding the study of cases by reading the first book. Last of all, the student should make a digest of the cases.^ Abridgment ; Bishop's First Book of the Law, § 392 ; Reed's .American Law Studies, § 246. " An uncpdified system of law can be mastered only by the student whose scientific equipment enables him to cut a path for himself through the tangled growth of enactment and precedent, and so to codify for his own purposes." Holland's Jurisprudence, (6th ed.) I. -1 See §§ 4-33. 2See§§34, 114-H8. 7 § 4 THE STUDY OF CASES. CHAPTER II. HOW TO FIND THE DOCTRINE OF A CASE. § 4. Ascertaining the Doctrine. The ascertaining of the proposition of law for which a decision is authority is one of the most important investi- gations that can be undertaken regarding a reported case. The discussion of cases that involve two or more questions of law will be postponed until the next chapter. This chap- ter will be devoted principally to cases turning upon one point, and, as the discussion will necessarily be long, the chapter will be divided into four parts. I. The court's duty to consider the actual case. § 5. First Principle : the Court's Duty to decide the very- Case : Hypothetical Cases. •The first key to the discovery of the doctrine of a case is found in the principle that the court making the decision is under a duty to decide the very case presented and has no authority to decide any other.* No court can refuse to decide an actual case over which it has jurisdiction ; and no court can decide a wholly imaginary case. Nor can a court decide a case partly imaginary. The court, for example, cannot elect to disregard some of the features of the actual case and to base its decision upon the remaining features. If, however, the court finds that some one material error has been committed by the court below, or finds that there is some other one point upon which, taken by itself, the deci- 1 State V. Baughman, 38 Ohio St., 455, 459 (1882), s. c. infra. 8 HOW TO FIND THE BOCTRINE OF A CASE. § 5 sion can properly rest, the court need not pass upon other points ; and in such circumstances the court, although it apparently refuses to go into the whole case, really ignores no part that is material, but simply declines to enter upon unnecessary discussion. To put the matter in another form, the court's purpose is a practical one, namely, to decide what disposition should be made of the case brought before it, the question often being, for example, simply whether there must be a new trial ; and as the court's duty is meas- ured by this practical purpose, the court's duty is to con- sider the whole case to the extent, and only to the extent, requisite in order to decide what it ought to do ; and when the court has found one reason that clearly indicates what the court must do, it is not the duty of the court to search for still another reason upon which to base the decision ; ^ for ^ " I quite agree with the statement of the counsel for the defend- ant, that in giving our judgment for the plaintiff, we must be taken to disagree entirely from the opinion expressed by the Court of Common Pleas in the action between the same parties, and which was after- wards brought before the Court of Error. Perhaps it is unfortunate that in every case each particular point mooted at the bar is not decided by the Court; much litigation would probably be avoided by it. It was formerly very much the practice of courts of justice to go out of the particular question, and determine every point which had arisen in the case. But in modern times it has been the usage of judges, not to go out of the way to decide every point that arises, but to adjudicate only upon the point necessary for the disposal of the cause. Had the old practice continued, it is probable that this point would never have arisen in this Court, as I do not believe there was, when this case was before the Court of Error, any difference of opinion with respect to the judgment of the Court of Common Pleas, on the point upon which they had decided the case ; but there was ground to support the decision on a point of pleading, and upon that we gave our opinion. (See i Scott N. R. 675; i M. & G. 738.) We must have affirmed the judgment, whatever we might have thought of the points raised in argument to-day, and nothing was said by the Court of Error negativing the opinion we are about to express. " I am of the same opinion that I was then, that the doctrine 9 § 5 THE STUDY OF CASES. to do this would be to waste strength. It must not be inferred, however, that in any one case the court never has to decide more than one point. Sometimes tiie decision necessarily depends upon many points, as will be explained hereafter.! What is insisted upon just now is merely that the court, in case its decision can be based upon one point, is not compelled to pass upon other points, and that, consequently, if the court declines to pass upon unnecessary points, the court is not departing from the general principle requiring a court to deal with the very case actually before it. It is true that courts often do pass upon unnecessary points,^ sometimes believing them to be really necessary, sometimes believing that a decision based upon a novel or doubtful point may be more likely to be correct if supported by still another point, and sometimes believing that by an opinion covering an unnecessary point expense and delay will be prevented in the very litigation, or in other like litigation ; but, although the courts now and then depart thus from the stated by the Court of Common Pleas . . . cannot be supported either on principle or authority " Per Lord Abinger, C. B., in Beck- ham V. Drake, 9 M. & W. 79, go-gi (1841). " It is a familiar principle that courts are not officiously to raise constitutional questions not urged by counsel. In fact, it is the duty of courts of last resort not to decide an act unconstitutional so long as there are other grounds on which the case may be disposed of." The State v. Pugh, 43 Ohio St. 98, 122 (1885), /«>- Owen, J. The indignation of anti-slavery men at the opinion of the majority of the court in Scott v. Sandford, 19 How. (U. S.) 393 (1857), com- monly known as the Dred Scott Case, was intensified by the fact that, as the court found a fatal absence of jurisdiction in the court below, anti-slavery men conceived that an opinion as to the rights of slave- owners in the Territories was unnecessary, merely obiter, i Morse's Lincoln (American Statesmen Series), 103-104. 1 See §§ 22-26. 2 For a di.'-cussion of the weight of opinions as to unnecessary points, see §§ 13-16, 55-56, 59, 91-92. 10 HOW TO FIND THE DOCTRINE OF A CASE. § 5 rule requiring them to decide only points upon which the actual case depends, courts never depart from the principle forbidding them to decide a wholly fictitious case.* 1 Thus the question, whether a State statute is in conflict with the Constitution of the United States, gives rise to a decision of a Federal court, only when the point arises in actual litigation. " This method has the merit of not hurrying a question on, but leaving it to arise of itself. Full legal argument on both sides is secured by the private interests which the parties have in setting forth their conten- tions ; and the decision when pronounced, since it appears to be, as in fact it is, primarily a decision upon private rights, obtains that respect and moral support which a private plaintiff or defendant, establishing his legal right, is entitled to from law-abiding citizens. A State might be provoked to resistance if it saw, as soon as it had passed a statute, the Federal government inviting the Supreme Court to declare that statute invalid. But when the Federal author- ity stands silent, and a year after, in an ordinary action between Smith and Jones, the court decides in favor of Jones, who argued that the statute on which the plaintiff relied was invalid because it transgressed some provision of the Constitution, everybody feels that Jones was justified in so arguing, and that since judgment was given in his favor he must be allowed to retain the money which the court has found to be his, and the statute which violated his private right must fall to the ground." Bryce's American Commonwealth, part I., chapter xxiii. " Looking upon itself as a pure organ of the law, commi&ioned to do justice between man and man, but to do nothing more, the Supreme Court has steadily refused to decide abstract questions, or to give opinions in advance by way of advice to the executive. When, in 1793, President Washington requested its opinion on the construction of the treaty of 1778 with France, the judges declined to comply. " This restriction of the court's duty to the determination of con- crete cases arising in suits has excited so much admiration from De Tocqueville and other writers, that the corresponding disadvan- tages must be stated. They are these : — " To settle at once and for ever a disputed point of constitutional law would often be a gain both to private citizens and to the organs of the government. Under the present system there is no certainty when, if ever, such a point will be settled. Nobody may care to II § S THE STUDY OF CASES. Thus, if one wishes to know what will be the legal effect of a certain contemplated form of conveyance, one cannot make an hypothetical case, and procure the decision of a court. There is in a few States a constitutional provision to the effect that the governor or the legislature may procure from the court of last resort an opinion as to important questions of law, and, particularly, as to the constitutionality or con- struction of a contemplated statute ; but this is a procedure wholly foreign to the general theory of judicial duty.^ incur the trouble and expense of taking it before the court. A suit which raises it may be compromised or dropped. " When such a question, after perhaps the lapse of years, comes before the Supreme Court and is determined, the determination may be different from what the legal profession has expected, may alter that which has been believed to be the law, may shake or overthrow private interests based upon views now declared to be erroneous. These are, no doubt, drawbacks incident to every system in which the decisions nf courts play a great part. There are many points in the law of England which are uncertain even now, because they have never come before a court of high authority, or, having been decided in different ways bv co-ordinate courts, have not been carried to the final court of appeal. But in England, if the inconvenience is great, it can be removed by an Act of Parliament, and it can hardly be so great as it may be in America, where, since the doubtful points may be the' true construction of the fundamental law of the Union, the President and Congress may be left in uncertainty as to how they shall shape their course. With the best wish in the world to act conformably to the Constitution, these authorities have no means of ascertaining before they act what, in the view of its authorized interpreters, the true meaning of the Constitution is. Moved by this consideration, five States of the Union have by their Constitutions empowered the governor or legislature to require the written opinions of the judges of the highest State court on points submitted to them. But the President of the United States can only consult his attorney- general, and the Houses of Congi'ess have no legal adviser, though to be sure they are apt to receive a profusion of advice from their own legal members." Bryce's American Commonwealth, part I. chapter xxiv. 1 See the preceding note and § 62. 12 HOW TO FIND THE DOCTRINE OF A CASE. § 5 The judges, in short, are appointed to dispose of actual litigation, and not to decide moot cases.^ Hence the prop- osition of la,w involved in a decision must be, in effect, that " As we have no means, in such case, of summoning the parties adversely interested before us, or if inquiring, in a judicial course of proceeding, into the facts upon vifhich the controverted right depends, nor of hearing counsel to set forth and vindicate their respective views of the law, such an opinion without notice to the parties would be contrary to the plain dictates o£ justice, if such an opinion could be considered as having the force of a judgment, binding on the rights of parties. ... An opinion upon an abstract question, without any investigation of facts, and without argument, must be taken as an opinion upon the precise question proposed, which cannot affect the rights of parties, should they hereafter be brought before the court in a regular course of judicial proceeding." Opinion of the Justices, 5 Met. (Mass.) 596, 597-598 (1844). " In giving such opinions, the Justices do not act as a court, but as the constitutional advisers of the other departments of the government, and it has never been considered essential that the questions proposed should be such as might come before them in their judicial capacity." Opinion of the Justices, 126 Mass. 557, 566 (1878). At pp. 561-567 the opinion gives an historical view of the subject. " Although such an opinion has not the force of an adjudication, yet it is, in a sense, a pre-judgment of the question proposed, and would usually be followed by the subordinate judicial olEcers of the Commonwealth ; and any inhabitant interested in the question might well feel that his rights had been impaired by it without giving him an opportunity to be heard." Answer of the Justices, 148 Mass. 623, 625 (1889). " While it is our duty to render opinions in all those cases in which either branch of the Legislature or the Governor and Council may properly require them, it is not the less our duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause relating thereto." Answer of the Justices, 150 Mass. 598, 601 (1890). See also /» re District Attorneys, 12 Colo. 466 (1889) ; /« re Pri- ority of Legislative Appropriations, 34 Pac. Rep. 277 (Colo. 1893) ; and H. A, Dubuque, "The Duty of Judges as Constitutional Ad- visers," 24 Am. L. Rev. 369 ( 1890). 1 The State v. Baughman, 38 Ohio St. 455 (1S82), s. c. in/ra. 13 § S THE STUDY OF CASES. the very problem presented by the actual, and usually com- plicated, case is solved in a certain way. § 6. Difficulty that two Cases are never ideatical. The strict theory is that the court must consider the whole case properly before it, and no other. It seems to follow that the decision establishes no rule save that in an exactly identical case the rights of the parties will be precisely what the rights are decided to be in the reported case. If this conclusion be correct, it seems to follow that in practice no decision has value as a precedent. No two cases are pre- cisely alike. However similar they may be, there is at least a difference as to the persons interested or as to the times of the events upon which the cases are based. As to this difficulty the obvious suggestion is that the differences may be immaterial. Is not a suit between B and C to be decided precisely as a suit between X and Y ? Yes ; unless it happens that in one of the cases, though not in the other, a party is an infant, a lunatic, an alien, or otherwise clothed with extraordinary qualities. And is it not immaterial that one of the suits was begun at one time and the other at another? Yes; unless the Statute of Limitations or a doc- trine as to laches or some similar principle steps in to make lapse of time important.' If it be clear that in the two cases imagined, the reported case and the new case not yet decided, the differences as to parties and as to times are unessential and that in all other respects the cases are identical, then, unless some mistake is discovered, it is clear that the new case ought to be de- cided just as the old case was decided. In other words, every case ought to furnish a precedent for all other cases in which the circumstances, save as to unessential matters, are identical.^ 1 See §71. 2 See §§ 7, 36, S3, 73. 14 HOW TO FIND THE DOCTRINE OF A CASE. § 8 2, The necessity of uniformity. § 7. Second Principle : the Court's Duty to follow a general Rule. As the principle confining the authority of the court to the precise case appears to lead to the result that a decision can- not be a precedent for any but an identical case, and as the use notoriously made of volumes of reports shows the result to be actually otherwise, there must be some other principle to which the actual result is partly due. As has no doubt been perceived by the reader, this other principle, the second key to the discovery of propositions of law, is the principle that the court must pass upon each case precisely as it would pass upon a similar case, that is to say, in accordance with a general rule. In other words, in addition to the principle of restriction of jurisdiction there is a principle of uniformity, and hence, although the court can pass upon no case except the one before it, the decision is a precedent for all cases in which the circumstances do not differ materially from the circumstances upon which the decision was based.^ § 8. The consequent Necessity for eliminating unessential Circumstances. The proposition of law, then, for which a case is authority is a proposition which strips away the unessential circum- stances and declares a rule as to the essential ones. For example, if the court decides that an oral promise made by a certain person to furnish hay for another person's horse throughout a month cannot be enforced if in return for the promise the promisee simply paid ten dollars already due from him to the promisor, the proposition of law does not name the parties nor the hay nor the horse nor the ten dollars, but simply says that a parol promise cannot be enforced without consideration, and that a consideration is 1 See §§ 6, 53, 73-79, 86-^7. 15 § 8 THE STUDY OF CASES. not found in the performance of a contractual duty which the promisee already owes to the promisor. § 9. At least four Propositions involved in every Case. Accordingly, the reported case may be conceived as con- taining the following propositions : ^ (i) When the circum- stances surrounding parties are thus and thus, the rights of the parties are thus and thus ; (2) In this particular case such circumstances do surround the parties ; (3) In this particular case the other circumstances are not material ; and (4) In this particular case the rights of the parties are as indicated in the first proposition.'^ § 10. Diificult to discriminate between essential and un- essential Circumstances. Clearly it is important and difficult to determine what is a material difference in circumstances. Here is a place where the beginner cannot expect to rival the experienced lawyer.* For example, if a court decides that, in a jurisdiction 1 In the phraseology of logicians, the first of these propositions is the major premise, the second and the third talcen together are the minor premise, and the fourth is the conclusion. See § 22, notes, § 7^, note. 2 " The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sen- tence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus : Against him who hath rode over my corn, I may recover damages by law : but A hath rode over my corn ; therefore I may recover damages against A. If the major proposition be denied, this is a demurrer in law : if the minor, it is then an issue of fact ; but if both be confessed (or deter- mined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not, therefore, on the arbitrary caprice of the judge, but on the settled and invariable princi- ples of justice." 3 Bl. Com. 396. And see §§ 87-S8. * See §§ 70-71. 16 HOW TO FIND THE DOCTRINE OF A CASE. § II where seals have their ancient force, an instrument signed and sealed by X in the name of Y and with Y's oral consent and in Y's presence binds Y, the beginner may hastily infer that parol authority to execute a sealed instrument is adequate j but the general rule of law is really the other way, and the explanation of the decision lies in the fact that X acted in the presence of Y and is in the law regarded as a mere automaton moved by the mind of Y. § 11. A Test for determining whether a Case is a Prece- dent for a given Doctrine. Yet by experiment even the beginner can determine whether it is possible for a given proposition of law to be involved in a given case. In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its mean- ing. Let him then inquire whether, if the court had con- ceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition,'' but if the answer be negative the case is a pre- cedent for the original proposition and possibly for other propositions also. ^ " If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined, to fix the rights of the parties, and decide to whom the property in contestation belongs. And, therefore, this court, and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the par- ties." Per Curtis, J., in Carroll v. Carroll's Lessee, i6 How. (U. S.) 275,286-287 (1853). 2^ 17 § 12 THE STUDY OK CASES. § 12. An indispensable Mark of the Doctrine of a Case. In short, when a case turns on only one point the prepo- sition or doctrine of the case, the reason of the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise. As will appear later, the proposition, in order to have full force as authority, must have still other marks. 3. The words of the court. § 13. The Opinions of the Judges : Dicta and their Weight. The proposition involved in a case is naturally sought in the opinion of the court. The opinion, however, need not contain the proposition and usually does contain a great deal of other matter. The opinion contains, almost invariably, introductory remarks, summaries of earlier decisions, discus- sions of similar states of fact, and, in short, several kinds of matter intended to elucidate the court's view of the case at bar. So far as the opinion goes beyond a statement of the proposition of law necessarily involved in the case, the words contained in the opinion, whether they be right or wrong, are not authority of the highest order, but are merely words spoken, dicta, obiter, or obiter dicta. Some authorities at- tempt to distinguish between dicta and obiter dicta, saying that if the court naturally, though unnecessarily, uses words by way of illustrating or Hmiting the doctrine necessary to the decision, those unnecessary words are dicta, but that if the court goes still farther out of its way, leaves the question that is actually under discussion, and for the sake of illustra- tion or for some other reason discusses subjects wholly for- eign to, the case, the words thus dropped outside the natural pathway are to be called not simply dicta but obiter dicta?- This attempted distinction between dicta and obiter dicta, though countenanced by the usage of an eminently respect- 1 Ram's Legal Judgment (Townshend's ed.) 88-90. 18 HOW TO FIND THE DOCTRINE OF A CASE. § 1 4 able minority, seems to be unnecessary. At best, it is a dis- ' tinction of degree and not of kind. For practical purposes the expressions are interchangeable ; and, indeed, dictum, like obiter, is really a mere abbreviation for obiter dictum. No dictum is authority of the highest sort. To give it such weight virould be to give judges power to decide in advance a case not before them for adjudication, a merely hypothetical case, and to bind by their opinion the court before which that hypothetical case may eventually become a practical problem. This would be a legislative power, and, still worse, a power exercised in the absence of full argument of the hypothetical case. Nevertheless, some weight is very properly given to a dictum} a weight similar to that assigned to the sayings of learned text-writers ; and in this sense a dictum is authority, its weight varying with the learning of the court and with the amount of thought bestowed by the court upon the point covered by the dictum."^ § 14. Weight of Words e:£pres8iiig the strict Doctrine of a. Case. The reason why a dictum is not authority of the highest grade is' the restrictive principle heretofore pointed out, the principle that the court need not and must not do more than the case at bar demands, and hence cannot pass authorita- 1 See §§ 35, 55, 59. The fact that the words of all persons learned in the law have weight is illustrated by what is said by the reporter in Y. B. 40 Ed. III. 49 : " Ye shall note the Justices' names, to whose words ye must chiefely give credence, before the sayings of any of the Sargeants." 2 Cohens v. Virginia, 6 Wheat. (U. S.) 264, 399-402 (1821); State V. Clarke, 3 Nev. 566, 572-573 (1867) ; Rohrbach v. Germania Fire Ins. Co., 62 N. Y, 47, 58-60 (1875) ; Buchner v. Chicago, Milwaukee & Northwestern Ry., 60 Wis. 264, 267-269 (1884). See Mr. Justice S. F. Miller, in Dillon's Laws and Jurisprudence, 263. And see §§ 55, 59, 68, 91-92. 19 § 14 THE STUDY OF CASES. tively upon any case but that.^ Does not the same principle make it unnecessary for the court to file an opinion giving the reasons for the decision? Does not the court perform its full duty when it makes up its mind in favor of one party and gives judgment accordingly?^ Does it not follow that the opinion of the court, even in so far as it gives the true doctrine of the decision/ is unnecessary, of no force as a precedent, mere dictum ? As to this matter the language of lawyers is not theoreti- cally consistent. The very words actually used by the court are conceded not to have the force of precedent. That force is reserved for the proposition necessarily involved in the decision, whether that proposition be stated by the court broadly, narrowly, wrongly, or not at all. Nevertheless, the words of the court, so far as they state propositions of law necessarily involved in the decision, are not called dicta. That expression, as if it were a word of reproach, is re- served for statements that are not the doctrine of the case. The explanation, not very lucid, of these apparently incon- sistent views, appears to be that, in the minds of lawyers, the case, which is composed of the problem submitted to the court and the result eventually reached, is by lawyers treated as personified ; that this artificial person utters a 1 See § s. 2 The judgment or decree is properly the final order, and this is seldom fully reported. See § io8. The opinion is the statement of the reasons for the judgment or decree. Sometimes, especially in English books, judgment is loosely used as the equivalent of opinion. Bishop's First Book of the Law, § 172; Freeman on Judgments, §§ 2, 9; Houston V. Williams, 13 Cal. 24 (1859), s. c. ittfra. ^ Decision is not a technical word. It is often used as the equiv- alent of opinion, but it as properly describes the judgment or decree. Houston V. Williams, 13 Cal. 24, 27 (1859), s. c. infra. Hence de- cision is a convenient word to use when one wishes to speak of the result of a case, and not to draw particular attention to either the opinion or the formal entry of judgment. 20 nOVi TO FIND THE DOCTRINE OF A CASE. § I4 proposition' of law, the very essence of the artificial person's existence ; mat this proposition of law is the raho decidendi and has the force of precedent ; that it is the court's duty to hear this proposition and to embody it in words ; ■" that in so far as the words of the court are accurate expressions of the essential proposition they are not obiter dicta, for they are spoken in the direct course, of duty ; "^ but that, even when the words of the court are perfect expressions of the essential proposition of the personified case, the words derive their 1 See § 77. Perhaps Coke had some such thought when he wrote : " The law is the rule, but it is mute. The king judgeth by his judges, and they are the speaking law, lex loquens." Co. Lit. 130 a. It seems that with the same view Coke devised an etymology for Judicium. '' Judicium, quasi juris dictum, the very voice of law and right, and therefore Judicium semper pro veritate accipitur." Co. Lit. 39 a. "Judicium est quasi juris dictum, so called, because so long as it stands in force pro veritate accipitur." Co. Lit. 168 a. This deri- vation of judicium from juris and dictum is of the same rough sort as etymologies sanctioned by lawyers from the time of Gaius to the time of Coke. " Unde etiam mutuum appellatum est, q'uia quod ita tibi a me datum est, ex meo tuumjiat." Inst. Gai. III. 90. And so Inst. Just. III. xiv. pr. " Testamentum. ex eo appellatur, quod testatio mentis est." Inst. Just. II. a. pr. And so Loveless, Serjeant, arguing in Brett v. Rigden, Plowden, 340, 343 (1568), and Co. Lit. 322 b. " And first as to the definition of the word (agreement) it seems to me that aggreamentum is a word compounded of two words, viz. of aggre- gatio 3.ni mentium. . . And so by the contraction of the two words, and by the short pronunciation of them they are made one word." Serjeant Pollard's argument in Reniger t/. Fogossa, Plowden, I, 17 (1550). Rastell's Termes de la Ley (ed. 1609), sui voc. Testament, protests against these derivations of testament and agreement. 2 " The immediate province of the courts of justice is to administer the law in particular cases. But it is equally a branch of their duty, and one of still greater importance to the community, to expound the law they administer upon such principles of argument and con- struction as may furnish rules which shall govern in all similar or analogous cases." i Douglas, preface, iii. And see §§ 7, 53, 75-79, 85-93, 98-99, 109. 21 § 14 THE STUDY OF CASES. force as precedents not from the judges individually or collectively, but from the personified case, — not from the fact that they have been pronounced by judges, but from the fact that they must be pronounced by any one who diligently studies the problem and the result.-' Perhaps this explanation may be aided if one considers what happens when a musician listens to a bird and reduces the bird's song to musical notation for reproduction upon the piano. To the extent to which the notation is accurate, it is not the musician's composition, but is the bird's own song ; and ^ " Let us inquire what is meant by the term precedent, and what element in a case is to be followed under the rule stare decisis. It is not the judgment which the court pronounces upon the rights of the parties involved in the suit. A judgment that A recover of B one thousand dollars is not to be cited as a precedent in a subsequent case to support the right of C to recover the same sum from D, for the judgment is simply a conclusion reached by the application of rules of law to certain facts. We are to look farther in a case than to the judgment to find that which constitutes a precedent. It is found in the rules of law, which are the foundation of a judgment. These rules constitute the formula by which rights of parties are to be determined. When settled by adjudication, courts, under the doctrine stare decisis, are required to apply them to subsequent cases. Upon the authority of the decision announcing them they are to be taken as correct. When we look to a. case which is called a prece- dent, we search out these rules for application to the facts in dispute before us ; the judgment therein constitutes a rule in no sense, — it is evidence of the application of rules, legal formulae, to facts ; it is the formal recognition of such rules. A case is to be regarded as a pre- cedent when it furnishes rules that may be applied in settling the rights of parties. These rules are to be discovered in the opinions of the judges, and constitute the reasons for the decision. Lord Mansfield says : ' The reason and spirit of cases make law ; not the letter of particular precedents.' Fisher v. Prince, 3 Burr. 1364. And Lord Holt declares that ' the reason of a resolution (judgment) is more to be considered than the resolution itself.' Cage v. Acton, 12 Mod. 294." Per Beck, J., in Dubuque v. Illinois Central Railroad Co., 39 Iowa, 56, 79-80 (1874). And on §§ 53, 86-87, 93' 22 HOW TO FIND THE DOCTRINE OF A CASE. § 1 5 to the extent to which the notation is inaccurate, it is not the bird's song, but is a more or less original and pleasing composition by the musician. According to the analytical jurists, however, there is a difference between the court and the musician, in that the former originally creates the doc- trine which it interprets ; but this distinction is unimportant in this place, and, besides, it is foreign to the thoughts of most lawyers.^ § 15. Inability of the Court to make an unnecessary Proposition the Doctrine of a Case. From what has just now been said, it appears that the court has not power to determine for what propositions a decision shall be a precedent, and for what propositions a mere dictum. The decision is a precedent for the doctrine necessarily involved in it, and not necessarily a precedent for the doctrine stated by the judges. For example, if the judges base their decision upon a certain unnecessary prop- osition, the decision is not a precedent for that proposition, but is a precedent, though often not a strong one, for the proposition really necessary. This result is not altered by the fact that it is the practice of courts, and in some States their official duty, to file opinions giving the reasons for their decisions. A decision creates a precedent whether there be an opinion or not.^ ^ See §§ 73-79. 2 But unless there is an opinion there cannot be a very useful or weighty precedent. See §§ 17, 41-43, 57- " The records o£ the court are, indeed, framed in such a manner as to constitute indisputable documents of such parts of the proceed- ings as are comprised in them, but it is easy to show that this goes but a very little way. " In the first place, the authority of a decision, for obvious rea- sons, is held to be next to nothing, if it passes sub silentio, without argument at the bar, or by the court ; and it is impossible from the record of o. judgment to discover whether the case was solemnly decided or not. Records, therefore, even when they contain a sufS- • 23 § 1 6 THE STUDY OF CASES. § 16. Third Principle : The very "Words of the Court not the Doctrine ol the Case. Accordingly, the third key to the discovery of the doctrine of a reported case is the principle, or rather the caution, that the doctrine of the case is not the language of the judges. In so far as the words of the judges go beyond the precise doctrine necessary to the decision, laying down a different rule or a broader rule, they are mere dicta. 4. The effect of the courfs ignoring possible doctrines. § 17. Fourth Principle : Doctrine in the Mind of the Court : Necessity for Deliberation : Familiar Doctrines often not expressed : Extraordinary Circumstances : General Language. If this reasoning be carried out to its logical conclusion, the result must be that the proposition involved in a case can be written by examining the questions presented in the record, and by then examining the result shown by the judgment, wholly ignoring the opinion upon which the judg- ment was based. In other words, the proposition would be one and the same, whether there was or was not an opin- ion.^ Yet this is not true. Another principle here appears, a fourth key to the discovery of the proposition of a case. This fourth principle is, that a case is not a precedent for any proposition that was neither consciously nor uncon- sciously in the mind of the court. It is the duty of the court to deliberate. Otherwise decisions could not be con- cient state of the case, do not afford complete evidence of what is requisite to the future authority of the decision. " But, in the second place, it is well known in how few instances the material parts of the state of the case can be gathered from the record." i Doug., preface, v. See also " The Reporting System," 7 I^aw Review, 223, 226-228 (1848). - ' See § 15, note. 24 HOW TO FIND THE DOCTRINE OF A CASE. § Ij ceived to have any authority whatever, for they would be arbitrary or accidental, and could not be reduced to a scientific system, though, to be sure, persons interested in lotteries and other games of chance do believe that accident can be reduced to a science. What makes decisions of value as precedents is the fact that they are based upon reasoning and not upon chance.* If it can be shown that there was no deliberation, it follows that the. case is of no authority for any proposition whatever. Further, if it can be shown that, although there was deliberation, a particular point was wholly absent from the consideration of the court, then, even though that point is conceivably an impor- tant one, the connection of the decision with that point is not a connection of effect and cause, but is purely acci- dental, and as to that point the decision is no authority whatever.^ This does not mean that a decision is authority 1 See §§ 42-57. 2 " We know, indeed, that it is said that the reasons are no part of the judgment, and judges are sometimes heard to declare that they . consider themselves bound by a decision of one of their predecessors, but that they nevertheless are of opinion that that decision was come to on false grounds. But what can be more unreasonable and illogi- cal than this ? It is possible, of course, that a conclusion (so called) may be true in fact, although it do not follow from the premises to which it is assigned ; but is it likely ? And at all events has a con- clusion thus arrived at any claim to be treated with respect ? The odds are against it ; its amount of credit, so to speak, is a negative quantity ; and we must say that we have always considered it a most undignified piece of perverseness to affect to ascribe a sort of infalli- bility to a judge's decision at the same time that discredit is thrown upon his powers of reasoning. We cannot believe that it is a con- stitutional doctrine that a decree from the bench has the same magical privileges as the enchanted bullet in Der Freischutz, and is sure to hit the right object, although the gun be pointed the other way. Surely the judgment and the reasons for it are too intimately connected to allow of such distinctions ; they must stand or fall together ; if the latter are good, that is a strong ground for upholding 25 § 17 THE STUDY OF CASES. for nothing that is not mentioned in the opinion. Many obvious points are omitted from opinions ; and, if it can be shown that the points must have been in the mind of the court, the decision is authority as to those points, even though the court was hardly conscious of having them in the former ; if they are bad, the other cannot be worth much." " The Reporting System," 7 Law Review, 223, 227-228 (1848). " A still stronger case, illustrative of the rule that questions not considered in a former case are not authority now, although they appeared in the record, and might have been urged, is Fouts v. The State, 8 Ohio St. 98. Fouts had been tried for murder in the first degree, convicted, and sentenced to be hung. " Among the grounds for a reversal of the sentence was the claim that the indictment failed to charge the offence of which he was found guilty. It transpired that other prisoners before him had been convicted and executed under the same form of indictment. Indeed, in a former case, Moore v. The State, 2 Ohio St. 500, a con- viction under the same form of indictment was sustained and the prisoner executed. " But, on investigation, the court found the indictment to be fatally bad, in that it did not charge the crime for which Fouts was convicted. What did the court do ? Did it tell the prisoner that his conviction and sentence were illegal and void, and were under an indictment which did not charge a capital offence, but that he must be executed; that a prisoner had already been ordered to be executed under the same form of indictment, and that the court, from an altar of justice, must be turned to an altar of sacrifice, in order that it should be consistent with itself.' On the contrary, the court promptly set aside the sentence of death I " Hartley, C. J., speaking for the court, said : ' It has been urged that this court had decided this question otherwise, in the case of Moore v. The State of Ohio, 2 Ohio St. 500, by approving an indict- ment of the same kind. In answer to this, it is sufficient to say, that this question was not raised, or brought to the attention of the court in that case. A reported decision, although in a case in which the question might have been raised, is entitled to no consideration what- ever as settling, by judicial determination, a principle not only not passed upon, but not raised or even thought of, at the time of the adjudication.' " The State v, Pugh, 43 Ohio St, 98, 122-123 (1885), per Owen, J. 26 HOW TO FIND THE DOCTRINE OF A CASE. § 1 7 mind. For example, if there be a decision that a promise is of no force, because based upon a consideration not moving from the promisee, this is an authority for the general proposition that a contract must have a consideration ; for, though that general proposition may be assumed not to have been expressed by the court, the familiar general doctrine must be seen to have been in the court's mind. To be sure, it is often difficult to affirm just what the court must have had in its mind with reference to the peculiar circum- stances of the case ; but that difficulty does not alter the general rule, that whatever was in the court's mind is just as authoritative if unexpressed as it would be if expressed. Thus, if a case presents extraordinary circumstances which could not be forgotten by any one, the decision of the court must be taken to have been affected by those circum- stances, even though the opinion says nothing about them. The language used by the court must be read in the light of the facts that were in the mind of the court ; for the language . was caused by those facts, and was uttered with reference to them. For this reason, as well . as for the reason that ' the court's duty is to pass upon the very case, the rule is that general language is to be interpreted and limited by the facts of the special case."^ 1 "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subse- quent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Per Marshall, C. J., in Cohens v. Virginia, 6 Wheat. (U. S.) 264, 399-400 (rSzi). Richard- son V. Mellish, 2 Bing- 229, 248 (1824) accord. See also §§ 19, 58. 27 § 1 8 THE STUDY OF CASES. § 18. Power of the Court to prevent the Deducing of Doctrines. Obviously, the opinion of the court is the best guide to what is in the court's mind when it pronounces a decision. Though the language used by the court does not have the force of precedent, it can show what is the doctrine that can properly be derived from the decision, or, rather, it can show what is not to be so derived ; for by emphatic words or by necessary imphcation the opinion can show that a point for which the case might otherwise be cited was absent from the mind of the court and had no part in producing the decision. For example, if a higher court, affirming the action of a lower court, expressly refuses to go into the merits of the case, and proceeds upon the ground that the plaintiff in error did not file his petition in error in season, it is obvious that the decision of the higher court cannot be considered an authority to the effect that the lower court committed no error ; and this is true even if it be assumed 'that the plaintiff in error did actually proceed in due season, and if, conse- quently, the decision of the higher court cannot be upheld upon any ground except a finding that error was not com- mitted below.^ § 19. Consequent Necessity for an Examination of the Opinion. Thus it appears that, just as the general language used in the opinion must be trimmed down to fit the actual case,^ so the general proposition which might be derived from the judgment as distinguished from the opinion must be trimmed down to fit the opinion. 1 And see §§ 24-26, 56-57. 2 " The language of the court in the opinion is to be construed with reference to the question actually under consideration, and should not be extended beyond for any purpose of authority in another and different case." Wright v. Nagle, loi U. S. 791, 796-797 (1879), /^r Waite, C. J. And see §§ 17, 58. 28 HOW TO FIND THE DOCTRINE OF A CASE. § 21 §20. Summary: The Four Keys to the Discovery of the Doctrine of a Case. This chapter may be summed up as follows : — I. The court must decide the very case before it ; II. The court must decide the case in accordance with a general doctrine ; III. The words used by the court are not necessarily the doctrine of the case ; IV. The doctrine of the case must be a doctrine that is in the mind of the court. § 21. The Marks essential to the Doctrine of a Case. Hence the doctrine of a case is a general proposition of law from which, taken in connection with the circumstances of the case, the decision logically follows, and upon which, whether expressed in the opinion or not, the court bases its decision. 29 § 22 THE STUDY OF CASES. CHAPTER III. CASES INVOLVING SEVERAL QUESTIONS. § 22. Cases involving more than one Doctrine : Depend- ent Propositions. A decision may be a precedent for more than one propo- sition. From what has already been said it is obvious that from any case tliere can be derived a proposition of a narrow form, covering the very case and other precisely identical ones, and a more general proposition that strips away the unessential features of the case and asserts a broad rule.' Thus, when it is decided that B is not liable in damages for such and such defamatory words written in such and such cir- cumstances, there is involved in the case not only this narrow proposition, but also the general proposition that such words written in such circumstances are privileged. In this sense, every case involves at least two propositions. Yet this is not what is meant when it is said, as it has been said above, that a case may establish two or more propositions, for the propo- sitions just now introduced by way of illustration are not independent, but are simply two forms of expressing the same truth. Further, it is usually possible to derive from any case still other propositions which are related to the general proposition of the case as, so to speak, its cause or 1 In other words i£ a case be treated as in effect a syllogism, either the conclusion or a premise is capable of being considered the propo- sition necessarily involved in the decision. Yet, as has already been shown, usually the important proposition is the major premise. See §§ 6-12. 30 CASES INVOLVING SEVERAL QUESTIONS. § 24 its effect.^ Thus the case just now supposed involves the proposition that within certain limits defamatory communica- tions are not actionable, and the further proposition that some acts prima facie tortious are lawful. Yet such propo- sitions, though capable of being framed in words that carry the mind far away from the contemplation of the most obvious proposition of the case," are not independent of that propo- sition or of one another. It is often useful to deduce the several related propositions that are involved in a case ; but the purpose of this chapter is to treat not of dependent propositions but of independent ones. § 23. Independent Propositions : Case involving two or more separate Questions. Let us suppose that the litigant who was unsuccessful in the lower court takes two or more points of law to a higher court. When the higher court decides the case, does the decision become a precedent as to each of those points ? § 24. Several Questions brought to the Court : Lower Court sustained. Let us first suppose that when the case involving two or more points is taken to the higher court that court finds no error. Is the decision of the court above, sustaining the lower court, an authoritative precedent as to each of those points? Yes, for the decision is necessarily based upon the proposition that as to no one of the points was there material error.' To this answer strict theory appears to require an excep- tion. It is enough for the court to decide that upon the 1 That is to say, the general proposition may be the conclusion o£ another syllogism, or a premise of still another. 2 Which is usally the major premise next before the conclusion. See § 9. 3 It is assumed that all points taken are in the mind of the court. See §§ 17-18, 57. 31 § 24 THE STUDY OF CASES. whole record taken together no material error appears. The court goes through the points one at a time ; but finally the question is not whether as to some one point there was an error, but simply whether a view of the whole record shows error. It is conceivable that the court should find as to one point an error and should find that by the other points com- plained of the error was corrected or was rendered immate- rial. In this view, a decision affirming the court below contains no proposition as to any one point, but simply contains a wide proposition as to the record as a whole. This, however, is a view of slight practical importance. The possibility of such a case can be safely ignored. Hence, without making any exception, it can be stated that when the court above finds that no error was committed by the court below, the decision of the court above is an authorita- tive precedent as to each of the points. § 25. Several Questions brought to the Court : Lower Court reversed. Let us suppose, however, that the court above decides that the court below committed material error. A material error as to one of the points taken up is enough to obtain from the higher court a judgment of reversal. It is therefore unnecessary for the court to decide that there was error as to all the points. The necessity lying upon the court does not require it to go farther than to decide that among the points brought before it there is some one as to which there was material error. If a proposition be framed declaring that as to one particular point the court below committed material error, that proposition can be denied and the decision of the court above can be sustained, nevertheless, upon the ground that there was material error as to another point. Does it follow that whenever a case involves two or more points, an opinion accompanying a judgment of reversal can- not, if this one case be taken by itself, have full authority 32 CASES INVOLVING SEVERAL QUESTIONS. § 26 upon any one point as distinguished from the others? That certainly is the result if the opinion does not explain upon what point the reversal is based. In the instance supposed it is impossible to say that the decision is based upon any one error. To say this would be to say that the other points were properly decided below or were immaterial ; and this cannot be said with certainty unless there are other cases turning upon those other points. Hence, while the com- parison of many cases may show by a process of elimination what are the propositions of law properly deducible from all the cases as to the several points in the case in question, the decision in that one case, provided it be not supported by an opinion clearly marking out the ground upon which it goes,-' cannot by itself be an unobjectionable authority. In other words, if points Q and R never occur separately, a thousand decisions to the effect that Q and R taken to- gether are material errors cannot show that Q alone or R alone is an error. If, however, the opinion definitely says that the reversal rests wholly upon one point, the case does become a precedent as to that point. If the court finds error as to two or more points, the case cannot be an authority of the strongest sort upon any one of them, if it is impossible to say that the court considered any particular one of them conclusive. Yet as to each of the errors pointed out by the court the decision certainly does have some authority. As to the points in which the court finds no error, a decision of reversal, being necessarily based wholly upon some other point or points, cannot have full weight. § 26. Summary. The discussion of the theoretical value of cases that in- volve two or more points has necessarily been intricate. The whole matter can, however, be summed up briefly. When only one point is taken to an appellate court, the case, in 1 See §§ i8, 43, 56, 57. 3 33 § 26 THE STUDY OF CASES. whatever way decided, becomes a precedent upon that point. When, however, the appellate coUrt is asked to pass upon two or more points, a distinction must be taken. If the court decides that there was no error, the decision is a precedent as to each of the points ; ^ but if the court decides that there was error, the value of the case as an authority is weakened unless the court clearly bases its decision upon only one point.^ A further and obvious appUcation of the line of argument developed in this chapter shows that, whether the result of a case be a reversal or an afifirmance, the value of the case is diminished if the decision of the appellate court is capable of being supported entirely upon any one of several indepen- dent points, and if the precise point relied upon is not announced.' If, however, a decision rests upon several points dependent upon one another, so that no one of them taken by itself will do, the case is an authority as to each of those points. More briefly, one case is like a weight that is suspended by several iron rods, each of them capable of doing the whole work by itself; and another case is like a weight that is suspended by a chain composed of several links. 1 Formula for strong case on two points : Point i ruled below for X ; point 2 ruled below for X ; successful party below, X ; case taken to court above by Y on points i and 2 j held, no error. 2 Formula for weak case on two points : Point i ruled below for X ; point 2 ruled below for X ; successful party below, X ; case taken to court above by unsuccessful party, Y, on points i and 2 ; held, error, the court assigning no reason or finding error as to both points. ^ If any adjudication that might be based upon one point is obvi- ously based not upon this point but upon another, the adjudication must be conceded to be an authority of full weight as to the point upon which it is rested, unless, indeed, there is room to argue that the point not specially made was in fact to some extent the basis of the decision. Clark v. Thomas, 4 Heisk. (Tenn.) 419 (1871). See §§ 17-19- 34 HOW TO WRITE A HEAD-NOTE. § 2/ CHAPTER IV. HOW TO WRn-E A HEAD-NOTE. § 27. The Authorship and Weight of Head-Notes. It is customary to prefix to each case a head-note, some- times called a syllabus, showing the points decided. This head-note is usually the work of the reporter, but sometimes it is the work of the judges. By whomsoever made, a head- note is not final authority.-' Like the words of the opinion, the head-note is merely a guide, more or less trustworthy, to the doctrine of the case. Of course, the value of head- notes depends upon the accuracy of the writer of them and also upon the method pursued by him.^ 1 If a syllabus made by the court goes beyond the points actually involved in the case, it is to that extent a dictum only, and does not establish a precedent ; for otherwise the court would have the power to adjudicate cases not before it, hypothetical cases. See §§ 5, 13-15, 62. A judicial head-note, however, ma^ show that certain possible doctrines were not in the mind of the court, or were not approved by all the judges. See §§ 17-18, 25-26, 48. " It is an unwritten rule of this court that members thereof are bound only by the points as stated in the syllabus of each case. Necessarily each judge, in writing an opinion, must be permitted to state his reasons for the decision in his own way, and the failure to dissent therefrom in any matter, not stated in the syllabus, is not to be taken as assent to the same." Per Max- well, C. J., in Holliday v. Brown, 34 Neb. 232, 234 (1892). It follows that in Nebraska the judicial head-note is really the equivalent of a per curiam opinion, and that the opinion actually delivered in the court's name by one of the judges differs but slightly from an indi- vidual opinion. See §§ 45, 48. ^ " The head-note frequently is misleading if you read it alone and do not take the trouble to read the case." Per Lord Fitz-Gerald, in Cooke V. Eshelby, 12 App. Cas. 271, 282 (1887). 35 § 27 THE STUDY OF CASES; Though the word head-note primarily means a syllabus printed with the case, it has a secondary meaning whereby it includes syllabi made by any person and for any purpose. In the remainder of this chapter, the word head-note is used in this wide secondary sense. § 28. Head-Notes stating several Doctrines. If a case involves more than one doctrine, all the inde- pendent doctrines ^ should appear in the head-note, and all the dependent doctrines "^ may appear there ; but it is often unnecessary to state obvious and familiar doctrines that are merely preliminary steps in the reasoning.' § 29. Head- Notes of the long Form : Dicta : Catch- Words. Sometimes head-notes are very long, giving a full state- ment of the case and perhaps giving also selections from the opinion. In head-notes framed upon this large plan, even dicta are sometimes found, but a competent reporter takes care to prevent dicta from being mistaken for the doctrine of the case.* The long form of head-note, though useful in some complicated states of fact, for example, where the question is the existence of fraud, does not satisfy those lawyers who wish to ascertain at a glance whether a case is in point. Hence to such head-notes the reporter often pre- fixes catch-words in distinct type. § 30. Head-Notes of intermediate Form. Another form of head-note states as briefly as possible the question and the result, stripping off unnecessary facts so carefully that the proposition of law clearly appears, but still giving as much of detail as is necessary to show how the 1 See § 23. 2 See § 22. » See § 17. * Many reporters prefix to the doctrine of the case the word held, and to a dictum the word semble. 36 HOW TO WRITE A HEAD-NOTE. § 32 proposition of law was applied. This intermediate form of head-note is probably the one most generally approved. Such a head-note seldom mentions dicta. § 31. Head-Notes of the short Form : Objection to them. Some head-notes simply state in a very general form the proposition of law and do not show the manner in which the proposition was applied. This form of head-note is not popular. A lawyer is seldom in doubt as to general proposi- tions, such propositions being well settled and being easily found in text-books. The lawyer's problem is to ascertain how a general proposition is to be applied to a particular state of facts. What he needs is a case in which the propo- sition is applied to circumstances more or less closely analo- gous to the circumstances surrounding the litigation in which he is employed. He has no time to read every one of the cases in which the general proposition is laid down, and he expects the head-notes to help him in making a selection. § 32. Other Forms : Different Forms for Different Cases. Between the longest and shortest forms of head-notes there are innumerable gradations. Some reporters, for example, slightly change the full form by substituting letters of the alphabet for the names of the parties, but otherwise give a complete statement of the case. Such a head-note at first glance seems to approximate the intermediate form, since it has a superficial appearance of making a general- ization.^ Now and then a reporter prefixes to a case a head-note which combines all the forms here described. Undoubtedly one case is best adapted to one form of head- note and another to another.'' For complicated cases, or 1 Mr. Justice S. F. Miller, " The Use and Value of Authorities,'' 23 Am. L. Key. 165, 174 (1889). ^ " I have . . inserted, on the margin, an abstract of the principal point or points of every case. The plan on which I have formed those abstracts hais been to state the point as a general rule or 37 § 33 THE STUDY OF CASES. where facts and law are closely entangled, the long form, as already pointed out, has advantages ; but "for such cases position. This method, upon the whole, seems to be the most useful, though it has its inconveniences. Where a case turns upon a com- plication of facts, not likely ever again to be combined together, a proposition including all those facts, and purporting to be a general rule of law, has an uncouth and awkward appearance." i Douglas, preface, xiii. " It cannot be too strongly urged that if a case affords an illustra- tion of a well-known principle, the profession does not gain by that principle being smothered in a mass of facts. A principle stated in six lines of a head-note is one thing, a conglomeration of facts with copious extracts from documents, and possibly fifteen or twenty letters of the alphabet representing persons or places, is another. The chief reasons for the excessive length of modern head-notes appear to be these : a mass of facts and other superfluous matter is necessary in order to avoid the head-note being in similar terms to a side-note in an older report that has been cited to and approved by the court, or the statement of any clear legal principle is impossible owing to the special character of the decision, or the reporter is unable or unwilling to give the time and trouble necessary to sift out the legal grain from the surrounding chaff of facts. Again, head- notes often contain several sections of Acts of Parliament set out at length. This practice is nearly always reprehensible, though the gist of the sections might be usefully mentioned. . . A semble is clearly a proper subject of a head-note, but a query is in almost every instance useless, for in such cases the court ofifers no opinion ; if an opinion is offered that dictum would be a semble. . . . One of the best tests whether a case is reportable or unreportable is the length of thi head-note ". if no head-note can be made to enunciate a legal principle without setting out half a page of facts, the case is useless to the profession ; if a head-note consists of a half page or more of facts, and at the end of those facts one reads, ' Held, that the plain- tiff could not recover,' or ' was not entitled to the relief claimed,' we may be sure that our publisher has presented us with an illustration of a well-known doctrine without giving us an opportunity of reading that doctrine in a crystallized form." John Mews, "The Present System of Law Reporting," 9 Law Q. Rev. 179, 182-1S3 (1893). In apparent conflict with part of the views just now quoted is the following editorial note from 9 Law Q. Rev. 201-202 (1893) : — " ' Head-notes as she is wrote ' are again exemplified in Maxim 38 HOW TO WRITE A HEAD-NOTE. § 33 some reporters write the short form, simply stating the general proposition, .and then add that the facts are compli- cated and peculiar. § 33. Examples. The difference between the forms of head-note may be illustrated by composing several head-notes for one case. For Fougue v. Burgess,^ a very full head-note might be as follows : " In an action for the wrongful seizure by Burgess, the defendant, of a sewing-machine belonging to Mrs. Fougue, the plaintiff, it appeared that the sewing- machine was seized by a constable acting under an execu- tion in favor of Burgess and against one McLain. In order to show that McLain, and not Mrs. Fougue, owned the sewing-machine, the defendant at the trial introduced as Nordenfelt & Co. v. Nordenfelt, [1893] i Ch. 630, C. A., a most important case on covenants in restraint of trade. Tlie facts and the decision of the C. A. that the covenant ' was under the circumstances reasonable ' are set out, and no attempt is made to extract any principle from the judgments. The otiose addition ' Covenants in general and partial restraint of trade discussed ' is all that we get. Surely it would not have been very hard for the reporter, having heard the case, and with the assistance of Bowen, L. J's., elaborate judgment, to help the reader a little more. Let us try what we can do with only the means of an ordinary reader : — '■ The old rule against agreements in general restraint of trade is still part of the law, but its application may be modified according to the development of trade in modern times. " A restrictive agreement is not bad for generality if it is reasonably limited as to place, or as to persons dealt with, or as to the manner of carrying on the trade. Limitation in time is not alone a sufficient, as on the other hand it is not a necessary condition of validity. " The rule against generality does not apply to the sale of a good- will or a trade secret, provided that the restriction is not unreason- able as between the parties, or injurious to the public. " The Court has regard to the conditions, and effective area of the business in question in deciding what limits are reasonable." 1 71 Mo. 389 (1880). 39 § 33 THE STUDY OF CASES. a witness one Taylor, who, in spite of an objection by the plaintiff, was permitted to testify that, in the absence of Mrs. Fougue, McLain professed to the witness to be the owner of the sewing-machine. The supreme court held that under the hearsay rule this testimony was inadmissible.'' This head-note might be made to assume the appearance of a generalized statement by writing " B " for Burgess, " F " for Mrs. Fougue, and so on. By successive condensations or generalizations the head-note can be made to assume the other forms described above. An intermediate form might be : " The question being whether a certain sewing-machine belonged to F or to M, the hearsay rule prevents T from testifying that, in the absence of F, M claimed ownership." A second intermediate form might be : " When the question is whether property belonged to one person or to another, the hearsay rule excludes testimony that in the absence of one the other claimed ownership." A short form might be ; " Testimony that some one once affirmed the existence or non-existence of a state of facts is inadmissible because of the hearsay rule." Another short form, perhaps the short- est possible, might be : " Hearsay is inadmissible." Of all these forms the two intermediate ones appear to be the most useful. The first short form is in such general words as to be obscure. The second short form is of no use whatever. It will be noticed that if the forms be connected with one another by the word " for," each serves as the reason for its predecessor, and that the forms may with advantage be given in inverse order and connected with one another by the word "hence." It will be noticed, also, that only the shortest of these head-notes expresses for- mally a general proposition of law. A separate statement of the proposition of law is seldom necessary, for in most cases the proposition of law sufficiently appears, and most usefully appears, in a brief statement of the question and the result. 40 HOW TO WRITE A HEAD-NOTE. § 34 § 34. The Value of Skill in preparing Head-notes. It is obvious that to the reporter skill in preparing head-. notes is invaluable and almost indispensable.^ To the com- piler of digests also such skill is important, for digests are substantially collections of head-notes arranged alphabetically according to subjects.^ The paragraphs of a digest are often verbatim repetitions of the head-notes found in the reports ; but of course the skilled digester prefers to read the cases for himself and to make his own head-notes. Some digests are composed of paragraphs similar to the long head-notes described above, and are almost entitled to be called abstracts or abridgments of the reports.' Most of the digests pub- lished in the United States are composed of paragraphs similar to head-notes of the intermediate form. Collections of head-notes of the short form are usually called index- digests. Reporters and digesters are not the only persons to whom the ability to frame accurate and pithy head-notes is useful. Authors of text-books must make head-notes as the basis for comment or for citation. Judges must make them as the basis for opinions. Counsel must make them as the basis for briefs or for oral arguments.* 1 See § 102. 2 See §§ 110-117. " Chitty's Equity Index is an example. * See § 129. 41 § 35 THE STUDY OF CASES. CHAPTER V. HOW TO CRITICISE CASES. § 35. Importance of Criticism. The preceding chapters have attempted to show how the doctrine of a reported case is ascertained ; and incidentally they have called attention to several points pertaining to the weight of reported cases. It now becomes necessary to gather together those points and others of a similar nature. Partly on account of carelessness and partly on account of the difficulty of finding strong cases directly in point, the writers of briefs and of text-books frequently cite cases that are open to criticism. Clearly, it is necessary to learn what objections may be urged. By skilful criticism decisions apparently conflicting may be reconciled and hostile deci- sions may often be swept away.^ The chief weapon of a lawyer of the highest grade is criticism of cases. § 36. Many G-rouuds : Objections not of same Weight Criticism may be based upon the nature of the report, upon the arguments of counsel, upon the opinion of the court, upon the nature of the question, upon the standing of the court, and upon the subsequent state of the law. It must not be thought that all the objections that can be made are of the same weight. Some of them are hardly 1 For example, see Bole v. Horton, Vaughan, 360 (1673) ; Burke v. Jones, 2 Ves. & B. 275 (1813) ; Taylor's Admr. v. Spindle, 2 Gratt. (Va.) 44 (1845) ; Hilliard v. Richardson, 3 Gray (Mass.), 349 (1855), s.c. infra; Leavitt v. Blatchford, 17 N. Y. 521 {1858) ; Insurance Co. V. Mosley.S Wall. (U. S.) 397,409-420 ( 1869), ;>(f/- Clifford, J., dissent- ing ; Reg. V. Ramsay, 48 L. T. R., N. s. 733, 737-738 (1883), /«»- Lord Coleridge, C. J., charging the jury. 42 HOW TO CRITICISE CASES. § 38 entitled to any weight at all. The objections most fre- quently made will now be summarized, together with brief reasons for most of them. I. The nature of the report. § 37. Unreported Cases. Now and then unreported cases are cited.'' The absence of a report may make it difficult to prove what the decision was, and may indicate that the court did not consider the case an important one. The former objection is reduced to a minimum if a certified copy of the opinion is procured, and the latter objection disappears wholly if the case is one that in due course will be reported. § 33. Neivspaper Reports. If the report is found in a newspaper, it is of slight value, for newspaper reports are presumably not the work of laW- 1 Obviously, the use of an unreported case may greatly surprise counsel. " But supposing that a person should be so fortunate as to be able to extract something comprehensible out oi printed coxAx^&z'a.oXi, yet other contradictions may make their appearance va manuscript ; and, overthrowing al! his hard-earned knowledge, remind him once again of the glorious uncertainty of the law. Is the law of England to depend upon the private note of an individual, and to which an indi- vidual can only have access? Is a Judge to say — 'Lo! I have the law of England, on this point, in my pocket. Here is a note of the case, which contains an exact statement of the whole facts, and the decision of my Lord A. or my Lord B. upon them. He was a great, a very great man. I am bound by his decision. All you have been reading was erroneous. The printed books are inaccurate. I cannot go into principle. The point is settled by this case.' Under such circumstances, who is to know when he is right or when he is wrong ? If conclusions from unquestionable principles are to be overthrown in the last stage of a suit by private memoranda, who can hope to become acquainted with the laws of England? " Watkins' Convey- ancing (ed. 1838), introduction, Ixiii. See also " The Reporting System," 7 Law Review, 2-23, 236-237 (1848). 43 § 38 THE STUDY OF CASES. yers, certainly not of experienced lawyers, and hence are very likely to be inaccurate.^ Newspaper reporters and editors, and indeed all persons not trained as lawyers, easily fail to perceive the distinctions upon which cases turn, and thus are betrayed into too broad generalizations. Thus a case turning on the point that certain State laws taxed national banks more heavily than they taxed State banks, and that consequently the State tax was invalid by reason of cer- tain Federal statutes, was reported by a financial newspaper as a decision that the States cannot tax national banks. Again, a case turning on the point that unless a livery-stable keeper knows his horse to be faulty, or expressly warrants 1 Ancient chronicles, kept or compiled by monks or by other per- sons not learned in the law, are open to similar criticism ; and so are most histories. " And for that it is hard for a man to report any part or branch of any art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that he understands not; I pray thee beware of chronical law reported in our Annals, for that will undoubtedly lead thee to error." 3 Co., preface, viii. " No Judge could properly refuse to hear a case quoted by the Bar, but a Judge would not upon a law point allow a newspaper report to be quoted." Lord St. Leonards, in Daniel's History of the Law Reports, loi. " In the important proceedings relating to the Alexandra . in the Court of Exchequer, the only judicial decision referred to on the construction of the Foreign Enlistment Act was one by the late Mr. Justice Coltman, fourteen years ago, — and of this no other than a newspaper report could be found. The Court, after vain efforts to obtain a note of the decision made by any Judge, barrister, or short- hand writer, was compelled to resort to a subterfuge to avoid infrin- ging the rule against receiving newspaper reports as authorities, by asking Mr. Baron Martin, who had been engaged as counsel in the case, to refer to TAe Times of July 6, 1849, ^"d, after thus refreshing his memory, to say whether the decision there reported was pro- nounced." Serjeant Pulling, in Daniel's History of the Law Reports, 87, n. (2). 44 HOW TO CRITICISE CASES. § 40 the horse to be gentle, one who hires the horse takes the risk of the horse's proving to be wild or vicious, was reported by a general newspaper as a decision that one who hires a horse always takes all risks. In each of these cases it is obvious that the result reached by the court would have flowed from the wide propositions laid down in the news- papers and that the error lay in failing to take distinctions. The objection urged against newspapers does not apply to law periodicals.^ It is a fact, too, that a few newspapers not exclusively devoted to law give law reports of great accuracy, but the reputation of such newspapers is merely local, and the general rule is that no reliance is to be placed on a, news- paper report. § 39. Reports of low Standing. Some of the older reports, though perhaps the work of accurate lawyers, were not originally intended for publica- tion, but were eventually published posthumously, often without the reporter's name and still more often without revision. Such volumes, being composed of rough notes rather than of painstaking reports, have a poor reputation for accuracy,^ and accordingly all cases contained in them are viewed with suspicion.* § 40. Inharmonious Reports. Now and then a case is found in several reports. If the reports differ, the authority of the case is obviously affected.* 1 But see § 65. 2 Wallace's Reporters (4th ed.), 4-6, 16, 22. ^ Of trusting to mere memory or to reports of uncertain authority, Coke said: "Therefore as I allow not of those that make memory their storehouse, for at their greatest need they shall want of their store ; so I like not of those that stuff their studies with wandering and mas- terless Reports, for they shall find them soon to lead them to error." I Co., preface, xxvii. * Thorp V. Thorp, 12 Mod. 455, 464 (1701) ; Osborne v. Morgan, 130 Mass, 102, 106 (1881). 45 § 40 THE STUDY OF CASES. Old cases are the ones most likely to be found diversely reported in various reports ; for, though some of the old reports are of the highest grade of accuracy, there are others, as has been said, of low repute. § 41. Scanty Reports. If a case is not reported fully, its value is diminished ; for if neither the reporter's statement of the case nor the court's opinion shows fully the problem presented to the court and the final disposition of that problem by the court, with the court's reasons, of course it is not possible to ascertain what is the proposition of law involved in the case.'^ However, a brief report may be complete ; and a verbose one may omit much material matter. The ancient reports are less verbose than the modern. The verbosity of modern reports may be due in part to the prevalence of shorthand writing ; but it seems to be due principally to the introduction of elaborate written opinions '' and to the reduced cost of books. 2. The arguments of counsel. § 42. Thoroughness of Argument. As it is the office of the court to pronounce a decision after having fully examined the questions presented and the law relating thereto, and as it is the office of counsel to aid the court by presenting the questions and the law with the fulness that comes from long familiarity with the case and from thorough examination of authorities, a case decided after little or no argument has not full weight.' Nor has a 1 See §§ S-2I. 2 See §§ 105-106. 8 " One should not know of what metal a bell was unless it were well beaten; quasi diceret, by good disputing the law shall be well known." Per Hankford, J., Y. B. 11 Hen. IV. 37 a {1409), cited in 9 Law Quarterly Review, 127, n. (i). Dillon's Laws and Jurisprudence, 190. 46 HOW TO CRITICISE CASES. § 45 case that goes off upon a ground not discussed by counsel.^ In the older reports the arguments are generally given, though in a condensed form. In most of the reports of the present day the arguments of counsel are seldom given. Hence it is not always possible to say that a certain case was or was not decided after a full presentation of the ques- tions involved and of the authorities in point." 3 . The opinion. § 43. No Reasons : no Citations. If the reasons for a decision are not given, the decision can be of little weight, for it does not appear to have been the result of thorough investigation. Clearly, the same re- sult follows if there is no citation of authorities.' § 44. Brevity. The brevity of an opinion may indicate that the court did not consider carefully the questions involved, and may even make it impossible to say what points the court intended to decide. Yet there is a difference between scantiness and conciseness. § 45. Per Curiam. If the opinion of the court is rendered anonymously, that is to say, fer curiam, it does not receive as high respect as an opinion vouched for by some one judge and adopted by Compare United States v. Hudson, 7 Cranch, 32 (181 2), with United States v. Coolidge, i Wheat. 415 (1816). And see § 57. 1 In criticising Gillet v. Phillips, 13 N. Y. 114 (1855), Johnson, C. J., in Leavitt v. Blatchford, 17 N. Y. 521, 543 (1858), said : "The applicability- of the statute seems to have been assumed without dis- cussion, eitjier in the printed points of the counsel or in the opinion delivered." 2 See § 104. ' Mr. Justice S. F. Miller, " The Use and Value of Authorities," 23 Am. L. Rev. 165, 170 (1889). See also §§ 15, note, and 57. 47 § 45 THE STUDY OF CASES. the court.' The reason is that one who writes an anony- mous opinion is not likely to work as carefully as does one who writes an opinion to which his name will be forever attached. Yet this criticism is not entitled to great weight if taken by itself; for it must not be forgotten that ^per curiam opinion is the opinion of the whole court.^ The principal reason for rendering the opinion anonymously is the court's belief that a long discussion is unnecessary. Brevity may be a serious objection, as already has been pointed out ; but the mere absence of the name of the author of an opinion in- dorsed by the whole court seems to be a small matter. Nevertheless, the fact remains, as has been said, that a. per curiam opinion is not treated with the highest respect. § 46. Court's Opinion by dissenting Judge. If the opinion of the court is written by a judge who does not concur in it,° the absence of personal responsibility gives rise to an objection similar to the objection urged against per curiam opinions. However acute and conscientious a dissenting judge may be, he cannot be expected to stale fully and sympathetically the views and reasons from which he dissents. 5 47. Divided Court. If the court is divided equally, the case has no authority as a precedent.* If the court is divided at all, the force of 1 Editorial note in 25 Am. L. Rev. 611 (1891). 2 In Clarke -v. Western Assurance Co., 146 Pa. 561, 370 (1892), Paxson, C. J., commenting on Royal Ins. Co. v. Roedel, 78 Pa. 19 (1875), said: "It is true, this is criticised as only a Pir Curiam opinion, but why it should have less weight for that reason is not clear. A Per Curiam is the opinion of the court in a Cjise in which we are all of one mind, and so clear that we do not think it necessary to elaborate it by an extended discussion." 8 Examples are Howard v. Albany Ins. Co., 3 Denio (N. Y.), 301 (1846), and Miller v. Miller, 78 Iowa, 177 (18S9). * " It has always been held that a decision of a court, concurred 48 HOW TO CRITICISE CASES. § 47 the case is weakened even in the same jurisdiction. It is often said that the strength of a dissenting opinion weakens the case. This is true, if the reasoning of the dissenting judge is really stronger than the reasoning of. the majority of the court ; but if the reasoning of the minority is fairly met by the majority, the presence of a strong dissenting opinion shows that the case was considered thoroughly, and accordingly ought to be conceded to strengthen the case as an authority. Whatever view may be taken of this question, it is clearly important that the reporter should indicate the fact that the court was divided. Further, though there is in some quarters opposition to publishing dissenting opinions, it seems to be the right and the duty of dissenting judges to indicate the nature, and also the reasons, of their dissent. The expres- sion of the points as to which they dissent may show that as to other points the case is an authority of high order ; and the expression of the reasons may aid courts of other jurisdictions to determine what is the better view of the law.' in by less than a majority of the judges, has not the force o£ a prece- dent. When there is an equal division of opinion in this court, the decision of the court below stands affirmed." Per Beck, J., in Dubuque v. Illinois Central Railroad Co., 39 Iowa, 56, 80 (1874). And see § 48. When a case is carried to an appellate court and the judges of that court are equally divided, the result is an affirmance from necessity. Durant v. Essex County, 7 Wall. (U. S.) 107, no (1868). An affirmance from necessity does not serve as a precedent. Morse ». Goold, II N. Y. z8i, 285 (1854). See William Green, "Stare Decisis" 14 Am. L. Rev. 609, 629 and n. (i), 630-632 and notes (1880). Yet it has been said that an affirmance from necessity by the House of Lords makes a precedent of full force. Beamish v. Beamish, 9 H. L. C. 274, 338 (i86i),/^r Lord Campbell, C. Upon this point there are pertinent arguments each way. 1 See §§ 59, 157- 4 49 § 48 THE STUDY OF CASES. § 48. Judges concurring in Result but not in Reasoning. Even when all the judges occur in the result, the value of the case as an authority may be diminished and almost wholly destroyed by the fact that the reasons given by the several judges differ materially.^ § 49. Unconscious Overrulings. If an opinion overlooks earlier contrary decisions in the same jurisdiction, this is a good ground for criticism. It is clear that such a case was not decided after thorough inves- tigation ; and it is not clear that, if a thorough investigation had been made, the court would have been willing to over- rule former decisions. § 50. Failure to notice contrary Decisions in other Jurisdictions. If a decision is contrary to the weight of authority in other jurisdictions and is given in apparent ignorance of such 1 " There must be a concurrence of a majority of the judges upon the principles, rules of law, announced in the case, before they can be considered settled by a decision. If the court is equally divided or less than eral in obedience to the following joint resolution of the General Assembly, passed April 17, 1882 (79 Ohio L. 246) : ^^ Joint resolution, directing the Attorney-General to institute a suit in quo warranto. " Whereas, A special act entitled ' An Act to establish a Police Force in the City of Xenia,' passed March 25, 1880 (77 Ohio L. 350), withdrew from that city all the police powers vested in it by the general laws for cities of its grade (sections 2023-2030 Revised Statutes), and lodged them in a board of police commissioners appointed by the Court of Common Pleas of Greene County ; abolished the office of marshal o£ the said city, without repealing the general law (sec- tion 1 707, Revised Statutes), which provides that ' the officers of a city of the second class shall consist of a mayor, mar- shal,' etc. . and authorized the payment of salaries to the 142 STATE V. BAUGHMAN. said police force out of the general fund of the city, and also the levy of a tax for such payment other than and additional to that provided for by the general law (section 2683, clause 21, Revised Statutes) ; and " Whereas, This special act raises constitutional questions whose judicial settlement Would be of great value to the General Assembly, namely : — " (i) Whether, while ' the General Assembly shall pass no special act conferring corporate powers,' it may pass a spe- cial act withdrawing corporate powers ; " (2) Whether, while a city must be organized by general laws (Cons. Art. XIII. section 6), it may be or would be dis- organized by a special law through the abolition of one or more of its organic offices ; " (3) Whether a tax already levied and collected by a municipal corporation for one purpose can be diverted to another by a special act of the General Assembly ; and " (4) Whether the conferring, by special act, of a power of taxation on a municipal corporation other than and ad- ditional to that authorized by the general laws comes within the inhibition of section i of Article XIII. of the Constitu- tion ; therefore, " Resolved by the General Assembly of the State of Ohio, That the Attorney-General is hereby directed to institute a proper action in quo warranto against tlie police commission- ers appointed under the said special act, inquiring by what authority they hold their offices or trusts, and to procure, if practicable and as soon as practicable, a decision of the Supreme Court on the several constitutional questions herein suggested. " Isaac N. Hathaway, " Speaker pro tern, of the House of Representatives. " R. G. Richards, " President of the Senate. "Passed, April 17, 1882." 143 THE STUDY OF CASES. The object of this resolution, as well as of the petition in this case, is to inquire by what authority the defendants are assuming to act as police commissioners of the city of Xenia. It is claimed that the Act of March 25, 1880 (77 Ohio L. 350), to establish a police force in said city, is uncon- stitutional; and hence that defendants are usurping their offices. The defendants allege that they have been duly ap- pointed and qualified, and are acting as such officers under authority conferred by said act. To this defence the State demurs, and the issue thus presented involves the validity of the above-named act, which in terms authorizes the appoint- ment of a police board for said city, and vests in such board the general police powers of cities of that class. It is a spe- cial act, and applies to the city of Xenia only. It authorizes the Court of Common Pleas of Greene County to appoint three commissioners, in whom are vested the power to ap- point, control, and discipline the police force of said city, an4 to make rules for their own government, have an organ- ization, keep records, hold regular meetings, appoint a chief of police and his subordinates, and fix their compensation. The powers, which by law were vested in the city marshal, were transferred to the members of the police force so ap- pointed, and the office of marshal was abolished. Section 7 of the act requires the city council to levy and certify annually to the county auditor a tax not exceeding one mill on the dollar to defray the salaries and expenses of the new police force, to be collected as other taxes, and provides that until a revenue is derived from this source the salaries of the force are to be paid out of the general fund of the city. The joint resolution, in obedience to which this action is commenced, is preceded by a preamble which recites that " this special act raises several constitutional questions whose judicial settiement would be of great value to the General Assembly." The questions suggested in the preamble, and on which 144 STATE V. BAUGHMAN. the Attorney-General is directed to procure a decision of the Supreme Court as soon as practicable, are four in number, the first and second of which involve the validity of those provisions of the act conferring upon the police commission- ers the police powers of the city of Xenia, and withdrawing that city from the provisions of the General Statutes governing like municipal corporations. The third and fourth questions involve the validity of the provisions of the 7 th section, re- lating to the levy of a tax to pay the salaries of the new force, and to the temporary use of the general fund for that purpose until the tax can be collected. It is only so far as these several questions are involved in the determination of the title to the offices in question that this court is authorized to answer them. It is by the organic law a court of limited original jurisdiction. By Article IV. section 2, its original jurisdiction is expressly limited to quo ■warranto, mandamus, habeas corpus, anA procedendo. The sole office of a judicial proceeding by quo warranto in such a case is to inquire by what authority these defendants are exercising the functions of police commissioners. A decision on any of the questions suggested, not necessary to a de- termination of the right of defendants to exercise these functions, would not be a judicial settlement of such ques- tions, but would be without authority conferred by the Con- stitution to make it. To be a judicial settlement the question decided must arise in a judicial proceeding, properly before a court of competent jurisdiction. The division of the pow- ers of the State into legislative, executive, and judicial, and the confiding of these powers to distinct departments, is fundamental. It is essential to the harmonious working of this system that neither of these departments should encroach on the powers of the other. If the judiciary were to assume to de- cide hypothetical questions of law not involved in a judicial proceeding in a cause before it, even though the decision 10 145 THE STUDY OF CASES. " would be of great value to the General Assembly " in the discharge of its duties, it would, nevertheless, be an un- warranted interference with the functions of the legislative department that would be unauthorized, and dangerous in its tendency. Not only this, but it would be an attempt to settle questions of law involving the rights of persons without parties before it, or a case to be decided in due course of law, thus violating that provision of the Bill of Rights which declares that every person shall have a remedy for an injury done him by due course of law. Const. Art. I. § i6. In some of the States, Massachusetts included, the Con- stitution authorizes the legislature and the governor to re- quire of their highest judicial tribunal its opinion on important questions of law, the decision of which becomes necessary to the discharge of their pubhc duties. Even under such a provision the judiciary must confine itself to an opinion on such questions as are involved in, or necessary to, the dis- charge of a public duty by the inquiring body. This power does not include the right to require an opinion on abstract or hypothetical questions, however valuable as a future guide, nor on such questions as affect private rights merely. Opin- ion of the Supreme Court, Mass., 122 Mass. 600; Id., 126 Mass. 557. The third and fourth questions suggested by the joint re- solution are not involved in the issue before us. They are ; I St. Whether that provision of the 7th section which author- izes the city council to use the general fund of the city to pay the salaries of the new force until funds can be realized from the special levy, is valid ; and, 2d, Whether the power to make this special levy is valid. It is claimed that tliese provisions are the conferring oi corporate power by special act within the inhibition of Sec- tion I, Article XIII., of the Constitution. The solution of this question is not involved in the case at bar. We may concede, for the purposes of this case, that 146 STATE V. BAUGHMAN. the whole of section 7 is unconstitutional, and yet those pro- visions creating the board of police commissioners would not be affected. The authority of the police board does not depend upon the power of the city council to levy this tax, nor to their temporarily using the general fund of the city until collections can be made of the special tax. Again, no case is made for invoking judicial action on the powers conferred upon the city council by section 7. For aught that appears this section has been treated as null and void. It is not asserted, either in the joint resolution or in the petition, that the city council has. ever attempted to exercise either of the powers conferred by section 7. When such an attempt is made, the law furnishes an ample remedy, if the section is invalid. That remedy is not by quo warranto against the police commissioners, but by a proper action against the city council, or those engaged in the levying and collecting the tax. In this matter the police commissioners have no power, nor are they charged with any duty. The first and second questions suggested by the resolution are, however, involved in this proceeding. They are the same in substance as weie considered and decided in State ex rel. Attorney-General v. Covington, 29 Ohio St. 102, where the power of the legislature to create such a board was directly presented. That case arose under an act to regulate the police force of Cincinnati (73- Ohio L. 70). The pro- visions of that act were substantially the same as the one now before us. Like this, it was a special act. The same constitutional objections were made to it as are urged against this. That act had similar provisions as to the appointment and powers of the commissioners and of the force under their control, and also as to raising money to defray expenses and salaries as this has. Its provisions, like the act before us, 147 THE STUDY OF CASES. created a police board, and clothed it with power over the police ; and it was held not to be a law of a general nature, nor one conferring corporate powers, nor in conflict with any clause of the Constitution relied on here. That case was ably argued and rnaturely considered. It covers the whole ground. We see no reason to re-examine these questions. As to the validity of the provisions of section 7 of this act, no case is made requiring judicial settlement, and the same was true in the Covington case under that act. The de- murrer to the answer is overruled. Judgment for defendants?- Case 2. — Houston v. Williams. HOUSTON V. WILLIAMS et al. California Supreme Court, April Term, 1859. [13 Cal 24.] Appeal from the Third District. This was an action of ejectment. The defendant recov- ered judgment in the District Court. On appeal, the judg- ment was reversed in the Supreme Court from the bench, — no opinion in writing being delivered. The reasons for the decision were stated orally. The counsel for the plaintiff afterwards presented a petition asking the court to file a written opinion. William T. Wallace, for petitioner. Spencer dv Rhodes, for respondent. Field, J., delivered the opinion of the court. Terry, C. J., concurring. At the present term the judgment in this case was re- versed, without any opinion being given setting forth the rea- ^ Matter of the Application of the Senate, 10 Minn. 78 (1865), accord. See §§ i-S, 62. 148 HOUSTON V. WILLIAMS. sons for the reversal. The appellant now moves the court to file an opmion, and cites section 69 of the statute of May 15, 1854, amending the practice act, which provides that " all decisions given upon an appeal in any appellate court of this State shall be given in writing, with the reason there- for, and filed with the clerk of the court," except in cases tried in the County Court, on appeal from a justice's court. The provision of the statute had not been overlooked when the decision was rendered. It is but one of many provis- ions embodied in different statutes by which control over the judiciary department of the government has been attempted by legislation. To accede to it any obligatory force would be to sanction a most palpable encroachment upon the inde- pendence of this department. If the power of the legisla- ture to prescribe the mode and manner in which the judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. If the legis- lature can require the reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement or prescribe the paper upon which they shall be written, and the ink which shall be used. And yet no sane man will justify any such absurd pretension ; but where is the limit to this power if its exercise in any partic- ular be admitted ? The truth is, no such power can exist in the legislative de- partment or be sanctioned by any court which has the least respect for its own dignity and independence. In its own sphere of duties, this court cannot be trammelled by any legis- lative restrictions. Its constitutional duty is discharged by the rendition of decisions. The legislature can no more re- quire this court to state the reasons of its decisions than this court can require, for the validity of the statutes, that the legislature shall accompany them with the reasons for their enactment. The principles of law settled are to be extracted from the records of the cases in which the decisions are ren- 149 THE STUDY OF CASES. dered. The reports are full of adjudged cases in whicli opinions were never delivered. The facts are stated by the reporter, with the points arising thereon, and are followed by the judgments rendered ; and yet no one ever doubted that the courts, in the instances mentioned, were discharging their entire constitutional obhgations : See, by way of illus- tration, cases in i Conn., in i Brock. Va. Cas., and in 4 Har. & M. The practice of giving the reasons in writing for judgments has grown into use in modern times. Formerly, the reasons, if any were given, were generally stated orally by the judges and taken down by the reporters in short-hand, i Bla. Com. 71. In the judicial records of the king's courts, " the reasons or causes of the judgment," says Lord Coke, " are not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in question, but in their judgments express not any; and in truth, if judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary services of the commonwealth, and their records should grow to be like elephantini libri, of infi- nite length, and, in mine opinion, lose somewhat of their present authority and reverence ; and this is also worthy for learned and grave men to imitate." Co., pt. 3, pref. 5. The opinions of the judges, setting forth their reasons for their judgments, are of course of great importance in the in- formation they impart as to the principles of law which gov- ern the court and should guide litigants ; and right-minded judges, in important cases — when the pressure of other business will permit — will give such opinions. It is not every case, however, which will justify the expenditure of time necessary to write an opinion. Many cases involve no new principles, and are appealed only for delay. It can serve no purpose of public good to repeat elementary ISO HOUSTON V. WILLIAMS. principles of law which have never been questioned for centuries. The court must therefore exercise its own discretion as to the necessity of giving an opinion upon pronouncing judg- ment, and if one is given, whether it shall be orally or in writing. In the exercise of that discretion, the authority of the court is absolute. The legislative department is incom- petent to touch it. With the expression of these views, we might close this opinion by denying the motion ; but it will not be imperti- nent to the matter under consideration to say a few words as to the control of the court over its opinions and records. There are some misapprehensions on the subject, arising chiefly from a confusion of terms, and from a misconception of the relation of the different departments of government to each other, and the entire independence in its line of duties of the judiciary. The terms "opinions" and "decisions" are often confounded, yet there is a wide difference between tiiem, and in ignorance of this, or by overlooking it, what has been a mere revision of an opinion has been sometimes regarded as a mutilation of a record. A decision of the court is its judgment ; the opinion is the reasons given for that judgment. The former is entered of record immediately upon its rendition, and can only be changed through a regu- lar application to the court, upon a petition for a rehearing, or a modification ; the latter is the property of the judges, subject to their revision, correction, and modification, in any particular deemed advisable, until, with the approbation of the writer, it is transcribed in the records. In the haste of composition, some errors will occur ; in the copying, several ; in the printing, many. There will also be, at times, expres- sions of opinion on incidental questions, too strong and unqualified. All these errors, whether in language, form, or substance, should be corrected before a publication is per- mitted, as an authoritative exposition of the law, and, as such, J5I THE STUDY OF CASES. binding upon the court. The power of enforcing a correct publication, when the publication is authorized, cannot rea- sonably be denied. In no civilized state, except in Califor- nia, has the existence of this power ever been doubted. Every judge, from the chief justice of the Supreme Court of the United States down, claims, and exercises, without ques- tion, the right of revision, including thereby modification and partial suppression of his opinions. In the recent case in relation to the Sutter grant, we are informed that application was made for a copy of the opinion delivered, and that the application was refused, on the ground that Mr. Justice Camp- bell, who delivered it, wished to revise it before it left the clerk's office. When the opinions have been revised and finally approved and recorded, then they cease to be the sub- ject of change. They then become like judgment records, and are beyond the interference of the judges, except through regular proceedings before the court by petition. The records of the courts are necessarily subject to the control of the judges, so far as may be essential to the proper administration of justice. The court hears arguments upon its records ; it decides upon its records ; it acts by its records ; its openings and sessions and adjournments can be proved only by its records ; its judgments can only be evideucrd by its records, — in a word, without its records it has no vitality. Legislation which could take from its control its rei^ords would leave it impotent for good, and the just object of ridi- cule and contempt. The clerk, it is true, is a constitutional officer — not subject to appointment or removal by the court — but subject, in the control of the records, to its orders> It is true, the court cannot, without great abuse of its powers, take, directly or indirectly, from the clerk tlie perquisites oi his office for copies of opinions and papers on file, nor authorize the destruction or mutilation of any of the records, but, subject to these limitations, it must necessarily exercise control, that justice may be done to litigants before it. 152 WEBB V. BELL. The power over our opinions and the records of our court we shall exercise at all times while we have the honor to sit on the bench, against all encroachments from any source, but in a manner, we trust, befitting the highest tribunal in the State. We cannot possibly have any interest in the opinions except that they shall embody the results of our most mature deliberation, and be presented to the public in an authentic form, after tliey have been subjected to the most careful revision. Motion denied} Case 3. — Webb v. BelL WEBB V. BELL et alios. King's Bench, Hilary Term, 21 & 22 Car. IL " [i Sid. 440.] The case before argued was now argued again, to wit, trespass for breaking a close and for treading down grass,^ and for taking two horses with harness by which they were fastened to a cart laden with grain, etc. The defendants plead as to the coming with force and arms and as to the breach of the peace, Not guilty. And as to the remainder of the trespass that say that J. S. had a rent service of so 1 Speight V. People, 87 111. 595 (1877), and Vaughn v. Harp, 49 Ark. 160 (1&&6), accord. A fortiori, in t\it absence of a special con- stitutional requirement judges cannot be compelled to compose head- notes. Ex park Griffiths, 118 Ind. 83 (1889). See §§ 14-17, 27, 43-45, 85-87, 98-99, 105-107, 109. 2 The original report is in Norman French, with abbreviated quotations from the old Latin forms, thus : " Trespass quare clausum fregit, et herbam pedibus ambul. etc." The full Latin phraseology is sufficiently indicated by the following quotation from Robinson's En- tries, 453 : " W. B. nuper de Stamford in comitatu predicto yeoman attachiatus fuit ad respondendum J. W. de placito quare vi et armis clausum ipsius J. apud N. fregit ac herbam suam ad valentiam cen- tum solidorum ibidem nuper crescentem pedibus ambulando concul- cavit et consumpsit . . . et alia enormia ei intulit ad grave dampnum ipsius J. et contra pacem domini regis." IS3 THE STUDY OF CASES. much per annum (and they set it out with particularity) issuing out of the land where the trespass is laid, and by reason of so much in arrear the defendants, by the instruction of J. S., entered and distrained the said horses and harness which were fixed to a cart laden with grain (as above) ; and after several debates the court was of opinion that the distress was well taken. But, inasmuch as the destruction of the grass (in the declaration) is not answered nor traversed by the defendant, judgment for that cause alone was given for plaintiff. Note that a horse on which a man is riding cannot be distrained for rent. Quaere in this case if a man had been on the cart whether all the team should not be privileged. But the Chief Justice said that a horse on which one is riding can be distrained damage feasant, and semble that it should be led to the pound with the rider on it.^ Case 4. — Simpsou v. Hartopp. SIMPSON V. HARTOPP. Common Pleas, Michaelmas Term, i8 Geo. II. iWilles, 512.] The opinion of the court was delivered, as follows, by WiLLES, Lord Chief Justice. Trover. This comes before the court on a special verdict found at the Leicester assizes, held at Leicester on the 3d of August, 1 743. The plaintiff declared against the defendant for that on the 20th of October, 1741, he was possessed of one frame for the knitting, weaving and making of stockings, value ;^2 0, as of his own proper goods, and being so possessed he lost the same, and that afterwards, to wit on the i8th of August, 1742, it came to the hands of the defendant, who knowing ' See §§ 13-16, 55-56, 91-92, app. I.-III. The Chief Justice was Sir John Kelyng. 154 SIMPSON V. HARTOPP. tlie same to be the goods of the plaintiff, afterwards, to wit, on the 19th day of the same month of August, converted the same to his own use ; damage ;^30. The defendant pleads not guilty; and the jury find that the plaintiff on the 27th of March, 1741, was possessed of one frame for knitting, weaving and making stockings, value ;^8, as his own proper goods. That upon that day he let the said frame to John Armstrong at the weekly rent of gd., and so from week to week as long as they the said Nathaniel Simpson (the plaintiff) and John Armstrong should please ; by virtue of which letting the said John Armstrong was pos- sessed of the said frame at the said rent until the time after mentioned, when the same was seized as a distress for rent by the defendant. That the said John Armstrong is by trade a stocking-weaver, and used the said stocking-frame as an instrument of his trade, and continued the use thereof, and his apprentice was using the said stocking-frame at the time thereinafter mentioned, when the same was seized by the defendant as a distress for rent. That the said John Armstrong held of the defendant a certain messuage and tenement in the parish of Woodhouse and county of Leices- ter by virtue of a lease to him the said John Armstrong thereof granted by the defendant, under the yearly rent of ;^35, for a term of years not yet expired, and was in the actual possession of the same when the said stocking-frame was distrained for rent by the defendant. That on the 19th of December, 1751, John Armstrong was indebted to the defendant in £^t, for arrears of rent of the said messuage and tenement ; and that the said stocking-frame was then upon the said messuage in the possession of the said John Armstrong, and that there were not goods or chattels by law distrainable for rent in the said messuage, without the said stocking-frame, sufficient to satisfy the said rent so in arrear at the time when the Said stocking-frame was seized as a distress for the said rent. That on the said 19th of December IS5 THE STUDY OF CASES. the defendant entered in the said messuage and tenement, and then and there seized the said stocliing-franie on the said premises as a distress for the said rent so in arrear, as the said John Armstrong's apprentice was then weaving a stoclcing on the same frame. And that the defendant (though often requested) hath refused to deliver the said stocking- frame to the said plaintiff, and continues to detain the same. The special verdict concludes, as usual, by submitting the matter to the opinion of the court whether the said stocking- frame was by law distrainable for the said arrears of rent or not ; and if the court should be of opinion that it was not, they assess the damages of the plaintiff at jQi, etc. Upon this special verdict three questions ^ arise, — First, Whether a stocking-frame has any privilege at all, as being an instrument of trade ; or whether it be generally distrainable for rent as other goods are, even though there was sufificient distress besides. Secondly, Though it may be so far privileged as not to be distrainable if there be no other goods sufficient, yet whether or not it may not be distrained if there be not sufficient distress besides. Thirdly, Though it be distrainable either in the one case or the other when it is not in actual use, yet whether or no it has not a particular privilege by being actually in use at the time of the distress, as the present case is. I shall but touch upon the two first questions, because they are not the present case ; but yet it may be proper to consider them a little, to introduce the third, which is the very case now in question. There are five sorts of things which at common law were not distrainable, — 1 The case was twice argued ; on Monday, February 6th, 1743-4, and Thursday, May 31st, 1744, by Prime, King's Serjt., and Bootle, Serjt., for the plaintiff, and by Skinner and Willes, King's Serjts., for the defendant. — Reporter. 156 SIMPSON V. HARTOPP. ist, Things annexed to the freehold. 2d, Things delivered to a person exercising a public trade to be carried, wrought, worked up or managed in the way of his trade or employ. 3d, Cocks or sheaves of. corn. 4th,' Beasts of the plough and instruments of husbandry. 5th, The instruments of a man's trade or possession. The first three sorts were absolutely free from distress, and could not be distrained, even though there were no other goods besides. The two last are only exempt sub modo, that is upon a supposition that there is sufficient distress besides. Things annexed to the freehold, as furnaces, millstones, chimney-pieces, and the like, cannot be distrained, because they cannot be taken away without doing damage to the free- hold, which the law will not allow. Things sent or delivered to a person exercising a trade, to be carried, wrought or manufactured in the way of his trade, as a horse in a smith's shop, materials sent to a weaver, or cloth to a tailor to be made up, are privileged for the sake of trade and commerce, which could not be carried on if such things under these circumstances could be distrained for rent due from the person in whose custody they are. Cocks and sheaves of corn were not distrainable before the statute 2 W. & M. c. 5 (which was made in favor of landlords), because they could not be restored again in the same plight and condition that they were before upon a replevin, but must necessarily be damaged by being removed. Beasts of the plough &c. were not distrainable, in favor of husbandry (which is of so great advantage to the nation), and likewise because a man should not be left quite destitute of getting a living for himself and his family. And the same reasons hold in the case of the instruments of a man's trade or profession. IS7 ■ THE STUDY OF CASES. But these two last are not privileged in case there is dis- tress enough besides ; otherwise they may be discrained. These rules are laid down and fully explained in Co. Lit. 47, a, b, and many other books which are there cited ; and there are many subsequent cases in which the same doctrine is established, and which I do not mention because I do not know any one case to the contrary. From what I have said on this head, the second question is likewise answered ; for as the stocking-frame in the present case could only be privileged as it was an instrument of trade, we think that it might have been distrained if it had not been actually in use, it being found that there was not sufficient distress besides. These are the words in Carth. 358, in the case of Vinkinstone v. Ebden, " the very imple- ments of trade may be distrained if no other distress can be taken." But whether or no this stocking-frame being actually in use at the time of the distress gives any further privilege is the third and principal question in the present case. And we are all of opinion that upon this account it could not be distrained for rent for these two plain reasons : — I St, Because it could not be restored again upon a replevin in the same plight and condition as it was, but must be dam- nified in removing, for the weaving of the stocking would at least be stopped if not quite spoiled, which is the very reason of the case of corn in cocks, &c. 2dly, Whilst it is in the custody of any person and used by him, it is a breach of the peace to take it. And these are two such plain and strong reasons that even if it were quite a new case I should venture to determine it without any authority at all ; but I think that there are several cases and authorities which confirm this opinion. It is expressly said in Co. Lit. 47, a, that a horse whilst a man is riding upon him, or an axe in a man's hand cutting wood, and the like, cannot be distrained for rent. In 158 SIMPSON V. HARTOPP. Bracton and several other old books there is a distinction made between catalla otiosa and things which are in use. It was held in P. 14 H. 8, pi. 6, that if a man has two millstones and only one is in use, and the other hes by not used, it may be distrained for rent. In Read's case, Cro. Eliz. 594, it was holden that yarn carrying on a man's shoulders to be weighed could not be distrained any more than a net in a man's hand; or a horse on which a man is riding. So in Moore, 214, The Viscountess of Bindon's case, it is said that if a man be riding on a horse the horse cannot be distrained, but if he hath another horse on which he rides sometimes, this spare horse may be distrained. I could cite many other cases to the same purpose, but I think that these are sufficient to support a point which has so strong a foundation in reason, especially since there is but one case which seems to look the contrary way, which is the case of Webb v. Bell, i Sid. 440, where it was holden that two horses and the harness fastened to a cart loaden with corn might be distrained for rent. But in the first place, I am not clear that this case is law ; and besides it is expressly said in that case that a horse upon which a man was riding can- not be distrained for rent ; and therefore a qtiare is made whether if a man had been on the cart the whole had not been privileged, which is sufHcient for the present purpose, it being found that the stocking- frame was to be in the actual use of a man at the lime when it was distrained. For these reasons, and upon the strength of these authori- ties,, we are all -of opinion that this stocking-frame, the apprentice being actually weaving a stocking upon it at the time when it was distrained, was not distrainable for rent, even though there were no other distress on the premises ; and therefore judgment must be for the plaintiff.^ 1 See §§ 13-16, 42, 53, 66, 93-94. 159 THE STUDY OF CASES. Case 5. — Storey v. Robinson. STOREY V. ROBINSON et alios. King's Bench, Hilary Term, 35 Geo. III. [6 T. R. 138.] This was an action of trespass for an assault and false im- prisonment, and for seizing and leading away the plaintiff's horse upon which he was riding. The pleadings in this case were long ; but the questions in all of them were resolved into the point insisted upon by the defendants on the second plea, namely, that as to the seizing and taking of the horse, they distrained him damage feasant in the defendant Robinson's ground, and impounded him ; to which plea there was a demurrer. Holroyd., for the demurrer, contended that a horse, on which the owner was riding, could not be distrained, Co. Lit. 47 a ; and the cases there mentioned in n. 13. In Simpson V. Harcourt,' Lord Ch. J. Willes in giving the judgment of the Common Pleas mentioned the case of Webb v. Bell, in i Sid. 440, as the only case in which it is said that a horse may be distrained with his rider on him, damage feasant ; and added, " I am far from thinking that case to be law. " It is to be observed too that that was only a dictum of Ch. J. Kelyng, in Sid. and not necessary to the decision of the case. T. Walton, contra, relied on the dictum of Lord Ch. J. Kelyng in Siderfin, it never having been expressly overruled ; observing that the opinion of Lord Ch. B. Gilbert'* coincided with it. And he added that the passage cited from Co. Lit. 47 a, was applicable only to a distress for rent, between which and a distress damage feasant a difference is taken in the same ' Cited in Gorton v. Falkner, 4 T. R., at 568. — Reporter. ^ Gilb. Law of Distress, 45. — Reporter. 160 BUCHNER V. C M. AND N. W. RAILWAY. page, many things being privileged from distress in the former case, that are not in the latter. Lord Kenyon, Ch. J. This distress cannot be supported. All the authorities upon this point are collected together in the notes in Hargr. Co. Lit. 4 7, and the clear result of them is that such a distress is illegal. If it were permitted to a party to distrain a horse, while any person is riding him, it would perpetually lead to a breach of the peace. Per Curiatn. judgment for the plaintiff?- Case 6. — Buchuer v. C, M. & N. W. Ry. BUCHNER V. CHICAGO, MILWAUKEE AND NORTHWESTERN RAILWAY. Supreme Court of Wisconsin, 1884. [60 Wis. 264.] Appeal from the Circuit Court for Waukesha County. The case is thus stated by Mr. Justice Cassoday : — " During the times in question the plaintiff owned and occupied as a homestead a lot of about an acre and a half of land in the town of Waukesha, fronting northeasterly upon and extending to the centre of the South Milwaukee road, or Broadway, — such front being about 250 feet in extent, and the line of such front running in a northwesterly and southeasterly direction. The southeasterly side of said lot was upon the Prospect Hill road. In 1881 the defendant constructed its railroad track in nearly an east and west direction across said Broadway, at a point so near the north- westerly line of the plaintiffs said lot, at the place of cross- ing, that the centre of the railroad track was eleven feet and 1 See §§ 13-16, 53, 55, 66, 85-97. Lord Mansfield was Chief Justice from Michaelmas Term, 30 Geo. IL, Nov. 8, 1756, to Trinity Term, 28 Geo. III., June 4, 1788. II 161 THE STUDY OF CASES. the end of the ties seven feet northwesterly from the north- west corner of the plaintiffs said lot in the centre of said Broadway. In crossing said Broadway with said railroad track the defendant dug down and placed its track six feet below what was the former surface of said Broadway, and to restore said Broadway to its former usefulness it graded down the whole surface of that portion of said Broadway upon which the plaintifPs said lot so fronted, including the half to which the plaintiff had the legal title, from the surface at Prospect Hill road-crossing to a depth of five feet and eight inches below the former surface of the street at the plaintiff's northwest corner in the centre of said street. When such work and grading were nearly completed, the plaintiff filed a bill in equity to enforce the defendant to proceed and condemn that portion of his land constituting one half of said highway, upon which the defendant had so entered, cut down, and removed the dirt and graded down the same, and also to ascertain and recover the damages thereby sustained, and for an injunction until such damages were ascertained and paid. The court found, among other things, as a matter of fact, that the premises of the plaintiff had, by reason of such change of grade, been injured and depreciated in their market value to the extent of $1,500 ; and, as a conclusion of law, that although the plaintiff would be entided to recover such damages in a proper action, yet that he could not main- tain that action ; and hence dismissed the complaint with costs. The judgment entered thereon was affirmed by this court. See 56 Wis. 403, where the facts of that case are fully reported. " Afterwards the plaindff filed this petition for condemna- tion, alleging substantially the same facts as in the bill of complaint ; and thereupon the time of the hearing was fixed, and due notice thereof was given to the defendant, which filed an answer to the petition, substantially admitting the facts stated, and alleging that it had not built or constructed 162 BUCHNER V. C. M. AND N. W. RAILWAY. any of its line of road upon any portion of the plaintiff's land, and that the grading of the street on the front of the plaintiffs lot was in pursuance of the order and directions of the supervisors of the town. After a hearing the judge of the court, at cliambers, by order appointed three com- missioners therein, with the usual directions. The defend- ant excepted to the order and ruling of the court thereon. August 28, 1883, the defendant, in pursuance of notice, moved the court to vacate and set aside the order so made, but the motion was denied by the court ; and from the order denying the same the defendant appealed." For the appellant there was a brief by Jenkins, Winkler &• Smith, and oral argument by Mr. jfenkins. They con- tended, inter alia, that the decision in the former case (56 Wis. 403) was merely that that action would not lie, what- ever might be the rights of the plaintiff, and, that being decided in favor of the defendant, it was not pertinent to the issue to pass upon any other question involved, and neither party is concluded in any other respect by anything said in that opinion. Hardy v. Mills, 35 Wis. 149 ; Woodgate v. Fleet, 44 N. Y. 1-13 ; Lathrop v. Knapp, 37 Wis. 307 ; John- son V. N. W. N. Ins. Co., 39 id. 96. The cutting down of the highway was not a taking of property within the mean- ing of the Constitution. It was the simple performance of an act required by law to be done ; it was done under au- thority of the supervisors of the town, who were authorized to change the grade in their discretion, and for such change if made by the town no action would lie by the plaintiff; it was done for the benefit of the public and not for the benefit of the company ; by no proceedings could the company acquire any right in that highway ; and until the legislature shall otherwise provide, an act so done for a public purpose under sanction of legislative authority, though causing inci- dental injury to property, is not the basis of an action. The case is not within sec. 1852, R. S., and the plaintiff could not 163 THE STUDY OF CASES. take the initiative in condemnation proceedings. Sherman V. M., L. S. & W. R'y Co., 40 Wis. 652 ; Blesch v. C. & N. W. R'y Co., 43 id. 192 ; Bohlman v. G. B. & L. P. R'y Co., 30 id., 108 ; Carl v. S. & F. du L. R. R. Co., 46 id. 625. For the respondent there was a brief signed by Finches, Lynde &f Miller, attorneys, and B. K. Miller, y-r., of counsel, and the cause was argued orally by £. K. Miller, Jr. Cassoday, J. The facts in this case are substantially the same as in Buchner v. C, M. & N. W. R'y Co., 56 Wis. 403. We are informed by the learned counsel for the appellant that " this appeal is taken upon the assumption that most that was delivered in that opinion was merely obiter, un- necessary to the decision of that case, and not binding upon the parties, and much of it upon points not argued, and that Mr. Justice Lyon was [there] led into the expression of opinions which cannot be sustained upon reason or author- ity." The correctness of this assumption, of course, depends upon the record of that case, which speaks for itself It would seem that judges, as well as lawyers, sometimes differ as to what may properly be regarded as obiter dictum. It is not infrequent, in courts of last resort composed of several judges, for all to come to the same conclusion, but from different views of the law, and hence it may at times be difficult to determine the precise principle upon which the case was decided, or what may properly be deemed mere obiter. " According to the more rigid rule," says Bouvier, " an expression of opinion, however deliberate, upon a ques- tion, however fully argued, if not essential to the disposition tliat was made of the case, may be regarded as a dictum." 'I'his seems to be the view of the learned counsel for the ap- pellant. Under this "more rigid rule,'' it is believed that, comparatively, there are but few opinions in the books which contain no obiter dictum; that is, nothing which was not absolutely essential to the disposition made of the case. Under that rule what is here being written is nothing but 164 BUCHNER V. C. M. AND N. W. RAILWAY. oditer dictum. But Bouvier adds that "it is, on the other hand, said that it is difificult to see why, in a philosophical point of view, the opinion of the court is not as persuasive on all the points which was so involved in the cause that it was the duty of counsel to argue theni, and which were deliberately passed over by the court, as if the decision had hung upon but one point." Such dictum, if dictum it is, should, it would seem, be regarded as "judicial dictum" in contradistinction to mere obiter dictum, — that is, an expres- sion originating with the judge alone, while passing, by the way, in writing his opinion, as an argument or illustration drawn from some collateral question. But even in that sense, we apprehend, there have been but few judges, occu- pying the bench for any considerable length of time, who have always been so precise and concise in their opinions as not to be subject to that criticism. As illustrations, we call to mind such expression of obiter by no less distinguished judges than Sir Matthew Hale, Lord Chief Justice Kenyon, and Lord Chief Justice Denman, as will appear by reference to the following cases : Steel v. Houghton, i H. Bl. 53 ; Par- ton V. Williams, 3 Barn. & Aid. 341 ; Bast v. Byrne, 51 Wis. 536. Besides,, mere obiter is not always reprehensible. On the contrary, some of the most sacred canons of the common law had their origin in the mere dicta of some wise judges. To be valuable, however, they must of course be right. But the opinion of the court in the former case cannot, we think, be regarded as merely the individual expressions of opinion of Mr. Justice Lyon upon collateral questions, while passing along in writing the opinion. Of course, an opinion of an appellate court, to be of any practical value to the trial court, must deal with the facts presented and the questions involved and discussed at the bar, even though some of them may only be indirectly involved in the deter- mination of the main question upon which the case finally turns. On the trial of the equity suit brought by the plain- 16S THE STUDY OF CASES. ■ tiff against this defendant to enforce the condemnation in question, and for an injunction until the damages should be ascertained and paid, the trial court found, in effect, that by cutting down the street in front of the plaintiffs dwelling- house the defendant had injured and depreciated the market value of his premises to the extent of $1,500, and, as a con- clusion of law, that although the plaintiff would be entitled to recover such damages in a proper action, yet he could not maintain his bill in equity therefor ; and hence dismissed the same with costs. The plaintiff appealed to this court, and of course the correctness of that adjudication was directly involved. The issues there presented, the findings of fact and conclusions of law, the points raised and discussed by counsel on both sides, are all fairly presented in the report of the case. Among the questions thus discussed by counsel pro and con were, in effect, these : Whether the plaintiff was the owner in fee of one half of the road-bed thus excavated and graded down ; whether he had the right to protect the same for ordinary street purposes ; whether he could be de- prived of ingress and egress to and from the street to his dwelling-house without compensation ; whether the construc- tion and maintenance of the railroad at the point in question imposed a new burden or servitude upon the portion of the street belonging to the plaintiff; whether such excavation and removal of the earth was a taking of the plaintiff's prop- erty within the meaning of sec. 13, art. I, of the Constitution ; whether the interest of the plaintiff in the highway was such as to require the defendant to condemn the same and pay for it prior to such taking ; whether such condemnation could be enforced in equity by injunction. Counsel for the defendant then sought to sustain that judgment upon two grounds, which were to the effect : (i) That the damages complained of were incidental merely, and not such as would entitle the plaintiff to recover in any action; (2) that assuming that he could recover in a proper 166 EUCHNER V. C. M. AND N. W. RAILWAY. action, yet that his bill in equity was properly dismissed. This court determined the first proposition against the de- fendant, and the second in its favor. The complaint now is, in effect, that it was mere obiter to determine the first prop- osition by reason of the conclusion reached upon the second proposition. Upon the same theory it would have been mere obiter to say anything upon the second proposition, had we determined the first proposition the other way. To confine this court to the consideration of a single proposition, where several are involved and fully discussed by counsel, might at times operate to prolong litigation, increase the number of appeals, and inflict unnecessary burdens upon both parties and the public, and yet at times it may be highly proper. It will be observed that the judgment was affirmed upon the same theory upon which it was decided by the trial court, to wit, that although the plaintiff was entitled to re- cover in a proper action, yet by going into a court of equity he liad misconceived his remedy. Counsel complain because the opinion is not confined to simply holding that the plain- tiff could not maintain that action. But the ground of that decision was that the plaintiff had a perfect remedy at law. We agree with counsel that " it is not well, ordinarily, for courts to suggest remedies ; " but, when counsel insist that a bill in equity must be dismissed because the plaintiff has a complete remedy at law, they are not in a very good posi- tion to complain, because, in deciding in their favor on the proposition suggested, the court referred to such remedy in unmistakable terms, instead of keeping it a profound secret, or referring to it in such vague and general terms as to mis- lead the other party. We do not hold that the finding of the court in the other case as to the amount of damages is res adjudi'cata in this case ; nor that all that was said in that case is absolutely binding upon the parties and the court in this case ; but simply that that opinion cannot fairly be treated as " merely obiter^ So much in deference to the 167 THE STUDY OF CASES. earnest argument of the able ccunsel for the defendant on the subject of obiter. We are now to consider whether counsel was correct in claiming " that Mr. Justice Lyon was led into the expression of opinions which cannot be sustained upon reason or au- thority.'' It is conceded by all parties that the plaintiffs land extended to the centre of Broadway, subject to the public easement over the same as such highway. It must be conceded, for the purposes of this case, that the street in front of the plaintiffs premises had, long prior to the time in question, been taken for the purposes of a public highway. We moreover assume that adequate compensation for such taking for the use of a public highway, if required, was made at the time of such taking. This being so, it is un- doubtedly true that the supervisors of the town, under their authority as such, had the right, for the purpose of imj^rov- ing the street, to enter upon the highway in question, and with ordinary care and skill to excavate, cut down, and lower the grade of the same, and for such change of grade by them for such a purpose the plaintiff would have been without remedy. This was settled in Harrison v. Super- visors, 51 Wis. 663, and cases there cited. But even the supervisors, for the purpose of improving the highway, have no right to extend an embankment or deposit earth out- side of the limits of such highway without subjecting the town to additional liability. Ibid. Nor does it necessarily follow that even the supervisors of the town could make such excavation and change of grade as was made in the present case for the purpose of constructing a railroad. It is well settled in this State that the appropriation of a public highway for the purposes of a railroad is the imposition of an additional burden upon the abutting owners, and hence is the taking of private property for public use within the meaning of sec. 13, art. I. Const. Ford v. C. & N. W. R. R. Co., 14 Wis. 609 ; Pomeroy v. M. & C. R. R. Co., 16 168 BUCHNER V. C. M. AND N. W. RAILWAY. Wis. 640; Hegar v. C. & N. W. R'y Co., 26 Wis. 624; Sherman v. M., L. S. & W. R. R. Co., 40 Wis. 645 ; Blesch V. C. 8z N. W. R'y Co., 43 Wis. 183. This being so, neither the legislature nor any municipality could authorize such taking without, at least, making provision for compensa- tion therefor. Ibid. It follows that the defendant company would not have had the right to make the excavation and grading in question for the purposes of a railroad track and road-bed for the same without the consent of the abutting owners, and without condemnation and compensation there- for in the manner provided by the statute. Had the company so constructed its road-bed and track in and upon said street, its liability for damages would not have been confined to the land occupied by the track, nor by the road-bed, nor even the track, road-bed, and necessary ditches, but would have covered all land rendered useless or destroyed for the ordinary purposes of a highway, or other- wise. ■ Hegar v. C. & N. W. R'y Co., supra. But while the defendant did make the excavation and cut down and grade the street, yet it did not lay its track upon any portion of the plaintiff's land, nor any portion of the street in front of his premises, and had no purpose of doing so. Does the mere absence of the track, or any purpose of putting it there, deprive the plaintiff of any remedy for the excavation of his land and the removal of his soil? The authorities cited establish, beyond all controversy, that the plaintiff owned the soil to the centre of the street. It was his pri- vate property, subject only to the public easement. No one had any right to interfere with it, except for the purposes of travel, and the town or district authorities, for the purposes of improving it as a public highway. Any other interference was a trespass. Being private property, except for those purposes, neither the legislature nor the munici- pality could, without new and additional compensation, impose any new burden or servitude upon it, or authorize i6g THE STUDY OF CASES. the excavation and removal of an)' portion of the plaintiffs land. But it is claimed that the railroad company did not exca- vate and remove the plaintififs soil and grade down the street in question for the purposes of the railroad, but only to restore the street, after the construction of its railroad across the same, to such condition that its usefulness should not be materially impaired, and that those things were done under the direction of the supervisors of the town. A railway company gets its hfe and authority from the statute, and only for the purposes named in the statute. Such a com- pany has no vicarious power to act for and in behalf of the supervisors in changing the grade of a street, under the highway laws of the State. Whatever right it may have in that regard is imposed upon it as a condition of construct- ing its railroad. Its right to take private property for its use is only by virtue of its chartered rights, and then only for the purposes therein designated. Such taking must, therefore, necessarily be by the authority, in the manner, and for the purposes prescribed in the statute, and then it can only be authorized upon the condition of compensation or consent. A railway company cannot be a traveller upon a highway, nor a supervisor of a town, nor can it have im- puted to it the rights or privileges of either. Its agents and employees may, but the company, as such, cannot. These things being so, as between the railway company and the abutting owners of a highway, the lands within the limits of the highway are private property. The taking of it by a railway company must, necessarily, be the taking of it for the use of the company. It has no right to take for any other use. Other uses, or uses by other parties, may grow out of or be incidental to such taking, but the taking, never- theless, is by the railway company and for the railway com- pany. The lands within the limits of such highway being, as between the abutting owners and the railway company, 170 BUCHNER V. C. M. AND N. W. RAILWAY. private property, such company can have no additional rights by reason of the easement in favor of the public, nor by reason of the authority to change the grade existing in the town. The defendant railway was expressly empowered, subject to the provisions of sec. 1836, R. S., " to construct its railroad across, along, or upon any highway ; ... to carry any highway . . . over or under its track, as " might " be most expedient for the pubUc good ; to change the course and direction of any highway, when made necessary or desir- able to secure more easy ascent or descent by reason of any embankment or cut made in the construction of the railroad, and take land necessary therefor ; provided, such highway or road be not so changed from its original course more than six rods, nor its distance thereby lengthened more than five rods." Subd. 5, sec. 1828, R. S. The conditions contained in sec. 1836, R. S., subject to which the above au- thority is given, provide, in effect, that such railway " shall restore &very . . . highway . . . across, along, or upon which such railroad may be constructed, to its former state, or to such condition as that its usefulness shall not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such rail- road." Thus it appears that whenever the railway com- pany constructs its railroad across, along, or upon a highway, it must not only restore the same to as good a condition of usefulness as it was in before, but must thereafter maintain the same in such restored condition. As it is impossible to restore without entering upon the land and doing the things necessary to restore, so it is impossible to maintain the same in such restored condition without preserving and continuing such condition of things, and from time to time re-entering and replacing or removing materials. Such continuing duty is coupled with a supposed permanent right, and necessarily imposes a new burden or servitude upon the abutting owner's THE STUDY OF CASES. private interest and property in the land constituting the high- way. Besides, there is a possibihty that the defendant may still further lower or elevate its track, which would necessi- tate further changes in order to restore the highway to a con- dition of usefulness. But the right given to a railway company to construct its railroad across, along, or upon any highway, and to carry any highway over or under its track, as provided in sec. 1828, by restoring such highway, and then maintaining it in such restored condition, is given only subject to the further provisions of sec. 1836, that "when any lands shall be re- quired in order to change any highway " in any of the methods named, then "the same may be condemned, taken, and compensation made " therefor " in the manner provided in" that chapter. True, in Harrison v. Supervisors, 51 Wis. 645, it is said that " the altering of a highway, within the meaning of such constitutional provision, clearly means an alteration of its course, and not a change of its grade." Page 658. That was the necessary result of holding that so long as the highway authorities kept within its limits, there was no taking within the constitutional provision. But here the statute is speaking of constructing a " railroad across^ along, or upon a highway." Such construction is clearly a taking, within the meaning of the Constitution, in each of the cases named. No one would, we apprehend, claim that the clause of the statute, requiring condemnation and com- pensation, does not apply when the railroad is constructed "along or upon a highway," nor to so much of the street occupied by the railroad in crossing a highway. So it seems to us that it applies to that portion of the highway which the railway company, as a condition of constructing its rail- road across, along, or upon a highway, is required to restore to its former condition of usefulness, and thereafter to main- tain in that condition. This " change " of the highway neces- sitated by the construction of the railroad must, therefore, 172 BUCHNER V. C. M. AND N. W. RAILWAY. be a taking within the meaning of the Constitution, and since it must thereafter be permanently maintained by the railway company, there must necessarily be condemnation and compensation. Applying the statute to the facts of this particular case, it is the same as though the legislature had said in direct terms to the railway company : " You may cross Broadway at the point designated, and cut dOwn and excavate the same, so that your track may be six or any other number of feet below the present surface of the street at that point, but you can do so only on condition that you cut down, ex- cavate, and grade the whole of Broadway on a smooth in- clined plane from the surface of Prospect Hill road to the level of such railroad track when constructed." So con- struing the statute, and it in effect declared that at the point designated the railway company should so construct its road- bed that the sides should have no greater incline or slope than existed in Broadway after it was so restored. Certainly the road-bed is not to be confined to the very land beneath the ties and rails, but to all that is essential in the construc- tion and maintenance of tlie road-bed. Hegar v. C. & N. W. R'y Co., 26 Wis. 624. Had the necessities of the case required the company to fill in and construct an embankment over the whole surface of Broadway, from Prospect Hill road to the railroad track, in order to construct the railroad, there would seem to be no doubt but what it would have consti- tuted a part of the road-bed. The remote parts of such embankment would have been just as essentially a part of the road-bed as the portion directly under the rails or ties. Such remote parts would have been a taking within the meaning of the Constitution. Harrison v. Supervisors, 51 Wis. 645. To our minds, it was no less so because it was necessary to excavate instead of embank. Leaving out of view the fact that the public had a right of easement over Broadway for the purposes of travel, and the 173 THE STUDY OF CASES. further fact that the supervisors had the right to change the grade of the same to promote such purpose, and no one could, we apprehend, successfully maintain that such cutting down, excavation, and removal of the soil could be justified without condemnation of the land and compensation to the owners. And yet, as between such abutting owners and the railway company, in the matter of such cutting down, ex- cavation, and removal of the soil, the existence of the high- way in no respect figures, because, as against the railway company, it was private property. The liability of the company is not limited to its absolute physical necessities, but is measured by its imperative legal necessities. If we are correct in the views taken, then what was done in changing the grade of Broadway was a necessary condition imposed by the statute on the company in con- structing its railroad across the highway at so great a distance below the surface as it did, and hence was an essential part of the road-bed at that point. This being so, and the cor- poration having omitted to prosecute the same, and not hav- ing acquired title to the lands upon which that part of the road-bed had been constructed, it would seem to follow that the case is one where the party interested in the lands may institute and conduct the proceedings to a conclusion within the meaning of sec. 1852, R. S. This view of the facts and the statute seems to distinguish the cases cited by counsel as being in conflict with the opinion written by Mr. Justice Lyon in the former case. By the Court. — The order of the Circuit Court is affirmed, and the cause is remanded for further proceedings according to law.^ I See §§ 13-26, 48, 55-57, 91-92. 174 MILLER V. RACE. Case 7. — Miller v. Race. MILLER V. RACE. King's Bench, Hilary Term, 31 Geo. II, [i Burr. 452.] It was an action of trover against the defendant, upon a bank-note, for tlie payment of twenty-one pounds ten shil- lings to one William Finney, or bearer, on demand. The cause came on to be tried before Lord Mansfield, at the sittings in Trinity Terra last, at Guildhall, London ; and upon the trial it appeared that William Finney, being pos- sessed of this bank-note on the nth of December, 1756, sent it by the general post, under cover, directed to one Bernard Odenharty, at Chipping Norton, in Oxfordshire; that on the same night the mail was robbed, and the bank- note in question (amongst other notes) taken and carried away by the robber ; that this bank-note, on the 12th of the same December, came into the hands and possession of the plaintiff, for a full and valuable consideration, and in the usual course and way of his business, and without any notice or knowledge of this bank-note being taken out of the mail. It was admitted and agreed that, in the common and known course of trade, bank-notes are paid by and received of the holder or possessor of them as cash ; and that in the usual way of negotiating bank-notes, they pass from one per- son to another as cash, by delivery only, and without any further inquiry or evidence of title than what arises from the possession. It appeared that Mr. Finney, having notice of this robbery, on the T3th of December applied to the Bank of England " to stop the payment of this note ; " which was ordered accordingly, upon Mr. Finney's entering into proper security " to indemnify the bank." Some little time after this, the plaintiff applied to the bank for the payment of this note, and for that purpose delivered the note to the defendant, who is a clerk in the bank ; but 17s THE STUDY OF CASES. the defendant refused either to pay the note or to redeliver it to the plaintiff. Upon which this action was brought against the defendant. The jury found a verdict for the plaintiff and the sum of j[^2\ \os. damages; subject, nevertheless, to the opinion of this court upon this question, "Whether, under the circum- stances of this case, the plaintiff had a sufficient property in this bank-note to entitle him to recover in the present action?" Mr. Williams, was beginning on behalf of the plaintiff, — But Lord Mansfield said, " That as the objection came from the side of the defendant, it was rather more proper for the defendant's counsel to state and urge their objection." Sir Richard Lloyd, for the defendant. The present action is brought, not for the money due upon the note, but for the note itself, the paper, the evidence of the debt. So that the right to the money is not the pres- ent question ; the note is only an evidence of the money's being due to him as bearer. The note must either come to the plaintiff by assignment, or must be considered as if the bank gave a fresh, separate, and distinct note to each bearer. Now the plaintiff can have no right by the assignment of a robber. And the bank can- not be considered as giving a new note to each bearer ; tliough each bearer may be considered as having obtained from the bank a new promise. I do not say whether the bank can or cannot stop pay- ment ; that is another question. But the note is only an instrument of recovery. Now, this note, or these goods (as I may call it), was the property of Mr. Finney, who paid in the money ; he is the real owner. It is like a medal which might entitle a man to payment of money, or to any other advantage. And it is by Mr. Finney's authority and request that Mr. Race de- tained it. 176 MILLER V. RACE. It may be objected " that this note is to be considered as cash in the usual course of trade." But still, the course of trade is not at all affected by the present question, about the right to the note. A different species of action must be brought for the note from what must be brought against the bank for the money. And this man has elected to bring trover for the note itself, as owner of the note, and not to bring his action against the bank for the money. In which action of trover property cannot be proved in the plaintiff, for a special proprietor can have no right against the true owner. The cases that may affect the present are, i Salk. 126, M. 10. W. 3, Anonymous, coram Holt, Ch. J , at Nisi Prius, at Guildhall. There Lord Chief Justice Holt held, " That the right owner of a bank-bill, who lost it, might have trover against a stranger who found it ; but not against the person to whom the finder transferred it for a valuable consideration by reason of the course of trade, which creates a property in the assignee or bearer,'-' i Ld. Raym. 738 ; ^ s. c, in which case the note was paid away in the course of trade ; but this remains in the man's hands, and is not ^ come into the course of trade. H. 12, W. 3, B. R. i Salk. 283, 284, Ford z/. Hopkins, per Holt, Ch. J., at Nisi Prius at Guildhall. " If bank-notes, exchequer-notes, or million-lottery tickets, or the like, are stolen or lost, the owner has such an interest or property in them as to bring an action, into whatsoever hands they are come, money or cash is not to be distin- guished ; but these notes or bills are distinguishable, and cannot be reckoned as cash; and they have distinct marks and numbers on them." Therefore the true owner may seize these notes wherever he finds them, if not passed away in the course of trade. 1 N. B. — In this case the transferee went to the bank, and got a new bill in his own name. However, the case turned upon his hav- ing the note for a valuable consideration. — Reporter. ^ The fact seems to be quite otherwise. — Reporter. 12 1^7 THE STUDY OF CASES. I Strange, 505 ; H. 8, G. i. In Middlesex, coram Pratt, Ch. J., Armory v. Delatnirie, — a chimney-sweeper's boy found a jewel. It was ruled, " that the finder has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover." This note is just like any other piece of property until passed away in the course of trade. And here the defendant acted as agent to the true owner. Mr. Williams, contra, for the plaintiff. The holder of this bank-note upon a valuable consider- ation has a right to it, even against the true owner. I St. The circulation of these notes vests a property in the holder who comes to the possession of it upon a valuable consideration. 2dly. This is of vast consequence to trade and commerce ; and they would be greatly incommoded if it were otherwise. 3dly. This falls within the reason of a sale in market-overt ; and ought to be determined upon thfe same principle. First. He put several cases where the usage, course, and convenience of trade made the law, and sometimes even against an Act of Parliament, 3 Keb. 444, Stanley v. Ayles, per Hale, Ch. J., at Guildhall ; 2 Strange, 1000, Lumley v. Palmer ; where a parol-acceptance of a bill of exchange was holden sufificient against the acceptor, i Salk. 23. Secondly. This paper credit has been always, and witb great reason, favored and encouraged. 2 Strange, 946, Jenys V. Fawler et al. The usage of these notes is, " that they pass by delivery only ; and are considered as current cash ; and the posses- sion always carries with it the property." i Salk. 126, pi. 5, is in point. A particular mischief is rather to be permitted than a general inconvenience incurred. And Mr. Finney, who was robbed of this note, was guilty of some laches in not prevent- ing it. 178 MILLER V. RACE. Upon Sir Richard Lloyd's argument, a holder of a note might suffer the loss of it for want of title against a true owner, even if there was a chasm in the transfer of it through one only out of 500 hands. Thirdly. This is to be considered upon the same foot as a sale in market-overt. 2 Inst. 713. "A sale in market-overt binds those that had right." But it is objected by Sir Richard, " that there is a sub- stantial difference between a right to the note and a right to the money." But I say the right to the money will attract to it a right to the paper. Our right is not by assignment, but by law, by the usage and custom of trade. I do not contend that the robber, or even the finder, of a note has a right to the note ; but after circulation, the holder upon a valuable consideration has a right. We have a property in this note, and have recovered the value against the withholder of it. It is not material what action we could have brought against the bank. Then he answered Sir Richard Lloyd's cases, and agreed that the true owner might pursue his property, where it came into the hands of another, without a valuable consideration, or not in the course of trade ; which is all that Lord Chief Justice Holt said in i Salk. 284. As to I Strange, 505, he agreed that the finder has the property against aU but the rightful owner ; not against him. Sir Richard Lloyd, in reply : — I agree that the holder of the -note has a special property ; but it does not follow that he can maintain trover for it against the true owner. This is not only without, but against, the consent of the owner. Supposing this note to be a sort of mercantile cash ; yet it has an €ar-mark by which it may be distinguished, therefore trover will lie for it. And so is the case of Ford v. Hopkins. 179 THE STUDY OF CASES. And you may recover a thing stolen from a merchant, as well as a thing stolen from another man. And this note is a mere piece of paper ; it may be as well stopped as any other sort of mercantile cash (as, for instance, a policy which has been stolen). And this has not been passed away in trade, but remains in the hands of the true owner. And therefore it does not signify in what manner they are passed away, when they are passed away ; for this was not passed away. Here the true owner, or his servant (which is the same thing), detains it. And surely robbery does not divest the property. This is not like goods sold in market-overt ; nor does it p.ass in the way of a market-overt, nor is within the reason of a market-overt. Suppose it was a watch stolen ; the owner may seize it (though he finds it in a market-overt) before it is sold there. But there is no market-overt for bank-notes. I deny the holder's (merely as holder) having a right to the note against the true owner ; and I deny that the posses- sion gives a right to the note. Upon this argument on Friday last, Lord Mansfield then said, that Sir Richard Lloyd had argued it so ingeniously that (though he had no doubt about the matter) it might be proper to look into the cases he had cited, in order to give a proper answer to them ; and therefore the court deferred giving their opinion to this day. But at the same time Lord Mansfield said he would not wish to have it understood in the city that the court had any doubt about the point. Lord Mansfield now delivered the resolution of the court. After stating the case at large, he declared that at the trial he had no sort of doubt but that this action was well brought, and would lie against the defendant in the present case, upon the general course of business and from the con- sequences to trade and commerce, which would be much incommoded by a contrary determination. 1 80 MILLER V. RACE. It has been very ingeniously argued by Sir Richard Lloyd for the defendant. IJiit the whole fallacy of the argument turns upon comparing bank-notes to what they do not re- semble, and what they ought not to be compared to ; viz., to goods, or to securities, or documents for debts. Now, they are not goods, not securities, nor documents for debts, nor are so esteemed ; but are treated as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind, which gives them the credit and currency of money to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. They pass by a will which bequeaths all the testator's money or cash ; and are never considered as securities for money, but as money itself. Upon Lord Ailesbury's will,'' ;^goo in bank-notes was considered as cash. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So on bankruptcies, they cannot be followed as identical and distinguishable from money, but are always considered as money or cash. 'Tis pity that reporters sometimes catch at quaint ex- pressions that may happen to be dropped at the bar or bench, and mistake their meaning. It has been quaintly said, " that the reason why money cannot be followed is, because it has no ear-mark ; " but this is not true. The true reason is upon account of the currency of it ; it cannot be recovered after it has passed in currency. So in case of money stolen, the true owner cannot recover it after it has been paid away fairly and honestly upon a valuable and bona fide consider- ation ; but before money has passed in currency, an action may be brought for the money itself There was a case in 1 Popham et al, v. Bathurst ct al., in Chancery, 5th November, 1748. — Reporter. 181 THE STUDY OF CASES. I G. I, at the sittings, Thomas v. Whip, before Lord Maccles- field, which was an action upon assumpsit, by an adminis- trator against the defendant for money had and received to his use. The defendant was nurse to the intestate during his sickness, and being alone, conveyed away the money. And Lord Macclesfield held that the action lay. Now this must be esteemed a finding at least. Apply this to the case of a bank-note. An action may lie against the finder, it is true (and it is not at all denied) ; but not after it has been paid away in currency. And this point has been determined even in the infancy of bank-notes ; for I Salk. 126, M. 10, W. 3, at Nisi Prius, is in point. And Lord Chief Justice Holt there says, that it is " by reason of the course of trade, which creates a property in the assignee, or bearer.'' (And " the bearer " is a more proper expression than assignee.) Here an innkeeper took it, bona fide, in his business from a person who made the appearance of a gentleman. Here is no pretence or suspicion of collusion with the robber ; for this matter was strictly inquired and examined into at the trial ; and is so stated in the case, " that he took it for a full and valuable consideration in the usual course of business.'' Indeed, if there had been any collusion, or any circumstances of unfair dealing, the case had been much otherwise. If it had been a note for £\,oqo it might have been suspicious; but this was a small note, for £21 10s. only, and money given in exchange for it. Another case cited was a loose note,^ in i Ld. Raym. 738, ruled by Lord Chief Justice Holt, at Guildhall, in 1698, which proves nothing for the defendant's side of the ques- tion ; but it is exactly agreeable to what is laid down by my Lord Chief Justice Holt in the case I have just mentioned. The action did not lie against the assignee of the bank-bill, because he had it for valuable consideration. ^ Ex relatione of another person. — Reporter. 182 MILLER V. RACE. In that case hb had it from the person who found it ; but the action did not he against him, because he took it in the course of currency, and therefore it could not be followed in his hands. It never shall be followed into the hands of a person who bona fide took it in the course of currency and in the way of his business. The case of Ford v. Hopkins was also cited, which was in Hi!. 12, W. 3, coram Holt, Ch. J., at Nisi Prius, at Guildhall, and was an action of trover for million-lottery tickets. But this must be a very incorrect report of that case ; it is im- possible that it can be a true representation of what Lord Chief Justice Holt said. It represents him as speaking of bank-notes, exchequer-notes, and million-lottery tickets as like to each other. Now, no two things can be more unlike to each other than a lottery-ticket and a bank-note. Lottery- tickets are identical and specific ; specific actions he for them. They may prove extremely unequal in value, — one may be a prize, another a blank. Land is not more specific than lottery-tickets are. It is there said, " that the delivery of the plaintiff's tickets to the defendant, as that case was, was no change of property." And most clearly it was no change of the property ; so far the case is right. But it is here urged as a proof " that the true owner may follow a stolen bank-note, into what hands soever it shall come." Now the whole of that case turns upon the throwing in bank-notes as being like to lottery-tickets. But Lord Chief Justice Holt could never say " that an action would he against the person who, for a valuable con- sideration, had received a bank-note which had been stolen or lost, and bona fide paid to him," even though the action was brought by the true owner ; because he had determined otherwise but two years before, and because bank-notes are not like lottery-tickets, but money. The person who took down this case certainly misunder- stood Lord Chief Justice Holt, or mistook his reasons. For 183 THE STUDY OF CASES. this reasoning would prove (if it was true, as the reporter represents it) that if a man paid to a goldsmith ;^soo in bank-notes, the goldsmith could never pay them away. A bank-note is constantly and universally, both at home and abroad, treated as money, as cash, and paid and re- ceived as cash ; and it is necessary, for the purposes of commerce, that their currency should be established and secured. There was a case in the Court of Chancery,^ on some of Mr. Child's notes, payable to the person to whom they were given, or bearer. The notes had been lost or destroyed many years. Mr. Child was ready to pay them to the widow and administratrix of the person to whom they were made payable, upon her giving bond, with two responsible sureties (as is the custom in such cases), to indemnify him against the bearer, if the notes should ever be demanded. The ad- ministratrix brought a bill, which was dismissed, because she either could not or would not give the security required. No dispute ought to be made with the bearer of a cash- note, in regard to commerce, and for the sake of the credit of these notes ; though it may be both reasonable and cus- tomary to stay the payment till ipquiry can be made whether the bearer of the note came by it fairly or not. Lord Mansfield declared that the court were all of the same opinion for the plaintiff, and that Mr. Justice Wilmot concurred. Rule, — That the postea be delivered to the plaintiff? 1 Walmesly against Child, ii December, 1749. — Reporter. 2 See §§ 37, 41, 42, 58, 63, 98, 104, 105. 184 GIBBON V. PAYNTON. Case 8. — Oibbon v. Faynton. GIBBON V. PAYNTON et alios. King's Bench, Easter Term, 9 Geo. III. [4 Burr. 2298.] This was an action against the Birmingham stage-coach- man, for ^i^^ioo in money sent from Birmingham to London by his coach, and lost. It was hid in hay, in an old nail-bag. The bag and the hay arrived safe ; but the money was gone. The coachman had inserted an advertisement in a Birming- ham newspaper, with a nota bene, "that the coachman would not be answerable for money or jewels or other valuable goods unless he had notice that it was money or jewels or valuable goods that was delivered to him to be carried." He had also distributed hand-bills, of the same import. It was notorious in that country, that the price of carrying money from Birming- ham to London was three pence in the pound. The plaintifif was a dealer at Birmingham ; and had frequently sent goods thence. It was proved that he had been used, for a year and a half, to read the newspaper in which this advertisement was published ; though it could not be proved that he had ever actually read or seen the individual paper wherein it was inserted. A letter of the plaintiffs was also produced, from whence it manifesfly appeared that he knew the course of this trade, and that money was not carried from that place to London at the common and ordinary price of the carriage of other goods : and it likewise appeared from this letter, that he was conscious that he could not recover, by reason of this concealment. The jury found a verdict for the defendant. Mr. Wallace, on behalf of the plaintiff, moved (on Thurs- day, 26th January, 1769) for a new trial, and obtained a rule to show cause : which rule he now enforced, and was sup- by Mr. Hotham. 18S THE STUDY OF CASES. They insisted that the coachman was answerable ; though he did not know that it was money. A carrier is always answerable, unless he accepts the goods specially ; but the circumstances of this case, they said, do not amount to a special acceptance. He made no inquiry or objection : therefore he is answerable. It is incumbent upon him to see that he is not cheated. He is bound to receive the goods, and must run the risk. If the goods are lost by negligence, or even if he is robbed, he is Hable to answer for them. If the trader deceives him, he may have an action against the trader, for this deceit. In proof of their arguments and assertions, they cited the following cases. Aleyn, 93 ; Kenrig v. Eggleston, i Ventr. 238, a like case cited by Hale, in delivering the reasons of the resolution in the case of Morse v. Slue ; Coggs v. Bernard, in i Salk. 26, 3 Salk. II, 268, and Holt, 13, 131, 528; Carthew, 485 ; Sir Joseph Tyly et al. v. Morrice, 2 Shower, 81 ; Bastard v. Bas- tard, I Stra. 145 ; Titchburne v. White, at Guildhall, where Lord Chief Justice King held " that if a box is delivered generally to a carrier, and he accepts it, he is answerable, though the party did not tell him there is money in it." Mr. Dunning (Solicitor-General) and Mr. Mansfield argued on behalf of the defendant, against a new trial. They treated this conduct of the plaintiff as a fraud and deception upon the defendant. A carrier may accept specially : this man has done so. The advertisement is e.xplicit against being answerable for money, without notice. This money was never fairly and properly intrusted to the defendant : and a carrier shall not be liable, where he is imposed upon ; which is the present case. Lord Mansfield distinguished between the case of a common carrier, and that of a bailee. The latter is only obliged to keep the goods with as much diligence and caution as he would keep his own : but a common carrier, in respect of the premium he is to receive, runs the risk of them, and 186 GIBBON V. PAYNTOJSr. must make good the loss, though it happen without any fault in him; the reward making him answerable for their safe delivery. This action is brought against the defendant upon the foot of being a common carrier. His warranty and insurance is in respect of the reward he is to receive ; and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expense of more guards or other methods of security : and therefore he ought, in reason and justice, to have a greater reward. Consequently, if the owner of the goods has been guilty of a frauTJ upon the carrier, such fraud ought to excuse the carrier. And here the owner was guilty of a fraud upon him : the proof of it is over-abundant. The plaintiff is a dealer at Birmingham. The price of the carriage of money from thence is notorious in that place : it is the rule of every carrier there. It is fairly presumed that a man conversant in a trade knows the terms of it. Therefore the jury were in the right, in presuming that this man knew it. The advertisement and hand-bills were circumstances proper to be left to the jury. The plain- tiffs having been used, for a year and a half, to read this newspaper is a strong circumstance for the jury to ground a presumption that he knew of the advertisement. Then his own letter strongly infers his consciousness of his own fraud, and that he meant to cheat the carrier of his hire. There- fore I entirely agree with the jury in their verdict. And if he has been guilty of a fraud, how can he recover? Ex dolo malo non oritur actio. hs to the cases cited : that of Kenrig v. Eggleston, in AUeyn 93, was ;^ioo in a box delivered to a carrier; the plaintiff telling him only " that there was a book and tobacco in the box : " and Roll directed that although the plaintiff did tell him of some things in the box only, and not of the money, yet he must answer for it ; for, he need not tell the 187 THE STUDY OF CASES. carrier all the particulars in the box : but it must come on the carrier's part to make special acceptance. But in respect of the intended cheat to the carrier ; he told the jury they might consider him in damages : notwithstanding which, the jury gave fy"] against the carrier for the money only, (the other things being of no considerable value), abating ^2i only for carriage. Quod durum videbatur circumstan- tibus. Now, I own that I should have thought this a fraud : and I should have agreed in opinion with the circumstan- tibus ; which seems to have been also the opinion of the reporter. So in the case cited by Hale, in i Ventris, 238, of a box brought to a carrier, with a great sum of money in it; and upon the carrier's demanding of the owner " what was in it," he answered " that it was filled with silks and such like goods of mean value ; " upon which, the carrier took it, and was robbed ; and resolved " that he was liable." But (says the case) if the carrier had told the owner " that it was a dangerous time ; and if there were money in it, he durst not take charge of it ; " and the owner had answered as before ; this matter would have excused the carrier. In this case also, I own that I should have thought the carrier excused, although he had not expressly proposed a caution against being answerable for money : for, it was artfully concealed from him that there was any money in the box. The case of Sir Joseph Tyly and others against Morrice, in Carthew, 485, was determined upon the true principles, — " that the carrier was liable only for what he was fairly told of" Two bags were delivered to him, sealed up, said to con- tain ^200, and a receipt taken accordingly, with a promise '•'to deliver them to T. Davis; he to pay loi'. per cent, for carriage and risk." The carrier was robbed. The Chief Justice was of opinion that he should answer for no more than ^200 "because there was a particular undertaking by the carrier for the carriage of ;£'2oo only ; and his reward 188 GIBBON V. PAYNTON. was to extend no further than that sum ; and 't is the reward that makes the carrier answerable : and since the plaintiffs had taken this course to defraud the carrier of his reward, they had tiiereby barred themselves of that remedy which is founded only on the reward." So the jury were (in that case) directed to find for the defendant. For these reasons, his Lordship was of opinion, in the present case, that the plaintiff ought not to recover. M.X. Justice Yates held that a carrier may make a special acceptance ; and that this was a special acceptance. By the general custom of the realm, a common carrier in- sures the goods, at all events ; and it is right and reasonable that he should do so : but he may make a special contract ; or he may refuse to contract, in extraordinary cases, but upon extraordinary terras. And certainly, the party under- taking ought to be apprised what it is that he undertakes : and then he will or at least may take proper care. But he ought not to be answerable where he is deceived. Here he was deceived. The money was hid in an old nail-bag ; and it was concealed from him that it was money. The plain- tiff's own letter shows that he knew the course of this trade, and that money was not in that place carried at the common ordinary price of carrying other things. And if he was apprised of the defendant's advertisement, that might be equivalent to personal communication of the carrier's refusal to be answerable for money not notified to him : and this was left to the jury. Mr. Justice Aston, who tried the cause, said he had no doubt about the justice of the case : his difficulty had only arisen from the cases and authorities which had been now mentioned ; which put him upon more caution in admitting the evidence. But it appeared to be notorious in the country where this transaction happened, that the price of carrying money from thence to London was three pence in the pound : and it manifestly appeared that this was money sent under a 189 THE STUDY OF CASES. concealment of its being money. The true principle of a carrier's being answerable is tlie reward. And a higher price ought, in conscience, to be paid him for the insurance of money, jewels, and valuable things, than for insuring common goods of small value. And here, though it was not directly and strictly brought home to the plaintiff that he had a clear certain knowledge of the defendant's advertisements and hand-bills, yet it was highly probable that he must have known of them : and his own letter showed his being con- scious that he could not recover, by reason of the conceal- ment. Therefore I think the verdict against him ought to stand. Mr. Justice Willes concurred in the same opinion. Per Cur. unanimously — Rule discharged} Case 9. — Tinkler v. Poole. TINKLER V. POOLE et alios. Kmc's Bench, Michaelmas Term, ii Geo. III. [5 Burr. 2657.] This was an action of trover for goods seized by a custom- house officer. It was a parcel of herrings seized by him for not having satisfied the salt duty, and carried by him to the king's warehouse. It was agreed that they were not seizable : and the only question was " Whether this species of action lay against the officer, for seizing them and carrying them away." Serjeant Glynn, for the plaintiff, argued that it did. The conversion, he said, was the substantial part of the action : the trover is fictitious. The defendant had no authority to take them. He took them wrongfully. He was a wrong- doer. He acquired a tortious property of them in himself. ^ See §§ 35, 53, 66, 85-97. 190 TLKKLER v. POOLE. Trover lies in similar canses. It lies against a sheri^ for the unlanrful converaon of the goods of a banknipt. i Bur- row, 20 I J 37, Cooper and Another, assignees of William Johns, a bankrupt, against Chitty and Blackiston, iherini of London. A tortious taking is in itself a conversion. There is indeed a single Xisi Prius case reported in Ban- bury 67 Mich. 1720, at Guildhall sittings after that term, before Lord Chief feron Burr, Etrick z: an officer of the revenue. Upon an informatijn of seiztue of goods, there had been a verdict for the defendant : who afterwards brought trover against the officer for the goods. The Attorney-General objected, that trover did not lie for these goods (for that the seizure of them and putting them into the custom-house warehouse could not he said to be any conversion to his own use) ; but tr^pass, or trespass upon the case : and Mr. Attor- ney insisting upon a special verdict, and the Chief Baron in- clining to be of that opinion, " That trover would not lie ; " the plaintiff ch(»e to be nonsuited. But this is no solemn determination. Lord MiXSnELD said, Mr. Bunbury never meant that those cases should have been published : they are ven- loose notes. Mr. Justice WnxES mentioned another case in Bunbury pa. 80, Trin. 17 21, Israel z: Etheridge et al., where Baron Price said that it was now allowed and taken for law " That trover did not lie against an officer, for seizing absque pro- babiU causa; but trespass would." Baron Montague was of opinion " That neither trover nor trespass would lie ; because the seizure is not contra patem : but that trespass upon the case, setting forth, that the seizure was absque probabiU causa, would lie." Baron Page was of opinion " That trespass, or case for the consequential damages, win Ue." Mr. Dunning, for the defendants, remaited upwn the case last cited, that it appeared by it, that the three barons. Price, 191 THE STUDY OF CASES. Montague, and Page, all concurred in the opinion "That trover would not lie." Lord Mansfield. It is a very loose note. It makes Baron Montague say " That trespass would not lie." ^ Mr. Justice Willes mentioned the case of Kenicot v. Bogan, in Yelverton, 198 : which was trover and conversion of two tons of wine, taken for prisage. Lord Mansfield, who tried the present cause, said he saved this point, upon the cases cited out of Bunbury, by the counsel for the defendants. But nothing is clearer, than "That trover lies." It is a wrongful conversion; let the property be in whom it will. The case of Chapman 7a Lamb, in 2 Strange, 943, was mentioned by Mr. Wallace ; which was subsequent to the others, being in Michaelmas term 6 G. 2. It was trover against a custom-house officer for 14 shirts, a night-gown, and cap, seized for non-payment of duty ; which were stated, negatively, " Not to be imported as merchandise." The 1 As to the two cases in Bunbury. viz. Etriche v. an officer of the revenue, pa. 67, and Israel v. Etheridge et al., pa. 82, in the third term after the former ; I very strongly suspect them to be a continuation of the same case. The owner of the goods, finding that his action of trover met with .so much opposition, chose to give it up ; and seems to have immediately brought his action of trespass against the officers ; which is the subject of the latter case. The names " Etriche " and " Etheridge " sound very nearly alike, to the ear ; though they have less resemblance, to the eye, when written. The only difficulty is, that in the former case, Etriche seems to be the owner of the goods ; in the latter, Etheridge and others seem to be the officers of the revenue. But this difficulty vanishes, upon the supposition that Mr. Bunbury's were, loose and inaccurate notes, not intended for more than to refresh his own memory : for, no sort of inaccuracy is more frequent amongst note-takers, than an inattention to the precise names of the cases, and the transposing the names of the plaintiffs and defendants. Now, supposing such a transposition to have hap- pened, in taking either of these two notes ; the whole difficulty is at an end, and the apparent difference reconciled. — Reporter. 192 FORWARD V. PITTARD. plaintiff had judgment ; without any objection to its being an action of trover. The Court ordered the postea be delivered to the plaintiff?- Case 10. — Forward v. Pittard. FORWARD V. PITTARD. King's Bench, Michaelmas Term, 26 Geo. III. [I T. R. 27.] This was an action on the case against the defendant as a common carrier, for not safely carrying and delivering the plaintiffs goods. This action was tried at the last Summer Assizes at Dorchester, before Mr. Baron Perryn, when the jury found a verdict for the plaintiff, subject to the opinion of the court on the following case : — " That the defendant was a common carrier from London to Shaftsbury. That on Thursday, the 14th of October, 1784, the plaintiff delivered to him on Weyhill 12 pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftsbury by his public road wagon, which travels from London through Andover to Shaftsbury. That, by the course of travelling, such wagon was not to leave Andover till the Saturday evening following. That in the night of the follow- ing day after the delivery of the hops, a fire broke out in a booth at the distance of 100 yards from the booth in which the defendant had deposited the hops, which burnt for some time with unextinguishable violence, and during that time communicated itself to the said booth in which the defend- ant had deposited the hops, and entirely consumed them without any actual negligence in the defendant. That the fire was not occasioned by lightning." ' See §§39, 44, 63. Mr. Wallace appears to have been amicus curice. 13 193 THE STUDY OF CASES. IV. Bond, for the plaintiff. Tiie question is, whether a car- rier is liable for the loss of goods occasioned by fire, without any negligence in him or his servants. The general propo- sition is, that a carrier is liable in all cases, except the loss be occasioned by the act of God, or the King's enemies. Lord Raymond, 909; i Wils. 281. And this doctrine has lately been recognized by this court, in the case of the Com- pany of the Trent Navigation v. Wood, East., 25 Geo. 3, B. R. The only doubt is on the construction of the words "the act of God." It is an effect immediately produced without the interposition of any human cause. In Amies and Stephens, i Stra. 128, these words were held to include the case of a ship being lost by tempest. In the books un- der the head of " waste," there is an analogous distinction to be found : if a house fall down by tempest, or be burned by lightning, it is no waste ; but burning by negligence or mis- chance is waste. Co. Litt. 53, a, b. Before the 6th of Anne, 6 Ann. c. 31 ; 10 Ann. c. 14, an action lay against any person in whose house a fire acciden- tally began : this shows that an accidental fire was not in law considered as the act of God ; but the person was punish- able for negligence. Suppose a fire happens in a house where there are different lodgers, each of whose lodgings is considered as a separate house : if the fire be communicated from one lodging to another, and the court say the first fire was the act of man, at what time will it be said that it ceases to be the act of man and commences to be the act of God ? If it were not the act of man in the first house, it is impos- sible to draw the line. In the case of the Company of the Trent Navigation and Wood, Lord Mansfied said, " By the act of God is meant a natural, not merely an inevitable, accident." If it be contended for the defendant, that it is here stated that there was no actual negligence, that will not serve him ; for this action was not founded in negligence. Lord Holt 194 FORWARD V. PITTARD. says, there are several species of bailments, and different degrees of liability annexed to each ; and a carrier is that kind of bailee who is answerable though there be no actual negligence. Borough, for the defendant, observed that the point in this case was not before the court in any of the cases cited. The general question here is, whether a carrier is compel- lable to make satisfaction for goods delivered to him to carry, and destroyed by mere accident, in a case where negligence is so far from being imputed to him, that it is expressly neg- atived? This action of assumpsit must be considered as an action founded on what is called the custom of the realm relating to carriers. And from a review of all the cases on this subject it manifestly appears that a carrier is only liable for damage and loss occasioned by the acts or negligence of himself and servants, that is, for such damage and loss only as human care or foresight can prevent ; and that there is no implied contract between him and his employers to indem- nify them against unavoidable accidents. The law with re- spect to land carriers and water carriers is the same. Rich V. Kneeland, Cro. Jac. 330; Hob. 17 ; 5 Burr. 2827. In Vid. 27 : The declaration, in an action against a wat- erman for negligently keeping his goods states the custom relative to carriers thus, " absque subtractione, araissione, seu spoliatione, portare tenentur, ita quod pro defectu dic- torum communium portatorum seu servientium suorum, hu- jusraodi bona et catalla eis sic ut prefertur dehberata. non sint perdita, amissa, seu spoliata." It then states the breach, that the defendant had not delivered them, and " pro de- fectu bonse custodiae ipsius defendentis et servientium suo- rum perdita et araissa fuerunt." In Brownl. Red. 12, the breach in a declaration against a carrier is, " defendens tarn negligenter et improvide custodivit et carriavit, &c." In Clift. 38, 39 ; Mod. Intr. 91, 92 ; and Heme 76, the entries are to the same effect. In Rich and Kneeland, Hob. 17, 195 THE STUDY OF CASES. the custom is stated in a similar way ; and in the Exchequer Chamber it was resolved, " that though it was laid as a cus- tom of the realm, yet indeed it is common law." On con- sidering these cases, it is not true that " the act of God, and of the King's enemies " is an exception from the law. For an exception is always of something comprehended within the rule, and therefore excepted out of it ; but the act of God and of the King's enemies is not within the law as laid down in the books cited. All the authorities cited by the counsel for the plaintiff are founded on the dictum in Coggs v. Bernard, 2 Lord Ray- mond, 909, where this doctrine was first laid down : but Lord Holt did not mean to state the proposition in the sense in which it has been contended he did state it. He did not intend to say, that cases falling within the reason of what are vulgarly called " acts of God " should not also be good defences for a carrier. After saying (Lord Raymond, 918), " the law charges the persons thus intrusted to carry goods against all events, but the acts of God and of the enemies o( the King," he proceeds thus, " for though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persons who had any dealings with them, by combining with thieves, &c. and yet doing it in such a clandestine manner, as would not be possible to be discovered." As Lord Holt therefore states the respon- sibility of carriers in case of robbery to take its origin from a ground of policy, he could not mean to say, that a carrier was also liable in cases of accident, where neither combina- tion or negligence can. possibly exist. It appears from the Doctor and Student, Dial. 2, c, 38, 196 FORWARD V. PITTARD. p. 270., that, at the time that book was written, the carrier was held liable for robberies which diligence and foresight might prevent. And what is there said agrees precisely with the custom ; and does not bear hard on the carrier. If he will travel by night, and is robbed, he has no remedy against the hundred ; for then he is not protected by the statute of Win- ton, and he ought to be answerable to the employer. If he travel by day, and is robbed, he has a remedy. Now the carrier may not perhaps be worth suing ; and the employer may bring the action against the hundred in his own name ; which action he would be deprived of, if the carrier travelled by night. There is not a single authority in all the old books which says that a carrier is responsible for mere accidents. He only engages against subtraction, spoil, and loss, occa- sioned by the neglect of himself or his servants. These words plainly point at acts to be done, and omission of care and diligence. But in the present case there is no act done ; and there cannot be said to be any omission of care and diligence, since they could not have prevented the calamity. Lord Holt, in Coggs v. Bernard, seems to have traced, with great attention, the different species of bailments. He cites many passages from Bracton, who has nearly copied them from Justinian. So that it is probable that the cus- • tom relating to carriers took its origin from the civil law as to bailments. Now it is observable that in no one case of bailment is the bailee answerable for an accident ; he is only liable for want of diligence. The only difference in this respect between the civil and the English law is, that the former, Justin, lib. 3. 15, S. 2, 3, 4, Tit. 35, S. 5, distin- guishes between the different degrees of diligence required in the different species of bailment ; which the latter does not. In all the cases to be found in our books, may be traced the true ground of hability, negligence. If the law were not as 197 THE STUDV OF CASES. is now contended for, the question of negligence could never have arisen ; and the case of robbery could not have borne any argument; whereas the case of Mors v. Slue, i Vent. 190, 238, came on repeatedly before the court, and created very considerable doubts. In the case of Dale v. Hall, i Wils. 281, and the Pro- prietors of the Trent Navigation v. Wood, there were clear facts of negligence. In the first, the rats gnawed a hole in the hoy, which undoubtedly might have been prevented. And in the other, each of the judges, in giving his opinion, said there was negligence. In the Year Books, 22 Ass. 41, there is a case of an action against a waterman for overloading his boat so that the plaintiff's horse was drowned. This case is recognized in Williams v. Lloyd, S. W. Jones, 180, where it is said, "It was there agreed that if he had not surcharged the boat, al- though the horse was drowned, no action lies, notwithstand- ing the assumpsit : but if he surcharge the boat, otherwise ; for there is default and negligence in the party." The court in 22 Ass. 41, said, "It seems that you trespassed when you surcharged .the boat, by which the horse per- ished." The same case is to be found in i Ro. Abr. 10, pi. 18 ; Bro. Tit. Action sur le Case, 78. And it is also recog- nized in Williams v. Hide and Ux. Palm. 548. In Winch. 26 : To an action against a carrier, there is a special plea that the inn in which the goods were deposited was burned by fire, and that the plaintiff's goods were at the same time destroyed, without the default or neglect of the defendant or his servants. To this the plaintiff de- murred, not generally but specially, " that the plea amounted to the general issue." In all actions founded in negligence, the negligence is alleged and tried, as a fact ; as in actions against a farrier, smith, coachman, &c. It is the constant course in such actions to leave the question of negligence to the jury. It 198 FORWARD V. PITTARD. appears in Dalston v. Janson, 5 Mod. 90, that the defend- ant formerly used to plead particularly to the neglect. In 43 Edw. 3, 33 ; Clerk's Assist. 99 ; Mod. Intr. 95 ; and Brown. Red. 10 1, which were actions founded in negligence, the negligence is traversed. Now a traverse can be only of matter of fact. And here negligence is expressly negatived by the case. However, if the court should be of opinion, that the car- rier is answerable for every loss, unless occasioned by the act of God, or the King's enemies, he then contended that, as the act of God was a good ground of defence, this accident, though not within the words, was within the reason, of that ground. It cannot be said that misfortunes occasioned by lightning, rain, wind, &c. are the immediate acts of the Al- mighty ; they are permitted but not directed by him. The reason why these accidents are not held to charge a carrier is, that they are not under the control of the contracting party ; and therefore cannot affect the contract, inasmuch as he engages only against those events which by possibility he may prevent. Lord Bacon, in his Law Tracts, commenting on this maxim, Reg. 5, necessitas indiicit privilegiiim quoad jura privata, says, " The law charges no man with default where the act is compulsory and not voluntary, and where there is not a consent and election ; therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot overcome, such necessity carrieth a privilege in itself." Necessity, he says, is of three sorts, and under the third, he adds, " If a fire be taken in a street I may justify puUing down the walls or house of another man to save the row from the spreading of the fire." Now in the present case, if any person, in order to stop the pro- gress of the flames, had insisted on pulling down the booth wherein the hops were deposited, and in doing this the hops had been damaged, the carrier would not have been liable to 199 THE STUDY OF CASES. make good such damage ; for it would have been unlawful for him to have prevented the pulling down the booth. It is expressly found in the present case, that the fire burnt with unextinguishable violence. The breaking out of the fire was an event which God only could foresee. And the course it would take was as little to be discovered by human penetration. Bond in reply. There are several strong cases where there could not be any negligence. It is not sufficient in these cases to negative any negligence ; for every thing is negli- gence which the law does not excuse, i Wils. 282. And the question here is, is this a case which the law does excuse ? In Goffe V. Clinkard (cited in Wils. 282) there was all pos- sible care on the part of the defendants. The judgment m the case of 4 Burr. 2298, Gibbon v. Peyton and another, which was an action against a stage-coachman for not deliv- ering money sent, is extremely strong : there Lord Mansfield said, 4 Burr. 2300, "A common carrier, in respect of the premium he is to receive, runs the risk of them, and must make good the loss, though it happen without any fault in him ; the reward making him answerable for their safe delivery." That a carrier was liable in tlie case of a robbery was first held in 9 Ed. 4, pi. 40. A bailee only engages to take care of his goods as his own, and is not answerable for a robbery ; but a carrier insures. I Ventr. 190, 238 ; Sir T. Raym. 220, s. c. ; i Mod. 85. In Barclay and Heygena, E. 24 G. 3, B. R., which was an action against a master of a ship to recover the value of some goods put on board his ship in order to be carried to St. Sebastian ; it was proved that an irresistible force broke into the ship in the river Thames, and stole the goods ; yet the defendant was held answerable. In Sutton and Mitchel, at the sittings at Guildhall after Tr. 25 G. 3 ; vide i T. R. 18, the question was not disputed as far as to the value of the ship and freight. 200 FORWARD V. PITTARD. There is no distinction between that case and a land car- rier. And there can be no hardship in the court's deter- mining in favor of the plaintiff; for when the law is once known and established, the parties may contract according to the terms which it prescribes. As to negligence being a matter of fact ; that is answered by the decision in the Company of the Trent Navigation against Wood. Lord Mansfield. There is a nicety of distinction be- ween the act of God and inevitable necessity. In these cases actual negligence is not necessary to support the action. Cur. adv. vult. Afterwards Lord Mansfield delivered the unanimous opinion of the court. After stating the case — The question is, whether the com- mon carrier is liable in this case of fire? It appears from all the cases for loo years back, that there are events for which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence ; and for any negligence he is suable on his con- tract. But there is a further degree of responsiblity by the custom of the realm, that is, by the common law ; a carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God, or the King's enemies. Now what is the act of God ? I consider it to mean something in opposition to the act of man : for every thing is the act of God that happens by his per- mission ; every thing, by his knowledge. But to prevent litigation, collusion, and the necessity of going into circum- stances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the King's enemies or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. If an armed force come to rob the carrier of the goods, he is liable ; and a reason is given in the books, which is a bad 20 1 THE STUDY OF CASES. one, viz. that he ought to have a sufScient force to repel it ; but that would be impossible in some cases, as for instance in the riots in the year 1780. The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man ; for it is expressly stated not to have happened by lightning. The carrier therefore in this case is liable, inasmuch as he is liable for inevitable accident. Judgment for the Plaintiff} Case 11. — Burke v. Jones BURKE V. JONES. Chancery, 18 13. [2 Ves. 6^ B. 275.] Under a decree directing the usual accounts of the per- sonal estate, debts, etc., of the testator, Andrew Robinson Bowes, the Master's report stated that the testator was, on the 1 6th of June, 1787, committed to the King's Bench Prison on the prosecution of the king, and continued in such custody under the said commitment and subsequent detain- ers of creditors until his death, on the i6th of January, 1810 : that by his will, dated the 12th of April, 1809, he gave to trustees, their executors, etc., all his ready money, etc., per- sonal estate, and effects ; upon trust, as soon as might be to convert the same into money, and thereout to pay, dis- charge, and satisfy, so far as the same would extend, all his just debts, funeral expenses, and legacies ; and the residue (if any) he gave to his son, William Johnstone Bowes. The testator also devised all his messuages, lands, etc., to the use of the same trustees, their heirs and assigns ; upon trust, ^ See §§35, 42, 126-127. 202 BURKE V. JONES. by sale or mortgage to raise such sums as should be neces- sary to pay such of his debts, funeral and testamentary expenses and legacies, which the moneys to arise from his personal estate should not be sufficient to pay ; which sums the trustees were directed to apply and dispose of in payment and discharge of his said debts, etc., which his personal estate should not be sufficient to satisfy. The Master farther stated that no action or other proceed- ing was ever brought on any of the debts in the schedule to his report ; that no promise to pay the same was ever made by the testator after the statute of 21 James r, c. 16, had barred them ; and that all the said debts were barred by the statute at the death of the testator : but though it had been insisted before him that, as the testator was a prisoner in the King's Bench during the time aforesaid, all proceedings against him would have been fruitless, and that as he had by his will created a trust for the payment of his debts, all the said debts were thereby revived and taken out of the statute, he refused to permit the creditors contained in the schedule to prove. To this report the creditors took an exception, contending^ I St. That a devise in trust to pay debts will revive debts barred by the Statute of Limitations. Anon., Salk., i Salk. 154 ; Andrews v. Brown, Prec. Ch. 385, 2 Eq. Ca. Ab. 579 ; Blakeway v. Earl of Strafford, 2 P. Wms. 373, 6 Bro. P. C. 630, ed. 2 ; Staggers v. Welby, cited 2 P. Wms. 374 ; Jones V. Earl of Strafford, 3 P. Wms. 79 ; Lacon v. Briggs, 3 Atk. 107 ; Oughterloney v. Earl Powis, Amb. 231 ; Executors of Fergus v. Gore, i Sch. & Lef. 107 ; Ex parte Dewdney; Ex parte Seaman, 15 Ves. 477. See 497. 2dly. That under the particular circumstances of this case these creditors ought to have been permitted to prove. Mr. Richards, Mr. Wetherell, and Mr. Shadwell, for the parties interested in the estate. Mr. Home, for the trustees. 203 THE STUDY OF CASES. Though the general question, whether a devise in trust to pay debts revives a debt barred by the Statute of Limitations, has been noticed in many cases, this is the first time it has called for decision. It is clear that the testator might have pleaded the Statute of Limitations ; and it must be admitted that if the personal estate is sufficient to pay the debts, the executor or administrator may insist on the statute as well in the Master's office as in an action at law. A direction to pay debts cannot let in a creditor on the personal estate where that is the only fund ; and there is no reason why the introduction of real estate into the devise should make any difference. In the anonymous case in Salkeld the circum- stances do not appear ; nor is the abstract proposition there stated merely as a dictum the law of this court. Andrews v. Brown is no decision of this point. Blakeway v. the Earl of Strafford, on a devise to executors, is very briefly stated, and on the face of it bears strong marks of inaccuracy The debt was not barred ; the payment of £^o in part having taken place within six years before the testator's death. Whatever might have been the weight of that decision, the House of Lords afterwards overruled it, reversing the origi- nal decree, and ordering the plea to stand for an answer, with very special directions (see Mr. Cox's note, 2 P. Wms. 375) ; and after that decision there is no farther account of the case. In Lacon v. Briggs, Lord Hardwicke's opinion is inconsistent with what he said in Oughterloney v. Earl Powis. The executors of Fergus v. Gore, and Ex parte Dewdney are strong authorities against this claim ; and Lord Kenyon, Lord Alvanley, Lord Redesdale, and Lord Eldon have at different times questioned the existence of any such rule, that a devise to pay debts will take debts out of the Statute of Limitations. Though the decision of Jones v. Earl of Straf- ford affects to follow Blakeway v. Earl of Strafford, the cases differ widely : the former having no such payment within six years, as the latter, nor any circumstance taking it out of the 204 BURKE V. JONES. Statute. In Gofton v. Mill, 2 Vern. 141, Pre. Ch. 9, the will expressly recognized the debt, though the testator mistook its amount. Legastick v. Cowne, Mos. 391, is a direct decision of the point by Lord Macclesfield against this exception. The Vice-Chancellor. The question upon this ex- ception is, whether by this will first giving the personal estate in trust for the payment of debts, and if that should be msuf- ficient, creating an auxiliary fund by the real estate, revived a simple contract debt upon which the Statute of Limitations had operated before the testator's death ; which can be re- vived only by the effect of these clauses in the will ; having never been revived by any promise during the testator's life ; and this being a naked case, stripped of any circumstances showing either that he had at any time recognized these debts, or affording a presumption of payment. The question, there- fore, now comes for determination, generally, what in all cases shall be the effect of a devise of real estate subject to the payment of debts ; that question arising upon debts completely barred before the testator's death ; and the time in no instance unexpired, and running at the time of the tes- tator's death ; but the statute having taken complete effect upon all these debts, and on some probably more than twenty years. It is not necessary to consider the effect of a simple direc- tion to pay the debts out of the personal property, and the argument was properly confined to the effect of the devise of the real estate ; which is not liable to simple contract debts, otherwise than by the will.^ It was contended that if the testa- tor creates a trust of real estate for the payment of his debts, without any particular reference to debts barred by the stat- ute, the rule is universal that all debts standing in that pre- dicament are revived, whatever may be the amount, duration, or other circumstances ; that the devise is to be considered i Now by statute 47 Geo. 3. c. 74, the real estates of traders are assets for debts by simple contract. — Reporter. 205 THE STUDY OF CASES. either as a waiver of the statute or as an acknowledgment that such debts existed and were unpaid. This is certainly a case of very great importance, as it must establisli a general rule upon the effect of this very com- mon clause in a will ; and it is singular that this should still remain vexata qucestio as to the rule of this court, and the in- ference of the intention in creating such a trust, upon which it must depend. The argument was properly founded entirely on authority ; as it is difficult upon principle to conceive that the testator could intend to prescribe to his executors any rule either in admitting or rejecting debts, or to recognize any particular debt as one which had existed and still remained unpaid ; nor is it easy to infer that the creation of a fund for the payment of his just debts can have any operation upon the inquiry, what are his debts, or the mode in which that inquiry is to be prosecuted : but this was represented as a fixed, invariable rule, not yielding to principle, and too firmly estabhshed to admit of exceptions. No case has been cited withm the period of half a century in which such a rule is stated as existing, except for the pur- pose of complaining of it. It was justly observed that those complaints are a recognition of the rule by very high author- ities ; and there is certainly considerable authority for con- cluding that such a rule has been understood as prevailing; that a devise of real estate for the payment of debts would let in debts barred by the Statute of Limitations. It must, however, be remembered that the last time it appears in print, in the case of Oughterloney v. Earl Powis, Amb. 231, Lord Hardwicke did not consider it so established that it should be acted upon without consideration, expressing sur- prise how such a rule could be established. It has received the decided disapprobation of Lord Kenyon and Lord Alvanley ; and it is impossible to read the judgment in Ex parte Dewdney, 15 Ves. 477 ; see p. 497, without perceiv- ing the Lord Chancellor's disapprobation of such rule. To 206 BURKE V. JONES. the floating notion, whicfi has certainly prevailed for a great length of time, countenanced by high authorities, that there is such a rule, must be opposed those authorities I have mentioned ; to which may be added the declaration of a judge very conversant with the law and practice of this court, that there is no such rule as to debts positively barred ; dis- tinguishing the case where the time having commenced the death occurs before it has run out, and then the trust would keep it alive. I have paused upon this case, not from any doubt of the principle, but that I might have an opportunity of communi- cating with Lord Redesdale, and collecting all the infor- mation that could be obtained upon a question of such magnitude, involving a general rule of great importance upon a subject that must very frequently occur ; that it may be settled and pubUcly known if this clause is to have the effect that has been supposed ; or if not, that such a notion as to its operation may no longer remain afloat. With this view I have given the question all possible attention ; I have spared no pains in collecting every case in print, or that I could hear of, bearing upon it ; 1 have traced the history of this supposed rule to its foundation, and have examined to the bottom the authorities on which it has been supported, many in number, and some not very correctly reported, which I have compared with the register's book. I shall go through those authorities. The result is that, though there are many dicta, there is not one case the facts of which are distinctly stated, de- ciding that a debt actually barred by the statute is revived merely by virtue of this clause either as to personal or real estate ; and as to the former, it has not been argued. In almost all the cases there was a recognition of the very debt, either express or by fair inference ; or the death occurred before the statute had actually attached ; and then, according to Lord Redesdale's opinion, a trust being created for creditors, the statute cannot attach ; and the lapse of time forms no bar, 207 THE STUDY OF CASES. The earliest case upon this subject is Gofton v. Mill, Pr. Ch. 9 ; 2 Vera. 141, which is best reported in Precedents in Chancery. It does not appear that the statute was pleaded ; and the very debt was recognized by the will, with some difference as to the amount. That case therefore amounts to nothing, and was not much relied upon. In Salkeld (i Salk. 154) an anonymous case is referred to, supposed to have been decided by Lord Cowper, stating very fully a principle that would justify the argument that has been urged ; that if one by will or deed subjects his lands to the payment of his debts, debts barred by the Statute of Limitations shall be paid, for they are debts in equity ; and the duty remains ; the statute has not extinguished that, though it hath taken away the remedy. I have examined, but can find no trace of this case m the register's book. The note states no facts or circumstances, but mere general propositions, in one of which as to interest beyond the penalty of a bond it is certainly incorrect, being in opposition to repeated decisions. That case seems to be confounded, but does not correspond in date, with Staggers ■V Welby, decided by the Master of the Rolls, and not in print, except aS it is referred to in Blakeway v. The Earl of Strafford, 2 P. Wms. 373 ; and the circumstances which I liave taken from the register's book, so far from forming the foundation of this doctrine, do not in any manner warrant such a rule. Sir Richard Earle, having in 1695 entered into a contract with the plaintiff, a builder, died in 1697, before the work had proceeded far, when the debt could not have been more than two years old, having by his will charged his real estate with the payment of his debts. That charge cre- ating a trust for the creditors when the time had commenced, but before the statute could operate, was clearly within Lord Redesdale's principle : besides that, the defendant Welby, who was the executor and devisee, is stated in the bill to have directed the work to proceed, and to have communi- 208 BURKE V. JONES. cated with, and promised payment to, the plaintiff; and when they differed, two surveyors were employed to ascertain the amount ; and Welby complained of not having an allow- ance for timber furnished by the testator and by himself. The surveyors ascertained the amount at £^1^2 ; and in 1713 Welby died, having by his will subjected the same estate to his own debt and Sir Richard Earle's. The bill praying an account, the executrix admitted the contract and the circumstances I have stated ; and the estimate of the sur- veyors was found, the complaint of Welby in his own hand- writing ; and then the executor insisted upon the statute, and upon an allowance in respect of those items which had not been allowed, as she contended they ought to have been, by the plaintiff; and she filed a cross bill for a discovery. Under these circumstances could a plea of the statute be allowed? The debt was not barred, and had it been barred the conduct of the executrix would have revived it ; yet this is the case represented in Blakeway v. The Earl of Strafford as laying the foundation of this doctrine. There is a case (Andrews v. Brown, Pre. Ch. 358) in 1714, previous to Staggers 7j. Welby, containing duta that go the full length of this argument, and farther : viz., that wherever personal property is given, or there is any written declaration that the debts shall be paid, independent of the will, it shall have this effect ; but the facts by no means warrant that con- clusion. Upon them, without straining to consider the party as advertising for, and expressly inviting debts that were barred, there is a fair acknowledgment of those outstanding debts. The debtor was a fugitive bankrupt. It does not appear that the defendant insisted on the statute : but if he had, the advertisement to all the creditors, all being in the same predicament, must be taken as an invitation and en- gagement to the creditors to whom it was addressed ; and considering how little is sufficient to revive a debt barred by 14 209 THE STUDY OF CASES. the statute, that might have been deemed sufficient as an express recognition of the debts that had been barred. The case of Blakeway v. The Earl of Strafford, 2 P. Wms. 373, which was carried to the House of Lords, is a very im- portant authority ; and the date is material. Considering the facts of that case, it is extraordinary how such a decision as Lord King's could have been made. How could the statute be pleaded, a trust having been created when the debt was clearly existing. The trustees were trustees for that creditor, upon trust to pay that debt. The decision of the House of Lords reversing Lord King's decree is extremely strong; saving the benefit of the plea to the hearing, which, if the mere circumstance of making the will would be an answer to the statute, ought to have been overruled. The effect of the decree with that variation is, that if the party failed in making out the special acknowledgment the will alone would not be an effectual answer to the statute. This is the fair inference from the decision of the House of Lords ; but four years afterwards another case came under the consideration of Lord King, who, aware, as he must have been, of the ground of that reversal, states the principle that governed the House of Lords, — that a plea of the statute is good if there is nothing but a will creating a trust for debts. This case (Le Gastick v. Cowne, Mos. 391) is a most ma- terial authority ; the allowance of the plea being a direct decision of the point by Lord King, who first decided Blake- way V. the Earl of Strafford, and knew the result of that case : stating his knowledge that the Lords were of a different opin- ion from Lord Cowper ; and grounded upon that knowledge his own opinion that generally a trust of real estate by will for the payment of debts will not of itself operate as an answer to the statute. It is, however, proper to observe that in the Register's book (nth July, 1737, Reg. Lib. B.) an impor- tant fact appears which might make a material difference. The debt was contracted in the beginning of 1707, and the 210 BURKE V. JONES. testator died in May, 1712, before the six years had elapsed ; consequently it is open to the observation that the devise was interposed before the six years elapsed. The defendant pleading the statute negatives a demand within six years ; and Lord King, taking the question up generally, as upon the statute and the will, decides without adverting to those special circumstances. This case, which I consider as deriv- ing very considerable authority from the circumstances I have stated, goes the full length of negativing the proposition that the will alone takes a simple contract debt out of the statute. Previous to that case another had intervened (Vaughan v. Guy, Mos. 245) referring to this doctrine : but the facts did not call for a decision to that extent ; sufficiently justifying the court in overruling the plea, the death having occurred before the statute had operation, when therefore a trust was created upon a subsisting debt not barred. The next case is Jones v. The Earl of Strafford, 3 P. Wms. 79, also before Lord King, assisted by Lord Raymond, who thought that ought to take the same course as Blakeway v. The Earl of Strafford, leaving untouched the weight and authority of that decision by the House of Lords. The case of Morse v. Langhara (at the Rolls, i st July, 1737) is not in print ; but I have been favored with manuscript notes of it, — the one I received from the Lord Chancellor, the other from Lord Redesdale. The former represents it as a bill against an executor upon a note given by the testator in 1725, upon which an action was brought in 1736, to which the statute was pleaded. The equity of the bill was, that by a will made a year after the date of the note the testator had devised his estate charged with his debts. The answer, ad- mitting the note, insisted upon the statute. The Master of the Rolls said it was a plain case ; that the debt, though at law barred by the statute, being kept alive by the charge upon the real estate and intended to be paid, was not barred when the will was made, by which the estate was subjected 211 THE STUDY OF CASES. to the debts ; and the House of Lords had, with the advice of all the judges, held that a trust was not barred by the statute. The decree was accordingly pronounced for the plaintiff. I have compared this case with the Register's book, and find that a material fact is omitted in that note, which might make a considerable difference, and proves that case to be no authority upon a debt by simple contract actually barred before the testator's death. I do not rely upon the circum- stance brought forward by this note that the will was made within six years. The time of the death is to be looked to, not that of making the will ; and the time of the death is not stated in the note : but it appears by the Register's book that the plaintiff lent the testator ;£2o upon his note in April, 1726 ; who by his will, made twelve days afterwards, sub- jected his real estate to his debts ; directing the defendant, his son, who was his heir, devisee, and executor, to pay his debts and legacies out of his real and personal estates ; and the answer admitted that the death took place on the 28th of April, 1726 ; the note having been given on the 5th, and the will being made on the i8th. It was clear, therefore, that the statute could not be urged by the trustee against the cestui que trust calling for an account. The creditor died in 1733. The answer contains an admission that might per- haps be considered as an acknowledgment, that would take it out of the statute ; but, independent of that, the circum- stance of the death is quite sufficient. The decree accord- ingly directed an account of the principal and interest due, and payment. The case of Lacon v. Briggs, 3 Atk. 105, as far as regards the facts and the decision, proves to be as little an authority upon this subject ; though Lord Hardwicke, by what he is reported to have said, appears to give considerable counte- nance to the existence of such a rule : but this review of the antecedent cases shows that there is no authority applying 212 BURKE V. JONES. directly to the point, where the statute had actually attached. If the reference to Lord Strafford's case as establishing the rule is to be considered as made by Lord Hardwicke, it is extraordinary, when Lord King had on the authority of that case decided against that rule ; and ten years afterwards Lord Hardwicke himself, so far from considering the rule so settled by Lord Strafford's case, refers to it as having shaken the doctrine. The next case is Oughterloney v. Earl Powis, Amb. 231, and there Lord Hardwicke's language is very different. He dismissed the bill, presuming satisfaction, which removes all the effect of the virtual acknowledgment ; but in addition to that, this case shows that Lord Hardwicke certainly did not consider the doctrine established, referring expressly to Lord Strafford's case as having considerably shaken the authority of former determinations. The case of Ketelby v. Ketelby, 2 Dick. 512, cited 2 Anstr. 527, from the expression where it is mentioned in Anstruther, might be supposed to involve this question ; but upon examining the Register's book I find that the only point was that upon the exceptions with reference to interest, and the distinction in that respect Between creditors by bond and simple contract ; and there is no trace of this point either decided or raised, nor upon the circumstances could it have arisen. There is a dictum of Lord Mansfield (Cowp. 548, Trueman V. Fenton) showing his conception of this doctrine of a court of equity, and that such an idea had been afloat upon this subject ; which is abundantly proved : but the principle and authorities had not been then examined. In The Executors of Fergus v. Gore, i Sch. & Lefroy, 109, Lord Redesdale, when this point was drawn to his attention, expresses his doubt whether there ever was such a decision as that reported in Blakeway v. The Earl of Strafford, and lays down this clear rule : " That a devise in trust for payment of debts does 213 THE STUPV OF CASES. not prevent setting up the statute, if the time had run before the testator's death ; for if it has run in the life of the testa- tor the debts are presumed to be paid : but where a pro- vision is made by will for payment of debts, the statute does not run after the death of the testator. It is an acknowledg- ment of the debt." Though this is not the point decided, Lord Redesdale's declaration may be opposed to those of his predecessors. The only case remaining to be noticed is Ex parte Dewd- ney, 15 Ves. 477; not a direct decision, but showing the Lord Chancellor's impression upon this point. I applied to the Lord Chancellor for the case before Sir Thomas Sewell, to which his Lordship refers. The note states merely that Sir Thomas Sewell held that a bond debt supposed to be satisfied was revived by the trust ; but that was afterwards re- versed by the Lord Chancellor, — a strong authority against this argument ; the judgment of the Master of the Rolls sus- taining the debt against the presumption from length of time, being overruled by the Lord Chancellor. I have now gone through all the cases that are to be found in print or manuscript upon this important question ; and the result is, that there is not one in which this doctrine has been established to the full extent that has been contended : that it rests simply upon dicta, opposed by dicta, and has been disapproved by every judge from the time of Lord Hardwicke ; that it is contrary to the decision in Legastick V. Cowne, Mos. 391, and to the final decision in Lord Straf- ford's Case, followed by the ultimate decision of Lord King, who first determined that case, and substantially contradicted by every subsequent authority. If the question is to be considered still open upon the conflicting authorities, how does it stand upon principle? It must depend upon that which alone can subject a real estate to debts by simple contract ; the intention : in this instance an intention most absurd, rash, and destructive to the estate ; 214 BURKE V. JONES. declaring openly that his executor is not to set up the statute against any demand incurred by simple contract during his whole life ; inviting stale demands. His meaning must be taken to be only what shall turn out to be his just debts. There is no direction for any inquiry as to the amount, na- ture, reality, extent, or whether there had been any payment. The executor is not directed expressly to plead the statute, nor is there any implication of such intention ; but it is to take the ordinary course ; his debts are to be discharged, but the investigation of them is left to the executor under the direction of the courts of law and equity. If a devise of this kind can have the effect contended, the statute would be a snare to those who, relying on it, might after six years de- stroy their vouchers. The notion that these are compre- hended under the description " just debts," as still subsisting in Joro conscientue, is petitio principii. The statute, which was made for the benefit of those who may have paid but have not the means of proving it, upon general principles, for the quiet and peace of mankind, does not permit a demand of debt beyond its limits to be enforced upon the possibility that it may still be undischarged. The plain line is, that the testator intends the courts of law and equity to determine what are just debts, leaving his executor at liberty tp use all means of resistance prescribed or allowed by the law ; thus encouraging provisions for creditors by the assurance of a protection to the assets against demands which the testator himself coiild have resisted, who, relying on the statute, may have destroyed his vouchers. The conclusion is, that this doctrine, standing upon an unnatural conjecture as to the intention, pregnant with dan- ger and injury, by inviting stale demands and discouraging provisions for the payment of debts, ought not, unless estab- lished by authority, to stand as the rule ; and I have endeav- ored to show that there is no decision that a devise for the payment of debts has the effect of reviving debts barred by 215 THE STUDY OF CASES. the statute before the death of the devisor ; but they are left open to examination by all the means which the rules of law and equity admit. The exceptions were overruled} Case 12. — Hilliard v. Richardson. MILLIARD V. RICHARDSON. Supreme Judicial Court of Massachusetts, 1856. [3 Gray, 349.] Action of tort to recover damages for an injury sustained by the plaintiff while driving upon a highway in the City of Cambridge. Trial before Merrick, J., who reported the case, after a verdict for the plaintiff, for the consideration of the full court. The evidence tended to prove the following facts : Between the hours of five and six in the afternoon of December 5, 1851, the plaintiff was driving in a wagon in and through said highway, when the horse suddenly took fright at a pile of boards lying by the side of the way, but within its limits, bolted from his course, and carried the wheel of the wagon violently against a post near the edge of the sidewalk, whereby the plaintiff was thrown violently from the wagon, and seriously injured. The boards were placed there the same afternoon, and not long before the occurrence of the accident, by a teamster, acting under the direction of Lewis Shaw, with the intention of allowing them to remain till the morning of the next day, and then removing them to the land adjoining the highway. This land, and the buildings upon it, belonged to the defendant, and were in his posses- sion, except so far as they were occupied by Shaw in the execution of a written contract with the defendant, and under ^ See §§ 35, 37, 39-41, S3, 55-56, 58-59, 66, 68, 73-79, 93-96. The Vice-Chancellor was Sir Thomas Plumer. 216 HILLIARD V. RICHARDSON. license from him. By that contract, Shaw agreed, for a specific price, and before a day named, to alter a certain paper factory into two dwelling-houses, according to a plan and specifications annexed to the contract, and to make cer- tain repairs thereon, and to furnish all tjie requisite materials. The defendant also gave Shaw license to use, while he should be engaged in the execution of the contract, one of the buildings upon the land to shape and finish work for buildings of his own, in which the defendant had no interest. Shaw procured the boards and brought them to the place, chiefly for the purpose of using them in the alteration of the defendant's buildings, under the written contract, and was, at the time of the accident, actually engaged in the execution of that contract. The presiding judge instructed the jury, among other things, that " the act of laying and leaving the boards in the highway by Shaw must, for the purposes of this action, be deemed the act of the defendant ; " and that, " as the boards at which it was alleged that the horse took fright, were procured by Shaw, to be used, in whole or in part, in per- formance and execution of the written contract between him and the defendant, and were materials necessary therefor, the defendant was responsible for the acts of Shaw, in placing the boards in the highway, and suffering them to remain there ; and that his liabihty in relation thereto was in all respects the same as the liability of Shaw." C. G. Loring, for the defendant. R. Choate <&» /. W. May, for the plaintiff. The decision was made at March term, 1856. Thomas, J. The questions raised by the report are upon the instructions given by the presiding judge to the jury. The material question, that upon which the case hinges, is whether, upon the facts reported, the defendant is liable for the acts and for the negligence and carelessness of Shaw. In looking upon the case reported, it is to be observed, 217 THE STUDY OF CASES. ist. That the acts done by Shaw, and which are charged as negligence, were not done by any specific direction, or order, or request of the defendant. 2dly. That between the defendant and Shaw the ordinary relation of master and servant did not exist, srdly. That the acts done, and which are charged as negUgence, were not done upon the land of the defendant. They did not consist in the creating or suffering of a nuisance upon his own land, to the injury of another. 4thly. That the boards placed in the highway were not the property of the defendant ; that he had no interest in them, and could exercise no control over them. Sthly. That the defendant did not assume to exercise any control over them. 6thly. That there is no evidence of any purpose on the part of the defendant to injure the plaintiff, or anybody else, or so to use his property, or suffer it to be so used, as to occasion an injury. Was the defendant liable for the negligent acts of Shaw in the use of the highway? As a matter of reason and justice, if the question were a new one, it would be difificult to see on what solid ground the claim of the plaintiff could rest. But he says that such is the settled law of this commonwealth, and that the question is now no longer open for discussion. Three cases are especially relied upon by the plaintiff', as settling the rule in Massachusetts. They are Stone 7'. Cod- man, 15 Pick. 297 ; Lowell v. Boston & Lowell Railroad, 23 Pick. 24; and Earle v. Hall, 2 Met. 353. Stone V. Codman was this : The defendant employed one Lincoln, a mason, to dig and lay a drain from the defendant's stores, in the city of Boston, to the common sewer. By reason of the opening made by Lincoln and the laborers in his employment, water was let into the plaintiff's cellar, and his goods were wet. i. Lincoln procured the materials and hired the laborers, charging a compensation for his services and disbursements. 2. The acts causing the injury to the plaintiffs goods were done upon the defendant's land, and in 218 HILLIARD V. RICHARDSON. the use of it for the defendant's benefit. 3. There was no contract, written or oral, by which the work was to be done for a specific price, or as a job. 4. The case is expressly put upon the ground that between the defendant and Lincoln the relation of master and servant existed. The Chief Justice, in delivering the opinion of the court, said : " Without re- viewing the authorities, and taking the general rule of law to be well settled, that a master or principal is responsible to third persons for the negligence of a servant, by which damage has been done, we are of opinion that, if Lincoln was employed by the defendant to make and lay a drain for him, on his own land, and extending thence to the public drain, he (Lincoln) procuring the necessary materials, employing laborers, and charging a compensation for his own services and his disbursements, he must be deemed, in a legal sense, to have been in the service of the defendant, to the effect of rendering his employer responsible for want of skill, or want of due diligence and care ; so that, if the plaintiff sustained damage by reason of such negligence, the defendant was responsible for such damage." The case well stands on the relation of master and servant. The work was under the control of the defendant. He could change, sus- pend, or terminate it, at his pleasure. Lincoln was upon the land with only an imphed license, which the defendant could at any moment revoke. The work was done by Lincoln, not on his own account, but on the defendant's. The defendant was indeed acting throughout by his servants. The injury was done by the escape of water from land of the defendant to that of the plaintiff, which the defendant could have and was bound to have prevented. The second case relied upon by the plaintiff is that of Lowell V. Boston & Lowell Railroad, 23 Pick. 24. In a previous suit (Currier v. Lowell, 16 Pick. 170), the town of Lowell had been compelled to pay damages sustained by Currier by reason of a defect in one of the highways of the 219 THE STUDY OF CASES. town. That defect was caused in the construction of the railroad of the Boston & Lowell Company. It consisted in a deep cut through the highway, made in the construction of the railroad. Barriers had been placed across the highway, to prevent travellers from falling into the chasm. It became, in the construction of the railroad, necessary to remove the barriers, for the purpose of carrying out stone and rubbish from the deep cut. They were removed by persons in the employ of the corporation, who neglected to replace them. Currier and another person, driving along the highway in the night time, were precipitated into the deep cut, and seriously injured. Currier brought his action against the town of Lowell, and recovered damages. This action was to recover of the railroad corporation the amount the town had heSn so compelled to pay. The railroad corporation denied their responsibility for the negligence of the persons employed in the construction of that part of the railroad where the accident took place, because that section of the road had been let out to one Noonan, who had contracted to make the same for a stipulated sum, and had employed the work- men. This defence was not sustained ; nor should it have been. The defendants had been authorized by their charter to construct a railroad from Boston to Lowell, four rods wide through the whole length. They were authorized to cross turnpikes or other highways, with power to raise or lower such turnpikes or highways, so that the railroad, if necessary, might pass conveniently over or under the same. St. 1830, c. 4, §§ I, II. Now it is plain that it is the corporation that are intrusted by the legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they cannot escape this responsibility by a delega- tion of this power to others. The work was done on land appropriated to the purpose of the railroad, and under ■ authority of the corporation vested in them by law for the 220 MILLIARD V. RICHARDSON. purpose. The barriers, the omission to replace which was the occasion of the accident, were put up and maintained by a servant of the corporation, and by their express orders ; and that servant had the care and supervision of them. The accident occurred from the negUgence of a servant of the railroad corporation, acting under their express orders. The case, then, of Lowell v. Boston & Lowell Railroad stands perfectly well upon its own principles, and is clearly distin- guishable from the case at bar. The court might well say, that the fact of Noonan being a contractor for this section did not relieve the corporation from the duties or respon- sibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant, acting under their orders. The only respect, it seems to us, in which this case aids the doctrine of the plaintiff, is that the learned judge who delivered the opinion of the court cites with approbation the case of Bush v. Steinman, c Bos. & Pul. 404, as "fully supported by the authorities and by well established prin- ciples." It is sufficient to remark, in passing, that the decision of the case before the court did not involve the correctness of the rule in Bush v. Steinman. The case of Earle v. Hall, 2 Met. 353, is the third case cited by the plaintiff, as affirming the doctrine upon which he relies. Hall agreed to sell land to one Gilbert. Gilbert agreed to build a house upon and pay for the land. While the agreement was in force, Gilbert, in preparing to build the house on his own account, by workmen employed by him alone, undermined the wall of the adjoining house of the plaintiff. It was held that Hall was not answerable for the injury, although the title to the land was in him at the time the injury was committed. The general doctrine is stated to be, that we are not merely to inquire who is the general owner of the estate, in ascertaining who is responsible for acts done upon it injurious to another; but who has the 221 THE STUDY OF CASES. efficient control, for whose account, at whose expense, under whose orders is the business carried on, the conduct of whicli has occasioned the injury. The case of Bush v. Steinman is cited as a leading case, " very peculiar, and much discussed ; " but we do not perceive that the point it decides is affirmed. The general scope of the reasoning in Earle v. Hall, as well as the express point decided, are adverse to it. These cases, neither in the points decided nor the prin- ciples which they involve, support the rule contended for by the plaintiff. But the plaintiff says that the well-known case of Bush v. Steinman is directly in point, and that that case is still the settled law of Westminster Hall. If so, as authority, it would not conclude us ; though, as evidence of the law, it would be entitled to high consideration. Upon this case of Bush v. Steinman three questions arise : I. What does it decide? 2. Does it stand well upon author- ity or reason ? 3. Has its authority been overthrown or substantially shaken and impaired by subsequent decisions? 1. The case was this : A, having a house by the roadside, contracted with B to repair it for a stipulated sum ; B con- tracted with C to do the work ; C with D to furnish the materials ; the servant of D brought a quantity of lime to the house, and placed it in the road, by which the plaintiffs carriage was overturned. Held, that A was answerable for the damage sustained. 2. At the trial, Chief Justice E)Te was of opinion that the defendant was not answerable for the injury. In giving his opinion at the hearing in banc, he says he found great diffi- culty in stating with accuracy the grounds on which the action was to be supported ; the relation of master and ser- vant was not sufficient ; the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seemed to be too large and loose. He relied, as authorities, 222 MILLIARD V. RICHARDSON. upon three cases only: Stone v. Cartwright, 6 T. R. 411 ; Littledale v. Lonsdale, 2 H. Bl. 267 ; and a case stated upon the recollection of Mr. Justice Buller. Stone V. Cartwright lays no foundation for the rule in Bush V. Steinman. The decision was but negative in its character. It was, that no action would lie against a steward, manager or agent, for the damage of those employed by hira in the service of his principal. This is the entire point decided. Lord Kenyon said : " I have ever understood that the action must be brought against the hand committing the injury, or against the owner for whom the act was done." The injury complained of was done upon the land of the defendant, and by his servants. It consisted in so negligently working the defendant's mine as to undermine the plaintiff's ground and buildings above it, so that the surface gave way. The mine was in the possession and occupation of the defendant ; the injury was direct and immediate; the workmen were the servants of the owner. The case of Littledale v. Lonsdale, in its main facts, cannot be distinguished from Stone v. Cartwright. It stands upon the same grounds. The defendant's steward employed the underworkmen. They were paid out of the defendant's funds. The machinery and utensils belonged to the defendant, and all the persons employed were his immediate servants. The third case was but this : A master having employed his servant to do some act, this servant, out of idleness, employed another to do it ; and that person, in carrying into execution the orders which had been given to the servant, committed an injury to the plaintiff, for which the master was held liable. What was the nature of the acts done does not appear. And whether the case was rightly decided or not, it is difficult to see any analogy between it and the case the lord chief justice was considering. Mr. Justice Heath referred to the action for defamation brought against Tattersall, who was the proprietor of a news- 223 THE STUDV OF CASES. paper with sixteen otiiers. The libel was inserted by the persons whom the proprietors had employed by contract to collect the news and compose the paper, yet the defendant was held liable. It would seem to be not very material who composed the paper, but who owned and published it. Mr. Justice Heath also cited, as in point, the case of Rose- well V. Prior, 2 Salk. 460, which was an action upon the case for obstructing ancient lights. The defendant had erected upon his land the obstruction complained of. There had been a former recovery for the erection ; this suit was for the continuance. The premises of the defendant had been leased. The question was, whether the action would lie for the continuance after his lease. " Et per cur. It lies; for he transferred it with the original wrong, and his demise affirms the continuance of it ; he hath also rent as a consider- ation for the continuance, and therefore ought to answer the damage it occasions." Mr. Justice Rooke, in addition to the cases of Stone v. Cartwright, and Litdedale v. Lonsdale, alluded also to the case of Michael v. Alestree, 2 Lev. 172, in which it was held that an action might be maintained against a master for damage done by his servant to the plaintiff in exercising his horses in an improper place, though he was absent, because it should be intended that the master sent the servant to exer- cise the horses there. See Parsons v. Wincheli, 5 Cush. 595. The examination of these cases justifies the remark that Bush V. Steinman does not stand well upon the authorities, and is not a recognition of principles before that time settled. The rule it adopts is apparently for the first time announced. Does it stand well upon the reasoning of the court? We think all the opinions given in it lose sight of these two important distinctions : In the cases cited and relied upon, the acts done, which were the subjects of complaint, were either acts done by servants or agents under the efficient control of the defendants, or were nuisances created upon 224 HILLIARD V. RICHARDSON. the premises of the defendants, to the direct injury of the estate of the plaintiffs. The servant of the limeburner was not the servant of the defendant; over him the defendant had no control whatsoever ; to the defendant he was not responsible. There was no nuisance created on the defend- ant's land. It does not appear that the defendant owned the fee of the highway. The case is put on the ground that the lime was put near the premises of the defendant, and with a view of being carried upon them. The lime was not on the defendant's land. ; he did not direct it to be put there; he had not the control of the man who put it there. Mr. Justice Heath said : " I found my opinion on this single point, viz., that all the subcontracting parties were in the employ of the defendant." This is not so, unless it be true that a man who contracts with a mason to build a house employs the servant of the man who burns the lime. Mr. Justice Rooke said : " The person from whom the whole authority is originally derived, is the person who ought to be answerable, and great inconvenience would follow if it were otherwise." It cannot be meant that one who builds a house is to be responsible for the negligence of every man and his servants who undertakes to furnish materials for the same. Such a rule would render him liable for the most remote and inconsequential damages. But the act com- plained of did not result from the authority of the defendant. The authority under which the servant of the limeburner acted was that 6f his master. And neither the limeburner nor his servant was acting under the authority of the defend- ant, or subject to his control. The defendant might, with the same reason, have been held liable for the carelessness of the servant who burnt the lime, and of tlie servant of the man who furnished the coals to burn the lime. 3. Has the doctrine of the case of Bush v. Steinman been affirmed in England, or has it been overruled and its authority impaired ? IS 225 THE STUDY OF CASES. The plaintiff cites tlie case of Sly v. Edgely, at Nisi Priiis, 6 Esp. R. 6. The defendant, with others, then owning several houses, the kitchens of which were subject to be over- flowed, employed a bricklayer to sink a large sewer in the street. The bricklayer opened the sewer and left it open, and the plaintiff fell in. It was contended that the bricklayer was not the servant of the defendant. He was employed to do a certain act, and the mode of doing it, which had caused the injury, was certainly his own. Lord EUenborough is reported as saying, "It is the rule of respondeat superior; what the bricklayer did, was by the defendant's direction.'' It does not appear how the bricklayer was employed. If not by independent contract, the case stands very well on the relation of master and servant. A case at Nisi Prius, so im- perfectly reported, can have but little weight. Another case at Nisi Prius was that of Matthews v. West- London Water Works, 3 Campb. 403, in which the defend- ants, contracting with pipelayers to lay down pipes for the conveyance of water through the streets of the city, were held liable for the negligence of workmen employed by the pipe- layers. The case is very briefly stated, and no reasons, given by Lord EUenborough for his opinion, reported. It may stand on the ground that the defendants, having a public duty to discharge, as well as right given, could not delegate this trust, so as to exempt themselves from responsibility. This case is alluded to in Overton v. Freeman, 11 C. B. 872, hereafter to be examined, where Maule, J , makes the follow- ing remarks concerning it : " That is but a Nisi Prius case ; the report is short and unsatisfactory ; and the particular circumstances are not detailed." In Harris v. Baker, 4 M. & S. 27, and in Hall v. Smith, 2 Bing. 156, it was held that trustees- or commissioners, entrusted with the conduct of public works, were not liable for injuries occasioned by the negligence of the workmen employed under their authority. These cases stand upon 226 HILLIARD V. RICHARDSON. the ground that an action cannot be maintained against a man acting gratuitously for the public, for the consequences of acts which he is authorized to do, and which on his part are done with due care and attention. They give no sanction whatever to the doctrine of Bush v. Steinman. In Randleson v. Murray, 8 Ad. & El. 109, a warehouse- man in Liverpool employed a master porter to remove a barrel from his warehouse. Through the negligence of his men the tackle failed, and the barrel fell and injured the plaintiff. Held, that the warehouseman was liable. The case is put distinctly on the relation of master and servant. Lord Denman said : " Had the jury been asked whether the porters, whose negligence occasioned the accident, were the servants of the defendant, there can be no doubt they would have found in the affirmative." The injury occurred also in the direct use of the defendant's estate. In Burgess v. Gray, i C. B. 578, the defendant, owning and occupying premises adjoining the highway, employed one Palmer to make a drain from his land to the common sewer. In doing the work, the men employed by Palmer placed gravel on the highway, in consequence of which the plaintiff, in driving along the road, sustained a personal iniury. There was evidence that, upon the defendant's attention being called to the gravel, he promised to remove it. The matter left to the jury was whether the defendant wrongfully put, or caused to be put, the gravel on the high- way. " I think," says Tindal, C. J., " there was evidence to leave to the jury in support of that charge. If, indeed, this had been the simple case of a contract entered into between Gray and Palmer, that the latter should make the drain and remove the earth and rubbish, and there had been no per- sonal superintendence or interference on the part of the former, I should have said it fell within the principle con- tended for by my Brother Byles, and that the damage should be made good by the contractor, and not by the individual 227 THE STUDY OF CASES. for whom the work was done." After adverting to the ei'idence that the soil was placed upon the road with the defendant's consent, if not by his express direction, he says : " I therefore think the case is taken out of the rule in Bush v. Steinman, which is supposed to be inconsistent with the later authorities." Coltman, J., said : " I think there was evidence enough to satisfy the jury that the entire control of the work had not been abandoned to Palmer." Cresswell, J., said: " No precise contract for the work was proved ; nor was it shown that Palmer was employed to do the work personally, the mode of doing it being left to his judgment and dis- cretion. 1 think there was abundant evidence to show that the defendant at least sanctioned the placing of the nuisance on the road." Erie. J., said : " The work was done with th^ knowledge of the defendant, and under his superintendence, and for his benefit." This well-considered case, it is plain, so far from affirming the rule in Bush v. Steinman, is care- fully and anxiously taken out ot it by the counsel, and by the court, with the strongest intimation by the latter, that, but for the difference, the action could not be maintained. The latest case in England referred to in the learned argu- ment of the plaintiffs counsel, as affirming the doctrine of Bush 7). Steinman, is Sadler v. Henlock, in the Queen's Bench (1855), 4 El. & Bl. 570. The defendant, with the consent of the owner of the soil and the surveyor of the dis- trict, employed one Pearson, a laborer, but skilled in the construction of drains, to cleanse a drain running from the defendant's garden under the puWic road, and paid five shillings for the job. Held, that the defendant was liable for an injury occasioned to the plaintiff by reason of the negli- gent manner in which Pearson had left the soil of the road over the drain. The case is put by all the judges distinctly on the relation of master and servant. And Crompton, J., said : " The test here is, whether the defendant retained the power of controlling the work. No distinction can be 228 HILLIARD V. RICHARDSON. drawn from the circumstance of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and con- tractee. It is only on the ground of a contractor not being a servant that I can understand the authorities.'' The case of Bush V. Steinraan is not referred to by either of the justices ; but the distinction of servant and contractor runs through the whole case, — a distinction which is wholly incon- sistent with the doctrine of Bush v. Steinman. In Laugher v. Pointer, 5 B. & C. 547, and 8 D. & R. 556 (1826), where the owner of a carriage hired of a stablekeeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to the horse of a third person, it was held by Lord Tenterden, C. J., and Littledale, J., that the owner of the carriage was not liable for such injury ; Bayley and Holroyd, Justices, dissenting. This case is, in substance, the one put by Mr. Justice Heath, in illustration and support of the judgment in Bush v. Steinman. In the opinions of Lord Tenterden and of Littledale, J., the doctrines of Bush v. Steinman, in their application to personal property, are examined, and their soundness questioned. In Quarman v. Burnett, 6 M. & W. 499 (1840), the same question arose in the Exchequer as in Laugher v. Pointer in the King's Bench, and the opinions of Lord Tenterden and Littledale, J., were affirmed, in a careful opinion pro- nounced by Baron Parke. In the course of it, he says : "Upon the principle that qui facit per alium facit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in the relation of master to the wrongdoer, — he who had selected him as his servant, from the knowledge of or belief in his skill and care and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or inter- 229 THE STUDY OF CASES. mediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist." These cases, however, do not overrule Bush v. Steinman, as to the liability of owners of real estate. The case of Milligan v. Wedge, 12 Ad. & El. 737, and 4 P. & Dav. 714 (1840), is also in relation to the use of personal property, and rests upon the rule setded in Quarman V. Burnett. But in this case Lord Denman suggests a doubt whether the distinction as to the law in cases of fixed and movable property can be relied on. The case of Rapson v. Cubitt, 9 M. & W. 710 (1842), was this : The defendant, a builder, employed by the com- mittee of a club to make certain alterations at the club- house, employed a gasfitter by a subcontract to do that part of the work. In the course of doing it, by the negligence of the gasfitter, the gas exploded and injured the plaintiff. Held, that the defendant was not liable. The reasons upon which this decision is based do not well consist with the rule in Bush v. Steinman. The case of Allen v. Hayward, 7 Ad. & El. N. R. 960 (1845), is still more directly adverse. But we pass from these to cases directly in point. In the cases of Reedie & Hobbit v. London & North- western Railway, 4 Exch. 244, 254 (1849), the defendants, empowered by act of parliament to construct a railway, con- tracted under seal with certain persons to make a portion of the line, and, by the contract, reserved to themselves the power of dismissing any of the contractors' workmen for incompetence. The workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing beneath, along the highway, by allowing a stone to fall upon him. In an action against the company, it was held 230 HILLIARD V. RICHARDSON. that they were not liable, the terras of the contract making no difference. In the judgment of the court, given by Baron Rolfe (now Lord Chancellor Cranworth), alluding to the supposed distinction as to real property, the court say : " On full consideration, we have come to the conclusion that there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to a nuisance ; and, in fact, that, according to the modern decisions. Bush v. Stein- man must be taken not to be law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded." Without sanctioning this doctrine, as it affects a public trust, it is very plain that it directly over- rules the doctrine of Bush v. Steinraan. The case of Knight v. Fox, 5 Exch. 721 (1850), is, if possible, a stronger case in the same direction, — a decision which it is plain could not have been made if the doctrines of Bush V. Steinman were the law of Westminster Hall. There are three cases remaining. In Overton 7). Freeman, II C. B. 867 (1851), A contracted to pave a district, and B entered into a subcontract with him to pave a particular street. A supplied the stones, and his carts were used to carry them. B's men, in the course of the work, negligently left a heap of stones in the street. The plaintiff fell over them and broke his leg. It was held, that A was not liable, even though the act complained of amounted to a public nuisance. And Maule, J., said that the case of Bush v. Steinman " has been considered as having laid down the law erroneously." In Peachey v. Rowland, 13 C. B. 182 (1853), the defend- ants contracted with A to fill in the earth over a drain which was being made for them across a portion of the highway from their house to the common sewer. A, after having filled it in, left the earth so heaped above the level of the highway as to constitute a public nuisance, whereby the plaintiff, in driving along the road, sustained an injury. The case had 231 THE STUDY OF CASES. this other feature : A few days before the accident, and before the work was finished, one of the defendants had seen the earth so heaped over a portion of the drain ; but beyond this there was no evidence that either defendant had interfered with or exercised any control over the work. It was held there was no evidence to go to the jury of the defendants' liability. Bush v. Steinman appears not to have been cited by counsel or alluded to by the court. The gtill more recent case of Elhs v. Sheffield Gas Con- sumers' Co. 2 El. & Bl. 767 (1853), cited by the counsel for the plaintiff, only determined that a party employing another to do an act unlawful in itself will be liable for an injury such act may occasion, — very familiar and well settled law. Bush V. Steinman is no longer law in England. If ever a case can be said to have been overruled, indirectly and directly, by reasoning and by authority, this has been. No one can have examined the case without feehng the difficulty of that clear-headed judge, Chief Justice Eyre, of knowing on what ground its decision was put. It could not stand on the relation of master and servant. That relation did not exist. It could not stand upon the ground of the defendant having created or suffered a nuisance upon his own land to the injury of his neighbor's property. The lime was on the high- way. There is no rule to include it but the indefinitely broad and loose one that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, — a rule which ought to have been and was expressly repudiated. The case of Leslie v. Pounds, 4 Taunt. 649, not cited in the argument, has some resemblance to the cases before referred to. This was an action against the landlord of a house leased, who, under contract with the tenant, who was bound to repair, employed workmen to repair the house, and super- intended the work. Being remonstrated with by the commis- 232 MILLIARD V. RICHARDSON. stoners of pavements as to the dangerous state of the cellar, he promised to take care of it, and had put up some boards temporarily as a protection to the public. They proved insufficient, and the plaintiff falling through, the landlord was held liable. The case was decided on the ground that the landlord was making the repairs, and that the workmen were employed by him, and were his servants. The suggestion is made that, whatever may be the result of the later cases in England, the doctrine of Bush v. Stein- man has been affirmed in this country. The cases in this court we have aleady examined. The case of Bailey v. Mayor, &c. of New York, 3 Hill, 531, and 2 Denio, 433, was an action brought against the corpo- ration of New York, for the neghgent and unskilful construc- tion of the dam for the water-works at Croton River, by the destruction of which, injury was occasioned to the mills of the plaintiff. The city was held responsible. This case rests well upon the ground that where persons are invested by law with authority to execute a work involving ordinarily the exercise of the right of eminent domain, and always affecting rights of third persons, they are to be liable for the faithful execution of the power, and cannot escape responsibility by delegating to others the power with which they have been intrusted. Blake v. Ferris, i Seld. 48, seems to conflict with Bailey v. Mayor, &c. of New York. Certain persons were permitted to construct a public sewer at their own expense ; they employed another person to do it at an agreed price for the whole work ; the plaintiffs received an injury from the negli- gent manner in which the sewer was left at night. It was held that the persons who were authorized to make the sewer were not responsible for the negligence of the servants of the contractor. This case utterly rejects the rule of Bush v. Steinman. The case of Stevens v. Armstrong, 2 Seld. 435, was this : 233 THE STUDY OF CASES. A bought a heavy article of B, and sent a porter to get it ; by permission of B, the porter used his tackle and fall ; through negligence, the porter suffered the article to drop, by which C was injured. It was held, that the porter acted as the servant of A, and that B was not answerable. Yet this was an injury done on B's estate, by his permission, and in the use of his property. This case also rejects the rule of Bush v. Sieinman. In Lesher v. Wabash Navigation Co., 14 111. 85, where a corporation was authorized to take materials to construct public works, and contracted with others to do the work and find the materials, and the contractors nevertheless took the materials under the authority granted to the corporation, the corporation were held liable therefor. If the court could find that the materials were taken under the authority of the cor- poration, the case will stand perfectly well under the rule of Lowell V. Boston & Lowell Railroad, and Bailey v. Mayor, &c. of New York, The cases of Willard v. Newbury, 22 Verm. 458, and Batty V. Duxbury, 24 Verm. 155, rest on the same principles. In the case of Wiswall v. Brinson, 10 Ired. 554, the court held an owner of real estate responsible for the negligence of the servants of a carpenter with whom the defendant had contracted, for a stipulated price, to remove a barn on to his premises. This case (in which, however, there was a divided judgment, Ruffin, C. J., dissenting in a very able opinion), certainly sustains the doctrine of Bush v. Steinman. De Forrest v. Wright, 2 Mich. 368, not cited, is in direct conflict with the rule of Bush v. Steinman. A public, licensed drayman was employed to haul a quantity of salt from a warehouse, and deliver it at the store of the employer at so much a barrel. While in the act of delivering it, one of the barrels, through the carelessness of the drayman, rolled against and injured a person on the sidewalk. It was held, that the employer was not liable for the injury, the drayman 234 BILLIARD V. RICHARDSON. exercising a distinct and independent employment, and not being under the immediate control and direction or super- vision of the employer. This is a well considered case, re- jecting the rule of Bush v. Steinman, and sanctioning tlie result to which we have been brought in the case at bar. We have thus, at the risk of tediousness, examined the case at bar as one of authority and precedent. The clear weight and preponderance of the authorities at common law is against the rule given to the jury. The rule of the civil law seems to have limited the liability to him who stood in the relation of paterfamilias to the person doing the injury. Inst. hb. 4, tit. 5, §§ i, 2 ; i Do- mat, pt. 1, lib. 2, tit. 8, § I ; Dig. lib. 9, tit. 2, § i. Viewing this as a question, not of authority, but to be determined by the application to these facts of settled prin- ciples of law, upon what principle can the defendant be held responsible for this injury? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defend- ant, or upon land to which, upon the facts, he had any title. To say that a man shall be liable for injuries resulting from acts done near to his land, is to establish a rule as uncertain and indefinite as it is manifestly unjust. It is to make him liable for that which he cannot forbid, prevent, or remove. The case cannot stand on the relation of master and servant. It cannot stand upon the ground of nuisance erected by the owner of land, or by his license, to the injury of another. It cannot stand upon the ground of an act done in the execu- tion of a work under the public authority, as the construction 235 THE STUDY OF CASES. of a railroad or canal, and from the responsibility, for the careful and just execution of which, public pohcy will not permit the coporation to escape by delegating their power to others. It can only stand, where Bush v. Steinman, when carefully examined, stands, upon the general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, — to adopt which would be to ignore all limitations of legal responsibility. As the determination of this, the first and most material of the exceptions, may probably finally dispose of the cause, we have not considered the other points of exception to the rulings of the presiding judge. New trial granted} Case 13. — In re Walker. In re walker. SHEFFIELD BANKING COMPANY v. CLAYTON. Chancery Division. 1892. [(1892) I Ch. 621.] Further consideration. This was an action to administer the estate of Hugh Walker, deceased. On the 7th of May, 1885, the testator guaranteed the cur- rent account of Messrs. Spencer Brothers, of Sheffield, with the Sheffield and Rotherham Banking Company, Limited, to the extent of ;^ 1,000. By an indenture, dated the ist of August, 1885, Arthur Spencer, a member of the firm of Spencer Brothers, in con- sideration of the above-mentioned guarantee, assigned to the testator by way of mortgage, but subject to a previous mort- gage, certain hereditaments at Sheffield, and covenanted to ' See §§ 5, 7-10, 18, 25, 4t, 45, 53, 56, 58-60, 63, 66, 68-74, 84-97- 236 IN RE WALKER. indemnify the testator in respect of his guarantee. On the 5th of July, 1886, the testator gave to the London and York- shire Bank, Limited, to whom the banking account of Spencer Brothers was then transferred, a guarantee to secure the pay- ment of all moneys then or thereafter payable to the said bank by the firm of Spencer Brothers, not exceeding ^1,000. On the same date Agnes Spencer, the wife of Arthur Spencer, as a security against this guarantee, executed to the testator a memorandum of deposit of tide deeds, relating to certain property belonging to her, and by a further memorandum dated the i8th of August, 1886, in which her husband also joined, Mrs. Agnes Spencer agreed to execute a legal mort- gage to the testator of the property comprised in the equit- able mortgage to secure the said sum of ^1,000 and interest. On the 9th of September, 1887, the banking account of Spencer Brothers was, with the approbation of Agnes Spencer, transferred to the plaintiffs, the Sheffield Banking Company, Limited, and on the same date the testator, with the full knowledge and approbation of Mrs. Spencer, gave the follow- ing guarantee to the plaintiffs: "In consideration that you will make advances and grant other accommodation at your discretion to the firm of Spencer Brothers, of Sheffield Moor, Sheffield, wholesale grocers, I hereby guarantee the payment of all such moneys as the said Spencer Brothers are, or may become, liable to pay to you on current account, or on any other account, or in any manner whatsoever, but so that tl>e total amount recoverable under this guarantee shall not ex- ceed two thousand pounds. . . . And this guarantee shall, in the event of my death, bind and charge my estate in re- spect of transactions and dealings subsequent as well as prior thereto, and continue until notice shall be given to you by me, my executors or administrators, determining the same." The testator died on the 4th of November, 1888, and his will, dated the 12th of July, 1888, was proved by the defend- ants, the executors, on the 24th of January, 1889. THE STUDY OF CASES. On the 2d of August, 1889, the firm of Spencer Brothers became bankrupt, and there was then due from them to the plaintiffs the sum of ;^ 4,45 7 i4.f. gd. The plaintiffs received certain dividends under the bankruptcy of the firm and from the separate estate of Arthur Spencer, in respect of collateral securities held by them, amounting in all to ;^ 1,777 i^s. 6ii., leaving the sum of ^2,679 I'js. ^d. due to them from the firm. On the 25th of April, 1890, upon an originating summons taken out by the plaintiffs, an order was made for the ad- ministration of the testator's estate. On the 6th of June, 1890, the defendants received from the first mortgagees of the property comprised in the mortgage of the ist of August, 1885, given by Arthur Spencer to the testator, the sum of ;^4S OS. 6d., being the balance of the proceeds of sale of the said property after deducting what was due to the first mort- gagees on their security ; and on the 6th of December, 1890, the defendants received a dividend amounting to £i(>g \os. 31/., out of the separate estate of Arthur Spencer, in respect of his covenant to indemnify the testator. By an agreement of compromise dated the r4th of April, 1891, and made between Agnes Spencer and the defendants, provision was made, subject to the sanction of the court, for the sale of the property comprised in the equitable mortgage of the 5th of July, 1886, and for the application of the money arising from such sale in or towards the payment of the prin- cipal and interest due under the said mortgage. By an order dated the 30th of April, 1891, this agreement was directed to be carried into effect. The sale was duly effected, and realized the sum of ^^ 250, which was received by the defendants. The plaintiffs claimed to be exclusively entitled to the above-mentioned sums of ;^45 oj'. 6^., and ^^ 169 10s. ^d., on the ground that they were received by the defendants in respect of the counter-security given by Arthur Spencer to the 238 IN RE WALKER. testator against his liability under the guarantee ; and they also claimed, on similar grounds, to be exclusively entided to the jif 250 realized by the sale of the property comprised in the equitable mortgage ; and, further, that they were entitled to prove against the testator's estate for the balance of their debt. Hastings, Q. C, and Curtis Price, for the plaintiffs : — We are entitled to the benefit of the counter-securities given by Mr. and Mrs. Spencer to the testator. We rely upon the proposition laid down in Mawer v. Har- rison, I Eq. C. Ab. 93 ; Mich. 1692; 20 Vin. Abr. 102, tit. " Surety," and adopted by Sir W. Grant in Wright v. Morley, 11 Ves. 12, 22, viz., that a bond creditor is entitled to the benefit of all counter-bonds or collateral security given by the principal to the surety. The right is, of course, confined to the case of the surety being insolvent. As the surety, if he pays the debt, is en- titled to the benefit of all securities held by the creditor, so the creditor, if the surety does not pay, is entitled to the benefit of all counter-securities held by the surety. The principle was also recognized in The Mayor of Ber- wick V. Murray, 7 D. M. & G. 497, where Mawer v. Harrison, I Eq. C. Ab. 93 ; Mich. 1692 ; 20 Vin. Abr. 102, tit. " Surety," was cited in argument as an authority. The doctrine established by these cases has never been abrogated or overruled. It is only in the case of the surety being unable to discharge his obligation that the equity arises. Suppose that the executors of Hugh Walker had recovered ^3,000 on the security, it would be manifestly unjust for the estate to take the whole, while the plaintiffs get only a dividend. Buddey, Q. C, and Ingle Joyce, for the executors : — The supposed rule has never been followed or acted upon since 1815. We submit that it is contrary to principle. How can the principal creditor be entitled to the counter-security 239 THE STUDY OF CASES. given by way of indemnity? It cannot be by contract, for the contract between the surety and the debtor in no way concerns the creditor. In Ex parte Waring, 19 Ves. 345 ; 2 Gly. & J. 404; 2 Rose, 182, Lord Eldon did not treat Mawer v. Harrison as an authority binding at that time (18 15). Sir Wm. Grant's words in Wright v. Morley, 11 Ves. 12, 22, amount to no more than a dictum. The rule is founded on no principle, and has never been enforced. The principal creditor, no doubt, is entitled to prove against the surety's estate, but his utmost right is to fill his pocket as the surety fills his, — that is to say, he can prove against the estate of the surety, and if the surety's estate is subsequently increased by the proceeds of the counter-security, he can come in and prove again. [Stirling, J. Do you say that the general estate of the surety ought to have the benefit of the indemnity ?] Yes. [Stirling, J. Then his estate might actually recover more than he pays?] No ; it is only an indemnity. When the security is rea- lized it is assets of the surety's estate, and as against that the principal creditor is entitled to prove. He has no right to the proceeds of the security. The surety cannot, of course, recover more than he has had to pay. As to the security given by Mrs. Spencer, she is a third party, and there is no trace of any right in the principal creditor. R. J. Parker, for the beneficiaries under the will of the testator. Hastings, in reply : — It is said that the principal creditor does not get his right to the counter-security by contract. No more does the surety. It rests upon equity. The creditor is entitled to any benefit which the surety may get by his counter- security: Heritage v. Paine, 2 Ch. D. 594. The creditor is entitled to 240 IN RE WALKER. be paid ; but he cannot, of course, take the security with- out giving the surety the benefit of it. The surety has been held entitled even to securities of which he was not aware. The Lord Chancellor did not express any opinion in Ex parte Waring, 19 Ves. 345 ; 2 Gly. & J. 404 ; 2 Rose, 182, against the rule. It is true he did not express approval of it ; but against that must be set off the dictum in Mayor of Berwick V. Murray, 7 D. M. & G. 497. There is, no doubt, the absence of approval by Lord Eldon ; but we rely on the expression of Sir W. Grant in Wright v. Morley, 11 Ves. 12, 22, who said that it was a settled doctrine. The authority has not been so overruled that it ought not to be followed. The security given by Mrs. Spencer is on the same footing. January 14. Stirling, J., stated the facts, and con- tinued : — The plaintiff's contention was founded upon two cases : the first is an old case of Mawer v. Harrison, sub nom. Maure V. Harrison, i Eq. C. Ab. 93 ; 20 Vin. Abr. 102, tit. " Surety." It is reported very shortly as follows : " A bond creditor shall in the Court of Chancery have the benefit of all counter- bonds or collateral security given by the principal to the surety ; as if A owes B money, and he and C are bound for it, and A gives C a mortgage or bond to indemnify him, B shall have the benefit of it to recover his debt." That case was decided in Michaelmas, 1692. The plaintiff's also relied upon a dictum of Sir William Grant, in Wright v. Morley, II Ves. 22, which runs thus : " I conceive that, as the credi- tor is entitled to the benefit of all the securities the principal debtor has given to his surety, the surety has full as good an equity to the benefit of all the securities the principal gives to the creditor." As to the latter portion of the sentence, there is no question at all. It is well established at this date that the surety on paying the debt is entitled to stand in the place of the principal creditor, and to have the benefit of 16 241 THE STUDY OF CASES. all the securities which the principal creditor had. ■ Now, these two cases were very much discussed in the well-known case of Ex parte Waring, 2 Rose, 182 ; 2 Gly. & J. 404 ; 19 Ves. 345, before Lord Eldon. That case is most fully re- ported perhaps in Glyn & Jameson's Reports. It appears from that report that in the course of the argument Lord Eldon spoke somewhat disparagingly of the case of Mawer v. Harrison, i Eq. C. Ab. 93 ; Mich. 1692 ; 20 Vin. Abr. 102, tit. " Surety." He said this : " I have never heard this case rehed upon as a governing case at this day." In the judg- ment as reported he puts it thus (19 Ves. 348) ■ " The prayer of the first of these petitions has been supported upon this ground, that the short bills and the mortgage . . . having been placed with Brickwood & Co. as a security against their acceptances, the holders of these bills have an equity to have that security applied specifically to the discharge of those acceptances, upon the general ground, that upon a transac- tion of this kind a person holding the bills, which are the subject of indemnity, has a right to the benefit of the con- tract between the principal debtor and the party indemnified ; and, though not himself a party to that contract, to say that he, who has contracted for the payment of certain debts out of those pledges, is liable in equity to the demand upon the part of those, whose demands are to be so paid, for that application ; and a case was cited (Mawer v. Harrison) which goes that length. With regard to that case, or cases in gen- eral, I desire it to be understood, that I forbear to give any opinion upon that point." Then he goes on to say that he decides, not on that principle but on another ground. The result of these two cases — namely, the dictum of Sir William Grant, in Wright v. Morley, n Ves. 22, and the judgment and observations of Lord Eldon in Ex parte Waring, 19 Ves. 345 ; 2 Gly. & J. 404; 2 Rose, 182 — seems to me to be that Sir William Grant and Lord Eldon were not of the same mind on tlie point. Under these circumstances, I was very 242 IN RE WALKER. anxious to discover what was really done in the case of Mawer V. Harrison, which is so shortly reported in i Equity Cases, Abridged. The Registrar has been kind enough to make search for that case. No decree was drawn up, but the entry of the case has been found in the Registrar's book, and the pleadings have been discovered, and I am indebted to the learned senior reporter of this court, Mr. Knox, for having made a summary of them for my use, the pleadings them- selves being somewhat lengthy ; and from them and the notes in the Registrar's book it is tolerably easy to discover what the case was. The plaintiff was Thomas Mawer ; the defend- ants were William Harrison and William Morley, and Mary, his wife. Thomas Mawer was the father of the first wife of William Harrison, the father of WilUam Harrison, the defend- ant. By that first marriage William Harrison, the father, had three children, — namely, William, the defendant, Thomas, and Margaret. The first wife having died, William Harrison, the father, married his second wife, Mary, the defendant, afterwards the wife of William Morley, and subsequently he died intestate, leaving this widow and the three children by the first wife, the persons entitled to his personal estate under the Statute of Distribution. Administration was taken out by his widow, and the share of the three children in the in- testate's property amounted to ;^ 120. It appears that the plaintiff, Thomas Mawer, the grandfather of William Harrison, the defendant, was very anxious that William Harrison, his grandson, should continue the business of a farmer, which had been carried on by William Harrison, the father ; but for that purpose it was necessary that the sum of;^ 120, which formed the portion of the intestate's estate belonging to the three children, should be paid over to William Harrison, the son ; and that was accordingly done. The two other children being infants, Thomas Mawer, the plaintiff in the action, gave a bond to the defendant, Mary Morley, the legal personal representative of the intestate, to indemnify her against all 243 THE STUDY OF CASES. claims by those children. It appears that at this time William Harrison, the defendant, was an infant, but the money was paid to him. He attained twenty-one, and carried on the farm. Some time after attaining twenty-one he repudiated the transaction, and began to press William Morley, and Mary, his wife, for payment of his share of his father's estate, which he had already received in point of fact, though apparently an infant. Thereupon WiUiam Morley gave him a bond for payment of his share, and William Morley and Mary, his wife, began to sue the plaintiff, Thomas Mawer, in the Court of Exchequer for payment under the bond which had been given by him. Thereupon the plaintiff instituted this suit in equity to restrain the action, and to obtain delivery up of the bond which had been given by him. Now, of the other chil- dren who were interested in the intestate's estate, Thomas had died an infant and intestate, and Margaret was still an infant, and was not a party to the suit. The argument is stated in the Registrar's book. It is to be observed that the bill is by the person who gave the bond, to be relieved of it, and the re- sult is thus stated in the Registrar's book : " The court doth declare that the defendant, William, is well paid, and he must dehver up the bond to the other defendant, and give a release and decree the same accordingly." The bond there mentioned is, as I read it, that which had been given by William Morley to the defendant, William Harrison, for payment of his share. Whether that rehef, being relief between co-defendants, ought to have been given by the decree may be a question. Then it goes on : " Stay all proceedings at law on the plaintiffs ;^ 1 00 bond " — that is a mistake for ^ 1 20, as clearly appears from the previous passage in the Registrar's note, where it is corrected in the margin, but the correction is omitted here, so that all proceedings on the plaintiff's bond were stayed — "till Margaret doth release, and when the plaintiff' hath procured Margaret, who is not a party to the action, to release that bond, then that bond to be delivered up," and so forth, 244 IN RE WALKER. " but then the plaintiffs bond to be at suit for the recovery of Margaret's moiety of^i20." ^ So that all that was decided in that action was this : that the plaintiff, who had given his bond of indemnity, was not entitled to have it dehvered up to ' be cancelled till all claims had been settled. Under those circumstances, it appears that the point for which it was cited in I Equity Cases, Abridged, could not have been decided in that case ; and that at most the reported statement amounts to a dictum in the course of the argument. It is now nearly two hundred years since this case was decided, and the sole authorities on a point wjiich must have been of frequent oc- currence are these : a dictum in 1692, a dictum early in the century by Sir William Grant in the year 1805, and what ap- pears to me to be the contrary opinion of Lord Eldon a litde later. Under these circumstances, it seems to me that there is no real authority for the proposition in question ; and upon principle I cannot see why a surety who takes from the prin- cipal debtor a bond or indemnity at once becomes a trustee of that for the principal creditor. That is really the conten- tion of the plaintiffs. Of course, the other doctrine is well established, — viz., that the surety who pays the debt is en- titled to stand in the place of the principal creditor ; but the doctrine contended for by the plaintiffs rests entirely on those dicta which I have mentioned. It seems to me, under these circumstances, that I cannot give effect to the contention of the plaintiffs, and that they must simply be left to prove against the estate of the testator for what is due to them, without having the exclusive benefit 1 The decree was dated the 7th of November, 1692 and the court consisted of two Lords Commissioners, viz., Sir James Astry and Dr. Edisbury. Tliese learned Commissioners were both Masters in Chan- cery, James Astry having been appointed on the 27th of April, 1683, and John Edisbury on the 13th of IWay, 1684 See Hadyn's Book of Dignities, p. 240. — Reporter. 24s THE STUDY OF CASES. of these securities in respect of which payments have been made to the estate.' SoUcitors, Pilgrim &• Phillips ; Few &> Co., Agents for John James, Wirksworth. Case 14. — Callender v. Keystone Mut. L. Ins. Co. CALLENDER'S ADMINISTRATOR v. THE KEY- STONE MUTUAL 'life INSURANCE COMPANY. Supreme Court of Pennsylvania, 1854. [23 Pa. 471.] Error to the Common Pleas of Dauphin County. This was an action of covenant by Daniel Hartman, admin- istrator of the estate of W. Callender, deceased, on a policy of insurance, issued by the defendants on the life of the plain- tiff's intestate, in which he was defeated on the ground of misrepresentations made by the deceased, and judgment was entered in favor of the defendant. See 9 Harris, 466. On this judgment the defendant issued zji.fa. against the plain- tiff for the costs to be levied de bonis propriis, and on motion, the court below refused to set it aside, and hence this writ of error. Fisher, for the plaintiff in error. It was admitted that the case of Ewing v. Furness sustained the decision below, but insisted that that case is without any support in the cases from which it is supposed to be derived. 1 1 Sen & R. 247 ; 2 Rawle, 180; 8 W. & Ser. 379 ; 7 Barr, 136; 5 Pa. Law Jour. 511. Berryhill, contra, relied especially on Ewing v. Furness and the other cases reviewed by the plaintiff. The opinion of the court was delivered by LowRiE, J. This case presents the question, Is an ad- ministrator plaintiff personally liable to execution for the 1 See §§ 40-42, 53, ss, 66, 68. 246 CALLENDER v. KEYSTONE MUT. L. INS. CO. general costs of the cause, on a verdict and general judg- ment in favor of the defendant? This question was decided in the affirmative in the court below, and so it was decided in this court in 1850, in the case of Ewing z'. Furness, 13 State Rep. 531, without anything having been said by the court in vindication of the decision, except that it was " on the authority of several decisions of this court, directly in point." We have failed to find any such cases, and none are cited before us, as supposed, to contain such a doctrine, except Show V. Conway, 7 State Rep. 136 ; iVIuntorf v. Muntorf, 2 Rawle, 180 ; Penrose v. Pawling, 8 W. & Ser. 380 ; and these seem to be those alluded to by the court, and we shall look for the rule there. It is not in Muntorf v. Muntorf, for that refers to and approves the case of Musser v. Good, 11 Ser. & R. 247, which expressly negatives our present question, and decides only that our rule is different from the English one in this, that the latter gives no costs at all in such cases, while ours gives costs against the assets, and not against the adminis- trator personally. It is not in Penrose v. Pawling, for that decides only that an administrator plaintiff, who received his costs paid by the defendant on an appeal from an award, is personally liable for the costs thus received, if he be finally defeated in the action ; and this admits that he is not personally liable for the costs generally. What he had personally received as his costs, to which he was conditionally entitled, he must per- sonally refund on the failure of the condition ; to wit, on losing the final judgment. This puts the parties in the final judgment, personally, in the same relative condition that they were in before the suit began, and is equivalent to judgment against the assets for the general costs of the defendant. Such is also the case of McWilliams v. Hopkins, i Whart. 275. The case of Show v. Conway professes to be founded, in 247 THE STUDY OF CASES. part, on the two just considered, and therefore it is not incon- sistent with them, though the syllabus of it is. The defendant did not recover his costs from the administrator in that case by virtue of the judgment, but under a special decree, founded on testimony specially taken, and showing that the suit was vexatious, and for this reason the decree was affirmed here. This, therefore, is merely the affirmance of another principle of law that makes an administrator plaintiff liable for costs when he is defeated in a wanton and vexatious suit. 7 Wend. 552 ; I Denio, 276 ; 3 Bos. & Pul. 115 ; 5 Id. 72 ; 9 Eing. 754. And hereby our question is implicitly, yet plainly neg- atived, notwithstanding some loose expressions that seem to cover a broader principle than was demanded by the case. We find, therefore, no support for Ewing v. Furness, and everything against it. And there are other evidences of the law still more abundant and convincing. The old English statutes, giving costs against plaintiffs, have always been con- strued not to apply as against executors and administrators ; and subject to the modification above alluded to, we have followed the law as we got it there. The statute 3 Jac. i, c. 8, requires bail in error for debt and costs, but this is held not to apply to administrators,^plaintiffs in error, because they are not personally hable for either debt or costs. Cro. Jac. 350; 4 Mod. 245. And such, and for the same reason, is the construction of the terms of appeal from an award under our Act of 1810 ; 5 Binn. 400 : and from Nisi Prius, 2 State Rep. 404. The English decisions afterwards received the sanction of Stat. 16 and 17 Car. 2, c. 8, s. 5, which, in requiring bail in error, excepts the case of executors and administrators. And this statute was in force with us until superseded by our more recent statutes to the same effect in the cases of writs of error and appeals of every kind from courts, awards, justices of the peace, and under the Act of 1&46, concerning bail and attachment. 248 CALLENDER v. KEYSTONE MUX. L. INS. CO. But the denial of the principle of Ewing v. Furness is much more direct and positive in the statutes that forbid justices of the peace to enter judgment or issue execution against ad- ministrators personally (Act of 1810), or that execution issue against them at all where there is a deficiency of assets, and requires that the remedy shall proceed in the Orphans' Court against the estate of the decedent. Act of 1834, concerning executors and administrators. With us, therefore, a general judgment against administrators, whether plaintiffs or defend- ants, is always against them officially, and to be paid by them out of the assets, and not personally. And such being the judgment, such must be the execution. Nobody has ever supposed that on a general judgment against a defendant administrator, who has unsuccessfully resisted a claim against the estate, he is personally liable for the costs ; and we can see no essential difference in this regard between an unsuccessful prosecution and an unsuc- cessful resistance of a claim. Besides this, it is some evidence of what the law is with us, that our sister States, deriving their customs and modes of thinking from the same source, have the same rule, or the old English one ; and so we find it in New York, 7 Wend. 522, 4 Cow. 87; New Jersey, i Harrison, 210; South Carolina, 2 Ray, 165, I Bailey, 79 ; North Carolina, 1 Murphy, 102 ; Georgia, Dudley, i ; Kentucky, 2 Littell, 387, 2 J. J. Marsh. 499; Illinois, 3 Scam. 61; Alabama, 7 Ala. 251, 10 Id. 600 ; and in Ohio by statute. In Massachusetts it is altered by statute. Surely such an amount of evidence is sufficient to show what the law is, and to satisfy any reasonable man that there is good reason for it, and that the decision in Ewing v. Fur- ness is a mistake, and ought not to be followed. Do we violate the doctrine of stare decisis by now correct- ing the mistake, and going back to the well-established doc- trine which that case has disturbed ? If we do, we commit 249 THE STUDY OF CASES. a greater error than the one we have felt bound to correct ; for that doctrine, though incapable of being expressed by any sharp and rigid definition, and therefore incapable of becom- ing an institute of positive law, is among the most important principles of good government. But, like all such principles, in its ideal it presents its medial and its extreme aspects, and is approximately defined by the negation of its extremes. The conservatism that would make the instance of to-day the rule of to-morrow, and thus cast society in the rigid moulds of positive law, in order to get rid of the embarrass- ing but wholesome diversities of thought and practice that belong to free, rational, and imperfect beings ; and the radi- calism that, in ignorance of the laws of human progress and disregard of the rights of others, would lightly esteem all official precedents and general customs that are not meas- ured by its own idiosyncrasies ; each of these extremes always tends to be converted into the other, and both stand rebuked in every volume of our jurisprudence. And the medial aspect of the doctrine stands everywhere revealed as the only practical one. Not as an arbitrary rule of positive law, attributing to the mere memory of cases higher honor and greater value than belong to the science and natural instinct and common feeling of right ; not as withholding allowance for official fallibility, and for the chan- ging views, pursuits, and customs that are caused by and that indicate an advancing civihzation ; not as indurating, and thus deadening the forms that give expression to the living spirit ; not as enforcing " the traditions of the elders," when they " make void the law " in its true sense ; nor as fixing all opinions that have ever been pronounced by official functionaries ; but as yielding to them the respect which their official character demands, and which all good educa- tion enjoins. When the varied surface of this earth is changed mto a dead level, and the ocean's waves are still, then man will 250 CALLENDER V. KEYSTONE MUX. L. INS. CO. need another habitation. And when the variety of human action and development is subjected to judicial and legisla- tive prescriptions, and the rule of man's free and educated reason is proscribed, with all its improving diversities, and all reasoning becomes illegal, if the subject has been already reasoned upon by judges or decided upon by them without reasoning, then man will need another jurisprudence, and another legislation, without, perhaps, being capable of enjoy- ing them. The doctrine of stare decisis is, indeed, one of the most important in the law ; for in its simplicity it expresses man's reverence for civil authority, and the demand of his nature that it shall be obeyed ; and this feeling is the surest founda- tion of social order. It is the expression of the people's expectation that all government shall be administered with great care and with a reasonable degree of consistency, and of their confidence that it is so ; and it involves the in- junction that official functionaries shall not for hght reasons ■ abandon the expressed judgments of themselves or of their predecessors, especially if any serious embarrassment of pub- lic order may be the consequence. It regards all govern- mental, and especially judicial decisions, as the official representations of the public will in relation to civil rights and duties, and as being entitled to respect and reverence for this simple reason. To these feelings and principles we owe official reverence, and we desire to cherish it as a neces- sary element of social order and of judicial character. We do not violate it when we declare that a decision made four years ago in opposition to all previous legislation and jurisprudence, is open to correction. We should violate it by declaring that decision to be conclusive evidence of the law, and should at the same time announce a judicial heresy, involving the assertion that judicial decisions are equivalent to positive law, and that courts not only apply the law, but make it. And how palpable would appear the violation, 251 THE STUDY OF CASES. when it should be noticed that the case which v/e establish is without any and against all precedent ! If it should be said that the principle of the decision in Ewing V. Furness has entered into the customs and practice of the country, then the claim that it should stand as law would be founded upon a different principle, expressed in the maxim communis error facit jus. If such a custom has arisen in this instance, it has had but a short life, and secured but a frail title to perpetuity. And surely the fact that sub- ordinate courts and officers may have been misled by the decision in some unknown instances in the application of the law, can have no influence in converting the error into a rule ■ of right. Official customs' affect not usually rights themselves, but the means of securing them. The case of Ewing v. Furness must be regarded as a diver- gence from the beaten path of the law, and we cannot help to clear a new track in that direction. It is a plain error, and it is not our duty to set the stain that mischance has dropped upon the law. The case before us, having followed its lead, must be reversed. The judgment is against the estate of the decedent, and so must the execution be. September 13, 1854. This cause came on to be heard at the late term of this court, at Harrisburg, on a writ of error to the Court of Conunon Pleas of Dauphin County, and Was argued by counsel, and now, on mature deliberation, it is considered and adjudged, that there is error in the execu- tion, in that the same issued against the plaintiff, to be levied out of his own effects, when it ought to have been in the form directed by law against the assets in his hands as adminis- trator ; and therefore the said execution is set aside at the costs of the defendants in error, and the cause is remanded to the said Court of Common Pleas. Black, C. J., and Knox, J., dissented.^ 1 See §§ 17, 27, 51, 53, sS, 66, 74-78, 85-97. Compare Giffovd v. Livingston, 2 Denio, 380 (1845); ■^"'^ '"■ ^*' 252 TOWLE V. FORNEY. Case 15. — Towle v. Forney. TOWLE V. FORNEY. Court of Appeals of New York, 1856. [14 N. y. 423] Action in the superior court of the city of New York to recover two lots of land. The plaintiff had a verdict and judgment. On appeal by the defendant, the judgment was afifinned at a general term of the Superior Court. (For a statement of the case and the reasons for the decision, see 4 Duer, 164.) The defendant appealed to this court, where the case was submitted on printed arguments, by D. D. Field, for the appellant ; N. Dane EUingwood, for the respondent. Denio, C. J. The plantifTs counsel maintains that the questions of law involved in this case have been conclu- sively settled in his favor in the courts of this State. ' In Clarke v. Van Surlay (15 Wend. 436), the plaintiff, one of the children of Thomas B. Clarke, brought ejectment for a portion of the Chelsea farm, claiming title under the will of Mary Clarke, against the defendant, who held under a deed executed on the second day of August, 1821, by T. B. Clarke to one George De Grasse. The will of Mrs. Clarke, the several acts of the Legislature, and the proceedings in the court of chancery, which were given in evidence in the case now under consideration, are the same which were relied upon by the defendant in the case referred to; and the only difference favorable to the present defendant, if any exists between the two cases, relates to the consideration upon which the deeds from T. B. Clarke were executed. The deed to De Grasse purported to be for the considera- gruder, 10 Cal. 282 (1858) ; Harrow v. Myers, 29 Ind. 469 (1868). See H. C. Black, "The Principle of Stare Decisis," 25 Am. L. Reg. N. s. 745(1886). 253 THE STUDY OF CASES. tion of ^2,000, and professed to convey thirty-nine lots, and there was no proof respecting the actual consideration, nor was there anything in the terms of the conveyance to show that De Grasse was a creditor of Clarke. The deed under which the present plaintiff claims recites that Clarke was indebted to the grantee in a large sum of money. The grant is stated to be made in consideration of the premises and of ^3,750 paid by the grantee to the grantor. Besides, there was proof in this case as to the actual consideration. The conveyance was made in part for cash, secured to be paid to Clarke by the bonds of the purchaser, and which was afterwards actually paid, and in part to pay for board and other necessaries furnished to Clarke's family. There is another discrepancy between the two deeds, which is either immaterial or favorable to the present plaintiff. The one to De Grasse was not approved by a master in chancery until many years after it was given, and after the death of Clarke, while the conveyance to Mclntyre, upon which the plain- tiff's title in this case depends, was approved by a master, as to " manner and form," at the time it was executed. The Supreme Court, in Clarke v. Van Surlay, held the deed to De Grasse to be a valid conveyance, sufRcient in law to pass the title which Mrs. Clarke, the testatrix, had at the time of her death, and to bar the claims of the children of T. B. Clarke, the devisees in remainder. The case was brought before the Court for the Correction of Errors, on appeal, and is reported in that court, under tlie name of Cochran v. Van Surlay, in 20 Wend. 365. The judgment of the Supreme Court was affirmed. Assuming, for the present, that the dis- crepancies which I have referred to are immaterial, the judgment of the court of errors is a determination of the court of last resort in this State, not only upon all the ques- tions of law in the case under consideration, but upon the identical title under which the plaintiff in the reported case and the defendant in the present case claimed to own the 254 TOWI.E V. FORNEY. premises in controversy in the respective suits. Theoreti- cally, the judgments of courts are only evidence, more or less authentic, of the law, and not the law itself ; and it is unhappily true that cases sometimes occur where a prior judgment \ipon the same legal question cannot be conscien- tiously foUovved, after the principle has received a further and more deliberate examination. The cases, however, are extremely rare in which the determination of the highest appellate court can be properly departed from, when the same legal question again arises before a court of the same government. If it shall be thought that an erroneous rule has been established by the adjudication relied on as a pre- cedent, it is better that it should be changed by the Legis- lature by an act which cannot retrospect, than that the courts should overturn what they have themselves estab- lished, and thus disappoint all who have acted upon the rule which had been considered settled. If this is so where an abstract rule of law, determined in a prior case, is sought to be applied to new facts, the reason is stronger where, as in this case, a series of particular acts has been passed upon and held to produce a given legal result, and the same iden- tical facts are again before the court between other parties. In such a case, there being no pretence of collusion, and no reason to impute carelessness or inattention to the judges, the determination should be considered final and conclusive upon all persons in interest or who may become interested in the question, as well as upon the parties to the particular action. The present case affords forcible illustration of the importance of this doctrine. Here was a large number of building lots which Clarke, prima fade, was authorized to sell, and a large proportion of which, if not all of them, he actually did sell. The number, in one of the documents contained in the printed case, rose as high as 189. A question arises relating to the title to one of them. It depends exclusively upon the effect of written 25s THE STUDY OF CASES. documents, acts of the Legislature, and the records of the courts. It is earnestly litigated, and is carried through all the courts, and is finally decided in the tribunal of ultimate appeal. Nearly twenty years afterward the title thus estab- lished in respect to one of the lots is again questioned in regard to another of them. It may have been purchased upon the faith of the prior decision, or have been forced upon tlie party now claiming it by the judgment of a subordinate tribunal, acting in obedience to the rule established by the prior decision. The latter was the case here. If the ques- tion is still open to discussion and liable to be determined the other way, the reports of adjudged cases will operate as a snare rather than a safe guide. I am of opinion that we ought not to re-examine the grounds of the decision in the case of Cochran v. Van Surlay ; but to regard it as a settled principle that T. B. Clarke had, under the statutes and orders given in evidence, the right to sell the premises in controversy in this case, and that the purchaser was not bound to see that the proceeds of the sale were applied to the benefit of the devisees in remainder. There is no difference in principle between the two cases. In Cochran v. Van Surlay it *yas assumed that the sale was for cash paid. The order of July 3, 1815, which was appli- cable to that sale, authorized Clarke, under the direction of a master in chancery, to apply the proceeds of the sale, or so much thereof as might be necessary, to the payment of Clarke's debts then owing and to be contracted, for the ne- cessary purposes of his family. The authority was to sell the lots to raise money to pay debts which Clarke had incurred or might incur for the support of his family ; and the sale and conveyance made under that authority was held to be effectual to pass the title. The deed to Mclntyre was executed in part upon the consideration of money paid, and so far was precisely like the one to De Grasse. As to the rest, the conveyance was made in the performance of a bar- 256 TOWLE V. FORNEY. gain whereby the grantee was to furnish board and other necessaries to Clarke and his children, and to have in pay- ment thereof a conveyance of the land. There was no absolute existing debt for which the land was conveyed in satisfaction. The board and other necessaries were ad- vanced by Mclntyre as a payment of the consideration for which the land was sold. According to the adjudged case, Clarke could lawfully sell the land to raise money to pay debts incurred for necessaries for his family which he should procure on credit. The sale in controversy in this case was to tlie party who furnished such necessaries, specifically and in payment thertjfor. I am unable to perceive any solid distinction between the cases. In Cochran v. Van Surlay, it was decided that the master's approval of the transaction applied only to sales in satisfaction of existing debts. In that case the only act of a master was the indorsement of his approval of the deed many years after it was executed. This, of course, was of no consequence if the order required the sale to be autho- rized by the master before it should take place. In the present case, it may well be doubted whether the certificate indorsed upon the deed, importing that it was approved of as to manner and form, was the act contemplated by the order. It seems clear to me that the design was that the master should pass upon the propriety of the sale in refer- ence to all the circumstances bearing upon that question, and that the certificate ought to import the exercise of that judgment. If the question were res nova, I should adopt the construction which would require the concurrence of the master in all cases of a disposition of land under the orders of the chancellor. But a more restricted meaning has been given to the paper, and, for the reasons before mentioned, I think we are not at liberty to review that decision. The deed to Mclntyre was not a conveyance in satisfaction of a debt of Clarke, and the sale, of which it was 17 257 THE STUDY OF CASES. the evidence, did not, therefore, require the approbation of a master in chancery. We have been referred, by the defendant's counsel, to the cases decided in the Supreme Court of the United States upon the title derived under T. B. Clarke, in which the case of Cochran v. Van Surlay has not been followed, and we are asked to adopt the conclusions of that court in opposition to the judgment of the court of errors in this Slate. William- son V. Berry, 8 How. 495 ; The Same v. Irish Presby- terian Congregation, id. 565 ; The Same v. Ball, id. 56. It would be enough to say of the first and principal case, that it was shown positively that the deed of Clarke, which was the foundation of the title set up, was given, in part, for a consideration not authorized by the order, to wit, other lands situated in Pennsylvania and Virginia, which had been purchased at sales for taxes ; but the more suitable answer is that, as between the judgments of our own courts and those of the general government, where there is a conflict between them, we ought to follow our own decisions, except in cases arising under the Constitution and laws of the Union, where the judgments of the Supreme Court of the United States are of controlling authority. In cases in which the Federal courts acquire jurisdiction of controver- sies, on account of the character or residence of the parties, such courts assume to administer the law of the State in which the matter arose, and, where the action relates to the title to real estate, the law of the State within which the real estate is situated. Thus, the legal rules of property existing in New York are those prescribed by the laws of New York, and such laws are the same whether they are administered by the courts of the State or by the courts of the nation. There is no national code or system of laws respecting private property. The dispensing of private justice between individuals is in general a matter of State concern. It is only in a few exceptional cases that the courts of the United 258 TOWLE V. FORNEY. States can be called upon to act. Where the United States, as a political corporation, is the plaintiff, where an alien is a party, and where the action is between the citizen of a State within which the action is brought, and a citizen of another State, concurrent jurisdiction is, from motives of policy and convenience, conferred upon the Federal courts. Judicial Act, § II ; I Story's Laws, 57. In these exceptional cases, of comparatively unfrequent occurrence, the general government undertakes, through its courts, to administer the State laws. As evidence of these laws, it, of course, receives the State Constitutions and statutes, and the adjudications of the State courts. If a question is found to have been settled by the highest appellate court of a State, that decision is binding upon the courts of the United States to the same extent as upon the courts of the State in which it was made. We have already shown that the judgment of the court of errors, in Cochran v. Van Surlay, established the authority of T. B. Clarke to sell and convey the land in question. If we are right in that, it follows that the Supreme Court of the United States fell into an error in denying to his conveyance the effect to which it was entitled. Upon such a question as this the highest court of the Union has no legal pre-emi- nence over any of the courts of this State. We listen to the views of its judges with the respect to which their eminent character and high position entitle them, but in inquiring what the law of this State upon a particular question is, we must look primarily to the judgments of our own tribunals, and when we find the point well settled by the decision of the highest State court, we cannot do otherwise than follow that decision, notwithstanding the Supreme Court of the United States has taken a different view of the matter. The able dissenting opinion of Mr. Justice Nelson in Williamson v. Berry contains a reference to the cases in that court, where the views which we have expressed upon this question have been often affirmed. 259 THE STUDY OF CASES. Upon the whole case I am of opinion that the judgment of the Superior Court should be affirmed. Selden, J., dissented. Judgment affirmed} Case 16. ' — Gelpcke v. Dubuque. GELPCKE V. CITY OF DUBUQUE. Supreme Court of the United States, December Term, 1863. [i Wall. 175.] The Constitution of the State of Iowa, adopted in 1846, contains the following provisions, to wit : — "Art. I. § 6. All laws of a general nature shall have a uniform operation." " Art. 3. § I. The legislative authority of the State shall be vested in a Senate and House of Representatives, which shall be designated the General Assembly of the State of Iowa," &c. " Art. 7. The General Assembly shall not in any manner create any debt or debts, liability or liabilities, which shall, singly or in the aggregate, with any previous debts or liabilities, exceed the sum of one hundred thousand dollars, except in case of war, to repel invasion, or suppress insurrection." " Art. 8. § 2. Corporations shall not be created in this State by special laws, except for political or municipal purposes ; but the General Assembly shall provide, by gen- eral laws, for the organization of all other corporations, ex- .cept corporations with banking privileges, the creation of which is prohibited. The stockholders shall be subject to such liabilities and restrictions as shall be provided by law. The State shall not directly or indirectly become a stock- holder in any corporation." 1 See §§ 85-97. 260 GELPCKE V. DUBUQUE. With these constitutional provisions in existence and force, the Legislature passed certain statutes. One — incorporating the city of Dubuque, passed February 24, 1S47 — pro- vided in its 2 7th section, as follows : — " That whenever, in the opinion of the City Council, it is expedient to borrow money for any particular purpose, the question shall be submitted to the citizens of Dubuque, the nature and object of the loan shall be stated, and a day fixed for the electors of said city to express their wishes ; the like notice shall be given as in cases of election, and the loan shall not be made unless two-thirds of all the votes polled at such election shall be given in the affirmative." By an Act passed January 8, 185 1, this charter was "so amended as to empower the City Councils to levy annually a special tax to pay interest on such loans as are authorized by the 27th section of said Act;" that is to say, by the sec- tion just quoted. A subsequent Act, — one passed 28th January, 1857, — enacts thus : — " The city of Dubuque is hereby authorized and em- powered to aid in the construction of the Dubuque Western, and Dubuque, St. Peter's and St. Paul Railroad Companies, by issuing $250,000 of city bonds to each, in pursuance of a vote of the citizens of said city, taken in the month of December, a. d. 1856. Said bonds shall be legal and vaUd, and the City Council is authorized and required to levy a special tax to meet {he principal and interest of said bonds, in case it shall become necessary from the failure of funds from other sources." " The proclamation, the vote, bonds issued or to be issued, are hereby declared valid, and the said railroad companies are hereby authorized to expend the moneys arising from the sale of said bonds, without the limits of the city and county of Dubuque, in the construction of either of said roads ; and 261 THE STUDY OF CASES. neither the city of Dubuque nor any of the citizens shall ever be allowed to plead that the said bonds are invalid " With this Constitution, as already mentioned, in force, and after the incorporation of the city and the passage of Acts of Assembly, as just mentioned, — and after certain decisions of the Supreme Court of Iowa as to the constitu- tionality of these Acts, the character and value of which decisions make the principal subject of discussion in this case, — the city of Dubuque issued a large amount of coupon bonds which were now in the hands of the plain- tiffs. The bonds bore date on the ist of July, 1857, and were payable to Edward Langworthy, or bearer, on the ist of January, 1877, at the Metropolitan Bank in the city of New York. The coupons were for the successive half year's interest accruing on the bonds respectively, and were pay- able at the same place. The bonds recited that they were given " for and in consideration " of stock of the Dubuque Western Railroad Company, — (one of the roads to which, by the Act last mentioned, the city was authorized to sub- scribe), — and that for the due payment of their principal and interest, "the said city is hereby pledged, in accordance with the code of Iowa, and an Act of the General Assembly of the State of Iowa, of January 28, r857," — the Act just- referred to. The coupons on the bonds not being paid, the plaintiffs sued the city of Dubuque in the District Court of the United States for the District of Iowa, claiming to re- cover the amount specified in the coupons, with the New York rate of interest from the time of their maturity, and exchange on the city of New York. The city set up the following grounds of defence: — 1. That the bonds were issued by the city to aid in the construction of a railroad extending beyond its limits into the interior of the State. 2. That at the time of issuing the bonds and coupons, the 262 GELPCKE V. DUBUQUE. indebtedness of the city exceeded one hundred thousand dollars. 3. That at the time of issuing the bonds and coupons, the indebtedness of the State of Iowa exceeded one hundred thousand dollars. 4. That at the time of issuing the bonds and coupons the indebtedness of the cities and counties of Iowa exceeded, in the aggregate, one hundred thousand dollars. The plaintiffs demurred. The demurrer was overruled, and judgment entered for the defendant. On error, the question in this court was, whether the judgment had been rightly given. Mr. S. V. White and Mr. Allison for the bondholders : In one point of view, the question before the court is a narrow one ; a question as to the number and relative weight of decisions of the Supreme Court of Iowa alone, and in its own constitution and statutes ; a settlement of the balance on an account domestic simply. It is a question whether this court will regard seven solemn decisions, made by the Supreme Court of Iowa, beginning in a. d. 1853, and end- ing in A. D. 1859, on the faith of which decisions, strangers have lent their money for the improvement of the State itself, or of cities which adorn and enrich it, so overruled by a decision made in a. d. i860, or decisions of a later date, as that bonds issued payable to bearer are now void in the hands of bearers who, between the said years of 1853 and 1859, and on the faith of those decisions, bought them in good faith and for value. Undoubtedly we shall ask that this question be decided ; that this settlement of the account domestic simply be settled. The case involves as a necessity, perhaps no other question. The court may possibly confine itself much to these limits. In some points of view, how- ever, the issue is of greater dignity. It concerns the honor, not of Iowa only, but of all the States ; the value of millions of securities issued by nearly every State of the Union, and 263 THE STUDY OF CASES. by cities and counties and boroughs in tliem all. Yet, more : we shall ask this court to treat as contradicting precedents made by the Supreme Court of Iowa itself, and so as subver- sive of regard for authority, — as erroneous, therefore, in the law and of no obligation, — the latest decisions of a State of this Union ; the decision, we mean, in The State of Iowa, ex relatione, v. The County of Wapello, 13 Iowa, 388, and any decisions which, to the disregard of earlier and settled precedents, follow it. On all these accounts the subject deserves an examination on a wider view of precedents than those of Iowa alone. Time is not wasted in appro- priating much of it to an inquiry as to American decisions universally. We propose therefore to examine — 1. The adjudications of courts of the different States upon the same or similar questions, prior to its adjudication by the courts of Iowa. 2. The adjudications of the courts of the State of Iowa,, upon such questions ; and, 3. The adjudications of the courts of the United States, and of the several States, since the question was first decided by the courts of Iowa. I. And first we may admit that all courts have held uni- formly, that such Acts and contracts as those to be considered in this case do not arise from any legislative power delegated to the municipal corporations, but that they arise only from powers conferred by legislative Act of the State. The first case upon the subject arose in Virginia, and was decided by the Court of Appeals of that State, a. d. 1837, in Goddin ?a Crump, 8 Leigh, 120. The Legislature of that State had authorized the city of Richmond to subscribe for stock in a company incorporated for the improvement of the navigation of James River, and for building a road to the Falls of the Kanawha River, and to borrow money to pay the same, and to levy and collect a tax for the payment of principal and interest so borrowed. Under these Acts the 264 GELPCKE V. DUBUQUE. Common Council of the city of Richmond passed an ordin- ance subscribing for such stock, and for levying a tax, as authorized by such Acts, and the collector of the city had levied upon a slave, the property of complainant, to satisfy the tax due from him under such levy. The complainant exhibited his bill in equity, in behalf of himself and others, citizens of the city of Richmond, who were property-holders therein, and who had not consented to the passage of the Acts of the Legislature, nor the Acts of tire council in passing the ordinance and in levying the tax, and prayed to be relieved from the payment of such tax ; and that the col- lector, who, with the Common Council of Richmond, was made a party defendant, might be enjoined and restrained from the collection of such tax, perpetually ; upon the ground that the law authorizing such subscription and levy was un- constitutional and void. Upon this case the Court of Appeals of Virginia (Brooke, J., dissenting) decided : — I. That an Act, to be within the legitimate scope of a muni- cipal corporation, need not be performed in the corporate limits, but might properly be extended to objects beyond the limits of the corporation. II. That the true test of the corporate character of the Act, was the interest of the corporation. III. That the citizens themselves were the judges of what was the interest of the corporation, and not the judges of l;he court, and however much a court might doubt the wisdom of the citizens in determining that question, they would not interfere with it. IV. That the majority of such citizens could bind a dis- senting minority, and properly charge them and their prop- erty with the payment of tax, to which they had given no assent. V. That the laws in question are not repugnant to the Con- stitution, and the bill was accordingly dismissed with costs. 265 THE STUDY OF CASES. The next case in point arose, a. d. 1843, before the Supreme Court of Errors of the State of Connecticut, City, of Bridgeport v. Housatonic R. R. Co., 15 Connecticut, 475. In that case, in March, 1837, the city of Bridgeport voted to take stock in the Housatonic Railroad Company, and to procure loans of money, pledging the faith of the city tlierefor. In May, 1838, the Legislature confirmed and legahzed such Acts; and on June 15th, 1838, the bonds sued on were duly issued. The court unanimously decided : — I. The Legislature can give pojver to municipal corpora- tions to subscribe stock in railroads passing through or ter- minating in them ; II. That the Legislature may, by Act or Resolution, confirm and render valid, prior voidable acts of such corporations ; III. That the fact of a municipal corporation becoming stockholders in a railroad, and therefore pro tanto going beyond the legitimate ends for which the corporation was constructed, is only an incident to the general power to pro- vide for the interests of the citizens of the corporation, and does not, therefore, take it out of the scope of its corporate Acts; IV. That a majority of such citizens can constitutionally decide upon the Acts of the corporation, and compel a minority to contribute by taxation, to objects to which such minority are opposed. The next case was in the Supreme Court of Tennessee, Nichol V. Mayor of Nashville, 9 Humphreys, 252, December Terra, a. d. 1848. The Legislature of Tennessee had incor- porated a railroad company, and by subsequent Act the town of Nashville was authorized to subscribe 20,000 shares of its stock, and to borrow money, and to levy taxes to pay prin- cipal and interest on such loan. A bill was filed in equity to enjoin the borrowing of money under said Act, and to pre- vent the issue of bonds and the levy of a tax, the ground 266 GELPCKE V. DUBUQUE. assigned being, the Acts were unconstitutional and void. Demurrer to bill. The court decide : — I. That the building of a railroad or aiding therein, by subscription to the stock, which railroad shall terminate in, or pass through or near a municipal corporation, is within the legitimate scope of corporate Acts, and for such purposes a tax may be levied and collected by the delegated authori- ties of such corporation ; II. That such Act neither contravenes the provisions of the Constitution of the United States, nor of the State of Tennessee. The same questions came before the Court of Appeals in Kentucky, in Talbot v. Dent, 9 B. Monroe, 526, a. d. 1849, and again, a. d. 1852, in Slack v. Maysville R. R. Co., 13 Id. I. The Chief Justice delivered the opinion of the court in both cases, and in both, the foregoing decisions of Virginia, Con- necticut, and Tennessee were cited, argued, approved, and followed at length. The same questions came before the Supreme Court of Pennsylvania, in The Commoriwealth v. McWilliams, 11 Pennsylvania State, 61, May Term, 1849, and again in Sharpless v. Mayor, 21 Id. 147, and in Moers v. City of Reading, Id. 188. All these cases decide the questions as former and other courts had done, and hold the bonds binding. The Supreme Court of Illinois, a. d. 1849, Shaw v. Dennis, 5 Gilman, 405, held an Act of the Legislature, giving the right of taxation to a certain precinct to keep up a bridge across Rock River, to be constitutional, and sustained a tax levied by the local authorities under such law; and the Supreme Court of New York, Thomas v. Leland, 24 Wen- dell, 65, May Term, 1840, made a similar ruling in behalf of a law authorizing a municipal tax, for the purpose of paying the excess of expenses for bringing a canal to such corpora- 267 THE STUDY OF CASES. tion, although private individuals had given bond for the payment of such excess to the canal company. The same questions came before the Supreme Court of Ohio, A. D. 1852, and a. d. 185,3, i" '^^^o cases, Cincinnati R. R. Co. V. Commissioners of Clinton County, i Ohio State, 77, and Cass v. Dillon, 2 Id. 607, in which the ques- tions were decided as in all the cases already named. Com- ment may therefore be spared. Thus there had then been decisions of the highest appel- late courts of eight States of the Union, extending through a period of sixteen years, and numbering in all twelve such decisions. 2. As respects the Courts of Iowa. And here we premise, that so far as cities are concerned, there has never been a decision made upon the question in Iowa, but the principle has been repeatedly settled in the case of counties, upon principles, however, equally binding upon cities. The question came before the Supreme Court of Iowa, at the June Term, 1853, in the case of Dubuque Co. v. Dubu- que and Pacific R. R. Co., 4 G. Greene, i, and the court held : — I. That a county has the constitutional right to aid in building a railroad within its hmits. II. That the provision of the Constitution, which limited the State debts to the sum of ^roo,ooo, and also the provision which declares that the State shall not directly nor indirectly become a stockholder in any corporation, applied only to the State in its sovereign capacity. III. That § 114 of the Code of 185 1 applied as well to railroads as to ordinary roads, and that proceedings regu- larly had, under that and subsequent sections, to § 124 in- clusive, were regular and legal, and authorized the issue of bonds for railroad purposes, and that said railroad bonds were valid ■ and binding upon the county. This opinion is written by Greene, J. ; Kinney, J., dissenting. 268 GELPCKE V. DUBUQI At the June Term, 1854, in The State v. Bissell, 4 G. Greene, 328, the same question was raised, together with minor questions about the regularity of the proceedings. It was a proceeding in Chancery, to prohibit the county judge of Cedar County from issuing bonds to a certain railroad company. The county judge in response set out his action in the premises, to which the relators filed a demurrer, which was sustained by the court below, and the defendant prohibited from levying the tax by perpetual in- junction. Frorn this decree the defendant, the county judge, appealed, and the case was heard in the Supreme Court, the decree reversed, and the county judge permitted to issue bonds and levy and collect a tax therefor. In this case the opinion was written by Hall, J., and the decision last but one cited is followed without comment. Although Greene, J., dissented on a minor question, growing out of the facts in the case, there was no dissenting opinion on the constitutionality of the bonds. Next in order, in the course of the history of this ques- tion, in the State of Iowa, are two Acts of the Legislature of the State, passed at the session of December, a. d. 1854, both approved January 28th, 1855, Chap. 128 and 146, of Acts of Fifth General Assembly of the State of Iowa, 142 and 219, respectively. By the first of these it is enacted, " That wherever any [railway] company shall have received, or may hereafter re- ceive, the bonds of any city or county upon subscription of stock, by such city or county, such bonds may have interest at any rate not exceeding ten per cent., and may be sold by the company, at such discount as may be deemed expedient." By the second it is enacted, " that in all cases where county or town or city incorporations have or may hereafter become stockholders in railroads, or other private compan- ies or incorporations, it shall not be lawful for the county judges, mayors, or other agents of such cities or counties, 269 THE STUDY OF CASES. to issue the bonds of their counties, or cities, until they are satisfied that the contemplated improvements will be con- structed through or to their respective cities or counties, within thirty-six months from the issuing and delivery of said bonds ; and the proceeds of such bonds shall, in all cases be expended within the limits of the county in which said city may be situated ; Provided, that nothing in this Act shall in any way affect corporation rights, or any contracts or subscriptions heretofore made with any railroad company or corporation, for the issuing of county corporation bonds." These Acts show the construction of the State authorities at that time, and are themselves a legislative acknowledg- ment that under prior laws such municipal corporations had the right to issue bonds to railroads and to take stock in them, and afforded general authority of law for such actions on the part of such corporations in future. The next case that came before the Supreme Court of the State, was that of Clapp v. The County of Cedar, 5 Iowa, 15, a suit brought on the same bonds, the issue of which was sought to be enjoined in the case of The State v. Bissell, and was determined before the court at the June Term, a. d. 1857, by a court composed entirely of different judges from those on the bench when the last cause was decided. In that case the majority of the court hold : — I. That the question of the constitutionality of the bonds is decided by the prior decisions, upon which the public and the world have acted, and that a change of ruling would be " the worst of all repudiation, — judicial repudiation." II. That such bonds and coupons were negotiable as under the law merchant. Other questions foreign to this subject were also discussed, but it is unnecessary to refer to them. Wright, C. J., dis- sented, to use his own words " very reluctantly," on the question of tlie constitutionality of such bonds. The question again was decided three times at the June 270 GELPCKE V. DUBUQUE. Term, 1858, in Ring v. The County of Johnson, 6 Iowa, 265, in McMillen v. Boyles, Id. 304, and in McMillan v. The County Judge and Treasurer of Lee County, Id. 391. The opinions in the first two cases were written by Wood- ward (Wright, C. J., dissenting in the first case) ; in the second case no one dissented ; and the opinion in the third case was written by Wright, former dissenting judge. Each case holds, I. That the question is settled by the Supreme Court by former adjudications, that the counties have the right, con- stitutionally, to take stock in a railroad, and to issue their bonds therefor. II. And the second and third cases decide that the Legisla- ture by a curative Act had made the bonds of Lee County binding upon the county, although from an informality they were irregularly issued. In one of the cases, Ring v. The County of Johnson, 6 Id. 265, which was decided a 'few days before the others. Chief Justice Wright wrote a short dissenting opinion. Next in order in the decisions of this question comes Games v. Robb, 8 Id. 193, June Term, 1859, and the opinion is here written by Chief Justice Wright, who says : " That the Judge had the power to submit a vote to take subscription on a railroad, to the people, and to levy a tax therefor, we understand to be settled in favor of the power by the cases of Clapp v. Cedar County, 5 Id. 15, Ring v. The County of Johnson, 6 Id. 265, and McMillen v. Boyles, 6 Id. 304, and the cases there referred to." Thus, all the judges concur, in the decision of this question, as they did in McMillen 7>. Boyles, holding the constitutionality of the bonds to be decided by the former cases, the opinion of the court being, in each case, written by the learned judge who alone had dissented. We thus have the decisions of the Supreme Court of Iowa, given to the world through a period of six years, by 271 xv:-"}^^^ OCT A 5 \m THE STUDY OF CASES. two different benches, in seven different decisions of the court, upon the questions now made before this court, and although two judges had dissented during that time, yet in the opinion of the Chief Justice of the State, written by him who alone had before that time " very reluctantly " dis- sented, the great commercial world, whose money was at that very moment building up the commerce of the State by extending railroads through it, were assured that the question was settled, and that, too, in favor of the legality and negotiability of these bonds. Whether, in view of the Constitution of Iowa, it was or was. not rightly settled in the first ihstance, is a matter not important at all to inquire into. It was settled by a tribunal which had power to settle it ; and on the faith of judicial decisions the bonds were sold. Before examining decisions since made by the Supreme Court of Iowa, let us mention the decisions of other courts, down to the date when, at December Term, 1859, the Su- preme Court just named took that first step, in Stokes v. The County of Scott, in overthrowing its decision, which was con- summated in The State, ex relatione, v. The County of Wapello, at the June Term, 1862. In Ohio, the Supreme Court, at different dates, has affirmed its ruling in five different decisions, Ohio v. Commissioners of Clinton, 6 Ohio State, 280 ; The State v. Van Home, 7 Id. 327 ; Id. V. Trustees of Union, 8 Id. 394 ; Id. v. Com- missioners of Hancock, 12 Id. 596; Trustees v. Shoe- maker, 12 Id. 624. In Missouri, its court followed, in 1856, previous rulings also. City v. Alexander, 23 Missouri, 483. In this the Supreme Court of the United States, the question was decided twice at December Term, 1858, and once in 1859, and once in i860. Commissioners of Knox Co. V. Aspinwall, 21 Howard, 539; Same v. Wallace, Id. 547 ; Zabriskie v. The Cleveland R. R., 23 Id. 381 ; Amey V. The Mayor, 24 Id. 365 ; Commissioners, &c. v. Aspin- wall, Id. 376. 272 GELPCKE V. DUBUQUE.. The District Court of the United States for the District of Wisconsin, in a. d. i86i, made similar decisions, in Smith v. Milwaukee & Superior R. R. Co., 9 American Law Register, 655, and Mygatt v. City of Green Bay, 8 Id. 271. The Supreme Court of New York, at June Term, 1857, in Clarke v. The City of Rochester, 24 Barbour, 446, in a review of the question, after an elaborate argument before them, made the same ruling, which was affirmed by the Court of Appeals of that State at the September Terra, 1858, nemine dissentiente, Bank of Rome v. Village of Rome, 18 New York, 38. The Supreme Court of Indiana, at the May Term, 1857, The City of Aurora v. West, 9 Indiana, 74, made the same ruling. The Supreme Court of Illinois made a similar ruling, in April Term, 1858, Prettyman v. Supervisors, 19 Illinois, 406, which was, in April Term, 1 860, affirmed in two cases, John- son V. The County, 24 Id. 75 ; Perkins v. Lewis, Id. 208. The same question after elaborate discussion was also unanimously decided in the same way, at the January Term, 1857, of the Court of Appeals of South Carolina, Copes v. Charleston, 10 Richardson, 491. The Supreme Court of Wisconsin, at the December Term, 1859, in the two cases, Clark v. City, lo Wisconsin, 136, and Bushnell v. Beloit, Id. 195, made the same ruling, and decided every constitutional question in this case under a Constitution the same as that of the State of Iowa, in favor of the legality of such bonds ; and that, too, by the unani- mous concurrence of the whole bench. There are other cases, in others of the States of the Union, which might be cited, but it would only tend to lengthen the hst, rather than to make it stronger. Nowhere, in short, can an authority be found, save the subsequent ruling of the State of Iowa, where the highest appellate court of a State, or of the United States, has held 18 273 THE STUDY OF CASES. such bonds to be invalid, in the hands of bond fide holders for value ; and at the time when that decision was rendered, decisions had been made by the Supreme Court of the United States, and of fifteen of the different States of the Union, of which Iowa was one, running through a quarter of a century of time and all going to establish the obligation. But upon what grounds was this contrarient decision finally based? In Stokes v. The County of Scott, lo Iowa, i66, the majority of the court held, where the bonds had been nego- tiated, and rights had become vested by purchase, by inno- cent holders, that there they were valid ; but that where the question was presented prior to the issue of such bonds, the court might properly interfere to restrain the issue. Wright, C. J., took his former position, holding such bonds to be un- constitutional and void, in the hands of all parties. Stockton, J., held the bonds constitutional, but not warranted by law ; that they might be enforced by innocent third parties, but that it was properly within the province of a court of equity to restrain the issue thereof, where the question was presented in limine. Woodward, J., dissented from both the other judges, hold- ing that the question was settled in the State, and that it was the duty of the court to abide by precedents. Of the immediate effect of this decision, the world had no right to complain, as no money had been invested, and it was only so far as it tended to cast loose from the accepted decisions of the State of Iowa, and of other States, and to render vested rights insecure, that it tended to work a hard- ship upon the commercial world. We come now to The State of Iowa, ex relatione, v. The County of Wapello, June Term, 1862. The court there decided : — I. That section 114 of the Code of 1851, did not afford the authority of law for issuing of county bonds, overruling 274 GELPCKE V. DUBUQUE. the case of 1853, — Dubuque County v. Dubuque and Pacific Railroad Co. II. That certain statutes relied on did not afford such authority, nor legalize such Acts already performed : but — III. That if a constitutional question did not preclude it, the court would feel bound by the construction of the statute by former courts, and would follow such decisions. IV. That such a law, however passed, would not confer the authority, because unconstitutional. [The counsel then examined this case on principle, arguing that independently of precedents it was wrongly decided.] Now in the face of this history of decisions in Iowa and everywhere, of what value is this case, The State of Iowa, ex rel., V. The County of Wapellq, so much relied on ? By whom, after all, is law to be settled among us ? By the Supreme Court of the United States, or of the State of Iowa? By the supreme tribunal of fifteen States or of one? By the Supreme Court of Iowa for seven years or for two ? By six judges of that State or by three ? Are you to hold, in ths face of the fact that millions of dollars have been invested, under the law which enters into and forms a part of every contract as it was interpreted by the courts of the whole country, that you yourselves were mistaken? That for twenty-five years all the tribunals of the whole country were mistaken ? That for seven years the Supreme Court of Iowa was mistaken, because it appears now that that tribunal has reversed its long-established rulings ? Had the question been presented to you one year ago to-day, you would not have hesitated an hour on the proposition, for then there was no diversity of rulings anywhere. Because the Supreme Court of Iowa has chosen thus to disregard its own prece- dents, are millions of property, treasured on the banks of the Delaware, the Hudson, the Thames, the Seine, and the Rhine ; are the decisions of this State of Iowa itself, as of all 275 THE STUDY OF CASES. the States ; the reputation of that people, as of Americans generally, to be swept away ? swept away by a " surge of judicial opinion"? Is the sway of law among us thus to " shake like a thing unfirm " ? This cannot be. At best there is no settled law in Iowa upon the subject. The court of this year has reversed the decisions of former years ; and has but taught instructions, which will return, hereafter, to plague it. Assuredly, this high tribunal of the United States, whose opinion has been expressed with clearness, will not vary its opinion and cut loose from its own, and from accepted decisions of the whole country, at a time when, above all times, change would be unwarranted in principle and freighted with disaster. Mr. Bissell for the City of Dubuque : The question is, Whether a subscription to an extra-territorial railway — made by a city corporation under authority of an Act of the Legislature — is valid under the Constitution and decisions of the State of Iowa? It is not here important for us to inquire what other courts, acting under other constitutions and under other laws, may have decided. And, first, it is con- ceded by the other side that a city corporation has no power by virtue of its ordinary franchises to make such subscrip- tion. If the power exist at all, it is now admitted that it comes only from legislation directly authorizing it. How, then, stands the case? I. Let it be considered irrespectively of precedents any- where. Under our form of government, the Legislature, unlike Parliament, is not omnipotent. Irrespectively of all consti- tutions, bills of right, or anything of that sort, it will be conceded that the Legislature cannot directly take the prop- erty of one man and give it to another, or compel one man, or any number of men, to engage in particular pursuits, or to invest their money in particular securities. Nor can it take private property for even public purposes without just 276 GELPCKE V. DUBUQUE. compensation ; compensation of some kind or in some way. What it cannot do in one form it cannot do in another. What it cannot do by command, it cannot do by taxation. If the Legislature should tax the property of individuals in one city for all the expenses of another, such legislation would be void. And even in regard to improvements of a kind really public, if more than any citizen's just share of the expense of them is taken the legislation is null. If power is given to take property in one place which con- cerns the public at large, property not being proportionably taken from that public at large, or if property is taken from one place only for objects which concern another, the power is not one conformed to the principles of constitu- tional republican government. Now a man's property is as much taken by a tax as by any other form. Indeed of all modes of taking property it is the most effective, as also the most difficult to analyze and oppose. It has always been the instrument of unconstitutional legislation, and, therefore, should be watched and guarded. It is of the essence of taxa- tion, therefore, that it be just. And wherein does this just- ness consist ? Plainly in a just apportionment of taxes ; that is to say, an apportionment which brings to the party, in some form, just compensation for this property taken away. In regard to a man's property taken by tax and applied to purposes purely local and about him, he gets the just recom- pense, by the application itself Where the application is to purposes of a wider and more public kind, — for the pur- poses of his State, or the United States, — he gets a just recompense, provided all others are taxed proportionably with him. But just in so far as he is taxed above them, he gets no just recompense at all. The principles are readily applied to a case like the present. It is almost unnecessary to say, that what the Legislature cannot do directly, it cannot do indirectly. The stream can mount no higher than its source. The Legislature cannot 277 THE STUDY OF CASES. create corporaUons with illegal powers, nor grant unconsti- tutional powers to those already granted. Again : Counsel of the other side do not distinguish well between private corporations and public ones. Private corporations are only created with the assent of the corporators. They, by becoming corporators, voluntarily enter into a contract, by which they put their money or prop- erty into a common fund, to be controlled in accordance with rules to which they have assented, and which cannot be changed without their assent. The Legislature cannot change the terms of their charter, neither can the majority of the corporators, unless it has been so prescribed in the contract, to which each corporator has given his assent. It is therefore right that these corporations should be permitted to enter into such speculations as they may choose. Each member has placed just so much of his property under the Control of the corporation, as he has deemed best for his in- terest and no more. With public corporations it is different. The corporation is created by the Legislature without neces- sarily consulting the will of the inhabitants, and often, in fact, in opposition to said will. The rights, duties, and powers of public corporations may be altered or taken away at any time by legislative enactment, or greater powers may be con- ferred upon the corporation in the same manner. The in- habitants of such corporation have no voice in accepting the charter ; they have no power of electing how much of their property they will subject to the control of the corporation ; they cannot transfer their stock, and thus cease to be mem- bers of such corporation. The Legislature has power to create such corporation, in opposition to the will of the corporators, because such corporation is a portion of the government of the State itself, and every man yields up to the State just so many of his inherent rights, as are necessary to carry on the government which protects him. As said before every citi- zen of a State yields up to the State all those rights which 278 GELPCKE V. DUBUQUE. are necessary to carry on the government. He yields up the right without his individual assent, to be united, with other citizens, into cities, towns, counties, &c., as the Legislature may deem proper. As it is necessary to have roads, wharves, waterworks, &c., for the use of the citizens of such corpora- tioris, he yields his assent to be taxed for the creation of such works. Such works, however, w^ien created, are under the control of the corporation. They are for the sole use of the corporation. In regard to the State of Iowa, its Constitution comes in aid of general principles. It declares (i) that all laws of a general nature shall have a uniform operation. Is not a law which authorizes a great public improvement, — one run- ning over the State, — a law of a general nature ? Does it have a uniform operation when the cost of it is laid on the people living at one terminus, all those along its line being exempt? It declares (2) that the legislative power of the State shall be vested in the Assembly of the State ; meaning, of course that it shall not be delegated. But is it not dele- gated when, by statute, you give a city power to legislate in a manner, which, but for the statute, it confessedly would not have ? It declares (3) that the Assembly shall not " in any manner create any debt, . . . which shall singly or in the aggregate, . . . exceed Jioo.ooo." The restraint is not against the creation of a debt in behalf of the State, any more than on behalf of her subdivisions. The language is broad. When the State authorizes the cities, counties, town- ships, boroughs, which cover her whole surface, to lay debts on every respective part of her, is not the purpose of the restraint violated ? A construction which renders practically vain a constitutional provision which a different interpretation, not forced, will preserve cannot be a sound one. It declares (4) that corporations shall not be created by general laws, except for political or municipal purposes. Here is a law, in fact creating a corporation for a purpose which is neither. 279 THE STUDY OF CASES. It declares in the same section that the State shall not directly nor indirectly become a stockholder in any corpor- ation. But does not the State become indirectly a stock- holder in a corporation, when she authorizes a portion of her people to enter into an organization, which, but for her statute, they cannot have, and allows them in such form to become a stockholder in a corporation? It is urged that the courts of the different States of the Union have decided this question so uniformly in favor of the power of the Legislature to confer the authority claimed, that it is no longer an open question. We may observe in passing that it is matter of difificulty for professional men or judges — if not belonging to a State — perfectly to under- stand the value of decisions made under local constitutions and local statutes in that State. They may run into great error if they read them by lights in which they are ac- customed to see elsewhere. But assuming all that is claimed for them, such decisions are not binding upon this court ; and if the decisions of other courts are not in accordance with the law as understood by this court, they will not be followed. If a dissenting opinion of said courts is based upon correct legal principles, this court will follow such principles, rather than an erroneous decision of a court. Let us see if the decisions of the courts of the different States do establish the principle, that a Legislature, with power like that of the State of Iowa, can confer upon mu- nicipal corporations the right to purchase stock in railroad corporations. In the first case cited, G'oddin v. Crump, it was decided that the Legislature of Virginia had power to authorize the city of Richmond to levy a tax, to aid in removing a bar from James River, to open navigation to the city, and to take stock in a private corporation, organized to perform such work. This river was a navigable stream, under the laws of Virginia. The court held that the levy of the tax to pay for 280 GELPCKE V. DUBUQUE. such stock was legal, and also held that the interest of the corporation was the true test of the corporate character of the Act, and that the Legislature was the sole judge of what would conduce to the interest of the city. The Act giving the power to aid in the construction of said work was passed at the request of a majority of the citizens of the city. The majority of the court seem to have lost sight of the fact that an interest in an improvement is entirely different from an incidental benefit arising from the same improvement. But there is a dissenting opinion by Brooke, J., which places the question upon the true grounds. He holds that such legis- lation violated the Bill of Rights ; that the power of such cor- porations to tax the people must be limited to objects of purely a local character. This case arose under an express Act of the Legislature, giving the specific power claimed. In the next case relied on, Bridgeport v. Housatonic Rail- road Co., it was decided that the Legislature, upon request of a city, may authorize such city to subscribe for and take stock in a railroad leading to such city, provided such act be approved by the people of the city. The only clause in the Constitution, which was claimed to restrict the Legisla- ture, was that which forbade private property being taken for public use without compensation. This was also under an express Act of the Legislature. In Tennessee it has been decided — the third case cited, shows — that under the provision of the Constitution of that State which provides that " the Legislature has power to grant to counties and incorporated towns the right to impose taxes for county and corporation purposes," the Legislature may authorize a city to aid in the construction of a railroad to such corporation, and when the expenditure is by a county, the expenditure must be within the county. The Constitu- tion of that State does not limit the grant to an expendi- ture municipal for municipal purposes, but for corporate purposes. 281 THE STUDY OF CASES. In Kentucky it has been decided that the Legislature had power to authorize municipal corporations to take stock in railroad corporations, and levy taxes to assist in building said roads to such corporation. There is an able dissenting opinion in this case. This decision is founded upon the fact that there was no limitation to the legislative power in their Constitution, and that it was, therefore, omnipotent. In Pennsylvania this doctrine was carried to its extreme limit in one case, — Sharpless v. The Mayor of Philadelphia, — where it was decided that a municipal corporation may aid in the construction of a railroad, miles away, if it can be supposed that it may benefit the corporation ; and that the Legislature is the judge of the question. But in another, — Diamond ». The County of Lawrence, 37 Pennsylvania State, 358. See Mercer County v. Racket, i Wall. 87, — when suit was brought on bonds, like those here, in the hands of holders who had paid value for them, the court declared that they were open to defences of every kind ; and a recovery was not had. In Illinois, where there is no constitutional limitation, it has been held that a municipal corporation may, under legis- lative authority, aid in the construction of railroads within the corporation. In Florida, under a similar provision of the Constitution to that of Tennessee, it was held that a county might aid in constructing a railroad through the county. Cotton v. Cora, of Leon, 6 Florida, 610. Other States have followed the decisions we dissent from ; some following them to a full extent, and some limiting the application to a narrower compass. All the decisions, we believe, are where there was no constitutional restriction, or where the power was expressly given, as in Tennessee and Florida. In many of the decisions, the courts seem to have been imbued with the frenzy of the day, and to have lost sight 282 GELPCKE V. DUBUQUE. of the well-defined distinction between the powers and lia- bilities of municipal and private corporations. This question, it is believed, has not been decided by this court as an independent question ; but its decisions so far are based upon the decisions of the courts of the State in which the cases originated, and upon the rule that this court will follow the decisions of State courts, as to the construction of their own Constitution or statutes. If this question has been settled by the courts in the State of Iowa, then this court will follow such ruling ; but if they have not settled it, then it is an open question for determination by this court. What is the history of these decisions ? The Supreme Court of Iowa, in the case of The Dubuque and Pacific Railroad Co. v. Dubuque County, which is claimed to be decisive of this question, decided that the Constitution of the State had not deprived the citizens of the county of the right to vote the credit of said county to build a railroad within the county limits. That court uses the following langflage : " As the people have not, in the Constitution, delegated this power, to vote upon such propositions, nor in any way conceded or divested them- selves of this right, but have in express terms affirmed in the Bill of Rights, that ' all political power is inherent in the people ' (Art. i, Sect. 2), we conclude that the people may, with constitutional propriety, vote the credit of the county to aid in the construction of a railroad within its limits ; " one judge dissenting as to the power of the county to take stock in railroads. That court has thus decided that the Constitution has not conferred upon the Legislature of the State any power to authorize such an expenditure. That this power is not in the people in their aggregate capacity, either as a town, city, county, or State, but in their individual capacity. It holds virtually that the Legislature has no such power, but that it is inherent in the people. There is noth- 283 THE STUDY OF CASES. ing said about the power of the Legislature to confei this authority on a city or county. The next case relied on is the State v. Bissell. In that case the question was not raised, and the court say: "This decision is not intended to sanction or deny the legal validity of the decision in the foregoing case, but to leave that question where that decision has left it." 4 G. Greene, 332- The next case is Clapp v. County of Cedar. The court disposes of the constitutional question with the following re- marks : " The second step would be, whether a Legislature possesses the power to confer this authority upon a county ? Few have doubted the existence of this power, the question having generally been, whether the power had been exer- cised or whether a county possessed the desired authority without a special grant." 5 Iowa, 45. The court, however, say that " this power is not, as far as the court can see, derived from any legislative enactment," but, upon the strength of the judgment of the coiirt in the above case of The Dubuque and Pacific Railroad Co. v. Dubuque County, it decides that the counties have power to aid in the con- struction of railroads within the limits of such county; one judge dissenting. In Ring V. Johnson Co., and McMillen v. Boyles, the last cases cited on the other side, the question was not directly raised nor decided, the court conceding that counties had the right to aid in the construction of railroads to be constructed within their Hmits ; see, also, Games v. Robb, 8 Iowa, 199. But confessedly the Iowa decisions in favor of these bonds end here. They were never quite unanimous, and have never given satisfaction to either profession or courts. In Stokes V. The County of Scott, a majority of the court assumed tenable ground, and restrained an issue about to be made. Then came The State, ex relatione, v. The County of Wapello, a case fully argued, much considered and unani- 284 GELPCKE V. DUBUQUE. mously decided. That this case does decide these bonds to be void, that such is now the law in the State of Iowa, is undeniable, we think. The court in that great case remarks, that although some fourteen or fifteen States had expressed their opinions upon this exercise of power by municipal cor- porations, they have not reached satisfactory conclusions. Hence, it declares, the renewed agitation on the subject ; an agitation, it remarks, which " will continue to obtrude itself upon the courts of the country, year after year, until they have finally settled it upon principles of adjudication which are known to be of the class of those that are laid up among the fundamentals of the law : and which will leave the capi- tal of private individuals where the railroad era, when it dawned upon the world, found it, namely, under the control and dominion of those who have it, to be employed in what- ever field of industry and enterprise they themselves might judge best." The court then speaks of the decisions of Iowa from the first, Dubuque Co. v. The Dubuque, &c. R. R. in 1853, where by a divided court the power was held to have been given to the last, Stokes v. County of Scott, in 1859, where by a like court it was to a degree decided otherwise. "The intermediate decisions," it declares, "were an acquies- cence in the former of these, by two members of the court, not upon the ground that the Legislature had in fact authorized the exercise of any such power by the cities or counties in this State (for this they had expressed very great doubts about, and affected not to believe), but be- cause they felt themselves so much committed and tram- melled by the previous decisions and subsequent legisla- tive recognition, that they did not feel themselves at liberty, from public considerations, to unsettle the construction which the first decision had given to the code on the subject." " In this aspect of the case," the court continues, " it will be perceived that the question now under consideration is an entirely open one in this State, and that this court as now 285 THE STUDY OF CASES. constituted must pass upon it as an original question, wholly unaffected by the doctrine of stare decisis ; or, if influenced at all by prior decisions, we should be inclined to follow the later rather than the earlier opinions." The court then ex- amines the history of legislation in Iowa, and shows that important features in it have escaped the notice of j;idges who first gave a construction to the code. It then inquires whether the Legislature can pass laws like those in question, and considers the question on the principles of State and of municipal governments, and on the character and responsi- bilities, the risks and liabilities, of railroad corporations ; de- claring that the Legislature cannot. The court was conscious of the importance of the decision they were making. They say, in denying the validity of these bonds : " We are not insensible that in doing so, at this late day, we are liable to expose ourselves and our people to the charge of insincerity and bad faith, and perhaps that which is still worse, inflict a great wrong upon innocent creditors and bondholders : con- sequences which we would most gladly have avoided, if we could have done so and been true to the obligations, of con- science and principle." But they declare that the legislative power assumed "practically overturns one of the reserved and fundamental rights of the citizen, that of making his own contracts, choosing his own business pursuits, and managing his property and means in his own way, and which, under the Constitution of this State, however it may be else- where, entitles him to the intervention and protection of the courts, we are willing to risk the consequences resulting from the exercise of such a power as furnishing a sufficient answer in itself to all the reasons which have been or may be assigned in favor of its exercise." In answer to the cry about im- provement and trade, they declare that if any person " who believes the law to possess the dignity of a science, and hold an exalted rank in the empire of reason," will "analyze the question with reference to the principles and theory of our 286 GELPCKE V. DUBUQUE. own political organization, he will discover that it implicates a right which in importance is above all or any interest connected with the business relation or the physical improve- ments of the county.'' And rendering everything to its pro- per sphere, and leaving to the law its duties, and to conscience hers, they end with this declaration : " We know, however, that there is such a thing as a moral sense and a public faith which may be successfully appealed to, when the law is im- potent to afford relief. These sentiments, we cannot but be- lieve still reside in the hearts and consciences of our people, and may be invoked to save themselves and their State from seeming bad faith." The case may be avoided or evaded. Answered, on principle, it cannot be. Amey v. Alleghany City, decided in this court in 1859, 24 Howard, 364, is one of the decisions relied on to support the plaintiffs case ; but that decision is against it. The case, a Pennsylvania one, acknowledged the force of the argu- ment we have used as to the proper objects of legislation, and the constitutionality or unconstitutionality of statutes accordingly. But the court considered that constitutionality was not there open for discussion ; it having been affirmed by the State court. If it had been open such legislation would not have been supported. " We have not," say the court, " discussed that position of the learned counsel. Agreeing with him in the main, as to the foundations upon which the correctness of legislation should be tested, and the objects for which it ought to be approved, we cannot, with the respect which we have for the judiciary of his State, dis- cuss the imputed unconstitutionality of the Acts ; it having been repeatedly decided by the judges of the courts of Pennsylvania, including its Supreme Court, that Acts for the same purposes as those are which we have been considering were constitutional." If this court considers, as the court of Iowa has done, that the constitutionality of the Iowa Acts is open for considera- 287 THE STUDY OF CASES. tion, they will decide that constitutionality does not exist, and that the bonds are void. Then, the question is, whether the Constitution and laws of a State are to be construed by the State courts of other States, or by its own courts? whether, in a case where no power to interpret above the State's court is given to the Su- preme Court of the United States — as such power is given in certain other cases. Judiciary Act, 1789, § 25, where a writ of error lies to the highest State court from this — this court will determine that the Constitution and statutes of a State mean one thing, when the courts of the State itself have solemnly adjudged that they mean another? whether this court will say, that the State courts have decided a ques- tion, when the judges who sit on the bench of that court are declaring unanimously that " the question is an entirely open one," and to be passed upon as an " original question " ? whether, because dealers upon change, whose daily bread, like that of underwriters, is " risk ; " people upon the " Rhine " — the respectable citizens of the Juden-Gasse of Frankfiirt- am-Maine — have bought these bonds at large discounts, on account of those doubts of their legality which everywhere, have attended the issue of them, shall have them enforced in the face of the constitutions and solemn decisions of the State courts, simply because they have bought and yet hold them ? These are the questions ; some of them grave ones, — if resolved in the affirmative. Mr. Justice Swayne delivered the opinion of the court : — The whole case resolves itself into a question of the power of the city to issue bonds for the purpose stated. The Act incorporating the city, approved February 24, 1847, provides as follows : — "Sect. 27. That whenever, in the opinion of the City Council, it is expedient to borrow money for any public purpose, the question shall be submitted to the citizens of 288 GELPCKE V. DUBUQUE. Dubuque, the nature and object of the loan shall be stated, and a day fixed for the electors of said city to express their wishes, the like notice shall be given as in cases of election, and the loan shall not be made unless two-thirds of all the votes polled at such election shall be given in the afiSrma- tive." "By an Act approved January 8th, 1851, the Act of incorporation was ' so amended as to empower the City Council to levy annually a special tax to pay interest on such loans as are authorized by the 27th section of said Act.' " An Act approved January 28th, 1857, contains these pro- visions : — " That the city of Dubuque is hereby authorized and em- powered to aid in the construction of the Dubuque Western and the Dubuque, St. Peter's & St. Paul Railroad Com- panies, by issuing ^250,000 of city bonds to each, in pur- suance of a vote of the citizens of said city, taken in the month of December, a. d. 1856. Said bonds shall be legal and valid, and the City Council is authorized and required to levy a special tax to meet the principal and interest of said bonds, in case it shall become necessary from the failure of funds from other sources." "The proclamation, the vote, and bonds issued or to be issued, are hereby declared valid, and the said railroad companies are hereby authorized to expend the money arising from the sale of said bonds, without the limits of the city and county of Dubuque, in the construction of either of said roads, and neither the city of Dubuque, nor any of the citizens, shall ever be allowed to plead that said bonds are invalid." By these enactments, if they are valid, ample authority was given to the city to issue the bonds in question. The city acted upon this authority. The qualifications coupled with '9 289 TME STUDY OF CASES. the grant of power contained in the 27th section of the Act of incorporation are not now in question. If they were, the result would be the same. When a corporation has power, under any circumstances, to issue negotiable securities, the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirm- ity in the hands of such a holder than any other commercial paper. Commissioners of Knox Co. v. Aspinwall, 21 Howard, 539 ; Royal British Bank v. Turquand, 6 Ellis & Blackburn, 327 ; Farmers, Land & T. v, Curtis, 3 Selden, 466 ; Stoney V. A. L. I. Co., II Paige, 635 ; Morris Canal & B. Co. v. Fisher, 1 Stockton's Chancery, 667 ; Willmarth v. Crawford, 10 Wendell, 343 ; Alleghany City v. McClurkan, 14 Pennsyl- vania State, 83. If there were any irregularity in taking the votes of the electors or otherwise in issuing the bonds, it is remedied by the curative provisions of the Act of January 28, 1857. Where there is no defect of constitutional power, such legislation, in cases like this, is valid. This question, with reference to a statute containing similar provisions, came under the consideration of the Supreme Court of Iowa, in McMillen v. Boyles, 6 Iowa, 305, and again in McMillen et al. V. The County Judge and Treasurer of Lee County, Id. 391. The validity of the Act was sustained. Without these rulings we should entertain no doubt upon the subject. Wil- kinson ^'. Leland, 2 Peters, 627; Satterlee v. Matthewson, 2 Id. 380 ; Baltimore & S. R. Co. v. Nesbit et al., 10 Howard, 395 ; Whitewater Valley Canal Co. v. Vallette, 21 Id. 425. It is claimed " that the Legislature of Iowa had no au- thority under the Constitution to authorize municipal corpo- rations to purchase stock in railroad companies, or to issue bonds in payment of such stock." In this connection our attention has been called to the following provisions of the Constitution of the State : — 290 GELPCKE V. DUBUQUE. "Art. I. § 6. All laws of a general nature shall have a uniform operation." " Art. 3, § I. The legislative authority of the State shall be vested in a Senate and a House of Representatives, which shall be designated as the General Assembly of the State of Iowa," &c. " Art. 7. The General Assembly shall not in any manner create any debt or debts, liability or liabilities which shall, singly or in the aggregate, exceed the sum of one hundred thousand dollars, except," &c. The exceptions stated do not relate to this case. "Art 8, §2. Corporations shall not be created in this State by special laws, except for political or municipal pur- poses, but the General Assembly shall provide by general laws for the organization of all other corporations, except corporations with banking privileges, the creation of which is prohibited. The stockholders shall be subject to such liabilities and restrictions as shall be provided by law. The State shall not, directly or indirectly, become a stockholder in any corporation." Under these provisions it is insisted, — 1. That the general grant of power to the Legislature did not warrant it in conferring upon municipal corporations the power which was exercised by the city of Dubuque in this case. 2. That the seventh article of the Constitution prohibits the conferring of such power under the circumstances stated in the answer, — debts of counties and cities being, within the meaning of the Constitution, debts of the State. 3. That the eighth article forbids the conferring of such power upon municipal corporations by special laws. All these objections have been fully considered and re- peatedly overruled by the Supreme Court of Iowa. Dubuque Co. V. The Dubuque & Pacific R. R. Co., 4 Greene, i ; The 291 THE STUDY OF CASES. State V. Bissel, 4 Id. 328 ; Clapp v. Cedar Co., 5 Iowa, 15 ; Ring V. County of Johnson, 6 Id. 265; McMillen v. Boyles, 6 Id. 304 ; McMillen v. The County Judge of Lee Co., 6 Id. 393 ; Games v. Robb, 8 Id. 193 ; State v. The Board of Equalization of the County of Johnson, 10 Id. 157. The earliest of these cases was decided in 1853, the latest in 1859. The bonds were issued and put upon the market between the periods named. These adjudications cover the entire ground of this controversy. They exhaust the argu- ment upon the subject. We could add nothing to what they contain. We shall be governed by them, unless there be something which takes the case out of the established rule of this court upon that subject. It is urged that all these decisions have been overruled by the Supreme Court of the State, in the later case of the State of Iowa, ex relatione, v. The County of Wapello, 13 Iowa, 390, and it is insisted that in cases involving the con- struction of a State law or Constitution, this court is bound to follow the latest adjudication of the highest court of the State. Lefifingwell v. Warren, 2 Black, 599, is relied upon as authority for the proposition. In that case this court said it would follow " the latest settled adjudications." Whether the judgment in question can, under the circumstances, be deemed to come within that category, it is not now necessary to determine. It cannot be expected that this court will follow every such oscillation, from whatever cause arising, that may possibly occur. The earlier decisions, we think, are sustained by reason and authority, They are in harmony with the adjudications of sixteen States of the Union. Many of the cases in the other States are marked by the pro- foundest legal ability. The late case in Iowa, and two other cases of a kindred character in another State, also overruling earlier adjudica- tions, stand out, as far as we are advised, in unenviable soli- tude and notoriety. However we may regard the late case 292 GELPCKE V. DUBUQUE. in Iowa as alifecting the future, it can have no effect upon the past. " The sound and true rule is, that if the contract, when made, was valid by the laws of tlie State as then ex- pounded by all departments of the government, and admin- istered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation, or decision of its courts altering the construction of the law." The Ohio Life & Trust Co. v. Debolt, i6 Howard, 432. The same principle applies where there is a change of judicial decision as to the constitutional power of the Legis- lature to enact the law. To this rule thus enlarged, we ad- here. It is the law of this court. It rests upon the plainest principles of justice. To hold otherwise would be as unjust as to hold that rights acquired under a statute may be lost by its repeal. The rule embraces this case. Bonds and coupons, like these, by universal commercial usage and consent, have all the qualities of commercial paper. If the plaintiffs recover in this case, they will be entitled to the amount specified in the coupons, with interest and exchange as claimed. White v. The V. & M. R. R. Co., 21 Howard, 575 ; Commissioners of the County of Knox v. Aspinwall 1?^ fl/., 21 Id. 539. We are not unmindful of the importance of uniformity in the decisions of this court, and those of the highest local courts, giving constructions to the laws and constitutions of their own States. It is the settled rule of this court in such cases, to follow the decisions of the State courts. But there have been heretofore, in the judicial history of this court, as doubtless there will be hereafter, many exceptional cases. We shall never immolate truth, justice and the law, because a State tribunal has erected the altar and decreed the sacrifice. The judgment below is reversed, and the cause remanded for further proceedings in conformity to this opinion. Judgment and mandate accordingly. 293 THE STUDY OF CASES. Mr. Justice Miller dissenting : — In the opinions which have just been delivered, I have not been able to concur. But I should have contented myself with the mere expression of dissent, if it were not that the principle on which the court rests its decision is one not only essentially wrong, in my judgment, but one which, if steadily adhered to in future, may lead to consequences of the most serious character. In adopting that principle, this court has, as I shall attempt to show, gone in the present case a step in advance of anything heretofore ruled by it on the subject, and has taken a position which must bring it into direct and unseemly conflict with the judiciary of the States. Under these circumstances, I do not feel at liberty to decline placing upon the records of the court the reasons which have forced me, however reluctantly, to a conclusion different from that of the other members of the court. Tiie action in the present case is on bonds of the city of Dubuque, given in payment of certain shares of the capital stock of a railroad company, whose road runs from said city westward. The court below held, that the bonds were void for want of authority in the city to subscribe and pay for such stock. It is admitted that the Legislature had, as to one set of bonds, passed an act intended to confer such authority on the city, and it is claimed that it had done so -as to all the bonds. I do not propose to discuss this latter question. It is said, in support of the judgment of the court below, that all such grants of power by the Legislature of Iowa to any municipal corporation is in conflict with the Constitution of the State and, therefore, void. In support of this view of the subject, the cases of Stokes v. Scott County, lo Iowa, i66, and State v. County of Wapello, 13 Iowa, 398, are relied on. In the last mentioned case, the County of Wapello had agreed to take stock in a company whose road passed 294 GELPCKE V. DUBUQUE. through the county, but had afterwards refused to issue the bonds which had been voted by the majority of the legal voters. The relator prayed a writ of mandamus to compel the officers of the county to issue the bonds. One question raised in the discussion was, whether section 114 of the Code of Iowa, of 1851, was intended to authorize the counties of the State to take stock in railroad companies? And another was, that conceding such to be the fair con- struction of that section of the code, was it constitutional? The Supreme Court, in a very elaborate and well-reasoned opinion, held that there was no constitutional power in the legislature to confer such authority on the counties, or on any municipal corporation. This decision was made in a case where the question fairly arose, and where it was neces- sary and proper that the court should decide it. It was decided by a full bench and with unanimity. It was decided by the court of highest resort in that State, to which is con- fided, according to all the authorities, the right to construe the Constitution of the State, and whose decision is binding on all other courts which may have occasion to consider the same question, until it is reversed or modified by the same court. It has been followed in that court by several other decisions to the same point, not yet reported. It is the law- administered by all the inferior judicial tribunals in the State, who are bound by it beyond all question. I apprehend that none of my brethren who concur in the opinion just deliv- ered, would go so far as to say that the inferior State courts would have a right to disregard the decision of their own appellate court, and give judgment that the bonds were valid. Such a course would be as useless as it would be destructive of all judicial subordination. Yet this is in substance what the majority of the court have decided. They have said to the Federal court sitting in Iowa : "You shall disregard this decision of the highest court of the State 29s THE STUDY OF CASES. on this question. Although you are sitting in the State of Iowa, and administering her laws, and construing her Consti- tution, you shall not follow the latest, though it be the soundest, exposition of its Constitution by the Supreme Court of that State, but you shall decide directly to the contrary ; and where that court has said that a statute is unconstitu- tional, you shall say that it is constitutional. When it says bonds are void, issued in that State, because they violate its Constitution, you shall say they are valid, because they do not violate the Constitution." Thus we are to have two courts, sitting within the same jurisdiction, deciding upon the same rights, arising out of the same statute, yet always arriving at opposite results, with no common arbiter of their differences. There is no hope of avoiding this, if this court adheres to its ruling. For there is in this court no power, in this class of cases, to issue its writ of error to the State court, and thus compel a uniformity of construction, because it is not pretended that either the statute of Iowa, or its Constitution, or the decision of its courts thereon, are in conflict with the Constitution of the United States, or any law or treaty made under it. Is it supposed for a moment that this treatment of its decision, accompanied by language as unsuited to the dis- passionate dignity of this court, as it is disrespectful to another court of at least concurrent jurisdiction over the matter in question, will induce the Supreme Court of Iowa to conform its rulings to suit our dictation in a matter which the very frame and organization of our government places entirely under its control? On the contrary, such a course, pursued by this court, is well calculated to make that court not only adhere to its own opinion with more tenacity, but also to examine if the law does not afford them the means, in all cases, of enforcing their own construction of their own Constitution and their own statutes, within the limits of their own jurisdiction. What this may lead to it is not possible 296 GELPCKE V. DUBUQUE. now to foresee, nor do I wish to point out the field of judicial conflicts, which may never occur, but which, if they shall occur, will weigh heavily on that court which should have yielded to the other, but did not. The general principle is not controverted by the majority, that to the highest courts of the State belongs the right to construe its statutes and its Constitution, except wliere they may conflict with the Constitution of the United States, or some statute or treaty made under it. Nor is it denied that when such a construction has been given by the State court, that this court is bound to follow it. The cases on this sub- ject are numerous, and the principle is as well settled, and is as necessary to the harmonious working of our complex sys- tem of government, as the correlative proposition that to this court belongs the right to expound conclusively, for all other courts, the Constitution and laws of the Federal government. Shelby v. Guy, ii Wheat. 361; McCluny ?'. SilHman, 3 Pet. 278; Van Rensselaer z/. Kearney, 11 How. 296; Web- ster V. Cooper, 14 How. 504; Elmendorf v. Taylor, 10 Wheat. 152 ; Bank v. Dudley, 2 Pet. 492. But while admitting the general principle thus laid down, the court says it is inapplicable to the present case, because- there have been conflicting decisions on this very point by the Supreme Court of Iowa, and that as the bonds issued while the decisions of that court holding such instruments to be unconstitutional were unreversed, that this construction of the constitution must now govern this court instead of the later one. The moral force of this proposition is, unques- tionably, very great. And I think, taken in connection with some fancied duty of this court to enforce contracts, over and beyond that appertaining to other courts, has given the majority a leaning towards the adoption of a rule, which in my opinion cannot be sustained either on principle 01 authority. 297 THE STUDY OF CASES. The only special charge which this court has over con- tracts, beyond any other court, is to declare judicially whether the statute of a State impairs their obligation. No such question arises here, for the plaintiff claims under and by virtue of the statute which is here the subject of discussion. Neither is there any question of the obliga- tion of contracts, or the right to enforce them. The ques- tion goes behind that. We are called upon, not to construe a contract, nor to determine how one shall be enforced, but to decide whether there ever was a contract made in the case. To assume that there was a contract, which contract is about to be violated by the decisions of the State court of Iowa, is to beg the very question in dispute. In deciding this question the court is called upon, as the court in Iowa was, to construe the Constitution of the State. It is a grave error to suppose that this court must, or should, determine this upon any principle which would not be equally binding on the courts of Iowa, or that the decision should depend upon the fact that certain parties had pur- chased bonds which were supposed to be valid contracts, when they really were not. The Supreme Court of Iowa is not the first or the only court which has changed its rulings on questions as impor- tant as the one now presented. I understand the doctrine to be, in such cases, not that the law is changed, but that it was always the same as expounded by the later decision, and that the former decision was not, and never had been, the law, and is overruled for that very reason. The decision of this court contravenes this principle, and holds that the deci- sion of the court makes the law, and, in fact, that the same statute or constitution means one thing in 1853, and another thing in 1859. For it is imphedly conceded, that if these bonds had been issued since the more recent decision of the Iowa court, this court would not hold them valid. Not only is the decision of the court, as I think, thus 298 GELPCKE V. DUBUQUE. unsound in principle, but it appears to me to be in conflict with its former decisions on this point, as I shall now attempt to show. In the case of Shelby v. Guy, ii Wheat. 361, a question arose on the construction of the Statute of Limitations of Tennessee. It was an old English statute, adopted by Ten- nessee from North Carolina, and which had in many other States received a uniform construction. It was stated on the argument, however, that the highest court of Tennessee had given a different construction to it, although the opinion could not then be produced. The court said, that out of a desire to follow the courts of the State in the construction of their own statute, it would not then decide that question, but as the case had to be reversed on other points, it would send it back, leaving that question undecided. In the case of the United States v. Morrison, 4 Pet. 124, the question was, whether a judgment in the State of Vir- ginia was, under the circumstances of that case, a lien on the real estate of the judgment debtor. In the Circuit Court this had been ruled in the negative, I presume, by Chief Justice Marshall, and a writ of error was prosecuted to this court. Between the time of the decision in the Circuit Court and the hearing in this court, the court of appeals in Virginia had decided, in a case precisely similar, that the judgment was a lien. This court, by Chief Justice Marshall, said it would follow the recent decision of the court of appeals without examination, although it required the reversal of a judgment in the - Circuit Court rendered before that decision was made. The case of Green v. Neal, 6 Pet. 291, is almost parallel with the one now under consideration, but stronger in the circumstances under which the court followed the later deci- sion of the State courts in the construction of their own statute. It is stronger in this, that the court there overruled two former decisions of its own, based upon former decisions 299 THE STUDY OF CASES. of the State court of Tennessee, in order to follow a later decision of the State court after the law had been supposed to be settled for many years. The case was one on the con- struction of the Statute of Limitations, and the Circuit Court at the trial had instructed the jury, " that according to the present state of decisions in the Supreme Court of the United States, they could not charge that defendant's title was made good by the Statute of Limitations.'' The decisions here referred to were the cases of Patton v. Easton, i Wheat. 476, and Powell v. Harman, 2 Pet. 241. The first of these cases was argued in the February Term, 18 r 5, by some of the ablest counsel of the day, and the opinion delivered more than a year afterwards. In that opinion Chief Justice Marshall recites the long dispute about the point in North Carolina and Teanessee, and says it has at length been setded by the Supreme Court- of the latter State by two recent decisions, made after the case then before it had been certified to this court, and the court fol- lows those decisions. This is reaffirmed in the second of the above mentioned cases. In delivering the opinion in the case of Green v. Neal, Justice McLean says that the two decisions in Tennessee referred to by Judge Marshall were made under such cir- cumstances tliat they were never considered as fully settling the point in that State, there being contrariety of opinion among the judges. The question, he says, was frequently raised before the Supreme Court of Tennessee, but was never considered as finally settled, until 1825, the first decision having been made in 181 5. The opinion of Judge McLean is long, and the case is presented with his usual ability, and I will not here go into further details of it. It is sufficient to say that the court holds it to be its duty to abandon the first two cases decided in Tennessee, to overrule their own well- considered construction in the case, of Patton v. Easton, and its repetition in Powell v. Green, and to follow without exam- 300 GELPCKE V. DUBUQUE. ination the later decision of the Supreme Court of Tennessee, which is in conflict with them all. At the last term of this court, in the case of Leffingwell v. Warren (67 U. S. 261), my very learned associate, who has just delivered the opinion in this case, has collated the author- ities on this subject, and thus on behalf of the whole court announces the result : — " The construction given to the State statute by the highest judicial tribunal of such State, is regarded as a part of the statute, and is as binding upon the courts of the United States as the text. ... If the highest judicial tribunal of a State adopt new views as to the proper construction of such a statute, and reverse its former decision, this court will fol- low the latest settled adjudications." United States v. Mor- rison, 4 Pet. 124; Green v. Neal, 6 Pet. 291. It is attempted, however, to distinguish the case now before us from those just considered, by saying that the latter relate to what is rather ambiguously called a rule of property, while the former concerns a matter of contract. I must confess my inability to see any principle on which the distinction can rest. All the statutes of the States which prescribe the for- malities and incidents to conveyances of real estate would, I presume, be held to be rules of property. If the deed by which a man supposes he has secured to himself and family a homestead, fails to comply in any essential particular with the statute or Constitution of the State, as expounded by the most recent decision of the State court, it is held void by this court without hesitation, because it is a rule of property, and the last decision of the State court must govern, even to overturning the well-considered construction of this court. But if a gambling stockbroker of Wall Street buys at twenty- five per cent, of their par value, the bonds issued to a rail- road company in Iowa, although the court of the State, in several of its most recent decisions, have decided that such bonds were issued in violation of the Constitution, this court 301 . THE STUDY OF CASES. will not follow that decision, but resort to some former one, delivered by a divided court, because in the latter case it is not a rule of property, but a case of contract. I cannot rid myself of the conviction that the deed which conveys to a man his homestead, or other real estate, is as much a con- tract as the paper issued by a municipal corporation to a railroad for its worthless stock, and that a bond when good and valid is property. If bonds are not property, then half the wealth of the nation, now so liberally invested in the bonds of the government, both State and national, and in bonds of corporations, must be considered as having no claim to be called property. And when the construction of a Constitution is brought to bear upon the questions of prop- erty or no property, contract or no contract, I can see no sound reason for any difference in the rule for determining the question. The case of Rowan v. Runnels, 5 How. 134, is reUed on as furnishmg a rule for this case, and support to the opinion of the court. In that case the question was on the vahdity of a note given for the purchase of slaves, imported into the State of Mississippi. It was claimed that the importation was a violation of the constitution of the State, and the note, therefore, void. In the case of Groves v. Slaughter, 5 Pet. 449, this court had previously decided that very point the other way. In making that decision it had no light from the courts of Mississippi, but was called on to make a decision in a case of the first impression. The court made a decision, with which it remained satisfied when Rowan v. Runnels came before it, and which is averred by the court to have been in conformity to the expressed sense of the Legislature, and the general understanding of the people of that State. The court, therefore, in Rowan v. Runnels, dechned to change its own rulings, under such circumstances, to follow a single later and adverse decision of the Mississippi court. In the case now before the court it is not called on to 302 GELPCKE V. DUBUQUE. retract any decision it has ever made, or any opinion it has declared. The question is before this court for the first time, and it lacks in that particular the main ground on which the judgment of this court rested in Rowan v. Runnels. It is true that the Chief Justice in delivering the opinion in that case, goes on to say, in speaking of the decision of the State courts on their own Constitution and laws : " But we ought not to give them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other States, which, in the judgment of this court, were lawfully made." I have to remark, in the first place, that this dictum was unnecessary, as the first and main ground was, that this court could not be required to overrule its own decision, when it had first occupied the ground, and when it still remained of the opinion then declared. Second, that the contract in Rowan v. Runnels was between a citizen of Mis- sissippi, on the one part, and a citizen of Virginia on the other, and the language of the Chief Justice makes that the ground of the right of this court to disregard the later deci- sion of the State court ; and in this case the contract was made between the City of Dubuque and a railroad company, both of which were corporations existing under the laws of Iowa, and citizens of that State, in the sense in which that word is used by the chief justice. And, thirdly, the qualifi- cation is used in the Runnels case that the " contracts were, in the judgment of this court, lawfully made." In the pres- ent case, the court rests on the former decision of the State court, declining to examine the constitutional question for itself. The distinction between the cases is so obvious as to need no further illustration. The remaining cases in which the subject is spoken of, may be mentioned as a series of cases brought into the Su- preme Court of the United States by writ of error to the Supreme Court of Ohio, under the twenty-fifth section of the 303 THE STUDY OF CASES. Judiciary Act. In all these cases the jurisdiction of the Su- preme Court of the United States was based upon the alle- gation that a statute of Ohio, imposing taxes upon bank corporations, was a violation of a previous contract made by the State with them, in regard to the extent to which they should be liable to be taxed. In the argument of these cases it was urged that the very judgments of the Supreme Court of Ohio, which were then under review, being the construction placed by the courts of that State on their own statutes and Constitution, should be held to govern the Supreme Court of the Union, in the exercise of its acknowledged right of revis- ing the decision of the State court in that class of cases. It requires but a bare statement of the proposition to show that, if admitted, the jurisdiction of the Federal Supreme Court to sit as a revisory tribunal over the State courts, in cases where the State law is supposed to impair the obhgation of a con- tract, would be the merest sham. It is true that in the extract, given in the opinion of the court just read, from the case of The Ohio Trust Co. v. De- bolt, language is used by Chief Justice Taney, susceptible of a wider application. But he clearly shows that there was in his mind nothing beyond the case of a writ of error to the Supreme Court of a State, for he says, in the midst of the sentence cited, or in the immediate context : " The writ of error to a State court would b.e no protection to a contract, if we were bound to follow the judgment which the State court had given, and which the court brings up here for revision." Besides, in the opinion thus cited, the Chief Justice says, in the commencement of it, that he only speaks for himself and Justice Grier. The remarks cited, then, were not the opinion of the court, were outside the record, and were evi- dently intended to be confined to the case of a writ of error to the court of a State, where it was insisted that the judgment sought to be revised should conclude this court. But let us examine for a moment the earlier decisions in 304 GELPCKE V. DUBUQUE. the State court of Iowa, on which this court rests with such entire satisfaction. The question of the right of municipal corporations to take stock in railroad companies, came before the Supreme Court of Iowa, for the first time, at the June Term, a.d. 1853, in the case of Dubuque County v. Dubuque & P. R. R. Co., 4 Greene (Iowa), 17. The majority of the court, Kinney, J., dissenting, affirmed the judgment of the court below, and in so doing must necessarily have held that municipal corpora- tions could take stock in railroad enterprises. The opinions of the court were, by law, filed with the clerk, and by him copied into a book kept for that purpose. The dissenting opinion of Judge Kinney, a very able one, is there found in its proper place, in which he says he has never seen the opinion of the majority. No such opinion is to be found in the clerk's office, as I have verified by a personal examina- tion ; nor was it ever seen, until it was published five years afterwards, in the volume above referred to, by one of the judges, who had ceased to be either judge or official reporter at the time it was published. Shortly after this judgment was rendered. Judge Kinney resigned, and his place was supplied by Judge Hall. The case of The State v. Bissell, 4 Greene (Iowa), 328, then came before the court in 1854. In this case, after disposing of several questions relating to the regularity of the proceedings in issuing bonds for a rail- road subscription, Judge Hall, who delivered the opinion of the court, then refers to the right of the county to take stock and issue bonds for railroad purposes. He says : " This point is not urged, and the same question having been de- cided at the December Term of this court in 1853, in the case of Dubuque & Pacific R. R. Co. v. Dubuque County, is not examiped. This decision is not intended to sanction or deny the legal validity of that decision, but to leave the question where that decision left it." It is clear that if Judge Hall had concurred with the other two judges, no such ^° 30s THE STUDY OF CASES. language as this would have been used, but they would have settled the question by a unanimous opinion. In the case of Clapp V. Cedar County, 5 Iowa, 15, the question came up again in the same court, composed of new judges. The Chief Justice, Wright, was against the power of the counties to subscribe stock, and delivered an able dissenting opinion to that purport. The other two judges, however, while in substance admitting that no such power had been conferred by law, held that they must follow the decision in the Du- buque case. Several other cases followed these, with about the same result, up to 1859, Wright always protesting, and the other judges overruling him. In 1859, in the case of Stokes V. Scott County, 10 Iowa, 166, which was an appli- cation to restrain the issue of bonds voted by the county, Judge Stockton said that, in a case like that, where the bonds had not passed into the hands of bona fide holders, he felt at liberty to declare them void, and concurring with Judge Wright that far, they so decided ; Judge Wright placing his opinion upon a want of constitutional power in the Legislature. Finally, in the case of The State v. Wapello County, 13 Iowa, 398, the court now composed of Wright, Lowe, and Baldwin, held, unanimously, that the bonds were void absolutely, because their issue was in violation of the constitution of the State of Iowa. The opinion in that case, delivered by Judge Lowe, covers the whole ground, and after an examination of all the previous cases, overrules them all, except Stokes v. Scott County. It is exhausting, able, and conclusive, and after a struggle of seven or eight years, in which this question has been always before the court, and never considered as closed, this case may now be considered as finally settling the law on that subject in the courts of Iowa. It has already been repeated in several cases not yet reported. It is the first time the question has been decided by a unanimous court. It is altogether im- probable that any serious effort will ever be made to shake 306 GELPCKE V. DUBUQUE. its force in that State ; for of the nine judges who have occupied the bench while the matter was in contest, but two have ever expressed their approbation of the doctrine of the Dubuque County case. Comparing the course of decisions of the State courts in the present case with those upon which this court acted in Green v. Neal, 6 Pet. 291, how do they stand? In the latter case the court of Tennessee had decided by a divided court in 1815, and that decision was repeated several times, but with contrariety of opinion among the judges, up to 1825, when the former decisions were reversed. In the cases which we have been considering from Iowa, the point was decided in 1853 by a divided court ; it was repeated several times up to 1859, by a divided court, under a con- tinuous struggle. In 1859 the majority changed to the other side, and in 1862 it became unanimous. In the Tennessee case, this court had twice committed itself to the decision first made by the courts of that State ; yet it retracted and followed the later decision made ten years after. In the present case, this court, which was not committed at all, fol- lows decisions which were never unanimous, which were struggled against and denied, and which had only six years of judicial life, in preference to the later decisions com- menced four years ago, and finally receiving the full assent of the entire court. I think I have sustained, by this examination of the cases, the assertion made in the commencement of this opinion, that the court has, in this case, taken a step in advance of anything theretofore decided by it on this subject. That advance is in the direction of a usurpation of the right, which belongs to the State courts, to decide as a finality upon the construction of State Constitutions and State statutes. This invasion is made in a case where there is no pretence that the Constitution, as thus construed, is any infraction of the laws or Constitution of the United States. 307 THE STUDY OF CASES. The importance of the principle thus for the first time asserted by this court, opposed, as it is, to my profoundest convictions of the relative rights, duties, and comities, of this court, and the State courts, will, I am persuaded, be received as a sufficient apology for placing on its record, as I now do, my protest against it.^ Case 17. — Farrier v. New England Mortgage Security Co. FARRIOR V. NEW ENGL AND MORTGAGE SECURITY COMPANY. Supreme Court of Alabama, November Term, 1890. [92 Ala. 176.] Appeal from the Chancery Court of Lowndes, Heard before the Hon. John A. Foster. In May, 1883, James S. Farrior and Minnie E. Farrior, his wife, borrowed some money from the appellant loan company ; and to secure the payment thereof, executed their joint notes and joint mortgage on certain lands, among which were included lands belonging to the separate estate of the said Minnie E. Farrior. This indebtedness, as evi- denced by the note and secured by the mortgage, was not paid ; and the loan company filed its bill of complaint, ask- ing for a foreclosure of said mortgage. This bill was several times successfully demurred to, and was finally so amended as to aver and set out as an exhibit the deed by which the said Minnie E. Farrior held and claimed title to the part of the said lands averred to belong to her, and alleged that the said deed created in her an equitable and not a statutory separate estate under the laws of this State. This bill as last amended was demurred to principally on the ground that it 1 See §§ 18, 42, 47-48, 53-54. 58, 6i, 73-79, 85-97, 104, 107, 121, 125-127, 129-130. Cf. Burgess v. Seligman, 107 U. S. 20, 33-35 (1882). 308 FARRIOR V. N. E. MORTGAGE CO. showed that it was an attempt to foreclose a mortgage given on the statutory separate estate of a married woman. A cross-bill was also filed by Minnie E. Farrior, alleging that the said mortgage was a cloud upon her title ; and prayed that the same be cancelled as to the lands claimed by her. This cross-bill was demurred to by the complainant. The demurrer to the original bill was overruled, and the de- murrer to the cross-bill was sustained. The recitals of the deed from James S. Farrior to his wife, Minnie E. Farrior; are sufficiently set forth in the opinion of this court. This appeal is prosecuted by the defendants in the court below, from the decree of the chancellor overruling the demurrers to the original bill as last amended, and sustaining the de- murrer to the cross-bill ; and the said decrees are assigned as error here. The only question presented by several assignments of error, based on the rulings of the chancellor upon the demurrers, is as to the validity of the mortgage given by Farrior and his wife to the complainant, and this depends upon whether the deed from James S. Farrior to his wife, Minnie E. Farrior, created in her a statutory or equitable separate estate. Watts &> Son, for appellants, contended that the deed created in the wife a statutory separate estate, which ren- dered the mortgage void as to her property, and cited Loeb V. McCuUough, 78 Ala. 533 ; Parker z;. Marks, 82 Ala. 548 ; Jordan v. Smith, 83 Ala. 302. Webb 6^ Tillman, contra. At the time, and prior to the making of the mortgage the Supreme Court had declared that a deed, like the one involved in this suit, created in the wife an equitable separate estate. Goodlett v. Hansell, (>(> Ala. 151; Masson v. Kelly, 70 Ala. 85. These decisions being of force at the time of the execution of the mortgage sought to be foreclosed, no subsequent judicial decisions, overruling the former construction of the statute in reference to married womfen, can affect the rights of the contracting 309 THE STUDY OF CASES. parties. Gelpcke v. City of Dubuque, i Wall. (U. S.) 208 ; Alcott V. Supervisors, 16 Wall. 678 ; Douglass v. County of Pike, 101 U. S. 686 ; Taylor v. Ypsilanti, 105 U. S. 72 ; County of Rawls v. Douglass, 105 U. S. 732. Coleman, J. Many of the questions raised by the plead- ings in this case have been considered and adjudicated in recent decisions in this court. New Eng. Mort. Sec. Co. v. Ingram, 91 Ala. 337, 9 So. Rep. 140 ; Nelms v. Edinburgh Araer. Land Mort. Co, 92 Ala. 157, 9 So. Rep. 141 ; Amer. Freehold Land Mort. Co. v. Sewell, 92 Ala. 163, 9 So. Rep. 143. The one question of supreme importance presented for review in this record did not arise in either of the foregoing cases cited. On or about May i, 1883, in order to procure a loan from the New England Mortgage Security Co., J. S. Farrior and his wife, Minnie E. Farrior, executed a promissory note to the company, and secured the same by mortgage on certain lands in Lowndes county, Alabama. By deed of convey- ance executed by J. S. Farrior to his wife, on the 3d of Oc- tober, 1882, a part of these lands were conveyed to her to pay and satisfy an indebtedness of the husband to the wife. The consideration of this deed from Farrior to his wife is stated to be for " two thousand and seven dollars, the amount of money and property used and converted of the corpus of the separate estate of the wife." At the time of the execution of the note and mortgage to secure the loan, the wife had no legal capacity to bind her statutory estate by mortgage or other contract, but she could bind her equitable separate estate as if she were a. /erne sole. By repeated decisions of this court, in reference to the married woman's law creating in the wife a statutory separate estate, it was held that a conveyance of lands from the hus- band to the wife vested in the wife an equitable separate estate, and this was the effect of such conveyance, notwith- 310 FARRIOR V. N. E, MORTGAGE CO. Standing the consideration was property, the corpus of her statutory estate, or indebtedness of the husband on ac- count of money, the corpus of her statutory estate, used and converted by hira. These decisions of the Supreme Court of this State, thus construing the statute, and declaring the character of the estate conveyed to the wife, and her capacity to incumber it by contract, were in force at the time the note and mort- gage involved in the present case were executed. Turner v. Kelly, 70 Ala. 85 ; Goodlett v. Hansell, 66 Ala. 161 j Mc- Millan V. Peacock, 57 Ala. 129. Subsequent to this time, but before the filing of complain- pnt's bill, the Supreme Court of the State overruled these authorities, and held that " by no contract between the hus- band and wife, can her statutory separate estate be converted into an equitable estate, with power in the wife to charge it ; " and expressly and " intentionally " overruled the former de- cisions which hold to the contrary. Loeb v. McCullough, 78 Ala. 533 ; Jordan v. Smith, 83 Ala. 302 ; Parker v. Marks, 82 Ala. 548. The reasons pro and con, upon which the dif- ferent decisions rest, need not be here reconsidered. The court adheres to the later decisions, and reaffirms the rule of law declared in Loeb v. McCullough, supra. The question presented for consideration is the effect of the later decisions upon contracts and rights of property acquired under the statute as construed by the former de- cisions, and while those decisions were in force. It has been repeatedly declared by the highest tribunals in this country, and many eminent jurists, that a fixed and re- ceived construction of a statute, made by the Supreme Court of the State, makes a part of such statute law. Green v. Neal, 6 Pet. 297; Shelby v. Guy, 11 Wheat. 368, In the case of the Ohio Life Insurance Co. v. Debolt, 16 How. (U. S.), 432, Tanev, C. J., held " that the sound and true rule was, that if the contract when made was valid by the 311 THE STUDY OF CASES. laws of the State, as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subse- quent act of the legislature or decisions of its courts, alter- ing the construction of the law." In the case of Taylor v. Yps'ilanti, 105 U. S. 72, this authority was reaffirmed, and also the case of Douglass v. The County of Pike, reported in loi U. S. Rep. 677, in which it was held that " the true rule is to give a change of judicial construction in respect to a stat- ute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amend- ment ; that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and pur- poses the same in its effect on contracts as an amendment of the law by means of a legislative enactment.'' The fol- lowing authorities hold the same rule : Olcott v. Supervisors, 16 Wall. 689 ; Fairfield v. County of Gallatin, 100 U. S. 52 ; Supervisors v. U. S., 18 Wall. 71 ; Gelpcke v. City of Du- buque, I Wall. 206. Sutherland on Statutory Construction. § 319, says : " A judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be adhered to for the protection of those rights. To divest them by a change of the construction is to legislate retro- actively. The constitutional barrier to legislation impairing the obligation of contracts applies also to decisions altering the law as previously expounded so as to affect the obhga- tions of existing contracts made on the faith of the earlier adjudications." In the case of Geddes v. Brown, 5 Phila. 180, the facts were, that in the year 1848 the legislature passed a law en- larging the power of married women over their property, and enabling them to deal with it in many respects as if they 312 FARRIOR V. N. E. MORTGAGE CO. were single. The Supreme Court of the State declared that under this law a married woman might convey or incumber property settled to her separate use. On the faith of this case, the mortgagee took his mortgage. By a subsequent decision of the Supreme Court the former decision was over- ruled, and it was held that property settled to the separate use of a married woman could not be alienated unless the power was conferred by the deed. The decision of the court in Geddes v. Brown was (and it is only the conclusion of the court that we cite) that a party who acts in accordance with the law as laid down by the highest tribunal in the State, while it is still law, shall not suffer because it is subsequently set aside and another and inconsistent rule substituted for it. The validity of the mortgage was upheld in the case cited. Endlich on the Interpretation of Statutes, § 363, holds that a " judicial interpretation of a statute becomes a part of the statute law, and a change of it is, in practical effect, the same as a change of the statute." The author cites, with other cases to sustain the text, the case of Geddes v. Brown, supra. It is contended that the reverse of these principles has been recognized, if not fairly held, in this State ; and we have been referred to the cases of Prince v. Prince, 67 Ala. 565, and Boyd v. The State, 53 Ala. 608. In the first case the contention was that, as the statute had not been construed when the mortgage which gave rise to the htigation was executed, " the grave doubt among members of the legal profession " as to the proper construction of the statute was a sufBcient consideration to uphold a compro- mise of the mortgage debt. The court held that every one was required to know the proper construction, of the stat- ute, applying the maxim, ignorantia facti excusat, ignorantia juris nbn excusat. The question we are considering was not before the court in that case. In the latter case, Boyd v. The State, 53 Ala. 608, the present Chief Justice rendered the 313 THE STUDY OF CASES. opinion, and on an application for a rehearing expressly called attention to the fact that a different principle controlled the conclusion of the court in the Boyd case from that held in the authorities referred to in this opinion, and declared that " in none of them was it decided or contended that any right existed or could be maintained which rested alone on a stat- ute which the court pronounced unconstitutional." This case was affirmed by the Supreme Court of the United States, 94 U. S. 648, in which it was held that " the con- stitutionality of the Act was not drawn in question " by the previous decisions of the State court so as to necessitate a decision of that question. The case of Bibb v. Bibb, 79 Ala. 444, though limiting the principle in its application to the subject-matter of the particular litigation, clearly recognized the rights of parties acquired under decisions of the Supreme Court, in the fol- lowing pertinent language : " The quieting of litigation ; the public peace and repose ; respect for judicial administration of the law, and confidence in its reasonable certainty, sta- bility, and consistency ; and all considerations of public policy, — call for permanently upholding acts done, con- tracts executed, rights vested, and titles to property ac- quired, on the faith of decisions of the court of last resort." Persons contracting are presumed to know the existing law, but neither they nor their legal advisers are expected to know the law better than the courts, or to know what the law will be- at some future day. Any principle or rule which deprives a person of property acquired by him, or the benefit of a contract entered into, in reliance upon and strict compliance with the law in all respects as interpreted and promulgated by the court of last resort, at the time of the transaction, and no fault can be imputed to him in the matter of the contract, unless it be held a fault not to foresee and provide against future alterations in the construction of the law, must be radically wrong. Such a principle or rule of 314 FARRIOR V. N. E. MORTGAGE CO. law would clog ' business transactions, unsettle titles, and destroy all confidence in the decisions of the Supreme Court of the State. We hold the doctrine to be sound and firmly established by the decisions of the Supreme Court of the United States, and enunciated by many eminent text- writers, that rights to property, and the benefits of invest- ments acquired by contract, in reliance upon a statute as construed by the Supreme Court of the State, and which were valid contracts under the statute as thus interpreted, when the contract or investments were made, cannot be annulled or divested by subsequent decisions of the same court overruling the former decisions ; that as to such con- tracts or investments, it will be held that the decisions which were in force when the contracts were made, had established a rule of property, upon which the parties had a right to rely, and that subsequent decisions cannot retroact so as to impair rights acquired in good faith under a statute as con- strued by the former decisions. The application of these principles upholds the validity of the mortgage as shown by the pleadings, and leads to an affirmance of the decision of the lower court. Affirmed} 1 See §§ 53, 54, 66, 75-78, 84, 93-96, loi. Cf Woodruff v. Wood- ruff, 52 N. Y. 53 (1873); Henderson v. Folkestone Waterworks Co., I Times L. R. 329 (Q. B. D. 1885.) 31S APPENDIX I. REGNAL YEARS. The English statutes are cited by the reign and the year of the reign. So are the cases in the Year Books. For other pur- poses also there are frequent references to the regnal years. Hence a table of the regnal .years is here inserted. The date following each sovereign's name is the date on which the first year of the reign is officially considered to have begun. Tables in common use often differ materially from the table here given. The explanation of many differences is that for historical purposes it is customary to consider each reign, in the absence of a clearly marked interregnum, as beginning simul- taneously with the ending of the preceding reign, whereas for official and legal purposes the early reigns were usually reck- oned as beginning at the date of coronation, or of proclamation, or of some other formal assertion of sovereignty, and only lately has the beginning of a reign been officially treated as identical with the termination of its predecessor. The table here given attempts to conform to the official custom of the several reigns.i Until Jan. i, 1752, the legal year and the ecclesiastical year began on March 25, although the historical year and the com- mercial year began on Jan. i.^ Consequently before 1752 dates between Dec. 31 and March 25 are here written in accordance with each of the systems. 1 The reasons for each date are given in Bond's Handy-Book for Verifying Dates, 273-295. 2 St. 2\ Geo. II. c. 23 ; Bond's Handy-Book for Verifying Bates, xvi-xxvii. APPENDIX I. William I., Oct. 14, 1066. William II., Sept. 26, 1087, Henry I., Aug. 5, 11 00. Stephen, Dec. 26, 1 135, Henry II., Dec. 19, 1154. Richard I., Sept. 3, 1189. John, May 27, 1199. Henry III., Oct. 28, 1216. Edward I., Nov. 20, 1272. Edward II., July 8, 1307. Edward III., Jan. 25, 1326-7. Richard II., June 22, 1377. Henry IV., Sept. 30, 1399. Henry V., Mar. 21, 141 2-3. Henry VI. ,1 Sept. i, 1422. Edward IV.,^ Mar. 4, 1460-1. Edward V., Apr. 9, 1483. Richard III., June 26, 1483. Henry VII., Aug. 22, 1485. Henry VIII., Apr, 22, 1509. Edward VI., Jan. 28, 1546-7. Mary,8 July 6, 1553. Elizabeth, Nov. 17, 1558. James I., Mar. 24, 1602-3. Charles I., Mar. 27, 1625. The Commonwealth, Jan. 30, 1648-9 Charles II.,* Jan. 30, 1648-9. James II., Feb. 6, 1684-5. William and Mary,^ Feb. 13, 1688-9 Anne, Mar. 8, 1 701-2. George I., Aug. i, 1714. George II.,* June n, 1727, George III., Oct. 25, 1760. George IV., Jan. 29, 1820. William IV., June 26, 1830. Victoria, June 20, 1837. 1 Although Henry VI. was deposed March 4, 1460-1, and was re- stored Oct. 9, 1470, his regnal years after his restoration are reckoned as if there were an unbroken series from the original beginning of his reign to his final deposition, April 14, 1471. ^ The regnal years of Edward IV, after his restoration are reck- oned precisely as if the reign had not been interrupted by the tempo- rary restoration of Henry VI. * Philip and Mary were married on July 25, 1554, and throughout the remainder of the reign a new and somewhat confusing computation of regnal years was used, the years of Philip being combined with the years of Mary. Thus the time from July 25, 1554, to July 5, 1555, was I and 2 Ph. & M. From July 6, 1555 to July 24, 1555, was i & 3 Ph. & M. From July 25, 1555, to July 5, 1556, was 2 and 3 Ph. & M. And so on. Bond's Handy-Book for Verifying Dates, 287, 401. * Although the Commonwealth lasted for more than eleven years, namely, from the death of Charles I. on Jan. 30, 1648-9, to the restor- ation of Charles II. on May 29, 1660, the official computation of Charles II. 's regnal years ignores the Commonwealth. ' Mary died Dec. 28, 1694. Thereafter the regnal years of William III. continued to be reckoned from Feb. 13, 1688-9. * By St. 24 Geo. II. c. 23 it was enacted that the day following Sept. 2, 1752, should be reckoned Sept. 14. The Gregorian Calendar. 318 APPENDIX II. APPENDIX II. TERMS OF COURT. In English common-law courts there were formerly terms, named from certain ecclesiastical festivals. As decisions from the time of the Year Books almost to the present day are often desig- nated by the term, the following table will be a convenience : — Hilary Term, before 1831, began Jan. 23 or 24, ended Feb. 12 or 13; 1831-1875, began Jan. 11, ended Jan. 31. Easter Term, before 1831, began seventeen days after Easter Sunday, ended twenty-six days later, — consequently began Apr. 8 to May 12, ended May4 to June 7; 1831-1875, began Apr. 15, ended May 8. Trinity Term, 1 264-1 540, began sixty-six days after Easter Sunday, ended twenty-one days later, — consequently began May 27 to June 30, ended June 1 7 to July 21 ; 1 541-1 830, began sixty-one days after Easter Sunday, ended nineteen days later, — conse- quently began May 22 to June 25, ended June 10 to July 14; 1831-1875, began May 22, ended June 2. Michaelmas Term, before 1641, began Oct. 9 or 10, ended Nov. 28 or 29 ; 1641- 1751, began Oct. 23 or 24, ended Nov. 28 or 29; 1752-1830, began Nov. 6 or 7, ended Nov. 25 ; 1 831-1874, began Nov. 2, ended Nov. 25.^ or New Style, being thus finally legally recognized, the effect as to the regnal years was that 26 Geo. II. ended on June 21, and that the subsequent years of Geo. II. began on June 22. Bond's Handy-Book for Verifying Dates, xx-xxvii, 292, 437. 1 For further details as to the English terms, see Spelman on Law APPENDIX II, On November i, 1875, the English terms ceased by reason of the Judicature Acts, but under rules of court there continued to be sittings designated by the ancient names.' In American courts the terms are named from the months in which they begin. In many courts there is but one annual term. Thus the Supreme Court of the United States now has only the October term. As a term may continue into another month, and even into another year, confusion sometimes results. Thus the case of Scott v. Sandford, 19 How. (U. S.) 393, which in the report properly appears as a decision of December term, 1856, was really decided in 1857. Terms, 32-49 ; Bond's Handy-Book for Verifying Dates, 173-181 ; 3 Stephen's Com. (Sth ed.), 498-503. The abbreviations for the terms are : H. or Hil., E. or Pasch., T. or Trin., M. or Mich. 1 Supreme Court of Judicature Act, 1873, § 26; The Rules of the Supreme Court, 1883, Order LXIII., rule i j Wilson's Judicature Acts (5th ed.), 2, 38, 555. 320 APPENDIX III. APPENDIX III. ABBREVIATIONS. A FEW lawyers closely approach pedantry in insisting upon the use of only such abbreviations as have been most approved by custom, and in denouncing any one who uses a heterodox abbreviation, or who writes a reference in full when an abbrevia- tion is possible. Although the beginner may not approve such extreme views, he will find it to his advantage to become famihar with the most approved abbreviations ; and indeed, if one is to use abbreviations at all, it seems preferable, for the sake of uni- formity, to follow custom. Hence the most important abbrevia- tions are collected here. For the first volume of each set of the English Law Reports of the series beginning in 1866, and ending in 1875, the following abbreviations have the sanction of custom : L, R. i Ch., L. R. I Eq., L. R. I Q. B., L. R. i C. P., L. R. i Ex., L. R. i P. & M., L. R. I A. & E., L. R. I C. C, L. R. i H. L., L. R. i H. L. Sc, L. R. I P. C. For the series beginning in 1876 and ending in 1890, the following abbreviations for the first volumes are pre- scribed by the reports themselves : i Ch. D., i Q. B. D., I P. D., I App. Cas. The cases in the Court of Appeal are reported in the same volumes with the cases in the lower courts ; and to indicate briefly the fact that a case is in the Court of Appeal some authors expand the abbreviations thus: Ch. Div., Q. B. Div., P. Div. For the series beginning in 1891, the announced abbreviations for the first volumes are these: [1891] I Ch., [1891] iQ . B., [1891] A. C. If a case in Ch. or Q. B. is in the Court of Appeal, that fact is indicated by placing C. A. after the page ; and if a case in A. C. is in the Privy Coun- cil, that fact is indicated by P. C, similarly placed. 21 ■ 321 APPENDIX III. In the United States it is now the almost invariable custom to cite the current reports of a court of last resort by the name of the State. In Delaware the current common-law reports are cited as Houst., and the equity reports as Del. Ch. In New Jersey the current reports are cited as Vr. and as Dick. Ch. Rep. ; but outside the State there is a tendency to cite these reports as N. J. L. and N. J. Eq., and also to assign the State name to the earlier New Jersey reports. In Pennsylvania the current reports are cited as Pa. ; but the volumes before 97 Pa. are often cited by the reporters' names. The geographical mode of citation is so clear that it is only necessary to call attention to the following instances in which there are, or have been, series of similar names : Colo., Colo. App., 111., 111. App., Ind., Ind. App., La., La. Ann., Md., Md. Ch., Mo., Mo. App., N. Y., N. Y. Misc., N. Y. Super. Ct., Ohio, Ohio St., Tex., Tex. Civ. App., Tex. Cr. App. As the early reports in almost every State are still cited by the reporters' names, the student has to master a very considerable number of American abbreviations. Sometimes an abbreviation indicating the State is now written in parenthesis after the reporter's name ; and this mode of citation, though too cumber- some for common use, is useful in the rare instances where two or more States have had reporters of similar names, and in briefs to be used in jurisdictions remote from the States to which the reports pertain, and in text-books for beginners. The student should thoroughly familiarize himself with the abbreviations already given in this appendix, and also with the following citations of reports .-^ A. K. Marsh., Allen, B. & Ad., B. & Ald.,2 Barb., B. & C, Beav., Bing., Bing. N. C, Black. Blatch., B. Mon., B. & P., Bro. C. C, Bro. P. C, B. & S., Burr., Bush, Caines, Caines' Cas., Camp., C. B., C. B. n. s., C. & J., C. & K., CI. & F., C. & M., C. M. & R., Co.,* Cow., Cowp., Cox C. C, C. & p., Cranch, Cranch C. C, Cro. Car., Cro. Eliz., Cro. Jac, Cush., Dall., De G. F. & J., De G. & J., De G. J. & S., De G. M. & G., De G. & Sm., Denio, Doug., Dow, D. & R., 1 And also, of course, with the approved abbreviations of all reports habitually cited in his own State. 2 Until recently B. & A. was the accepted citation. * Until recently often cited as Rep. 322 APPENDIX III. East, E. & B., E. B. & E., E. & E., Esp., Exch., Fed. Cas., Fed. R., F. & F., Gall., Gratt., Gray, Hare, H. Bl., H. & C, Hill, H. L. C, H. & N., Hob., Holt, Holt N. P., How., How. Pr., Jac, Jac. & W., J. J. Marsh., Johns., Johns. Cas., Johns. Ch., Jo. & Lat, Keb., Ld. Raym., Mac. & G., Madd., Met., Met. Ky., M. & G., Mod., Moo. P. C., Moo. P. C. N. S., M. & S., M. & W., Myl. & Cr., Myl. & K., Pet., Pick., Plowd., P. & W., P. Wms., Q. B., Rawle, Russ. & R., Salk., Sandf., Sandf. Ch., Saund., Sch. & Lef., Sid., Sim., Sim. N. S., Sim. & St., S. & R., Str., T. B. Mon., T. R , U. S., Vaugh., Vent., Vern., Ves. & B., Ves. Jr., Ves. Sr., Wall, W. Bl., Wend., Whart., Wheat., Willes, W. & S., Y. B., Y. & C. Ch., Y. & C. Ex., Yelv., Y. & J.i ^ The abbreviations in this appendix, and many other abbrevia- tions, are explained in Soule's Lawyer's Reference Manual, and in any law publisher's catalogue. 323 INDEX. SECTION ABBREVIATIONS. (See Appendix III.) ABRIDGMENTS, the old no AGREEMENT, fanciful etymology of the word .... 14 «• ANALOGIES OF THE LAW, if disregarded, case may be overruled 53. 84, 94-96 kept in mind by searcher after doctrine established in reported cases 71, 72 kept in mind by courts when seeking doctrine not yet established 74, 77, 78, 84 ARGUMENTS OF COUNSEL, case not strong authority for points not touched in 42, 57 how reported 104 how prepared 122-131 (And see Briefs.) AUTHORITIES, how found 128 AUTHORITY, the kinds of 85, 97 imperative 86 the justification for imperative 87 persuasive 88 the justification for persuasive 89 distinction between imperative and persuasive ... go quasi- 91 the justification for quasi- 92 BACON'S ABRIDGMENT no BAD LAW, meaning of the phrase 77 «. BIAS, as affecting judicial decisions 61 BREVITY OF OPINION may weaken value of case ... 44 BRIEFS in England and in America 119 statement of the case in 1 20 announcement of questions in 121 arguments in 122-127 finding authorities for 128 abstracting authorities for 129 selecting authorities for 130 revision of 131 INDEX. SECTION BROOKE'S ABRIDGMENT "o BURROW'S REPORTS 98, io6 k. CASES, how to find the doctrine of. (See Doctrine.) unreported, not of high authority 37 reported in newspapers, not of high authority .... 38 doubted, not of high authority S3> 66 of first impression, not of high authority 60 fjr/a?-fe, not of high authority 62 overruled, doubted, distinguished 66, 94-96 obsolete, state of society having chaiuged 67 not followed, not of high authority 68 reportable . . 100 titles of .... loi how discovered 128 CIRCUMSTANCES, peculiar, may affect decision ... 17, 61 essential and unessential must be distinguished . 6-10, 71 CITATION, case is strengthened by subsequent .... 68 CODIFICATION has not progressed far 81 cannot wholly supersede unwritten law 82-84 COMBINING CASES, necessary if no case settles exact point 69 the method of 70-72 may be an unconscious process 71 the use of hypothesis in . . 72 COMPARING CASES, necessary whenever no one case set- tles exact point 69 is in effect an examination of cases with a view to find- ing an expected doctrine 72 COMYNS' DIGEST no CONSTRUCTION OF STATUTES, necessity for unwritten law in aid of 82-84 COURT can decide only the case before it 5 must follow a general rule . 7 cannot make precedent by i//rf«»« 13-16 by ignoring possible doctrines can prevent cases from being authority as to them 17-19 case not of highest authority if decided by a divided . 47 if not of last resort, decision not of highest authority 63, 88-90 even of last resort, not always highly esteemed ... 64 CRITICISM OF CASES, importance of 35 does not necessarily lessen weight 36, 59 the most common grounds of 36 326 INDEX. SSCTIOH CRITICISM OF Ck&Y.^ — continued. I. The Nature of the Report unreported cases 37 newspaper reports 38 reports of low standing 39> 98 inharmonious reports 40 scanty reports 41 II. The Arguments of Counsel thoroughness of argument 42 III. The Opinion no reasons 43 no citation of authorities 43 brevity 44 per curiam 45 court's opinion by dissenting judge .... 46 divided court 47 judges giving different reasons 48 overlooking decisions in same jurisdiction . 49 overlooking decisions in other jurisdictions . 50 relying upon overruled cases 51 relying upon unsustained text-books .... 52 inartistic reasoning . . ., S3 local law 54 dictum 55 going off on another point 56 point not argued and not perceived .... 57 general language 5^ criticisms less weighty in home jurisdiction . 59 IV. The Nature of the Question case of first impression 60 peculiar circumstances 61 political question 61 ex parte 62 V. The Court courts not of last resort 63 courts not esteemed 64 courts not familiar with subject 64 courts often granting rehearings 65 VI. Subsequent State of the Law case overruled, 66 case obsolete . 67 case not cited 68 DECIDING CASES by established doctrines 74 by new doctrines 74 (See also Growth of the unwritten Law.) 327 INDEX. SECTION DECISION, meaning of word 14 «. DECREE, meaning of word 14 «. DEDUCTIVE REASONING 73 «. DEPENDENT PROPOSITIONS 22, 26 DICTA, how to detect 11,13,16,55,56 weight of 13-16, 55, 56, 59, 68 useful as guides 72 have gieasi-authority 91, 92 DIGESTS, the old abridgments or no the later English Ill American 112 special 113 general plan of 114 classifications in 115 form of paragraphs in 34, 116 order of paragraphs in 117 various details as to 118 DISSENTING OPINIONS, the weight of a decision as af- fected by 47 should be reported 107 DISTINGUISHING CASES 58 DIVIDED COURT 47 DOCTRINE OF A CASE, how to ascertain the doctrine 4-26, 69-72 only the case at bar can be decided 5, 6 court must follow a general rule 7 four propositions in every case 9 a test for any supposed doctrine 11,12 the words of the court cannot establish an unnecessary doctrine 13-16 only a doctrine consciously or unconsciously in the mind of the court can be established ' 17-19 summary of the keys to the doctrine .... . . 20 essential marks of the doctrine 21 more than one doctrine 22-26, 56 combining cases 69-71 comparing cases 72 DOCTRINES, ESTABLISHED, how applied 73 DOCTRINES, NEW, how created 74-79 growth of unwritten law by 74-75 whether created by judicial legislation 76 lawyers' view . . . . 77 analytical jurists' view 78 neither view essential . . 79 DOUBTED CASES, value of ... . .... 53, 66 328 INDEX. SECTION ELASTICITY of unwritten law 84, 93-96 ERROR, one enough, if material 5, 25, 26, 56 ESSENTIAL CIRCUMSTANCES must be separated from unessential ones 6, 8-10 EX PARTE LITIGATION does not create precedents of high authority .' 62 FACT I FAMILIAR DOCTRINES often not expressed by the court though kept in mind 17. 28 often omitted by- counsel 124 FIRST IMPRESSION, cases of, not of high authority ... 60 cases of, how decided 74 FITZHERBERT'S ABRIDGMENT no FORMULA for strong case on two points 26 «. for weak case on two points 26 «. GENERAL LANGUAGE, force of i6, 17, 19, 58 GROWTH OF THE UNWRITTEN LAW, need of . . 74,75 views as to mode of 76 lawyers' view as to 77 analytical jurists' view as to 78 difference in views unimportant for the purposes of this volume 79 HEAD-NOTES, weight of, if made by reporters or by judges . 27 contents of 28, 102 forms of 29-33 various uses of 34, 102, 129 HELD, meaning of word 29 HYPOTHESIS, in law as in other sciences 72 HYPOTHETICAL CASES, not within jurisdiction of courts . 5 consciously or unconsciously imagined by counsel and court 6, 71 IMPERATIVE AUTHORITY 85-87, 90, 93, 97 (And see Authority.) INARTISTIC REASONING may cause case to be disre- garded S3. 66, 93-96 INDEPENDENT PROPOSITIONS 22, 23, 26 INDEX-DIGESTS 34 INDUCTIVE REASONING 70, 72 JUDGE-MADE LAW 75-78 (And see Growth of the unwritten Law.) 329 INDEX. SECTION JUDGES as advisers of other departments of government . . 5, 62 JUDGMENT, meaning of word 14 k. does not show conclusively the doctrine of the case . . 17 how reported 108 JUDICIAL LEGISLATION. (See Growth of the unwrit- ten Law.) JUDICIUM, Coke's etymology of the word 14 «. JURISDICTION OF COURT is confined to the exact case . 5 JUSTICE AND LAW 74, 77, 78, 84, 94-96 LANGUAGE OF THE COURT as affecting proposition of case 17-19 (See also Dicta, Doctrine of a Case, Opinion, Reasons GIVEN.) LAW AND FACT i LAPSE OF TIME may render a case obsolete 67 LEGISLATION, JUDICIAL 74-79 (See Growth of the unwritten Law.) LOCAL LAW as affecting value of cases 54 LOGIC AND LAW, major and minor premises 9 k. syllogisms and the doctrine of a case 22, notes induction 70 hypothesis 72 «. deduction 73 «• LOWER COURTS, value of decisions by 63, 88-90 MAJOR PREMISE 9 «., 22 «., 73 «. MIND OF THE COURT, case not authority for doctrine not consciously or unconsciously in the . . . 17-21, 57 MINOR PREMISE 9 «., 73 «. NECESSARY PROPOSITIONS. (See Doctrine of a Case.) NEW DOCTRINES, how obtained 74 (See Growth of the unwritten Law.) NEWSPAPER REPORTS, value of 38 OBITER DICTA, meaning of phrase 13 (See Dicta.) OBJECTIONS TO CASES, most frequently made . . . 36-68 (See Criticism of Cases.) OBSOLETE CASES 67 OFFICIAL REPORTS 109 OPINION, what it contains 13 dicta not authoritative 13 INDEX. SECTION OFINIO'N —cotttinuecf. necessary propositions not called tiicfa 14 case establishes doctrine though there be no opinion . i S the very words not the doctrine o£ a case 16 the words show that certain doctrines were in the mind of the court 17 and others not 18, 19, 57 if relying on several points, case may be of less authority 25. 26, 56 giving no reasons, weakens case 43 brevity of, weakens case 44 per curiam, weakens case slightly 45 of court by dissenting judge, weakens case 46 dissenting, sometimes weakens case 47 how reported 105-107 by the majority of the court 106 by the minority of the court 107 OVERRULED CASES, case relying on, of slight authority . 51 not of authority 66, 86 OVERRULING CASES, reasons for 53, 84, 94-96 process usually gradual 53i ^6' 75 PECULIAR CIRCUMSTANCES, weight of case involv- ing 17, 61 PER CURIAM OPINION, weight of 45 PERSUASIVE AUTHORITY 85,88-90,97 (And see Authority.) POLITICS, weight of case involving 61 PRECEDENT, for what doctrine a case is 6, 7, 11, 12, 15, 19, 21, 91 (See also Doctrine of a Case.) PREJUDICE, as affecting judicial decisions 61 PREMISES. (See Logic.) PROPOSITION OF A CASE. (See Doctrine of a Case.) PUBLIC POLICY, views change as to 67, 84, 93-96 QUASI-AUTHORITY 85, 91, 92, 97 (And see Authority.) QUESTION, weight of case involving more than one . . 23-26, 56 weight of case turning on unusual 64 RATIO DECIDENDI, what is 12 (See also Doctrine of a Case.) REASONING, the basis of decision, in order to prevent arbi- trary judgments 17,87,98 INDEX. SECTION REASONING — continued. if contrary to analogies of law, case may be over- ruled S3. 66, 93-96 is the same in all jurisdictions 74, 88-90 is by lawyers deemed capable of bringing all new cases within old doctrines 77 is historical, analogical, or moral 77, 78 is said to be the life of the law 84 REASONS GIVEN by court are not necessarily the doctrine of a case 13-17 may prevent the deduction of a possible doctrine ... 18 especially when two or more points are in- volved, and either is enough .... 25, 26, 56 if none given, case of diminished authority ... 41, 43, 44 if judges give different reasons, doctrine is not clear . 48 inartistic reasons may cause case to be overruled . . 53, 66, 93-96 (See also Doctrine op a Case.) REGNAL YEARS. (See Appendix I.) REHEARINGS as affecting value of cases 65 REMOTE JURISDICTIONS 64 REPORTABLE CASES 100 REPORTERS' DUTIES 99-109 REPORTS described 1, 98-109 distinguished from trials I some of low standing 39> 98 inharmonious 40 scanty 4' the earliest 98 the purpose of 99 selection of cases for 100 titles of cases in loi head-notes for 102 statements of facts for 103 abstracts of arguments for 104 abstracts of opinions for 105-107 majority opinions in 106 dissenting opinions in 107 memoranda of judgments in 108 official 109 RES ADJUDICATA 85 «. REVERSED CASES, value of 65, 86 distinguished from overruled cases 86 «. REVERSING lower court, weight of judgment 25, 26 ROLLE'S ABRIDGMENT no 332 .INDEX. SECTION SCIENCE, methods of 70, 72 «., 73 k. (See also Logic and Law.) SEMBLE, meaning of word 29 «. STARE DECISIS S3, 84, 87, 90, 93-97 STATEMENTS OF FACTS by reporters 103 by counsel 120 STATHAM'S ABRIDGMENT no STATUTES, cases turning on 54 supplemented by decisions 82-84 . construction of 82-84 STRONG CASE on two points, formula for 26 «. SUSTAINING lower court, value of decision 24, 26 SYLLABUS. (See Head-Notes.) SYLLOGISM. (See Logic and Law.) TABLES OF CASES, uses of liS, 128 TERMS OF COURT. (See Appendix II.) - TEST for supposed proposition of a case 11, 15 TEXT-BOOKS, not authority of highest order ... 13, 52, 91, 92 are valuable guides to law . . . 71-73, 80, 84 «., 91, 92 TITLES OF CASES loi TRIALS, volumes of i UNEXPRESSED DOCTRINES maybe established by a case, if in mind of court 15, I7> 57 UNIFORMITY OF DECISION, necessity for . 6, 7, 53, 85-98 UNNECESSARY PROPOSITIONS, case is not strong autho- rity for 15 UNWRITTEN LAW, development of 74-79 (See also Growth of the unwritten Law.) bulkiness of 80 importance of 81 codification of 81-84 supplementing written law 82-84 VINER'S ABRIDGMENT no WEAK CASE on two points, formula for 26 ». WORDS of the court, weight of 13-21 (See also Dicta, Doctrine of a Case, Opinion, Reasons given.) YEAR BOOKS 98 YEARS, REGNAL. (See Appendix I.) 333 THE STUDENTS' SERIES. CAREFULLY PREPARED TREATISES COVEBING SUBJECTS TATTGHT IN DISTINCT COUESES IN THE LEADING LAW SCHOOLS. AMONG the authors who have prepared volumes for this important series are Mblyillic M. Bigelow, LL.D., the distinguished law writer, and lecturer at Boston University, Northwestern University, and Michigan University; Prof. Eugene Wambahgh, late of Iowa State University, now of the Law Department of Harvard University; Prof. William C. Robinson, of Yale College, now head of the Law Depart- ment of the Catholic University, Washington, and author of " The Law of Patents " ; Hon. Thomas M. Cooley, the eminent author of " Constitu- tional Limitations " ; Edwin E. Bkyant, Dean of the Law Department of the State University of Wisconsin ; Marshall D. Ewell, LL D., M.D., of the Kent College of Law, Chicago; the late Benjamin E. Chetis, Justice of the United States Supreme Court, and lecturer at Harvard University ; Prof. Edwakd Aveey Haeeiman, of the Northwestern University Law School; Prof. Ernest W. Hcffcut, of Cornell University School of Law; Prof. Fkancis M. Buedick, of the Law School of Columbia University; Arthur G. Sedgwick, the well-known writer; William Wirt Howe, formerly Chief Justice of Louisiana ; the late Judge John Wilder May, etc. VOLUHES ALREADY ISSUED IN "THE STUDENTS' SERIES." I. Bigelow's Elements of the Law of Bills, Notes, and Cheques. IL Bigelow's Elements of Equity. III. Bigelow's Elements of the Law of Torts. IV. Bigelow's Law of Wills for Students. V. Bryant's Principles of Code Pleading. VI. Burdick's Law of Sales. VII. Burdick's Law of Partnership. . , _ . . Vm. Cooley' s General Principles of Constitutional Law in the XTnited Stiflitifis of AjugfIcSi IX. Curtis's Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the TTnited States. X. Ewell's Manual of Medical Jurisprudence for the use of Stu- dents at Law and of Medicine. XI. Harriman's Elements of the law of Contracts. XII. Heard's Principles -ef Civil Pleading. XIII. Heard's Principles of Criminal Pleading. XIV. Howe's Studies in the Civil Law. XV. Huffcut's Elements of the Law of Agency. XVI. May on the Law of Crimes. XVII. Kobinson's Elementary Law. XVIII. Eobinson's Forensic Oratory : A Manual for Advocates. XIX. Sedgwick's Handbook of the Law of Damages. XX. Stephen's Digest of the Law of Evidence. XXI. Stimson's Glossary of Technical Terms, Phrases, and Maxims, of the Common Law. XXII. Wambaugh on the Studjr of Cases. XXin. Beale on Criminal Pleading. The Volumes are of 12mo size, containing from 300 to 400 closely printed pages. Price per Volume : cloth, |2.50 net ; law sheep, $3.00 net, g^" See also list of " Cases " on next page. 1 THE STUDENTS' SERIES. CASES TO ACCOnPANY "THE STUDENTS' SERIES." Beale's Cases on the Law of Damages. Bigelow's Cases on the Law of Bills, Notes, and Cheques. Bigelow's Cases on the Law of Torts. Burdiok's Cases on Partnership (8vo. $4.50 net). Burdick's Cases on Sales (8vo. $4.60 net). Chaplin's Cases on Criminal Law. Hnffcut's Cases on Agency. . Wambaugh's Cases for Analysis. The Volumes of Cases are ho'wnd in cloth onlyy and, unless other- wise stated, the size is small 8vo, an^ the price $3.00 net. In planning and developing the Students' Series, five objects have been constantly sought ! — First. That each subject should be treated by a man specially fitted through study, training, and experience. Second. That the arrangement should be logical, and the treatment concise, clear, and comprehensive. Thikd. That the principles of the law of each subject, the real founda- tion and framework, should be so carefully and clearly presented and explained that the student could grasp the facts and the reasons for them, and feel with these firmly in mind that he would be able to handle success- fully the variations which may come later. Fourth. That the cases cited and commented on should be those on which the law rests, and which most clearly show how and why the law became what it is. Not quantity of citations, but quality and strength, have been sought. Fifth. That the cost of the volumes should be kept as low as possible, consistent with the highest standards, both of authors' text and quality of manufacture. Teachers and students alike understand the advantage of having books prepared for them by men who are specialists, and who devote themselves to the subjects on which they write. With such requirements books cannot be written to order in three or four months, and several years have been spent in building up the Students' Series to its present size, while a num- ber of works on other important subjects are now in careful preparation. The volumes of the Students' Series are in use as text-books in leading law schools throughout the United States. Of them, one of the most learned teachers of law in America, the late Prof. William G. Hammond, of St. Louis, said : — *' In planning this series of law books for students you have rendered a very great service, not only to the students themselves, but also to the profession. There has been no greater obstacle to all efEorts for a higher standard of legal education than the lack of such books." And this testimony as to the plan has been repeated as to execution, by numbers of prominent teachers in letters to the authors and publishers, and by the more valuable testimony of introduction and use with their classes. ^~ See siibsec[ueut pages for full information regarding each work. 2 THE STUDENTS' SERIES. BEALE ON CRIMINAL PLEADING. The Law of Criminal Pleading, By Joseph H. Beale, Jr., LL B., Professor of Law in Harvard University. 12mo. Cloth, $2.50 net; sheep, $3.00 net. Professor Beale's design is to treat of Criminal Pleading and Procedure in this volume clearly, and at sufficient length for all the purposes of the Law School. The cases cited as authorities are drawn freely from the various States. BIGELOW ON BILLS AND NOTES. Elements of the Law of Bills, Notes, and Cheques, for Students. By Melville M. Bigelow, Ph.D., author of " Elements of the Law of Torts," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Mr. Bigelow's reputation as a clear, logical, and strong student and in- structor in the law is established by his standard treatises no less than by the masterly "Elements of Torts," so well known to and extensively used by teachers and students of Law. It bears evidence of the conciseueas and power of accurate statement which characterize the other work of the author, and I am convinced that it will prove a very satisfactory book for class use. -^ Emiin McLain, Chancellor Law Depairt- Tfient, Iowa State University. I believe it to be decidedly the beat student's book upon the subject that has yet appeared. — Prof. F. R. Mechem, Law Departmenij Michigan State University, To accompany the above : — Cases on the Law of Bills, Notes, and Cheques. Edited by Melville M. Bigelow. Crown 8vo. Cloth, |3.00 net. BIGELOW ON EaUITY. Elements of Equity for the Use of Students. By Melville M. Bigelow, Ph.D., lecturer in the School of Law, Boston University, author of " Elements of tlie Law of Torts," etc. 12mo. Cloth, $2.50 net; law sheep, 13.00 net. It is to be commended for its clearneaa and couciaeness of statement. I regard the firat chapter as a model. The doctrines of Tacking, Subrogation, and Marshal- ling, found in Chaptera 14, 19, and 20, are more easily comprehended than in any other work on thoae aubjecta that I have seen. — Hon. J. H. Carpenter j Dean of Law Faculty, University of Wisconsin. BIGELOW ON TORTS. Elements of the Law of Torts for the Use of Students. By Melville M. Bigelow, Ph.D., author of " A Treatise on the Law of Estop- pel," " A Treatise on the Law of Fraud," etc. Sixth edition, re- vised and enlarged. 12mo. Cloth, 12.50 nci; law sheep, 18.00 net 3 THE STUDENTS' SERIES. In the sixth edition of this well-ltnown text-booli the author has devoted much time and care to the development of the general doctrine of " Torts " as an introduction to the study of " Specific Torts." This work, done with his usual thoroughness and clearness, does away with the one criticism made on the work, that it plunged the student into the study of specific torts without instructing him in the general law of the subject. The whole book has been carefully revised, and many passages rewritten. The book is now theoretically and practically complete and logical. It seemB to me admirably adapted to the purpose for which it is written. Mr. Bigelow is very happy in his statement of legal principles, and nowhere so much so, I think, as in this book. — Hon. Thouas M. Cooley. I have examined Bigelow on Torts, and find it to be an excellent text-book for students. The author is plainly a master of his subject, and not merely a good compiler. . . . The work is, in my judgment, a model "Institute." —K. MoP. Smith, VanderbiU University, A clear and compact treatise, well fitted to be a manual of a student of law. — Hon. John Bascom, University of Wisconsin. To accompany the above ; — Cases on the law of Torts. Edited by Melville M. Bigelow. Crown 8vo. Cloth, $3.00 net. BIGELOW'S lAW OF WILLS. The Law of Wills. For Students. By Melville M. Bigelow, Ph.D., author of " Elements of the Law of Torts," etc., editor of " Sixth American Edition of Jarman on Wills," etc. 12mo. Cloth, 12.50 net ; sheep, |3.00 net. No teacher of law in America is more familiar with the theory of the Law of Wills than Mr. Bigelow, and students everywhere are to be con- gratulated on the publication of a new work on this subject by an author so experienced and so learned. BEYANT'S CODE PLEADING. The Principles of Code Pleading for the TJse of Students. By Edwin E. Bryant, Dean of the Law Department of the State University of Wisconsin, and late Assistant Attorney-General of the United States. Second edition, revised. 12mo. Cloth, $2.50 net; law sheep, 13.00 net. The science of code pleading being a development of the last fifty years, and getting its shape and form gradually from the decisions of the courts as well as from the enactments of the law-making bodies, has only within a few years been treated in any satisfactory way by text writers. Many instructors feel, however, that too much time is needed for the student to get the elementary principles from the larger books ; and this book is written to bring within easy reach, in condensed and clear form, 4 THE STUDENTS' SERIES. the true elements of the subject ; to give the student sufficient knowledge of the old common law pleading for a foundation for the less formal, but not necessarily less exact, pleading under the code, and to put in orderly array the principles of this branch of the law, which have too frequently been considered, by students, at least, as of little importance. The principles are presented in a clear, satisfactory manner, and tlie Code References are a valuable addition. In short, it exactly supplies a want as a text-book for students, whether in ofQces or law schools, wherever the reformed procedure prevails or is largest. — Chables M. Campbell, Law Department, Colorado State Unwersity. BURDICE ON SALES. The Law of Sales of Personal Property. Bt Francis M. Bukdics, of the Law School of Columbia University. 12nio. Cloth, |2.50 net ; law sheep, $3.00 net. In this work by an author and teacher of reputation and experience, questions are discussed with a fulness proportioned to the trouble they give to the student, or to his aptness to misapprehend the principles thej' involve. The essential terms of the "sale contract" are classified and distinguished from agi'eements merely collateral to it, to bring order out of the judicial and text-book chaos of "conditions and warranties." The provisions of the Statute of Frauds bearing upon the sale of goods are treated in connection with the common law topics to which they relate. This method is novel, avoiding much repetition, and giving economy of space and equal economy of time and perplexity to the student. It is a small magazine of learning. — New York JVation, It is a most admirable treatise. — JAUES B. Scott, Los Angeles Law School, Los Angeles, Col. To accompany the above : — Selected Cases on the Law of Sales of Personal Property. By Francis M. BcrKDiCK. 8vo. Cloth, $4.50 net. BURDICK ON PARTNERSHIP. The Law of Partnership, includingr Limited Partnerships. By Francis M. BijRDicK, Dwight Professor of Law in Columbia University. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. In this work the principles of Partnership Law are stated with an especial view to the needs of the student, as these have revealed themselves to the writer during his experience in the lecture-room. It is a branch of the law which has never proved particularly simple or easy for students, but the author has tried to point out the chief sources of difficulty and to save the student from needless perplexity. To accompany the above : — Selected Cases on the Law of Partnership, including Limited Partner- ships. By Francis M. Bdrdick. 8vo. Cloth, .$4.50 net. 5 THE STUDENTS' SERIES. COOLEY ON CONSTITUTIONAL LAW. The General Principles of Constitutional Law in the United States of America. By Thomas M. Cooley, author of " A Treatise on Constitutional Limitations," etc. Third edition, by A. C. MoLadghlin, of the University of Michigan. 12mo. Cloth, |2.50 net ; law sheep, •$3.00 net. No volume of the " Students' Series " is better known or has received a wider indorsement than Judge Cooley's admirable exposition of the prin- ciples of Constitutional Law in the United States. In the new edition large additions have been made, and the topics sug- gested by the increasing number of points of contact and interferences between State and Federal Constitutions are particularlj' amplified. Since the last edition appeared, the Supreme Court has passed for the first time on the citizenship of a Chinaman born of alien parents in this coantrj', on the constitutionality of eight-hour laws, etc., while the decisions affecting the control of interstate commerce have been highly important. I have, since the first publication of the work, heen familiar with the book, and I regard it as among the best of the distinguished author's works. Its simple but perfect and logical arrangement, and clear and concise treatment of subjects, with the citations of the leading decisions for the support of the text, make it the best and most complete hand-book, for the use of students on the subject of Constitu- tional law, of which I have any knowledge. — Hon. R. H. Alvbt, Court 0/ Appeals of the IHstrict of Columbia. CURTIS ON UNITED STATES COURTS. /urisdiction, Practice, and Peculiar Jurisprudence of tlie Courts of the United States. By Benjamin B. Curtis, LL.D., late Associate Justice of the Supreme Court of the United States. Edited by George Ticknor Curtis and Benjamin R. Curtis. Second edition, by H. C. Merwin, Law Department of Boston University, 12mo. Cloth, $2.50 net; law sheep, $3.00 net. These lectures were delivered by the late Judge Curtis to a class of stu- dents in the Harvard Law School, in the academic year 1872-73, and were edited and prepared for the press by his son and brother, both lawyers of prominence. Mr. Merwin has devoted much time to the consideration of the recent changes and developments in the practice of the Federal Courts; and his additions, in the second edition, are thought by those who have examined them to deserve the words of commendation bestowed upon Judge Curtis's original text. A work of the highest standard on the subject treated. — Boston Post. Cannot fail to be of great service to the student in the prosecution of hlB legal studies. — Chicago Legal News. It is by far the best epitome of that extensive subject ; and the clearness of the style and orderly arrangement of the learned author will especially recommend it to students. — Hon. Edmund H. Benkett, Deem 0/ School of Law, Boston UnwersUy, a THE STUDENTS' SERIES. EWELL'S MEDICAL JURISPRUDENCE. A Manual of Medical Jurisprudence for the Use of Students at Law and of Medicine. By Marshall D. Ewbll, M.D., LL.D., of the Union College of Law, Chicago. 12mo. Cloth, $2.50 net; law sheep, 13.00 net. Mr. Ewell has endeavored to produce a work which, within a moderate compass, states all the leading facts and principles of the science concisely and yet clearly. In it will be found the substance of all the principles staled in the more voluminous and expensive works. It is excellently done. I wish ifc might be read by every student of law as well as by every student of medicine. — Prof. Heney Wade Rogers, when at Uni/versiiy of Michigan. I can safely say that for use as a text-book, either in a medical college or law ^school, it is preferable to any book of my acquaintance. In his chapter on Mal- practice, Professor Ewell has succeeded, within the compass of eighteen pages, in setting forth the general doctrine of the law so comprehensively as to make it highly useful for the practitioner as well as the student. — Hehry H. Ingbesoll, Bean Law Department, University of Tennessee. HARRIMAN ON CONTRACTS. Elements of the law of Contracts. By Edwakb Avert Harkiman. Professor of Law in the Northwestern University Law School. 12mo. Cloth, 12.50 net; law sheep, ^,3.00 net. The justification of this book is . . . that it is an attempt to explain the rules of positive contract law in accordance with the actual historical development of those rules, and to classify and arrange those rules as far as possible in a scientific manner. The cases cited and referred to have been selected with the greatest care, as best illustrating and explaining the rules and doctrines of the law of contracts. A most admirable summary of the subject. — B. J. Ramage, Dean Law Depart- ment. University of the South, A superior and original work. — William Teiokett, Dean Dickinson School of Law. It is certainly a departure from the usual method of dealing with the subject, and I am inclined to think a departure in the direction of a clearer and better understanding of the law. — C. P. Norton, Buffalo Law School, HEARD ON CIVIL PLEADING. The Principles of Pleading in Civil Actions. By Franklin FIske Heard. 12mo. Cloth, $2.50 net; law sheep, |3.00 net. Under whatever system of statutory procedure a law student may design tc practise, he will find it equally necessary to become familiar with the principles ot common law pleading. Mr. Heard*s work is a plain and clear guide to these. -^ "Bon. SiMBON E. Baldwin, Law Department oj Yale College. 7 THE STUDENTS' SERIES. HEARD OIT CBmiNAL PLEADING. The Principles of Criminal Pleading. By Frakelik Fiskb Heabd. 12mo. Cloth, 12.50 net; law sheep, fS.OO net. It deserves an important position among the text-books in every law scliool in fclie country. — William C. Robinson, Dean La/w Department^ Catholic Universiiy oj America. HOWE ON THE CIVIL LAW. Studies in the Civil Law and its Relations to the Law of England and America. By Willtam Wirt Howe, late Justice of the Supreme Court of Louisiana. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. The hook differs in plan from the merely antiquarian and academic treatises on Roman and Civil Law. The author has studied and practised his profession both in the common law States of Missouri and New Tork and in the civil law State of Louisiana, and has written this hook in the light of large experience. The special feature of the work is found in the presentation of the leading principles of the Koman and Civil Law and the tracing of their development and application in our own jurisprudence to the complications of modern life, thus taking up the comparative study of the Civil Law and of the Law as we have it now. The book will be of practical use, not only in our numerous law schools, but to those members of the bar who may wish to investigate the subject. Has every quality which such a book needs, and which, to say the least, most books on Roman Law in English have not. It is simple, clear, and intelligible, and we can strongly recommend it to the student, or to any one interested in the subject. — Ttie Nation. HUFFCUT ON AGENCY. Elements of the Law of Agency as relating to Contract. By Ernest W. HcFPCUT, Professor of Law In Cornell University School of Law. 12mo. Cloth, |2.50 net; law sheep, $3.00 net. Law schools and law offices obtam in this book what has long been needed, — a book on Agency written clearly and concisely by a man whose own experience with his classes has taught him what were the fundamental principles of the law, and how best to arrange and present those principles. The citation of authorities for the purpose of illustrating the rules of law is very full and from varied sources. It is not intended as a special digest of the subject, but all the points of law are amply supported by the best authorities. I am particularly impressed by the clear and scientific arrangement. — Georob E. Bbbes, Law Department, Yale University. Perhaps the most striking characteristic of the book is the painstaking and accu- rate analysis which the subject has received. ... It is logical in its arrangement, 8 THE STUDENTS' SERIES. accurate in its statement of the law, and discriminating in its citations oi authoii* ties. — American Law Register and lieview. The work is a very good one indeed. — CHAitLES M. Black, Dean /Tastings Col- lege of Law. .^ have examined with some care Professor Huffcut's treatise on Agency, and am much pleased with it as a text-book for the use of students. — Frof . B. S. GouiiD, Law Department^ Uhiv&rsity of Texas. To accompany " Suffcut on Agency": — Cases on the Law of Agency. By Ernest W. Huffcot. Crown 8vo. Cloth, $S 00 net. MAY ON CRIMmAL LAW. The law of Crimes. By J. Wilder Mat, Chief Justice of the Muni- cipal Court of the City of Boston. Second edition, edited by Joseph Henky Bealb, Jr., Assistant Professor of Law in Harvard Univer- sity. 12mo. Cloth, $2.50 ne<; law sheep, |3.00 «€(. This new edition of Judge May's deservedly popular work contains large additions. The editor states in the preface that the original plan included no discussion of the subjects of -Criminal Pleading and Practice; but it was found that it would be better adapted to the use of students if these subjects were briefly considered, and this has accordingly been done. Much has also been added to the first chapter, which contains the general principles under- lying the criminal law. It is to be especially commended for its clear and concise definitions, as also for its citations of. leading cases directly upon the matter under discussion. — From J. H. Caepbnteb, Law Faculty^ University of Wisconsin. It is not a mere synopsis, but an interesting discussion, qmte full enough to give the student a true view of the subject, and minute enough to be a useful handbook to the practitioner. — New York Law Journal. To accompany " May's Criminal Law " : — Oases on Criminal Law. By H. W. Chaplin. New edition, enlarged. Crown 8vo. Cloth, $3.00 net. ROBINSON'S ELEMENTARY LAW. Elementary Law. By William C. Robinson, LL.D., Professor of Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Contains a statement of the principles, rules, and definitions of American Common Law, both civil and criminal, arranged in logical order, with refer- ences to treatises in which such definitions, rules, and principles are more extensively discussed. This work is intended to serve three purposes : First, to form a text-book for the use of students in law schools, and of others who are under com- petent instruction j second, to guide private students in their investigation 9 THE STUDENTS' SERIES. of the rules and definitions of law ; third, to render students familiar with some of the leading treatises upon the principal topics of the law. The book is convenient to the instructor who will use it as a text to be amplified in his lectures, and valuable to the student who will consult the references. — Prof. M. F. Force, LL.D., Cincinnati Law School. ROBINSON'S FORENSIC ORATORY. forensic Oratory : A Manual for Advocates. By William C. Robinson, LL.D., author of "The Law of Patents for Useful Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. A new and suggestive work on the duties and functions of the advocate. The chapteta on the Presentation of Ideas by the Production of Evidence in Court, the Qualification and Training of Witnesses, and on Direct, Cross, and Re-Direct Examination, commend the book especially to the bar as well as to students. The trained lawyer as well as the student will find much that is helpful and suggestive in the pages of this volume, especially on the subject of cross examination. It is the result of a long experience and a constant study of the trial of causes. This is a book which no student of law can afford to pass by without a thorough study of it. It is also a work which no practising lawyer who undertakes the trial of causes, and is not already an acknowledged leader in the courts, can afford not to read and read again. — Atnerican Law Review. It touches upon vital points, just such as students of oratory, especially those who are entering upon the practice of law, need to have urged upoE them in this forcible way. — Thomas 0. Teubblood, Professor of Eloaiiioti and Oratory, Depart- ment of Law, Michigan University. SEDGWICK'S ELEMENTS OF DAMAGES. Elements of Damages : A Handbook for the Use of Students and Practitioners. By Arthur G. Sedswick. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. This hook is not an abridgment of the work embodied by the author in his edition of the well-known three-volume treatise on the Measure of Dam- ages, by Theodore Sedgwick. The entire field has been re-examined, and the whole law of Damages reviewed. Its principles are stated in the form of rules ov propositions of law such as a court might lay down to a Jury, and these propositions are illustrated by the cases from which they have been drawn. Wherever local variations from these rules exist, such local differences are stated, and their causes, so far as possible, explained.' As a students' book it is very admirable. Probably no one but the author can see how it could be made better than it is. — Arnerican Law Review. I can cheerfully recommend the book as an excellent presentation of the elements of the subject. — Emlik McClain, Chancellor Law Department, State ^University of Iowa. 10 I tit STUDENTS' SERIES. Throughout the volume the references to, as well as the illuBtrations of, under* lying principles are judicious. It is decidedly a meritorious work. — Frof . Chable^ M. Gaufbell, Law Department, University 0/ Colorado. To accompany the foregoing work : — .Cases on the Law of Damages. By Joseph H. Bealb, Jr., of the Harvard Law School. Crown 8vo. Cloth, $3.00 net. STEPHEN'S DIGEST OF EVIDENCE. A Digest of the Law of Evidence. By Sir James Pitz-Jambs Stephen. From the fourth English edition. With Notes and Additional Illustrations to the present time, chiefly from American Cases, including those of John Wilder Mat, late Chief Justice of the Municipal Court of the City of Boston, author of " The Law of Insurance," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. A full reprint of the fourth English edition, revised by the author, with references to American cases. Short as it is, we believe it will be found to contain practically the whole law of the subject. STIMSON'S LAW GLOSSARY. .Glossary of Technical Terms, Phrases, and Maxims of the Common Law. By Fredekick Jesup Stimson. 12mo. Cloth, $2.50 nc(; law sheep, $3.00 net. This book is a concise Law Dictionary, giving in common English an explanation of the words and phrases, English as well as Saxcn, Latin, or French, which are of common technical use in the law. The popular and usual acceptation of each phrase is given in much the same general shape as it stands in the mind of the trained lawyer. A very convenient little work, especially useful to students of the law> — Chicago Legal News. WAMBAUGH'S STUDY OF CASES. The Study of Cases '. A Coarse of Instruction in Beading and Stating Beported Cases, Composing Head-ITotes and Briefs, Criticising and Comparing Authorities, and Compiling Digests. By Euqene Wambaugh, Professor in the Law Department of Harvard Univer- sity. Second edition. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. The purpose of the work as expressed by its author is "to teach the methods by which lawyers detect dicta, and determine the weight of reported cases." The full discussion of this introduces many important and interest- ing topics, such as the following : How to write a Head-Note, How to criti-