The Albany Law Journal.

ALBANY, NOVEMBER 16, 1872.

STARE DECISIS.

There is no more salutary doctrine of the common law, nor one which has been more universally heeded than that of stare decisis. Without it the law would be nothing but

"A codeless myriad of precedents," every court would be a law unto itself, and every lawyer, like a priest of Apollo, only able to advise after the oracle had spoken. There could be no stable or consistent administration of justice; no firm foundation even to vested rights; no security of property. This is a broad statement, but it is justified by the declarations of the most eminent judges, contained in hundreds of reported cases.

But for all this it is a rule that may sometimes be "6 more honored in the breach than in the observance;" never, however, except for the most cogent reasons. That a decision is founded upon erroneous principles is not always sufficient reason for departing from it, as has been time and again held, for it is said to be sometimes better to have the law settled than to have it right. Especially is this so of decisions affecting titles to property.

Judge Cooley says, in one of his notes to Blackstone (Vol. 1, p. 70, n. 5): "A precedent flatly unreasonable and unjust may be followed if it has been for a long period acquiesced in, or if it has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it. In such a case it will be proper to leave the correction of the error to the legislature, which can so shape its action as to make it prospective only, and thus prevent the injurious consequences that must follow from judicially declaring the previous decision unfounded." This is carrying the doctrine to the extreme, certainly, for it seems unreasonable to follow an "unreasonable and unjust” decision, and we, therefore, incline to the opinion of Blackstone, where rights of property are not in ques

tion,

that precedents and rules must be followed, unless flatly absurd or unjust."

But where a decision "outrages all reason and sense," no matter how well considered nor how high the court making it, there ought to be no hesitation in flatly overruling it. It carries "its own death wound on the face of it."

Such, we believe, is the case of Alden v. The New York Central R. R., 26 N. Y. 102, wherein it was held that passenger carriers are absolute insurers of the road-worthiness of their vehicles. In the first volume of this JOURNAL (page 6) we had occasion to examine that case in the light of the then recent decision of the exchequer chamber, in Redhead v.

The Midland Railway Co., and to show that it "stands alone and unsupported in the broad proposition it attempts to establish;" that the only authority (an English case) on which it was based had been knocked from under it, and that the only reason given was that the rule was "plain and of easy application." If the case did not carry "its own death wound on the face of it," it certainly received it at the hands of the exchequer chamber.

That the Alden case would not again be followed, but would be distinctly overruled when the question again came before the court of appeals, seemed more than probable. The question has again come before that court, and although the former decision was not followed, but directly departed from, the court expressly declared that it had no "design to repudiate it as authority." Mc Padden v. The New York Central R. R. Co., 44 N. Y. 478; 4 Am. Rep. 705. The court, in this case, decided that a railroad company is not an absolute insurer of the vehicleworthiness of its road. The principle was the same as in the Alden case, for if a company is absolutely bound to furnish road-worthy vehicles, it is, for the same reason, bound to furnish vehicle-worthy roads; or, in other words, the company is a warrantor of all its appliances, according to the one case, while, according to the other, it is not a warrantor.

In speaking of the Alden case, the court said: "That case was a departure from every prior decision and authority to be found in the books of this country or England, and, so far as I can learn, has never been followed anywhere out of this State. * Hence the case of Alden v. The New York Central Railway Company has no foundation of authority whatever to rest on, and the only reason given for the decision is that the new rule adopted would be plainer and easier of application than the one that had been recognized and acted upon for hundreds of years." Here, certainly, was a case, if ever there was one, to which the rule stare decisis did not apply — a case that required direct repudiation by the court that decided it; and yet that court declared that it had no "design to repudiate it as authority;" but had commented upon it "for the purpose of showing that it is a decision which should not be extended."

This method of overruling cases in fact, but not in name, is doing altogether too much reverence to the inviolability of precedents. It leads to that very uncertainty and doubt which the rule of which we speak was intended to prevent; it embarrasses both the courts and the profession, and compels litigants to needlessly waste their time and money. Where a case has, from course of time or other causes, become settled law, and its principles are unsatisfactory, courts, to avoid contradicting it, have been accustomed to distinguish cases before them from it; but where, as in the Alden case, the decision is recent and unsupported by either reason or authority, and has not been followed, there is no justification in a court's seeking to

elude, by impalpable distinctions, what it does not venture to overturn. Such a course leaves behind it no record of principle established, or light to guide, or rule to govern the future. It only leaves the profession in the plight of the fabled Sisiphus, to roll their cases up to the court of last resort with the dan- | ger of having them returned on their own heads.

But the court, in Truscott v. Davis, 4 Barb. 495, remarking on this case, says, it "must, with deference, express its entire dissent from the learned chancellor's views as there expressed, of this particular branch of the usury law. In the language of Vice-Chancellor Gridley, in the same case, 'it is the settled doctrine of the courts, that such a transaction is usurious.'" So in Ferguson v. Hamilton, 35 Barb. 427, where the doctrine and cases are thoroughly discussed, Bockes,

USURY.

The doctrine of estoppel, from having been left for many years to develop itself in confusion and disorder, has come to be considered one of the most important branches of the law. The judges, from the time of Lord Coke, have, until late years, declared with him that estoppels were "odious" in the eye of the law, and, except in rare cases, they were not permitted to be pleaded without strenuous opposition. These judges, bound by their chains of technicalities, unwilling to take judicial notice of any process of reasoning which had not been known in the dark ages, and jealous of the courts of conscience or equity, which had intruded to such an extent within their domain, looked with odium upon any rule that would conflict with their unyielding principles; and seldom recognizing the equities of a case, it was but natural that estoppel should have been one of the doctrines upon which they placed their stigma.

The courts have not entirely ceased thus to call estoppels odious, but, under the systems which blend more closely law and equity, they are usually looked upon with decided favor. There is no doctrine in the whole scope of the law more pregnant with justice and more important to its administration than this. Never permitted, as of old, to exclude the truth, "its whole force and effect," says Mr. Bigelow, are to preclude parties and those in privity with them from unsettling a matter which they have, in solemn form, admitted and adopted."

Among the reasons which the early judges urged against it was this: "That it was frequently opposed to public policy." Modern counsel often urge this point, and, in no class of cases, more frequently than in those where estoppel is set up as a defense to usury.

It is well-settled law in New York that an estoppel in pais may be urged against this as well as against other matter of defense, provided the requisites for an estoppel are found in the original transaction.

The necessity for some rule whereby to avoid the injustice which would follow, if an innocent purchaser of negotiable paper were to be regarded as a usurer, was recognized in Mitchell v. Oakley, 7 Paige's Ch. 68; and in Holmes v. Williams, 10 id. 326. In this latter case the chancellor went so far as to declare that, where a note was sold to an innocent purchaser at a usurious rate of interest, “the transaction was not usurious as between the vendor and vendee."

that, although the transaction was usurious, yet, that the vendor, under the facts of the case, was estopped from setting up usury as a defense against the vendee." The rule was laid down by the supreme court in Truscott v. Davis, above referred to, where the court says: "The true inquiry in the case is, whether the vendor is estopped from setting up the defense of usury. Facts may exist which, in the eye of the law, constitute a defense; yet a party may, by his own conduct, deprive himself of the right of setting it up; as in this case, although the transaction is technically usurious, yet the vendor may have forfeited the privilege of asserting it." Referring to the principles upon which an estoppel in pais is permitted, as laid down in Welland Canal Co. v. Hathaway, 8 Wend. 438, and Dezell v. Odell, 3 Hill, 221, 222, it was held, that the case then under consideration fell directly within the reason of the rule. Marion, J., in a dissenting opinion, attacked the application of this rule to cases of usury, on the ground that it would go far toward repealing the usury laws; and Denio, J., in Bank of Genesee v. Patchin Bank, 13 N. Y. 316, says: "This is carrying the principle of estoppel to the length of protecting a transaction prohibited by positive law, founded upon public policy;" but it not being necessary to affirm the doctrine in that case, he refrained from entering upon its examination.

In Ferguson v. Hamilton, before cited, the court said, after referring to the two cases last mentioned, "the doctrine of estoppel in pais is based upon principles of morality and good faith. It can be invoked only as a means to prevent the consummation of a wrong or fraud, and it has been well said can only be used as a shield, never as a sword. It can be employed by such only as themselves act in good faith. Is it therefore available to the usurer? But it is said the indorsee or vendee of a note made to raise money, to whom it is negotiated at an illegal discount on representations or assurances by the holder that it is business paper in his hands, becomes an unintentional usurer, a party to a corrupt agreement. Can such person bring to his protection a legal principle, based on moral considerations only, and thus give vitality to a transaction which the law pronounces immoral, and condemns? But the subject is not open to discussion in this court. It must be deemed here concluded by authority. The decisions are numerous to the effect that an estoppel in pais may be urged against the defense of usury, as well as against other matters of

defense which involve no idea of moral or legal turpitude in the party who invokes its protection. But the matter of estoppel must exist outside the face of the paper. Clark v. Sisson, 5 Duer, 469; S. C., on appeal, 22 N. Y. 312." This case has been cited and affirmed in most of the late cases on the subject, and its rule is now the settled law. 3 Keyes, 610; 4 Rob. 49; id. 574; 46 Barb. 261; 34 How. 433; 35 id. 478; 3 Trans. App. 256; 29 N. Y. (2 Tiff.) 19; 40 id. (3 Hand) 450.

Though this case settled the law in the supreme court, there had been no litigation on the point in the court of appeals until the case of Mason v. Anthony, 3 Keyes, 609.

In this case the court, per Bockes, J., says: "This question is worthy of consideration, and is still open in this court;" and after referring to what had been said by Judge Denio in The Bank of Genesee v. The Patchin Bank, he adds: "On careful reflection and discussion, we are of the opinion that an estoppel in pais may be urged against the defense of usury. The same considerations of morality and public policy exist in that as in other cases where the doctrine of

estoppel obtains. Nor should we, on other than grounds of absolute necessity, disturb a rule which has so long controlled the business affairs of the country, and been relied upon as settled law." The court also held in this case, that the indorser, as well as the maker, was estopped by his representations. This case was affirmed in Shapley v. Abbott, 42 N. Y. 443, and the rule is now firmly established.

A FEW WORDS ABOUT MANY REPORTS. It is the general impression of the legal profession that they are "over reported" - that the rapid increase of the reports of judicial decisions is a grievance. It is thought that a vast number of reported cases is an incumbrance and stumbling-block which impede the acquisition of a knowledge of the law as it exists; that it "destroys the certainty of the law and promotes litigation, delay and subtilty;" and that it imposes a needless and onerous burden upon the purse and time to purchase and study even a portion of the annual issue. While this may be partly true, there are considerations on the other side which it may be as well for us not to forget.

It is a well-known fact that the diversity of relations which arise in life is so boundless, the modifications to which property is susceptible so various, the combination of circumstances so shifting and complex that legislation must necessarily be general. The result of this is, that but comparatively few of our rights or duties are or can be prescribed by positive law. For all these we are left to the wisdom and discretion of the judges, who deduce from the general propositions the legal corollaries applicable to each particular case. These deductions form the great body of the law of the land, and are, as Kent says, "the best evidence of

the common law." These decisions become precedents for future cases resting upon similar facts, and are regarded as the "highest evidence which we can have of the law applicable to the subject."

Now, considering the infinitely various rights, relations and duties of men, the cases upon which judges are called to adjudicate are constantly presenting new phases and different combinations of circumstances, so that it not unfrequently happens that a judicial decision upon analogous facts cannot be found. The greater the number of reported cases, the more likely are we to find the opinions and judgments of wise and experienced judges upon cases similar to those we may have in hand. And we all of us know how valuable is even one good precedent, and how diligently and anxiously the books are searched therefor.

But it is urged that this multiplication of reported decisions, some of which will no doubt be erroneous, will furnish mischievous precedents to those judges of narrow or timid minds, who, entirely ignoring reason and principle, follow the precedents as blindly as the Pagan deities followed the decrees of Fate. Such cases are not likely often to occur, and when they do. it is fairly questionable whether the following of a bad precedent is not the lesser of two evils, for such a judge is likely to go wrong any way, through influence of public opinion, or of the wealth and standing of one of the parties, or of the power of an advocate, or of some of those countless things that so continually shape the actions of the weak and timid. If a judge be arbitrary or corrupt he will be much more likely to do justice with two or three precedents to restrain him, than if left untrameled to gratify his own passions or prejudice.

One great advantage derived from the publications of judicial decisions is the beneficial influence it has upon the judges. No judge is apt to decide a case rashly or corruptly, or against the known law, if he knows that his decision will be exposed to public notice and criticism. Mr. Justice Blackburn said recently: "The only real practical check upon the judges is the habitual respect which they all pay to what is called the opinion of the profession'" It is only when decisions are made "in tenebris, or sub silentio, suppressio rationibus," as Lord Coke has it, that much is to be feared from the bench.

When the judges' decisions are made public, they feel that each one will not only put at stake their reputation for wisdom and integrity among their contemporaries, but must abide the judgment of posterity; and they therefore act under a deeper sense of that power, which is the great regulator of human conduct public opinion.

It is quite true that few, if any, lawyers can afford to purchase all the reports, and none can ever read all the cases, but this is no reason why reports should not be issued. Every one can make his selection according to his needs and ability. He will have occasion to read but a comparatively small portion of