constitution and laws-all necessarily concur in creating, by implication, a lien, without any express declaration to that effect. (a)

gress, passed in 1799, which is as follows: 'In all cases of insolvency, or where any estate in the hands of executors, administrators, and assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States shall be first satisfied; and any executor, administrator, or assignee, or other person, who shall pay any debt due by the person or estate, for whom or for which they are acting, previous to the debt or debts due to the United States from such person or estate, being first duly satisfied and paid, shall be answerable in their own person and estate,' &c. The Supreme Court held, that the priority, thus limited in behalf of the United States, was not a right that superseded and overruled an assignment made by the debtor, and subjected the property so assigned to execution; but was a right of prior payment out of the general funds of the debtor in the hands of the assignee. This decision is inapplicable to the present case. A similar provision of law is made in this State, when a debtor for taxes dies between the time of giving in his taxes and the payment. A priority is created in behalf of the State for the tax, and the administrator is bound to respect that priority at the peril of personal liberty. If this were the only provision of our law on the subject, the question would be very different. We should construe it as the Supreme Court did a like law of Congress, as giving a right only of prior payment. But it is not. In the same section, the legislature declares, that the taxes shall be preferred to all securities and encumbrances whatAs before stated, the priority given in case of death is cumulative, and intended to secure prompt payment of taxes. The law of Congress does not pretend to give to the United States a lien - it only pretends to create a preference in the cases stated, of insolvency, &c. It cannot be enlarged beyond its terms. Our law, in general terms, confers a preference over all encumbrances and securities, and, as we think, creates a lien."

ever.

(a) Where the owners of adjoining lots had each given ten feet of his lot "to be kept open for a street or alley forever, not to be obstructed in any way," it was held that though it was a private way, a tax sale of a lot would not convey the ten feet thrown into the alley, which was still subject to the easement. Hall v. McCanghey, 51 Penn. St. R. 43.

CHAPTER XXXVIII.

OF THE PRINCIPLE OF STARE DECISIS CONCERNING TAX TITLES.

OUR common-law system, as remarked by a learned judge, consists in applying to new combinations of circumstances, those rules of law which we derive from legal principles and judicial precedents; and, for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise, and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It is of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interest of law as a science. It is said by Blackstone to be "an established rule to abide by former precedents, where the same points come again in litigation as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also, because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one." But this judicial rulestare decisis-like all others, has its exceptions, which 1 Parke, J., in Mirehouse v. Rennell, 1 Clarke & Finnelly, 546.

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will be manifest to any one who will take the trouble to examine Greenleaf's overruled cases, and count the number of decisions which have been overturned by ancient and modern courts. The law and opinion of a judge are not synonymous terms the latter may mistake or pervert the law of the land. Precedents ought not to be followed blindly, nor, on the contrary, treated irreverently. We owe some respect to our own opinions when deliberately formed for conscience' sake. On the other hand, there is due to the opinions of others such a deference, as not to suppose that they acted in the formation of them, without any consideration. There is a medium ground between these two extremes which should be sought for in the application of the maxim in question. It is founded on policy to insure certainty, to as high a degree as possible, in the administration of justice. It is important that the decisions of our courts should be as stable and uniform as the statute law itself—indeed, more so a decision which overturns a prior one has a retroactive effect-its tendency is to disturb vested rights- whereas the promulgation of a new rule by the legislature operates prospectively only. To enable the citizen to be governed in his social relations, and square his conduct by the laws of the land, he must know beforehand what the law requires of him. There is no difference in principle between a rule of law which is overturned by the whim of a judge and the withholding of a knowledge of the law from the people at large. In the one case, the citizen is ignorant of the existing rule; in the other, he is ignorant of what will be the rule when his rights are in jeopardy; and in neither case can he possess the requisite information to enable him to protect his own interests. For these reasons, the rule is that precedents must be followed, unless flatly absurd or unjust. It is to be lamented that the limits allowed to judicial discretion in this respect, are so uncertainly defined. If a case varies from the facts and circumstances of preceding authorities, the courts are at liberty to found a new decision on those circumstances-in other words, to make a precedent. "But it never fell from a judge in this country, that he would obey a solemn judgment in one case and not

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1

in others. This is a doctrine to which our courts are not accustomed." The discretion of judges in the application of the maxim stare decisis, is not an arbitrary one. "Discretion," said Lord Mansfield,2" when applied to a court of law, means sound discretion, guided by law. It must be governed by rule, not by humor. It must not be arbitrary, vague, and fanciful, but legal and regular." This is the principle by which the courts are controlled in reference to precedents. A single decision upon a question is never regarded as settling a rule, unless rights have become vested under it, and it has been acquiesced in for a length of time. And in mere matters of practice, where propriety and utility are regarded more than the certainty of the rule, and where no one is injured by a re-examination of the question, courts do not hesitate to overrule a former decision, or even a series of decisions, when it clearly appears that they were erroneous or unjust. But in questions affecting property, unfulfilled contracts, and existing instruments, the authority of erroneous precedents seems at its maximum. The notorious Bewdley case, which was directly contrary to the act of Parliament, was sustained on this principle. When titles to real property are to be affected by erroneous precedents, they are usually sustained, however absurd. The rule is founded in policy. It is considered better to adhere to a bad rule, than overthrow the estates of many proprietors which have been acquired upon the faith of the erroneous precedent.6

Such is the general doctrine of the courts in relation to former decisions in regard to tax titles. The Supreme Court of Vermont had decided, that the neglect of the collector

*

to lodge a copy of his proceedings in the town clerk's * 559 office, within the time required by the statute, ren

dered the sale void. The question was again before the court, many years afterwards, in Taylor v. French,8 and the court was

1 Lord Eldon, 6 Dow, 112.

24 Bur. 2539.

8 Frink v. Darst, 14 Ill. 310-312, and cases there cited.

4 Bowers v..Green, 1 Scamm. 42; Kenney v. Greer, 13 Ill. 432; Little v. Smith, 4 Scamm. 400.

5 1 P. Wms. 207.

7 Mead v. Mallet, 1 D. Chip. 239.

6 4 Bur. 2580; Broom's Legal Maxims, 112.

8 19 Vt. 49.

asked to overrule Mead v. Mallet, to which the following reply was made: "On the faith of this construction numerous estates in land have been bought and sold, and it would be productive of great injustice to disturb it. This construction having become a rule of property, it should not be changed without an imperious necessity, whatever we might think of it, were it res integra."

In Bellows v. Elliot,1 the same maxim was applied in another tax-title cause. The Supreme Court of New Hampshire had decided that a sale of land, in unorganized townships, should be in conformity with a statute passed in 1791, instead of one enacted in 1794. It was a doubtful question which statute was applicable, and the question again came before the court in Bellows v. Parsons,2 and the former decision was adhered to, the court saying "where a question has been settled by the decisions of this court, as to the construction of a statute relating to conveyances of real estate, and conveyances have been made for a series of years in conformity to such decisions, the court will not go into a revision of such decisions, though the grounds assigned for them may not be fully satisfactory; or, if it were a new question, they might incline to a different conclusion."

The Supreme Court of Ohio thus commented on the rule in Hannel v. Smith: "whether, as a matter of policy, the strictness with which tax sales have been scrutinized, has been most conducive to the public good, is questionable. But if this court have been too rigid in this respect, the legislature can

easily apply a proper remedy; and many of the argu* 560 ments of* plaintiff's counsel would be much more applicable unto a legislative body, than to a judicial tribunal. Where a principle of law has been established by a long course of judicial decisions, it should not be changed for light and trivial reasons. It does not so much matter what the law is, as that it should be well understood. A change of the law by the legislature can do but little harm, as their acts are only prospective in their operations; but a change of decisions by 2 13 N. H. 256.

1 12 Vt. 569.

3 15 Ohio, 134.