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be invoked it is not necessary that there be an Where a decision has become thoroughly imbedidentity of parties or of facts. It is not confined inded in the law and has become a rule of property so its application to a subsequent questioning of the that vested rights are dependent on it for their exsame matters. It will be difficult to find two cases istence and continuance, such decision, though parallel in all respects where this doctrine has been erroneous in its inception, will be followed as applied. Similarity and not identity of issue and precedent in subsequent cases. of fact will be found to prevail. Again, under the The law in regard to titles to real estate especirule of res adjudicata, a decision though erroneous ally requires stability. As injurious as are frequent is absolutely conclusive upon the same matters be changes in the law, no decision as to personal proptween the same parties until that decision is re- erty or damages requires such permanency as those versed. Under the rule of stare decisis a ciearly relating to realty. Even one decision in the latter erroneous decision is not binding as a precedent

case will be scrupulously guarded. Titles to real except in certain cases which we will hereafter con

estate are for all time, and should stand as passed sider. When a decision is rendered by a court of upon if possible. Titles may be largely or wholly ultimate appeal in any case, that decision must be dependent upon previous decisions, and landed inregarded as conclusive in that particular case.

terests would be jeopardized by sudden or frequent Where the question arises in a case similar to one

changes in interpretation or construction of legal already adjudicated in a prior case, while the force principles. (Lion v. Burtiss, 20 Johns. 487.) of precedent is strong, the court may overrule,

In this connection I quote from the argument of affirm or modify any previous decision. In the Joseph H. Choate before the United States Supreme

" The reason of the same case any ruling is final, in a different one it is Court in the income tax cases: only an established precedent. (23 Amer. & Eng. rule is, that it is often better on public grounds, Ency. of Law, p. 33, and cases cited.)

where a question of law has been decided — where Where a trust deed was adjudged to be void by

that the court

it has been repeatedly decided the Appellate Court, that decision was held to be should let it remain rather than, by the declaration the immutable law of the case to govern all sub

of another, though a better rule, dispense with it. sequent proceedings therein, notwithstanding that

Where is that chiefly applied ? Where ought it afterwards in another case a different decision was

chiefly to be applied? Where has it always been made on a similar deed. (Thompson v. Albert, 15

applied? When the former decision has grown into Md. 285.)

a rule of property, and vested rights in a trusting It seems that where there bas been a solemn ad-community, relying upon the past decision, have judication by a court of last resort, the decision ren

become fixed, where rules of conduct have come to dered is the law of the particular case and will not

be governed by it, as in the making of contracts be disturbed upon a subsequent review on the and other arrangements between man and man and principle of res adjudicata; while viewing the between citizens and corporations, I acknowledge decision as a precedent, it may be followed, modi

that there may often be cases where less damage to tied or overruled.

the public, less injury upon the whole arises from “There are clear and palpable mistakes of law letting the bad rule stand. Everybody has acquiwhich should be corrected, especially where it can esced in the rule, everybody knows it to be the rule, be done without injury to any person or property. everybody has acquired his property under the rule, If no injury or injustice would result to any one,

and made his contracts under the rule." and a future and permanent benefit would undoubt- In Welch v. Sullivan (8 Cal, 188), the court said: edly result, the correction should be made at once. “ Courts are permitted to exercise a wide discretion, No prior decision is to be reversed without good and judges are not expected or required to overturn and sufficient cause, yet the rule is not in any sense principles which have been considered and acted iron-clad, and the future and permanent good to upon as correct, thereby disturbing contracts and the public is to be considered rather than any property, and involving everything in inextricable particular case or interest.


confusion, simply because some abstract principle should not have an overwhelming or despotic in- of law has been incorrectly established at the outfluence in shaping legal decisions


set. The books are full of cases in which learned ever a correction can be made without working judges have acknowledged the errors committed bg more harm than good, it should be done.

themselves or their predecessors, and at the same The reason that the rule of stare decisis was promul- lime refused to overthrow the rule established. gated was on the ground of public policy, and it That judge, who, for petty vanity and for the sake would be an egregious mistake to allow more harm of showing himself more wise and learned than his than good to accrue from it.” (23 Amer. & Eng. predecessors, would overthrow a rule which for Ency. Law, p. 37.)

years has settled the rights of property, should be


* * *

On ques

regarded as the common enemy of mankind, and of this statute. We cannot change a decision withunworthy of the high trust that has been confidel out producing confusion in titles, as the ruling to him.” (See Bates v. Relyea, 23 Wend. 340.) would necessarily relate back to the time the law

In Harrow v. Myers, 29 Ind. 470, the court, speak- came in force. But if the canon of descent, as ing of real estate titles, said: The question at the settled by the determination of the court of last rethreshold is, whether a rule of property thus re- sort, is unjust or even distasteful, the Legislature peatedly declared by the court of last resort after can change the rule without interfering with vested earnest contest, and, it must be supposed, upon the rights. As now constituted, however much we may most careful deliberation, should be deemed open differ from the opinions of our predecessors, we to further controversy. The repose of titles is im- shall not introduce doubt and confusion into quesportant to the public. Upon the faith of these tions of property by overruling the previous decisions our people have, for a considerable period decisions of this court. We have had occasion in of years, invested their money in real estate, the the last few months to overrule a number of cases, titles to which they were thus again and again but only in that class in which the rulings operate assured were not liable to be disturbed. There upon the future and not pon the past, and which, must be a just basis of confidence in the stability of in our opinion, will be attended by unmixed good.” judicial decision somewhere in the history of a con- Rarely are the decisions of inferior courts foltroverted legal question, where it may be confidently lowed by the higher courts. On questions of the relied on that the question is settled. It is uot construction or application of provisions of the always that the courts may freely inquire, in deter- Federal Constitution, of treaties and of Federal mining a case before them, what is the law. Some- law, the decisions of the United States Supreme times investigation should stop when it has been Court are binding upon the State courts. ascertained what has been decided upon the sub- tions of the construction or interpretation of State ject. The doctrine of stare decisis should be ap- statutes or constitutions, the decisions of the court plied to the question now presented. Such is its of the State whose constitution or statue is in quesrelation to the interests of our people among whom tion are followed by the Federal Courts real estate is so much an article of traffic, that it is Equator Min., Etc., Co. v. Hall, 106 U. S. 86 ; not possible to estimate the extent of the evil Hamilton Bank v. Dudley, 2 Pet. 492 ; East Hartwhich would follow a decision of this court over

ford v. fartford Bridge Co., 10 How. 511 ; Chamruling Strong v. Clem (12 Ind. 37), and the cases bers County v. Clews, 21 Wall, 317 ; Union Bank v. which followed it. If the doctrine of those cases

Kansas City Bank, 136 U. S. 223 ; 23 Amer. & Eng. be admitted to be wrong, it is yet quite obvious Ency. Law, pp. 38–39. WALTER I. HOVER. that it has already accomplished most of the harm

Amsterdam, N. Y. that ever can result from it; while a change now would sow a wide crop of serious evils to the injury THE PEOPLE OF THE STATE V. WILLIAM of those who are inuocent, and who have purchased

W. M'LAUGHLIN. and sold real estate upon the faith of a doctrine

GAYNOR, J.: The law does not cast upon me the declared by this court no less than half a dozen

duty of concluding whether error was actually comtimes within the last ten years."

mitted in the defendant's case. On the contrary In further illustration of this doctrine I quote the statute is that if any assigned error gives rise to from one more authority. In Rockhill v. Nelson,

“reasonable dcubt whether the judgment should 24 Ind. 424, the court, speaking of a rule of descent stand," it is my duty, without going further, to which had been assailed by argument, said: “This grant a certificate of reasonable doubt, to operate position so forcibly addressed to this court before

as a stay of the judgment pending appeal. I have the decision in the case of Martindale v. Martindale such doubt, und being unable to resolve it after (10 Ind. 566) would bave been entitled to grave careful deliberation, I must unhesitatingly respond consideration, and it is, indeed, difficult to see how to the injunction which the law lays upon me, and it could have been met by legal argument. But allow the stay, without regard to my personal inthere are some questions in the law the final settle- clivation. ment of which is vastly more important than how Whether this ruined defendant shall be impristhey are settled ; and among these are the rules of oned pending his appeal is insignificant indeed, property long recognized and acted upon, and under compared to the importance of maintaining a dewhich rights have vested. It must be admitted liberate and orderly administration of criminal justhat our law of descents, among the most important | tice, and the necessity of preserving those individual on our statute books, is not remarkable for precision rights which, while they shield the innocent and and clearness, and that vexatious questions are the unfortunate, do not protect the guilty. I have often occurring requiring judicial interpretation not merely this defendant's case in mind, but the case of everyone hereafter to be tried for a criminal change bis place of trial, what followed ?

He was offense.

confronted with a difficulty; for while the statute I shall specify two alleged errors. The defendant was explicit that he could bring on such a motion was tried in the Court of Oyer and Terminer. His only “ upon notice of a: least ten days to the Disfirst trial ended on Saturday, May 11, 1895, by a trict Attorney" (Code Crim. Proc. Sec. 346), his disagreement of the jury. The case was at once set second trial bad been set only nine days ahead, as down for another trial in the same court nine days has been seen, and would therefore supersede his ahead, namely, on Monday, May 20. Counsel for motion, and make it useless.

But the law did not defendant then decided to make a motion in the leave him in such evil case; for it provided that any Supreme Court for a change of the place of trial to justice of the Supreme Court might grant a stay of another county, on the ground that a fair and im- the trial until the motion should be heard and departial trial could not be had in the county of New cided (Code Crim. Proc. Sec. 347.) By the exercise York. They prepared a voluminous record for that of diligence the defendant's attorneys had the repurpose, setting forth that the difficulty of getting cord necessary to the motion ready in four days. impartial jurymen was so great that it took three viz., on Friday, May 17th; and regularly presenting weeks to get a jury on the first trial; that the de- the same to a justice of the Supreme Court on that liberation of the jury was marred by unusual pas- day, they obtained of him the temporary stay of the sion, those voting for acquittal reporting in open trial which the law allowed, until the motion should court that they were threatened with State's prison be heard, viz., on Monday, June 3rd. The followby those voting for conviction; that immediately ing morning, viz., Saturday, copies of the motion after the discharge of the disagreeing jurymen, papers, including the stay and notice of motion, their intelligence, honesty and motives were assailed were served upon the district attorney. The dein public meetings and elsewhere, all of which was

fendant had acted strictly in accordance with law. reported in the newspapers; that in additiou some He could not have noticed his motion for any day newspapers joined in the attack, which was also prior to the day set for the trial, for the statute, as levelled in advance against any jurors who should | bas been seen, required that he should give a notice vote for acquittal upon the second trial; and the of motion of not less than ten days. defendant also claimed that the learned judge who On the following Monday morning, however, at presided at his first trial, and was also to preside at the unusual and irregular hour of six o'clock, the his second, participated in these public discussions district attorney caused to be served

the dein a way adverse to a fair and calm consideration of fendant's attorney an order requiring the defendant bis


case, and calculated to deter jurymen from to show cause at 10:30 o'clock that same morning, being independent. In this state of things the de- before the Special Term of the Supreme Court in fendant's counsel claimed that he had not had and New York city, why the defendant's motion to could not have in the county of New York that de- change the place of trial should not then there liberate, fair and impartial trial which the law “forth with” proceed and be heard. The senior guarantees to everyone.

counsel for defendant was under engagement to be I need form no opinion as to the truth of these before the Court of Appeals at Albany on that allegations; it is enough that they were by no day, and went there. The junior counsel appeared means light or frivolous, and that defendant was before the Supreme Court at the hour required, and entitled to have them calmly heard; for the law, submitting affidavits bearing evidence of the untaught by the experience of the past, had wisely so seemly baste in which he had been forced to preprovided. From the irregular and disorderly trial pare them, objected to the court proceeding, and, of Jesus clown to the present time, history in almost denying its jurisdiction to do so, asked that a time every generation affords instances of trials conducted be set to argue the question of jurisdiction. The without due calmness and attention, in which some- court refused the request, overruled every obtimes the innocent and sometimes the guilty were jection, and required the defendant to proceed at convicted; but invariably in either case with the once to present to it his inotion to change the like effect in the end, that the conviction was place of trial. This his counsel refused to do. The generally deemed unjust, and proved more de- court thereupon made and entered an order to the moralizing and detrimental to social order than effect that the motion was heard and denied, and acquittal would have been. It is a maxim of manli- | vacating the stay, but reciting the refusal of defendness and healthy human nature as old as the human ant to make the motion before it, and thereupon race that one who cannot be convicted by fair play the Court of Oyer and Terminer, which had awaited should not be convicted at all.

the outcome, immediately commenced the trial of the The defendant having decided, as was his unques- defendant, against the objection of his counsel that tionable legal right, to move the Supreme Court to the Supreme Court had acted without jurisdiction,

and that, therefore, the stay of the trial was still in cert being established, then the act of either one force and the trial could not be had.

was the act of the other; and in that way the deI have a reasonable doubt of the validity of this fendant could be convicted. Evidence had been precipitate proceeding in the Supreme Court. If it produced from which the jury could have found is to be allowed in this defendant's case, then it that the illegal relation existed. Next, it was can be repeated in any one's case. It is quite as proved that Burns stopped the work of pulling important that justice appear to be done as that it | down a building which Seagrist was engaged in, be done. It is important that crime should be and told him he could not go on with it till he saw punished, but far more important that the rights of the captain, namely, the defendant. This was the the individual should be held inviolable, for that coercion used to extort the money. Seagrist says alone is all that stands between him and tyranny, he went to the station to see the captain, but he was whetber executive or judicial.

not in. The next thing to prove was that the If the order of the Supreme Court was void, then money was paid. Seagrist swore positively that he the stay was in force when the Court of Oyer and paid fifty dollars to either the defendant or Burns, Terminer tried the cause. I do not see how a court but that he could not remember which. Ais may force a party to bring on a trial or application dubiety was upon this point only. He then testified of any kind within less time than he has legally that he made a true memorandum of the occurrence noticed it for, unless by express statutory authority at the time of payment, and produced it. Being to shorten the time, which did not exist in the requested to look at the memorandum to refresh his prssent instance. It might as well try to make a memory, he did so, and then said: “I have no disparty bring on a trial or application that he had not tinct recollection by looking at the book to whom I given notice of at all. The notice was shortened in paid it, because it was a double entry.” The memo. this case by the aforesaid order of the Special Termrandum was then offered and received in evidence of the Supreme Court upon the ground that the against the objection of defendant's counsel. It is public interest required that there be no delay of as follows: “November 21, 1891. Material. Paid the trial of defendant. If there be a valid ground, to McLaughlin for protection per Seargent Burns, then a notice of trial or of motion in any case in- Ordinance officer, $50." Seagrist said, as we have volving public interests may be shortened or disre- seen, that he could not tell from this memorandum garded by a court. It seems to me the learned dis

to which one he paid the money, because it was a trict attorney mistook his course, and that the court “double entry;" not referring to double entry bookacted without jurisdiction. The way for the district keeping (for no such thing was before him), but attorney to prevent delay of the trial was plain. meaning that the entry was double in meaning, or The law had not left it in the power of the defend-equivocal. And so the memorandum seems to be; ant to delay the trial at will. He had to get a stay for who can say from it, any more than Seagrist pending his motion in order to delay the trial at could, whether it conveys the statement that the all; and the district attorney had the right to apply | money was paid to McLaughlin per or through to the judge who had granted the stay to vacate it, Burns for protection, or paid directly to McLaughunless the defendant would stipulate as an alterna- | lin for protection to be given per or through Burns. tive to argue the motion in a shortened time. The It follows that this delphic memorandum like is often done in civil causes in respect of both not competent to prove to which one the money notices of trial and of motion. But that a court was actually given by Seagrist. That was the only has inherent jurisdiction to shorten at will notices point upon which his memory failed; and the essential to give it jurisdiction, I cannot believe. memorandum could not be competent to prove anyThere was no due process of law by which the thing except something which the witness could Special Term of the Supreme Court was able to do not recollect. (Ulster Co. Bank v. Madden, 114 N. what it assumed to do in this case.

Y. 280; Rice on Evidence, Vol. 3, p. 100.) He reAnother assigned error raises a grave question. membered positively that he paid the $50 to one or The indictment was for the extortion of fifty dollars the other, so that the memorandum could not be from one Seagrist. To make out the crime it be- received to prove that. But in another aspect it came necessary for the prosecution to prove a con- seems that the memorandum could not be legal tinuing illegal concert between the defendant and evidence. The rule allowing an original written his ward man Burns, to extort money; for the acts memorandum of a fact to be used as evidence of necessary to constitute the particular crime for such fact in the absence of recollection of the fact which defendant was being tried were not at all | by the person who made the memorandum, relates committed by defendant personally, but, on the only to memoranda of facts, and not to memocontrary, some, or, as the prosecution finally claimed, randum of inferences or conclusions. The memoall of them, were done by Burns. This illegal con- randum in question is of a conclusion. It con

was com

tains a conclusion that an illegal concert existed the globe -- however much the demand for harmony between McLaughlin and Burns; that payment to the elegantia juris of the Romans — might desire Burns was payment to McLaughlin for his protec- the removal of all antinomies. But, as the author tion or else that payment to McLaughlin was for in a passage of great power at the close of his work his protection through Burns. Indeed, it contains points out, the rights of the foreigner are gradually a statement of a conclusion that the very crime for assuming recognition in our courts, in spite of that which the defendant was being tried was positivism which gives our English school of jurismitted. It was competent for Seagrist to testify prudence so marked a contrast to the jurisprudence that he paid the money to Burns, but not com- of the continent. One of the most salient features petent for him thereupon to state the conclusion of modern legal history is the same as that wbich that such payment amounted to payment to Mc- the student of the Antonine jurisprudence enLaughlin. Yet that is what this memorandum was counters, the increased facility for acquiring citizeninterpreted to state by the prosecution. If one ship. The means employed are not the same, but in could make a written memorandum of his con- this respect, as in others, the aphorism of Sir H. S. clusions, and in that way afterwards have them Maine holds good — that it is not possible to overreceived in evidence, no one would be safe in state the value of Roman jurisprudence as a key to inliberty or property. There would be no end of ternational law. That which Sir H. S. Maine wrote fabricated memoranda. Even an original memo- the Cambridge essays of 1856 would one day be true of randum of a simple fact is received in evidence

our municipal law, is, in the sphere of private interwith hesitation, and only from necessity, and such national law, un fait accompli, Sir W. Rattigan points caution is necessary, as our highest court has said, out “that it is one of the instances of the final tri. "until the moral infirmity of human nature be- umph of the Roman principles of jurisprudence that comes exceptionally less than it yet has." (114 N. this (the principle of jus sanguinis in fixing nationY. 285.)

ality) is the theory which is now more and more The motion is granted.

largely recognized in Europe.” But no one can peruse the pages of this work without having to make

the admission that the want of a Gemeines Recht in PRIVATE INTERNATIONAL LAW.(a)

the sphere of international intercourse is only too

palpable. Private international law is, in fact, the The effect of the recent decision of the judicial appropriate sphere of le conflit des lois. It has been committee of the Privy Council in the case of Sir

well pointed out by a recent writer on international dar Gurdyal Singh v. H. H. The Raja of Faridkot

law that the antinomies of different legislation are being to judicially affirm the sovereignty of the in- but ineffectually met by treaties. What is wanted is dependent native State within its own territorial

uniformity of legislation. Thus the Berne convenlimits, it becomes easy to understand that private tion of 1885, adopted in England under the sanction international law has for the Indian student a prac- of the international copyright act, while doubtless tical no less than a theoretical interest. It would an act of international betterment in itself, brings indeed be difficult to conceive an author alleging a into full relief the fact that the copyright of an aubetter raison d'être for his work than Sir W. Ratti-thor in his works is protected longer in some coungan has done. India, like classical Hellas, now tries than in others. A signal illustration of le conflit consists of a number of separate independent States, des lois exists in the law of nationality respectively but the enormous number of those States (no less obtaining in France and England. Though the than 629) shows how far India transcends the clas- under secretary for foreign affairs (Sir James Fersical parallel. Though Sir W. Rattigan explicitly gusson) stated in the House of Commons in 1889, announces that this manual is written primarily for that the British government had no ground of prothe Indian or English student of law, no one who

test, yet grandchildren, born in France of natural looks into this work can doubt that it possesses in

born Britislı subjects, who have British nationality terest for a much wider class of readers. On the confered upon them by various statutes of Anne, psychological principle of variatio delectat, there must George II., and George III,, become, by virtue of the be something to attract the mind in the extraordin

French naturalization act of 1889, French subjects, ary variety of legal systems that obtain throughout and are now liable as such to military service. This

(a) By Sir William Henry Rattigan, LL. D., of illustration may serve to show that, though the Lincon’s-inn, Barrister-at-Law, Vice-Chancellor of Roman law is a key to international law, it is still the University of the Punjab. Author of “The far from being the Gemeines Recht of the nations. Science of Jurisprudence, “Roman Law of Per- The private international law of copyright, being a sons,” etc. London : Stevens & Sons Limited, 119 purely modern creation, bears no trace of derivation and 120 Chancery lanc.

from the Roman law.

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