Alexander v. Worthington

Eccleston, J., delivered the following opinion: In the case of Magruder and Tuck, vs. Carroll, et al., 4 Md. Rep., 335 , the question, whether, under the act of 1849,, ch. 229, the will of Michael B. Carroll passed his real estate acquired subsequently to the date of his will, was elaborately argued by counsel for the respective parties as a question legitimately presented by the record. The court likewise so considered it. And having been informed that the circuit court of the United States for the.Maryland district had so construed the statute as to decide that its provisions did not aflect this will, the Court of Appeals examined the subject with great care and deliberation. After much reflection, since the decision then made, I still think this court then gave a proper construction to the statute.

Fully impressed with this belief, I, concur with my brethren in the propriety of adhering to our construction, and therefore unite with them in affirming the order passed in this cause by the circuit court for Baltimore city. But I do not deem it necessary to express any opinion as to what should have been the decision of this court, in the former case, if we had given a different construction to the statutes ⁴⁷⁶ Le Grand, C. J., delivered the opinion of this court. This appeal is taken from an order of the circuit court for Baltimore city, granted on a bill filed by the appellees against the appellant, and certain other persons represented to be the heirs at law of Michael B. Carroll, deceased, whereby an injunction was directed to be issued against the appellant, to restrain him from making a conveyance of a tract of land, described in the bill, to the said heirs at law. The bill states in substance, that Michael B. Carroll, lately deceased, in his lifetime, purchased a tract or parcel of land in Prince Georges county, of the appellant, Alexander, as trustee, &c., for the sum of $20,000, or thereabouts; and that the said purchase money had been paid in part by Carroll in his lifetime, and the residue by his administrators, since his death.

That on the 10th of September 1837, Carroll made his last will, whereby he devised the residue of his real and personal estate to his wife, Jane M. Carroll. That he died on or about the 30th of August 1851, leaving Mrs. Carroll surviving him; who thereupon entered into possession of said land, claiming the same as devised to her by the will of her deceased husband. That she died in September 1853, leaving a last will by which she devised said land to the complainants, that is, to Sarah M. Worthington for life, with remainder over to said William Worthington in fee. And that they have entered upon said land.

They pray that the appellant may be required to convey the same unto them according to their several and respective interests therein, as devisees of Mrs. Carroll. They state further, that the heirs at law of Michael B, Carroll deny the right of the complainants to said land, and claim that the conveyance thereof ought to be made to them; and therefore pray an injunction maybe granted to restrain the said Alexander from conveying said land to the said heirs at law, or to any other person or persons, to the prejudice of the complainants. On this bill an injunction was granted. The appellant filed his answer, in which he admitted most of the facts in the bill; but states that in a cause properly before this court, and involving the question involved in this cause, it was ad ⁴⁷⁷ judged that the last will of Michael B. Carroll, had validly devised all the real estate of the testator to his widow;- but on the other hand the Supreme Court of the United States, have recently decided that the said last will had no operation or effect on the land purchased by the testator after the date of his will.

He says, also, that the heirs at law, or some of them, have filed their bill in the circuit court; of the United States, against him and the present complainants, praying that he, the said Alexander, may be required to convey to them the land in controversy in this suit, fie submits the question of right to the court; but denies the equity of the present complainants to an injunction, which would restrain him from making a conveyance, in obedience to a decree of the circuit court of the United States, in case such decree should pass, unless the State court can protect him from the consequences. Although but one of the defendants has appealed from the order granting the injunction, the appeal is properly before us. The 3rd section of the act of 1835, chapter 380, provides, “That where any injunction shall issue from the court of chancery, or any county court as a court of equity, the defendant or defendants in the case, or any of them, may appeal, the answer or answers of such appellants being first filed, from the order of the chancellor granting the injunction, or refusing to dissolve it, to the Court of Appeals of the Shore where such injunction shall have issued, and the said court at the first term to which the case shall be transmitted, shall determine the said appeal, and shall pass such an older in the premises as to it may seem right.” The Court of Appeals in the case of Barnes and Lynch, vs. Dodge, 7 Gill, 109 , held that under this section of the act of 1835, a defendant who has answered the bill for an injunction, may appeal from the granting or refusal to dissolve it upon motion, without waiting for the answers of his co-defendants; and in the case of Wagner and Marshall, vs. Cohen, 6 Gill, 97 , it was declared, that upon an appeal under the act of 1835, chapter 380, from the granting of an injunction only, this court is ⁴⁷⁸ confined to the casé made by the bill or petition and does not examine the answer. We refer to these authorities for- the purpose of showing, that the question presented by the bill of the appellees is directly presented for our adjudication.

The case involves the construction of the act of 1849, chapter 229, relating to devises, which, it'was supposed had been settle'd by the decision pronounc'ed in Magruder and Tuck, vs. Carroll, 4 Md. Rep., 335 . The Supreme Court of the United States, in the case of Carroll vs. Carroll, have decided that the decision by the Court of Appeals of Maryland, is not to be treated as a judicial exposition of the act, and has given to the act a construction the reverse of that which was expressed by this court. It now remains for this court to determine, whether the ultimate jurisdiction to settle the construction of the statutes of Maryland, relating to the conveyance of land situate within this State, resides in this court, or in the Supreme Court of the United States} and also, whether the decision in 4 Md. Rep., will be adhered to. The decision of the Supreme Court affirms two propositions: 1st.

That the act of 1849, chapter 229, sec. 1, extends only to wills made after the first day of June 1850. 2nd. That the Supreme Court are at liberty to disregard the decision of the Court of Appeals of Maryland, by which a different construction is given to that act. Whatever diversity of opinion may be entertained as to the true construction of the first section, all must concede that the letter thereof is susceptible of the construction placed thereon by the Court of Appeals. Punctuated as it stands on the statute book, it reads thus: “Every last will and testament, executed in due form of law, after the first day of June next, shall be construed with reference to the real and personal estate comprised in it, to' speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.” In the next place from a general view of the act, we must infer that the legislative intent was 1st.

To leave the case of a will made by a testator, who ⁴⁷⁹ bad died prior to tbe passage of this act, to be governed by tbe ancient law : 2nd. To subject to the operation of the new rule, a will made by a testator dying after the passage of the act, and before the 1st day of Juno 1850, only when the testator has expressed the intent, that the will shall pass all the estate which he might have at the time of his death. 3rd. To prescribe a new rule which should apply to every case of a will made perfect by the dying of the testator after 1st of June 1850, unless a contrary intent should appear. Now the intent thus collected from the general considerations of the mischief to be remedied, and the remedy proposed to be applied, can be fully gratified by giving to the first section the construction which has been placed on it by the Court of Appeals, and by embracing within the equity of the second section the limited class of wills made after the passage of the act, by a testator dying before the 1st of June 1850.

On the other hand, the construction given to the act by the Supreme Court, excludes that limited class, as well from the letter, as the equity of the section; and all wills made before the 1st of June 1850, except the particular class of cases provided for by the letter of the second section, are left utterly without remedy. The intent of the legislature is, therefore, in a great degree, defeated, and the remedy which was designed to be general, is limited to special cases, which are selected on principles which disregard equally the intent and letter of the statute. Thus, if the testator devised all his estate which he mav leave at the time of his death, and the will was made before the passage of the act, and the testator died before the 1st of June 1850, his intent will be gratified. But, if the will had been made the day after the passage of the act, and the testator had died the day before, or the day after the 1st of June 1850, or if the will being made before the passage of the act, the testator had died after the 1st of June 1850, in any and every such case his intent, thus plainly expressed, would be disregarded.

And what is the course of reasoning by which the Supreme Court have been led to prefer a construction of the act which thwarts the intent of the legislature, and introduces literal and ⁴⁸⁰ anomalous distinctions, to a construction which is equally consistent with the act, and, which would gratify the intent, and render the law uniform and consistent? It said, that upon the construction adopted by the Court of Appeals, the act “would change the legal operation, not only of existing wills, but of those which had already taken effect by the death of the testators.” Now the Court of Appeals have decided only that the first section of the act governs the case of a will of a testator dying after the 1st day of June 1850, although it may have been made prior to that day. Is it a necessary conclusion, that it must equally embrace the case of a will made by a testator who died a century ago? Is there not, on the contrary, a sensible and clearly defined difference between the two cases?

The distinction is stated in the cases reported in 12 Metcalf, 169 & 262, with a perspicuity and cogency of reasoning, which will not suffer by comparison with the decision in 9 Iredell, 288. A will is ambulatory during the testator’s life. It is made perfect and operative by his death. After that event, the title of the devisee becomes vested, and a subsequent statute which would retroacd on that vested right, may be deemed inconsistent with natural equity.

But no such objection lies against a statute which affects to change the construction or operation of a will made at the time by a testator then in being, and who has' the capacity of changing his willj and especially where the object of the statute is to gratify the intention by subordinating a rule of law “hitherto inflexible,” to the intent, and where the operation of the statute is postponed, to a day future, within which the testator may accommodate his will to the existing state of the law. But, in the judgment of the Supreme Court, “the interpretation put by the Supreme Court of Massachusetts on the statute of that State, was attended with none of the difficulties which beset the construction of the statute of Maryland, contended for by the counsel for the devisees.” The decisions made by the court of Massachusetts are considered to be “a departure from an important principle,” the vindication of which was attended with “some effort.” The import of this ⁴⁸¹ last expression, in its personal application, and its entire propriety as parcel of the judgment of the most dignified judicial tribunal in this land, must be left to be settled between the court by which the imputation is uttered and the court against which the imputation is cast. We accept it as an intimation, that if the construction of the statute of Massachusetts should ever come in judgment before the Supreme Court, the decisions in question will be overruled. It would have been more satisfactory to the profession, if the Supreme Court had made an “effort” to explain the grounds of their dissatisfaction with the decisions of the court of Massachusetts.

Would the Supreme Court ignore the distinction between the title vested in the devisee by the death of the testator, and the inchoate and impalpable possibility of title of one named as an object of bounty in a will, the maker of which is still in being? Do they mean to deny the right of the legislature to provide by law, passed after the making of the will, that a testator may dispose of after acquired lands by a will plainly and manifestly declaring an intention to do so ? Or, that a court of justice should feel any doubt in giving effect to a law having such object in view, and expressing its purpose in language which “could only operate in furtherance of the intention of the testator, and could never defeat that intent? ’’The verbal differences between the Massachusetts statute and that of Maryland, are very apparent. The court of Appeals has only adopted tbe principles of construction enunciated by the court of Massachusetts, as applicable equally to both cases, and a great “effort” would be necessary to discriminate clearly and satisfactorily between them.

In Massachusetts, as in Maryland, the English rule prevailed, viz., that a will would not pass title to after acquired lands, and the object of the two statutes was to change this rule. In Massachusetts the object was to be effected by providing “that the lands acquired by a testator, after the making of his will, shall pass thereby, if such shall clearly and manifestly appear by the will to have been his intention.” In Maryland the provision is, “that a last will shall be construed with reference to the real estate comprised in it, to speak as if it had been executed on the day of the death of the testator, unless a contrary ⁴⁸² intention shall appear by the will.” Each law confers on the testator a new power or capacity, and clothes the will with a new operative quality. Thus far the statutes are coincident in their object and effect. In the application of either law to a particular case, a question of construction arises.

To bring a case within the purview of the Massachusetts law, it must appear affirmatively that the testator intended to dispose of his after acquired land. Under the Maryland law, it is to be presumed he so intended, unless the contrary intention shall be expressed. One law casts the onus on the devisee; the other on the heirs at law. If the concluding words of the Maryland act, “unless a contrary intent shall appear,” were replaced by the words from the Massachusetts statute, “if such clearly and manifestly appear to have been his intention,” no “effort” whatever could have drawn a sensible distinction between the two cases.

But the analogy between the statutes, which induced the Court of Appeals to suppose that the principles of construction which had been applied in Massachusetts to the one, were just as applicable in Maryland to the other, seems to have been overlooked. In Massachusetts the statute conferred on a ■frill, antecedently executed, an operative and effective quality, which the will did not possess at the time of its execution. And this construction is vindicated by the “broad and general” language of the act, and the absence of anything “in (he words or subject matter of the act, to lead the court to a more restricted construction.” Now, it may be submitted that the language of the Maryland act is just as “broad and general,” unless indeed it be assumed, that the time mentioned in the act, is to be taken as parcel of the instrument described. Upon this hypothesis, which assumes, however, the very matter to be demonstrated, all discussion would have been unnecessary.

The question debated would be resolved by its very statement. The next objection urged to the construction given to the act by the Court of Appeals is, “that it would make the same will, if offered on the 2nd day of June, operative to pass after acquired land to a devisee, though, if offered in evidence on the next preceding day, it would be inoperative for that purpose.” And it is said that “so to interpret an act concerning ⁴⁸³ wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to day and another to-morrow, would not only be arbitrary and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator.” Now it is to be observed, that the Court of Appeals does not make the construction to be given to the will to depend in any manner on the time of offering it in evidence. Its construction, operation and effect, are to be determined by the law existing at the time of the death of the testator. The construction which would be given to it on the day of the death of the testator, if it could then come under judgment, is ever after to be given it.

In the next place it is to be noted that the objection, whatever may be its value, is just as applicable to the Massachusetts law as to the Maryland law. In Massachusetts the statute was to go into effect on the 1st day of April next succeeding its adoption. A will made before the adoption of the statute could not at the moment of the execution have operated 'on the title to after acquired land. Nor would it have operated on such title in case the testator had died at any time before the adoption of the act, or after that event, and before the day on which it was to go into operation.

If, however, the testator survived that day, it is adjudged that the will would pass the after acquired land. The objection was therefore disregarded by the Supreme Court of Massachusetts; and, again, the legislature of Maryland must have considered and wittingly passed by the objection. According to the second section, as construed by the Supreme Court, a will made before the passing of the act by a testator dying after the passing of the act, and before the 1st day of June 1850, would pass after acquired land. But, if he died before the passage of the act, or after the 1st day of June, then such after acquired land would not be affected thereby.

Upon the whole, then, the letter of the first section is susceptible of the construction given it by the Court of Appeals; and that construction is ⁴⁸⁴ sustained by the decisions in Massachusetts, and best advances the intention of the legislature. The second section removes all doubt as to the proper construction of the preceding section. It must be apparent from the letter of the second section:— 1st. That the legislature was aware that the language of the first section would embrace wills made before the passage of the act. 2nd.

That the legislature intended that all antecedently executed wills should remain subject to the provisions of the first section, excepting a particular class, which were conditionally excepted. 3rd. That the,special class enumerated in the second section, (if the testator’s intent was sufficiently manifested,) were to remain subject to,the operation of the first section; and 4th. Were to remain so subject, because they were “last wills and testaments, executed in due form of law,” within the letter of the first member of the first section. ■The Supreme Court admits that the “negative language” of the section “leaves the law open to the suggestion that the provisions of the act would have applied to such wills if the negative word's had not been used.” But then that “negative language” will not stand together with the construction which the court would place on the letter of the first section. What has been written is therefore to be stricken out, and what was not imagined by the legislature is to be substituted.

In the place of a section negative and restrictive, we are to write one affirmative and remedial. And what is the pretext for this plain exercise of judicial legislation? It is that upon the letter of the section as it now stands, “the cases excepted can on no just principle be distinguished from those left unexcepted.” But will the section when recast, as it is proposed, embrace all the eases which are within the principle of the case expressly provided for? The section when reformed would provide for the case of a will made before the passage of the act by a testator dying before the 1st of June 1850; but such will would be out of the act if the testator lived to the 2nd ⁴⁸⁵ day of June. “Can any reason be imagined” for this difference? “If there is any distinction between the two cases, it would seem the first case had a stronger claim to exemption from the effect of the new rule.” ^ The language of a statute is its most natural expositor, and where the language is susceptible of a sensible interpretation, it is not to be controled by any extraneous considerations.

The construction is to be on the entire statute, and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is opposed to the other construction, then we are to adopt thabJlonsIS^JWfUych will render all clauses of the statute ha: other construction, which will makeli another. Where the letter of the itself, we may eviscerate an intent existing and the remedy propose what is the mischief to be remedied, are to be collected from the statute itself. that -ry to with chief But remedy, We art; not at liberty to 'imagine an intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter cf the statute; and of several constructions that is to be preferred, which introduces, the most general and uniform remedy. Judged by these principles, vie can have no doubt of the superiority of the construction given by the Court of Appeals to the act, over that construction which is proposed to be given to it by the Supreme Court.

The second proposition affirmed by the Supreme Court is, that the decision of the Court of Appeals giving a construction to the Maryland act may be disregarded. In Nesmith vs. Sheldon, 7 Howard, 817 , it had been declared to be “the established doctrine of this court, that it will adopt ⁴⁸⁶ and follow the decisions of the State courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal.” This declaration was made in a cause involving a question doubtful and important; and a single adjudication of the . court of Michigan was accepted as a settlement of the construction of the statute. In Rowan vs. Runnels, 5 Howard, 134 , the court reversed its own opinion expressed in Groves vs. Slaughter, 15 Peters, 451 , in deference to an intervening judgment which had been rendered by the Court of Appeals of Mississippi; and this surrender of its own opinion by the Supreme Court is made the more remarkable from the circumstance, that during the term just closed the court has reasserted the principles of the decision in Groves vs. Slaughter, to be well founded in law. Another illustration of the deference with which in past times the decisions of the State courts have been received in the Supreme Court, is given by the case of Green vs. Neal's Lessee, 6 Peters, 291 , where the court reversed its own judgment directly upon the point in construction of a statute of Tennessee, and vindicate this reversal as a sacrifice necessary for the maintenance of its principle.

But the case which more fully resembles the present is that of the United States vs. Morrison, 4 Peters, 124 . The late chief justice of the Supreme Court had pronounced judgment in the circuit court for the district of Virginia, on the construction of a statute of Virginia in conformity with the opinions he had frequently expressed in other causes which had come before him in judgment — in fact in conformity with the settled law of the circuit court. Pending the appeal taken from this judgment a case had arisen in the State courts of Virginia, and had been concluded by a judgment of the Court of Appeals of Virginia, giving to the statute a construction directly opposite to that which had been placed on it by the chief justice. This last judgment was deemed conclusive of the subject, and the chief justice, with the grace and propriety which distinguished him through life, and without one word ⁴⁸⁷ in defence of his own opinion, pronounced the reversal of his own judgment.

The rule thus enunciated by the Supreme Court was founded partly on the consideration of the inconvenience which would flow from the effort on the part of the courts of the United States to enforce a construction of the statute law of a State different from the construction given to the statute law by the State tribunals, and partly on the provisions of the judiciary act of 1789. The destiny of the courts of the Union it was supposed would be fully accomplished, by securing to the citizen of another State, and to the alien, the same administration of the statute law of a State which is accorded to the citizen of the same State. According to the former cases, the adoption or rejection of a particular decision of a State court does not depend in any manner on the doctrine of estoppel. It is not necessary that there should be identity of parties or subject matter, and hence it would seem that if the decision is made with a deliberation and solemnity which evidences a purpose on the part of the court to declare the law, such declaration ought to be accepted by the Supreme Court as an adjudication settling the question so decided.

It ought to be presumed that the question was properly presented by the record, or if not necessarily involved in the issue, that it was in the exercise of a proper judicial discretion that the court deemed fit to pass upon it. But the Supreme Court, in the case of Carroll vs. Carroll, appear to have unsettled their often enunciated rule. They now declare that they are bound to decide “a question of local law,” as they find “it ought to be decided.” Hence the correctness of the decision of a local court is a proper subject for inquiry. In making the examination preparatory to this finding, the court follow two rules.

The first is the maxim of the common law, si are decisis. The second is that rule of deference to the decisions of the local court which we have been so often informed was “the established doctrine” of the Supreme Court. It is now declared that this last rule “has grown up and been held with constant ⁴⁸⁸ reference to the other rule, and it is only so far and in such cases as this latter rule can operate that the other has any effect.” Stare decisis is, therefore, in effect, the only rule which the Supreme Court will hereafter acknowledge, and even this only rule is to be applicable under conditions which will serve to render the law more uncertain than if we were informed that the authority of the State courts was to be utterly disregarded. “If the construction put by the court of a State upon one of its own 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.” “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 parties.” The Supieme Court, therefore, claim the right to inquire, whether the question adjudged was necessarily involved in the issue? and whether, if so involved, the case might ndt have been determined on some other point? If a case presents a question broadly on its merits and another on the pleadings or form of procedure, and the court decides on the merits, the decision is not to be regarded, if a decision on the point of form would have concluded to a like judgment.

The rule prescribed by the Supreme Court, is, therefore, more strict than prevails in cases of estoppel. For on the principle of estoppel it is conceded, that a judgment is conclusive on any point fairly in issue, and on which the judgment might have been rendered. As the Supreme Court have not at all times respected their opinions pronounced on the very point in judgment, (vide 3 Howard, 292 , Ex-parte Christy; 7 Howard, 612, Peck vs. Jenness, referred to in the opinion in the case of Carroll vs. Carroll,) we are not surprised to learn that dicta falling obiter from the judges, or even founded in the judgment of the court, do not conclude. In Maryland it is usual to limit the judgment to the question of right involved in the issue.

But where a question of general interest is supposed to be involved and is fully discussed and submitted by ⁴⁸⁹ counsel, the court frequently decides the question with a view to settle the law, and it. has never been supposed that a decision made under such circumstances could be deprived of its authority by showing that it was not called for by the record. The cases of Richardson vs. Jones, 3 Gill & Johns., 163; Carter vs. Dennison, 7 Gill, 157, amongst others will establish this practice. All that is necessary in Maryland to render the decision of the Court of Appeals authoritative on any point decided, is t.o show that there was an application of the judicial mind to the precise question adjudged; and this we appiehend is the rule elsewhere. In the case of Cohens vs. The State of Virginia, referred to, the position taken by tile late chief justice is, “that general expressions in every opinion are to be taken in connection with the case in which these expressions are used.” The same remark is equally true of general expressions found in any other writing; their precise import is to be determined by the context. “If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented.

The reason of this maxim is obvious. The question actually before the court is investigated with care and is considered in its full extent.” All that is required, therefore, to establish the authority of any decision is, that the “verypoint” decided was “actually before” the mind of the court, and was “investigated with care and considered in its fullest extent.” Nothing is intimated, much less declared, in regard to the supposed necessity for shewing that the very point so adjudged was inseparably involved in the issue. Dicta attributed to the court by a short-hand reporter, especially of ancient date; opinions expressed by a judge speaking for himself and not as the organ of the court; general views expressed by the court as illustrative of, but not necessarily leading to, the opinion on the point intended to be decided, are not to be treated as conclusive, when similar topics come up directly for judgment. But we are not aware of the authority which will sustain the position assumed by the Supreme Court, that the unanimous opinion of a State court of the highest appellate jurisdiction, directly on a point which is supposed by the court to be presented by the ⁴⁹⁰ record, and which is elaborately discussed by counsel, and is investigated with care and solemnly delivered by the court, can be disregarded as obiter dictum, merely because it is since discovered that some other point existed on which the judgment rendered might have been rested.

If any such authority exists it has not been referred to. The canon of judicature which we are informed is hereafter to prevail in the supreme court would seem to have been taken from Ram on Legal Judgments, by whom it was borrowed from Vaughan, 382. In the course of a long and elaborate argument by the chief justice, it is given as the fifth in a series of seven objections taken by him to the authority of a case reported in Moore; the second in the series being, that the case itself bore internal evidence that the opinion, as reported, was no judicial opinion, nor given in any c'ourt. We are not informed of the response made by the other judges to those rules propounded by the chief justice.

But it does appear, that in consequence of an equal division of the court, the judgment was rendered for the defendant, in conformity with the case in Moore, the authority of which the chief justice had labored to destroy. Perhaps then we may be allowed to suggest, upon the authority of the chief justice himself, that his entire opinion is no more than a prolatum, concluding in no degree to the judgment rendered in the case in which it was expressed. The seventh canon of the chief justice is, that “if a court give judgment judicially, another court is not bound to give like judgment, unless it think that judgment first given was according to law;” and in vindication of the right of individual and independent judgment, he does not hesitate to impeach the accuracy of Lord Coke and to deny the learning of Littleton. But it deserves remark, that the learned chief justice, although ready to contemn the authority of precedents standing in conflict with his own opinions, conceded as his sixth rule, that “an opinion, though erroneous, concluding to the judgment is a judicial opinion, because delivered