be invoked it is not necessary that there be an identity of parties or of facts. It is not confined in its application to a subsequent questioning of the same matters. It will be difficult to find two cases parallel in all respects where this doctrine has been applied. Similarity and not identity of issue and of fact will be found to prevail. Again, under the rule of res adjudicata, a decision though erroneous is absolutely conclusive upon the same matters between the same parties until that decision is reversed. Under the rule of stare decisis a clearly erroneous decision is not binding as a precedent except in certain cases which we will hereafter consider. When a decision is rendered by a court of ultimate appeal in any case, that decision must be regarded as conclusive in that particular case. Where the question arises in a case similar to one already adjudicated in a prior case, while the force of precedent is strong, the court may overrule, affirm or modify any previous decision. In the same case any ruling is final, in a different one it is only an established precedent. (23 Amer. & Eng. Ency. of Law, p. 33, and cases cited.) Where a trust deed was adjudged to be void by the Appellate Court, that decision was held to be the immutable law of the case to govern all subsequent proceedings therein, notwithstanding that afterwards in another case a different decision was Where a decision has become thoroughly imbedded in the law and has become a rule of property so that vested rights are dependent on it for their existence and continuance, such decision, though erroneous in its inception, will be followed as a precedent in subsequent cases. The law in regard to titles to real estate especially requires stability. As injurious as are frequent changes in the law, no decision as to personal property or damages requires such permanency as those relating to realty. Even one decision in the latter case will be scrupulously guarded. Titles to real estate are for all time, and should stand as passed upon if possible. Titles may be largely or wholly dependent upon previous decisions, and landed interests would be jeopardized by sudden or frequent changes in interpretation or construction of legal principles. (Lion v. Burtiss, 20 Johns. 487.) In this connection I quote from the argument of Joseph H. Choate before the United States Supreme Court in the income tax cases: "The reason of the rule is, that it is often better on public grounds, where a question of law has been decided — where it has been repeatedly decided that the court should let it remain rather than, by the declaration of another, though a better rule, dispense with it. Where is that chiefly applied? Where ought it 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.) It seems that where there has been a solemn adjudication by a court of last resort, the decision rendered is the law of the particular case and will not be disturbed upon a subsequent review on the principle of res adjudicata; while viewing the decision as a precedent, it may be followed, modi fied or overruled. "There are clear and palpable mistakes of law which should be corrected, especially where it can be done without injury to any person or property. If no injury or injustice would result to any one, and a future and permanent benefit would undoubtedly result, the correction should be made at once. No prior decision is to be reversed without good and sufficient cause, yet the rule is not in any sense iron-clad, and the future and permanent good to the public is to be considered rather than any particular case or interest. should not have an overwhelming or despotic influence in shaping legal decisions * ever a correction can be made without working more harm than good, it should be done. The reason that the rule of stare decisis was promulgated was on the ground of public policy, and it would be an egregious mistake to allow more harm than good to accrue from it." (23 Amer. & Eng. Ency. Law, p. 37.) * * * Precedents * when * * * a rule of property, and vested rights in a trusting community, relying upon the past decision, have become fixed, where rules of conduct have come to be governed by it, as in the making of contracts and other arrangements between man and man and between citizens and corporations, I acknowledge that there may often be cases where less damage to the public, less injury upon the whole arises from letting the bad rule stand. Everybody has acquiesced in the rule, everybody knows it to be the rule, everybody has acquired his property under the rule, and made his contracts under the rule.” 46 In Welch v. Sullivan (8 Cal. 188), the court said: Courts are permitted to exercise a wide discretion, and judges are not expected or required to overturn principles which have been considered and acted upon as correct, thereby disturbing contracts and property, and involving everything in inextricable confusion, simply because some abstract principle of law has been incorrectly established at the outset. The books are full of cases in which learned judges have acknowledged the errors committed by themselves or their predecessors, and at the same time refused to overthrow the rule established. That judge, who, for petty vanity and for the sake of showing himself more wise and learned than his predecessors, would overthrow a rule which for years has settled the rights of property, should be regarded as the common enemy of mankind, and unworthy of the high trust that has been confided to him." (See Bates v. Relyea, 23 Wend. 340.) of this statute. We cannot change a decision without producing confusion in titles, as the ruling would necessarily relate back to the time the law came in force. But if the canon of descent, as settled by the determination of the court of last resort, is unjust or even distasteful, the Legislature can change the rule without interfering with vested rights. As now constituted, however much we may differ from the opinions of our predecessors, we shall not introduce doubt and confusion into questions of property by overruling the previous decisions of this court. We have had occasion in the last few months to overrule a number of cases, but only in that class in which the rulings operate upon the future and not upon the past, and which, in our opinion, will be attended by unmixed good." Rarely are the decisions of inferior courts followed by the higher courts. On questions of the construction or application of provisions of the Federal Constitution, of treaties and of Federal law, the decisions of the United States Supreme Court are binding upon the State courts. On questions of the construction or interpretation of State statutes or constitutions, the decisions of the court of the State whose constitution or statue is in question are followed by the Federal Courts In Harrow v. Myers, 29 Ind. 470, the court, speaking of real estate titles, said: "The question at the threshold is, whether a rule of property thus repeatedly declared by the court of last resort after earnest contest, and, it must be supposed, upon the most careful deliberation, should be deemed open to further controversy. The repose of titles is important to the public. Upon the faith of these decisions our people have, for a considerable period of years, invested their money in real estate, the titles to which they were thus again and again assured were not liable to be disturbed. There must be a just basis of confidence in the stability of judicial decision somewhere in the history of a controverted legal question, where it may be confidently relied on that the question is settled. It is not always that the courts may freely inquire, in determining a case before them, what is the law. Sometimes investigation should stop when it has been ascertained what has been decided upon the subject. The doctrine of stare decisis should be applied to the question now presented. Such is its relation to the interests of our people among whom real estate is so much an article of traffic, that it is not possible to estimate the extent of the evil which would follow a decision of this court overruling Strong v. Clem (12 Ind. 37), and the cases which followed it. If the doctrine of those cases be admitted to be wrong, it is yet quite obvious that it has already accomplished most of the harm 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 innocent, and who have purchased and sold real estate upon the faith of a doctrine declared by this court no less than half a dozen times within the last ten years." Equator Min., Etc., Co. v. Hall, 106 U. S. 86; Hamilton Bank v. Dudley, 2 Pet. 492; East Hartford v. Hartford Bridge Co., 10 How. 511; Chambers County v. Clews, 21 Wall, 317; Union Bank v. Kansas City Bank, 136 U. S. 223; 23 Amer. & Eng. Ency. Law, pp. 38–39. WALTER I. HOVER. Amsterdam, N. Y. W. M'LAUGHLIN. GAYNOR, J. The law does not cast upon me the duty of concluding whether error was actually committed in the defendant's case. On the contrary the statute is that if any assigned error gives rise to "reasonable doubt whether the judgment should stand," it is my duty, without going further, to grant a certificate of reasonable doubt, to operate as a stay of the judgment pending appeal. I have such doubt, and being unable to resolve it after careful deliberation, I must unhesitatingly respond to the injunction which the law lays upon me, and allow the stay, without regard to my personal in In further illustration of this doctrine I quote from one more authority. In Rockhill v. Nelson, 24 Ind. 424, the court, speaking of a rule of descent which had been assailed by argument, said: "This position so forcibly addressed to this court before the decision in the case of Martindale v. Martindale (10 Ind. 566) would have been entitled to grave consideration, and it is, indeed, difficult to see how it could have been met by legal argument. But there are some questions in the law the final settle-clination. ment of which is vastly more important than how they are settled; and among these are the rules of property long recognized and acted upon, and under which rights have vested. It must be admitted that our law of descents, among the most important on our statute books, is not remarkable for precision and clearness, and that vexatious questions are often occurring requiring judicial interpretation Whether this ruined defendant shall be imprisoned pending his appeal is insignificant indeed, compared to the importance of maintaining a deliberate and orderly administration of criminal justice, and the necessity of preserving those individual rights which, while they shield the innocent and the unfortunate, do not protect the guilty. I have not merely this defendant's case in mind, but the case of everyone hereafter to be tried for a criminal change his place of trial, what followed? He was offense. confronted with a difficulty; for while the statute was explicit that he could bring on such a motion only upon notice of at least ten days to the District Attorney" (Code Crim. Proc. Sec. 346), his second trial had been set only nine days ahead, as has been seen, and would therefore supersede his motion, and make it useless. But the law did not leave him in such evil case; for it provided that any justice of the Supreme Court might grant a stay of the trial until the motion should be heard and decided (Code Crim. Proc. Sec. 347.) By the exercise of diligence the defendant's attorneys had the record necessary to the motion ready in four days. viz., on Friday, May 17th; and regularly presenting the same to a justice of the Supreme Court on that day, they obtained of him the temporary stay of the trial which the law allowed, until the motion should be heard, viz., on Monday, June 3rd. The following morning, viz., Saturday, copies of the motion papers, including the stay and notice of motion, were served upon the district attorney. The defendant had acted strictly in accordance with law. He could not have noticed his motion for any day prior to the day set for the trial, for the statute, as has been seen, required that he should give a notice of motion of not less than ten days. I shall specify two alleged errors. The defendant was tried in the Court of Oyer and Terminer. His first trial ended on Saturday, May 11, 1895, by a disagreement of the jury. The case was at once set down for another trial in the same court nine days ahead, namely, on Monday, May 20. Counsel for defendant then decided to make a motion in the Supreme Court for a change of the place of trial to another county, on the ground that a fair and impartial trial could not be had in the county of New York. They prepared a voluminous record for that purpose, setting forth that the difficulty of getting impartial jurymen was so great that it took three weeks to get a jury on the first trial; that the deliberation of the jury was marred by unusual passion, those voting for acquittal reporting in open court that they were threatened with State's prison by those voting for conviction; that immediately after the discharge of the disagreeing jurymen, their intelligence, honesty and motives were assailed in public meetings and elsewhere, all of which was reported in the newspapers; that in addition some newspapers joined in the attack, which was also levelled in advance against any jurors who should vote for acquittal upon the second trial; and the defendant also claimed that the learned judge who presided at his first trial, and was also to preside at his second, participated in these public discussions in a way adverse to a fair and calm consideration of his case, and calculated to deter jurymen from being independent. In this state of things the defendant's counsel claimed that he had not had and could not have in the county of New York that deliberate, fair and impartial trial which the law guarantees to everyone. I need form no opinion as to the truth of these allegations; it is enough that they were by no means light or frivolous, and that defendant was entitled to have them calmly heard; for the law, taught by the experience of the past, had wisely so provided. From the irregular and disorderly trial of Jesus down to the present time, history in almost every generation affords instances of trials conducted without due calmness and attention, in which sometimes the innocent and sometimes the guilty were convicted; but invariably in either case with the like effect in the end, that the conviction was generally deemed unjust, and proved more demoralizing and detrimental to social order than acquittal would have been. It is a maxim of manliness and healthy human nature as old as the human race that one who cannot be convicted by fair play should not be convicted at all. The defendant having decided, as was his unquestionable legal right, to move the Supreme Court to On the following Monday morning, however, at the unusual and irregular hour of six o'clock, the district attorney caused to be served upon the defendant's attorney an order requiring the defendant to show cause at 10: 30 o'clock that same morning, before the Special Term of the Supreme Court in New York city, why the defendant's motion to change the place of trial should not then there "forthwith" proceed and be heard. The senior counsel for defendant was under engagement to be before the Court of Appeals at Albany on that day, and went there. The junior counsel appeared before the Supreme Court at the hour required, and submitting affidavits bearing evidence of the unseemly haste in which he had been forced to prepare them, objected to the court proceeding, and, denying its jurisdiction to do so, asked that a time be set to argue the question of jurisdiction. The court refused the request, overruled every objection, and required the defendant to proceed at once to present to it his motion to change the place of trial. This his counsel refused to do. The court thereupon made and entered an order to the effect that the motion was heard and denied, and vacating the stay, but reciting the refusal of defendant to make the motion before it, and thereupon the Court of Oyer and Terminer, which had awaited the outcome, immediately commenced the trial of the defendant, against the objection of his counsel that 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. I have a reasonable doubt of the validity of this precipitate proceeding in the Supreme Court. If it is to be allowed in this defendant's case, then it can be repeated in any one's case. It is quite as important that justice appear to be done as that it be done. It is important that crime should be punished, but far more important that the rights of the individual should be held inviolable, for that alone is all that stands between him and tyranny, whether executive or judicial. was the act of the other; and in that way the defendant could be convicted. Evidence had been produced from which the jury could have found that the illegal relation existed. Next, it was proved that Burns stopped the work of pulling down a building which Seagrist was engaged in, and told him he could not go on with it till he saw the captain, namely, the defendant. This was the coercion used to extort the money. Seagrist says he went to the station to see the captain, but he was 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. His 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 Term randum 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 notices of trial and of motion. But that a court has inherent jurisdiction to shorten at will notices essential to give it jurisdiction, I cannot believe. There was no due process of law by which the Special Term of the Supreme Court was able to do what it assumed to do in this case. Another assigned error raises a grave question. The indictment was for the extortion of fifty dollars from one Seagrist. To make out the crime it became necessary for the prosecution to prove a continuing illegal concert between the defendant and his ward man Burns, to extort money; for the acts necessary to constitute the particular crime for which defendant was being tried were not at all committed by defendant personally, but, on the contrary, some, or, as the prosecution finally claimed, all of them, were done by Burns. This illegal con was not competent to prove to which one the money was actually given by Seagrist. That was the only point upon which his memory failed; and the memorandum could not be competent to prove anything except something which the witness could not recollect. (Ulster Co. Bank v. Madden, 114 N. Y. 280; Rice on Evidence, Vol. 3, p. 100.) He remembered positively that he paid the $50 to one or the other, so that the memorandum could not be received to prove that. But in another aspect it seems that the memorandum could not be legal evidence. The rule allowing an original written memorandum of a fact to be used as evidence of such fact in the absence of recollection of the fact by the person who made the memorandum, relates only to memoranda of facts, and not to memorandum of inferences or conclusions. The memorandum in question is of a conclusion. It con tains a conclusion that an illegal concert existed between McLaughlin and Burns; that payment to Burns was payment to McLaughlin for his protection or else that payment to McLaughlin was for his protection through Burns. Indeed, it contains a statement of a conclusion that the very crime for which the defendant was being tried was committed. It was competent for Seagrist to testify that he paid the money to Burns, but not competent for him thereupon to state the conclusion that such payment amounted to payment to McLaughlin. Yet that is what this memorandum was interpreted to state by the prosecution. If one could make a written memorandum of his conclusions, and in that way afterwards have them received in evidence, no one would be safe in liberty or property. There would be no end of fabricated memoranda. Even an original memorandum of a simple fact is received in evidence with hesitation, and only from necessity, and such caution is necessary, as our highest court has said, "until the moral infirmity of human nature becomes exceptionally less than it yet has." (114 N. Y. 285.) The motion is granted. PRIVATE INTERNATIONAL LAW.(a) The effect of the recent decision of the judicial committee of the Privy Council in the case of Sirdar Gurdyal Singh v. H. H. The Raja of Faridkot being to judicially affirm the sovereignty of the independent native State within its own territorial limits, it becomes easy to understand that private international law has for the Indian student a practical no less than a theoretical interest. It would indeed be difficult to conceive an author alleging a better raison d'être for his work than Sir W. Rattigan has done. India, like classical Hellas, now consists of a number of separate independent States, but the enormous number of those States (no less than 629) shows how far India transcends the classical parallel. Though Sir W. Rattigan explicitly announces that this manual is written primarily for the Indian or English student of law, no one who looks into this work can doubt that it possesses interest for a much wider class of readers. On the psychological principle of variatio delectat, there must be something to attract the mind in the extraordinary variety of legal systems that obtain throughout (a) By Sir William Henry Rattigan, LL. D., of Lincon's-inn, Barrister-at-Law, Vice-Chancellor of the University of the Punjab. Author of "The Science of Jurisprudence," Roman Law of Persons," etc. London: Stevens & Sons Limited, 119 and 120 Chancery lane. 46 the globe - however much the demand for harmony - the elegantia juris of the Romans - might desire the removal of all antinomies. But, as the author in a passage of great power at the close of his work points out, the rights of the foreigner are gradually assuming recognition in our courts, in spite of that positivism which gives our English school of jurisprudence so marked a contrast to the jurisprudence of the continent. One of the most salient features of modern legal history is the same as that which the student of the Antonine jurisprudence encounters, the increased facility for acquiring citizenship. The means employed are not the same, but in this respect, as in others, the aphorism of Sir H. S. Maine holds good that it is not possible to overstate the value of Roman jurisprudence as a key to international law. That which Sir H. S. Maine wrote the Cambridge essays of 1856 would one day be true of our municipal law, is, in the sphere of private international law, un fait accompli, Sir W. Rattigan points out that it is one of the instances of the final tri. umph of the Roman principles of jurisprudence that this (the principle of jus sanguinis in fixing nationality) is the theory which is now more and more 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 the sphere of international intercourse is only too palpable. Private international law is, in fact, the appropriate sphere of le conflit des lois. It has been well pointed out by a recent writer on international law that the antinomies of different legislation are but ineffectually met by treaties. What is wanted is uniformity of legislation. Thus the Berne convention of 1885, adopted in England under the sanction of the international copyright act, while doubtless an act of international betterment in itself, brings into full relief the fact that the copyright of an author in his works is protected longer in some countries than in others. A signal illustration of le conflit des lois exists in the law of nationality respectively obtaining in France and England. Though the under secretary for foreign affairs (Sir James Fergusson) stated in the House of Commons in 1889, that the British government had no ground of protest, yet grandchildren, born in France of natural born British subjects, who have British nationality confered upon them by various statutes of Anne, George II., and George III,, become, by virtue of the French naturalization act of 1889, French subjects, and are now liable as such to military service. This illustration may serve to show that, though the Roman law is a key to international law, it is still far from being the Gemeines Recht of the nations. The private international law of copyright, being a purely modern creation, bears no trace of derivation from the Roman law. |