likewise in another book of no very high character,-I mean the second volume of the Equity Cases Abridged. It is not so high in character, as the first volume of the Equity Cases Abridged."(x) A testimony, favourable, however, to this report of the case his Lordship elsewhere offers in these words:-"The case is reported in the Equity Cases Abridged, and reported from a valuable manuscript, as I know, from having had the assistance of a genuine report from the library of Lord Redesdale."(y) Sir R. P. Arden, relying on a case in the second volume, and which, it would seem, he supposed to be reported, and not merely abridged,(z) there, says,-"Though this book is not a book of the first authority, I must be guided by such cases as stand in point there; and particularly by a case which contains so much sense, as induces me to rely upon it, in conjunction with the other authorities."(a) Several cases inserted in Viner's Abridgment are taken from a source, which he names, " MS. Rep. said to be Lord Harcourt's," (b) or, merely, "MS. Tab."(c) On counsel citing a position laid down "in the marginal table of cases in the House of Lords, made by Lord Harcourt," and observing, "that index is quoted frequently [ *111 ] by Viner as authority," Lord Loughborough interposed and said,"The index to the cases in the House of Lords only refers to the cases. One decree by Lord Harcourt will be much better authority. There is no doubt that it is the work of Lord Harcourt's secretary, whom he employed to make that index."(d) Lord Redesdale, mentioning a case referred to in Viner's Abridgment, and there stated from a "MS. Rep. said to be Lord Harcourt's," observes on it," It is said to be taken from Lord Harcourt's Tables, which are extremely accurate; but I have not been able to find the case."(e) The same index or table exists in manuscript;(ƒ) and it may be useful to remind the reader, that in the Table of Principal Matters in Brown's Reports of Cases in Parliament, ed. Tomlins," are included the contents of a manuscript index prepared by or for Lord Chancellor Harcourt, and which is the MS. table so frequently quoted by Viner in his Abridgment."(g) Many of the notes in Dyer's Reports contain accounts of cases, which may be considered as reported by those notes. The notes referred to are those added by Chief Justice Treby. Grose, J., refers to certain notes there, as the addition of that learned judge.(h) And on counsel citing a case stated in one of the notes in Dyer, and enforcing his objections to that case by the remark, "besides that is only a marginal note,' Buller, J., interposed the observation,-"The marginal notes in Dyer are good authority; they were written by Lord Chief Justice Treby."(i) And Gibbs, C. J., referring to certain marginal notes there, refers to them (x) 1 Bligh New Rep. 538, 539. (y) 1 Dow and Cl. 11. (z) The case is, Palmer v. Schribb, 2 Eq. Cas. Abr. 291, but not reported from MS., and on the contrary a mere abridgment of the report in 8 Vin. Abr. 289, tit. Devise, pl. 25. (a) 2 Bro. C. C. 45, 46. (b) For example, 13 Vin. Abr. 544, tit. Fraud, A. a., pl. 12, 13. (c) For example, 14 Vin. Abr. 457, tit. Interest, C. pl. 4, marg. as notes, "which are always to be regarded with deference, coming from an authority so considerable as Chief Justice Treby."(j) OF PRECEDENT; CONSISTING OF ONE, OR MORE THAN ONE, DECISION IN BANK, OR IN THE HOUSE OF LORDS. SECT. I. Of Adherence to one Decision. II. Of Adherence to two or more Decisions. III. Of Departure from one Decision. IV. Of Adherence to a Fixed Doctrine. V. Of Discordant Decisions, or Series of Decisions. SECTION I. OF ADHERENCE TO ONE DECISION. "THE law of England, which is exclusive of positive law enacted by statute, depends upon principles."(a) On these principles it is often the duty of a Court to decide a case; (b) as, for example, a case that is new, or one like to which a case decided is not to be found.(c) A case decided is called a precedent; (d) and is an authority, which, under many circumstances, binds a Court to make the same decision in a future similar case.(e) *The future similar case is sometimes expressed to be li[ *113 ] terally the same case with the precedent;(f) or to fall within it, and to be not distinguishable from it;(g) or to be directly the same case as it is. (h) The precedent is sometimes expressed to be a decision precisely, exactly, or directly, in point;(i) or such a case, that there is no distinguishing it from the present case; (j) or a case quite similar to the present;(k) or a case, of which the facts "cannot be distinguished in effect from those of the present case;"(1) or a case," which must govern the present, to which it closely applies; (m) or a case, that "must govern the present, for it stands directly on the same ground in every word and circumstance."(n) Crompt. and M. 64; 3 Ves. 313; Sim. 271; 3 Sim. 41. (f) Dougl. 326, ed. 1783, 340, a, 4th ed. (g) 3 Barn. and Cr. 798. (h) 2 Maule and S. 581. (i) 6 East, 512; 1 Maule and S. 696, 697; 14 Ves. 596; 19 Ves. 314; 1 Younge, 22; 2 Anstr. 357. (j) 6 Maule and S. 47; 9 Bing. 672. (n) 1 East, 541. A precedent possesses the binding force mentined, either if in the mind of the Court it is wholly unimpeachable, on the ground of want of principle, or otherwise; (0) or, if impeachable, the objection to which it is so exposed, is not, in the consideration of the Court, sufficient to exclude its title to be authority.(p) A circumstance that strengthens the authoritative force of a decision is, that it has stood as law for a length of time,(q) as "for forty years together,(r) or nearly forty years,(s) or nearly thirty-four years;(t) or that it was decided "after consideration," (u) "on great consideration;" (v) or by "most learned judges;"(w) that it underwent grave consideration by a Court, which at the time was filled by very learned judges.(x) *A reason constantly adverted to as a ground, on which to adhere to a former decision, is, the importance of certainty [ *114 ] in the law.(y) Another reason is, "the great importance that there should be an uniformity of decision in the different Courts of Westminster Hall.(z) A third reason is, the probability that many transactions have taken place upon the footing of the former decision.(a) A single case has been adhered to in, among other instances, (b) the following cases; which, with the judicial opinions there expressed, are a fit illustration of the subject of the present section. The first that may be mentioned is, Hodgson v. Ambrose, where Lord Mansfield, speaking for the whole Bench, observed,-"Whatever our opinion might be upon principle and authorities, if the point were new, we all think that since this is literally the same case with Coulson v. Coulson, (c) and that has stood as law so many years, it ought not now to be litigated again. It would answer no good purpose, and might produce mischief. The great object in questions of property *is certainty, and if an erroneous or hasty determination has got into [ *115 ] (0) 6 Durn. and E. 644, 645; 1 East, 541; 6 East, 512, 513; 2 Eden, 343; 3 Ves. 313. (p) Dougl. 326, 327, ed. 1783, 340 a, 4th ed.; 13 East, 321; 3 Bing. 391; 3 Ves. 313; 14 Ves. 596; 2 Sim. 271. (9) Jacob, 461. (r) 2 Swanst. 422. Maule and S. 576; Jowett v. Charnock, 6 (8) Dougl. 326, 327, ed. 1783, 340 a, 4th Leeds, 4 Barn. and Adol. 248; Dougal v. (y) Dougl. 326, 327, ed. 1783, 340 a, 4th ed.; 2 Durn. and E. 24; 13 East, 322; 7 Barn, and Cr. 476; 2 Crompt. and M. 64; Swanst. 414. (z) 6 Barn. and Cr. 533. (a) Dougl. 227, ed. 1783, 340 a, 4th ed.; 5 Durn. and E. 450; 6 Bing. 24. (b) Petrie v. Hannay, 3 Durn. and E. 418; Howard v. Castle, 6 Durn. and E. 642; Higgs v. Warry, ibid, 654; Simpson v. Hanley, 1 Maule and S. 696; Doe v. Peach, 2 Kemble, 3 Bing. 383, 11 Moore, 250; Fox practice, there is more benefit derived from adhering to it, than if it were to be overturned. Many estates may be enjoyed under the authority of Coulson v. Coulson, the titles to which would be shaken, if the decision in that case were to be overruled, and the case is so generally known among conveyancers, that it is impossible there should be many held under the contrary construction, because, if there were, they would have been controverted."(d) 2. A second instance is, The King v. Younger, a case on the statute 29 Ch. II. c. 7, against the exercise of any worldly labour or business on the Lord's day, and in which case Lord Kenyon said, "Thirty-four years have nearly passed since the decision of the case of Rex v. Cox,(e) which informed the public that all bakers have a right to do what is imputed to this defendant as an offence. This circumstance alone ought to have some weight in the determination of this case. It would be cruel not only to the defendant, but also to those in a similar situation with him, if we were now to punish him for doing that, which the Court publicly declared so many years ago might be done with impunity, and which so many persons have been doing weekly for such a number of years."(f) 3. In Schumann v. Weatherhead, Lord Kenyon observes," Among the many cases which we have been called upon to decide upon applications for setting aside annuities, none contains a more convenient rule of decision than that which was laid down in Greathead v. Bromley.(g) . . Now unless we are prepared to rescind our opinions then expressed, that case must govern the present; for it stands directly on the same ground in every word and circumstance. And though if we had then been as fully apprised of all the circumstances as now, it might have altered our opinion; yet it is better for the general administration of justice, that an inconvenience should sometimes fall upon an individual, [ *116 ] than that the whole system of law should be overturned, and endless uncertainty be introduced. I should be sorry to see one decision in 1798, and a different decision on the same facts in 1801." Grose, Lawrence, and Le Blanc, Justices, "considered the question as concluded by the authority of the case of Greathead v. Bromley, and that the matter having passed in rem judicatam, the merits of the case could not now be entered into."(h) 4. Liverpool Water Works Company v. Atkinson was a case on the construction of a bond, and here Lord Ellenborough said, "The case of Lord Arlington v. Merricke(i) runs on all fours with the present. . . . That case was decided by Lord C. J. Hale, and other judges on great consideration. Then, with a decided case exactly in point, it would be extraordinary if we were to apply a different rule of construction; though if it were to be decided now for the first time, I should think that decision right."(j) 5. In The King v. Deptford, a case on a pauper's settlement by renting a tenement, it is observed by Lord Ellenborough,-" If we were sitting to hear the case of The King v. Framlingham(k) now argued, the argument might have weight; but it having been settled nearly forty years ago, that the rent reserved (all fraud apart) is to be taken as the criterion of the value of (d) Dougl. 323, 326, ed. 1783, and 337, 4th ed.; and see the certificate in this case. (e) 2 Burr. 787. (ƒ) 5 Durn. and E. 450. (g) 7 Durn. and E. 455. (h) 1 East, 541. the tenement, without reference to the payment of the rates and taxes by the landlord, we are not now at liberty to disturb that decision upon any speculative opinion." And Grose, J., said," It is better stare decisis. The very case has been already determined." And Bayley, J.,— "There is quite uncertainty enough in settlement cases; and when a point has been once decided, it is better to adhere to the decision."(1) 6. In Gabay v. Lloyd, "The whole Court were of opinion that this case fell within the decision in the case of Lawrence v. Aberdein;"(m) and Littledale, J., said," he *doubted whether he should have concurred in the decision in the case of Lawrence v. Aber- [ *117 ] dein, but that he thought this case was distinguishable from it."(n) 7. Fayle v. Bird, an action on a bill of exchange, contains this opinion expressed by Lord Tenterden :-"I should certainly have entertained some doubt whether this case fell within the statute, 1 and 2 Geo. IV. c. 78, had it not been for the authority (o) cited on behalf of the plaintiff. It is of great importance that there should be an uniformity of decision in the different Courts of Westminster Hall upon all questions, but particularly upon questions affecting negotiable instruments of this description. Upon the authority of that case, therefore, we are of opinion that the rule for entering a verdict for the plaintiff should be made absolute."(p) 8. A further instance is, Williams v. Germaine, where on an objection taken in arrest of judgment, Lord Tenterden observed,-" In support of the objection, counsel relied on a case in 16 East, Hoare v. Cazenove. That case underwent grave consideration by this Court, which, at that time was filled by very learned judges, the assistance of one of whom we have the satisfaction of having at the present moment. In the course of the argument, much was addressed to us to show that that judgment ought not to have been given. If we could have been convinced that a judgment, given even by persons of the description to which I have alluded, was founded on a mistake of the law, it would have been our duty to have decided contrary to it; but we ought not to overrule a solemn decision of the Court, unless we perfectly concur in saying that such judgment was founded on a mistake. It is of great importance in almost every case, but particularly in mercantile law, that a rule once laid down and firmly established and continued to be acted upon for many years should not be changed, unless it appears clearly to have been founded upon wrong principles. We think that we are bound by authority, [ *118 ] and I am inclined to say by reason, to confirm the decision in Hoare v. Cazenove."(q) 9. A case containing Lord Eldon's opinion is, Townley v. Bedwell, where, the precise question having been decided in a former case, his lordship on following this decision, observed,-"That case was very much argued; and I do not mean to say, that a great deal may not be urged against it; but where there is a decision precisely in point, it is better to follow it."(r) A single case so followed is sometimes one, by which an older deci (1) 13 East, 321, cited 1 Barn. and Adol. 735. (m) 5 Barn. and Ald. 107. (p) 6 Barn, and Cr. 531, 9 Dowl. and Ryl. 639. (g) 7 Barn. and Cr. 468; 1 Mann. and (n) 3 Barn. and Cr. 798, 5 Dowl. and Ryl. 394, 403. Ryl. 641. (0) Selby v. Eden, 3 Bing. 611. VOL. IX.-T (r) 14 Ves. 591, 596. |