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Precedents

law, precedent, rule, followed, decision, particular and bound

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PRECEDENTS. Legal acts or instru ments which are deemed worthy to serve as rules or models for subsequent cases.

The word is similarly applied in respect to judicial and legislative action. In the former use, precedent is the word to desig nate an adjudged case which is actually followed or sanctioned by a court in sub sequent cases. An adjudged case may be of any degree of weight, from that of ab solute conclusiveness down to the faintest presumption: and one which is in fact dis regarded is said never to have become a precedent. In determining whether an ad judication is to be followed as a prece dent, the following considerations are ad verted to. First, the justice of the principle which it declares, and the reasonableness of its application. Hob. 270. If a precedent is to be followed because it is a precedent, even when decided against an established rule of law, there can be no possible correction of abuses, because the fact of their existence would render them above the law. It is al ways safe to rely upon principles. See 16 Viner, Abr. 499; 2 J. & W. 318; 2 P. Wins. 258; 2 Bro. C. C. 86; Cooke v. Crawford, 1 Tex. 11, 46 Am. Dec. 93; 2 Evans, Poth. 377, where the author argues against the policy of making precedents binding when contrary to reason. "The reason and spirit of cases make law : not the letter of particular prec edents." 3 Burr. 1364, per Lord Mansfield. See, also, GresL Eq. Ey. 300; Anderson v. Jackson, 16 Johns. (N. Y.) 402, 8 Am. Dec.

330; Cro. Jac. 527; People v. elute, 50 N. Y. 451, 10 Am. Rep. 508. Rain, Judgments, gives an excellent statement of the circum stances which the value of prece "The reports of judicial decisions contain the most certain evidence and the most au thoritative and precise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts and brought within the same reasons. . . . A solemn deci sion upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence Which we can have of the law applicable to the sub ject, and the judges are bound to follow that decision so long as it stands unreversed, un less it can be shown that the law was mis understood or misapplied in that particular case. . . . The language of Sir William

Jones (Bailments 46) is• exceedingly forcible on this point. 'No man,' says he, 'who is not a lawyer would ever know how to acti and no man who is a lawyer would, in many instances, know what to advise, unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate.'" 1 Kent, Corn. 473.

According to Lord Talbot, it is "much better to stick to the known general rules than to follow any one particular precedent which may be founded on reasons unknown to us." Cas. t. Talb. 26. Blackstone, 1 Corn. 70, says that a former decision is, in gen eral, to be followed, unless "manifestly ab surd or unjust;" and in the latter case it is declared, 'when overruled, not that the former sentence was bad law, but that it was not law. If an adjudication is ques tioned in these respects, the degree of con sideration and deliberation upon which it was made; 4 Co. 94; the rank of the court, as of inferior or superior jurisdiction, which established it, and the length of time during which it has been acted on as a rule of prop erty, are to be considered. The length of time which a decision has stood unquestion ed is an important element; since where a rule declared to be law, even by an inferior tribunal, has been habitually adopted and acted upon by the community, and becomes thus imbedded in the actual affairs of men, it is frequently better to enforce it as it is, instead of allowing it to be re-examined and unsettled. It is said that in order to give precedents binding effect there must be a current of decision ; Cro. Car. 528; Cro. Jac. 386 ; 8 Co. 163 ; Sauer v. Steinbauer, 10 Wis. 370; and even then, injustice in the rule often prevails over the antiquity and frequency of its adoption, and induces the court to overrule it. But this is to be very cautiously done where it is a rule of prop erty, or wherever a departure from it would unjustly affect vested rights; Lindsay v.

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