Vermont Bar Journal, Vol. 40, No. 2 Spring 2016, Volume 42, No. 1 | Page 11

I am not aware of this fact ever forming any substantive ground of relief in
equity, although by some casual omission of a negative, through the absurd
blunder of some one, I am made to say
so, in so many words, in Hall v. Hall,
8 Vt. 162. But the decision is the exact contrary to all purposes, and in all
points.29
In Doolittle v. Holton (1854), now Chief
Judge Redfield could not quite bring himwww.vtbar.org

self to overrule Hazard v. Martin (1829) on
the issue of whether an administrator had
acted within the scope of his duty should
be left to the jury to decide or, by the instruction of the court, whether it should be
accepted as a presumption. He explained,

Ruminations

excesses of previous rulings. In 1851, in
Charles Towne & Co. v. Wiley, Judge Isaac
Redfield described West v. Moore (1842)
as having pushed the idea that defrauding
an employer should be brought as a tort
“somewhat to the extreme.”25 That same
year, Judge Redfield wrote that Howe v.
Chittenden (1826) “carried the notion of
apportioning a mortgage security upon
the different parcels of the security, further than is altogether consistent with the
rights of the mortgagee.”26 In Probate
Court for District of Rutland v. Slason, the
Supreme Court recognized that Probate
Court v. Bates (1838) was “wholly at variance with the decisions in the other states
upon this subject, and with the reason of
the case, and with all the more recent decisions in this state, above cited.”27 The issue was whether the jurisdiction of the probate court was exclusive or whether as had
been the practice for many years an administrator, executor, or guardian would need
to render his account in the common law
courts. Westlaw treats this case as “criticizing” Bates, but this was an overruling in all
but a name. This is the first example of the
Vermont Court changing its understanding
of the law based on what other state courts
were deciding, the first shadowing of the
development of a homogenous, interstate
concept of what is law, and the beginning
of a long march away from the indigenous
theories Vermont judges had developed in
isolation in earlier years.
In Adams v. Barney (1852), the Supreme
Court found Buck v. Squires (1850) overbroad, concluding that in ruling that a
boundary between adjoining properties
split by a stream was the thread of the
stream, it “is by no means certain, that another case, decided by the same court,
should exhibit the same extreme tendency,” thereby condemning it to oblivion.28 In
1854, in Burton v. Wiley, Redfield repudiated Hall v. Hall (1836) by recognizing the
right of a party to take a case to chancery
after failing to persuade a law court, when
the failure was not the party’s fault, when
the denial came through fraud on the part
of the other party, or accident or mistake.
Redfield denied having ruled to the contrary in Hall, so his “overruling” is more a
typographical correction. He wrote,

A decision of that kind, upon a subject of such controlling influence, in regard to the title of property, after having been acquiesced in for more than
twenty years, it seems to us should be
regarded, as having acquired the force
of law. And if it is law at all, it is law according to its obvious import, as the
profession, and the people would naturally understand it, and in the sense, in
which it may be presumed they have
acquiesced in it. For after property has
been held and transferred for a long
course of years, in faith of a decision
of this court deliberately made and reported, it seems little less than trifling
to unsettle the same question again. It
is but inviting perpetual discussion of
the same question and destroying all
confidence in the stability of the determinations of the court. It falls little
short of a want of proper self-respect.
It is what the same members of the
court would never do, in regard to one
of their own decisions, and a fortiori, it ought not to be done by their successors, except upon grounds of obvious necessity. The court are agreed
in this. But still there is great room to
question the extent of such a decision,
in a case not precisely similar, in all respects.30
In 1857, the Supreme Court overruled
Skiff v. Solace (1851) in Jones v. Taylor. A
chattel mortgage executed in New York,
otherwise valid, protects Vermont property from attachment by creditors of a mortgagor.31 Baxter v. Bush (1857) overruled
Brainard v. Burton (1833), holding that a
lessor acquires a property interest in crops
before they are grown and delivered to him
by the lessee, when the lease provides that
the lessor has a full lien on the crops as security for the payment of rent.32
Austin v. Curtis (1858) overruled Atkinson v. Brooks (1854), finding that Atkinson
was not precedent, as an even earlier decision of the court represented the true old
rule. Judge Milo Bennett explained that
while he had joined the majority in , he did
not concur with Chief Judge Redfield, although he did not dissent. He explained his
hesitancy.
To change a rule of law, which has become a rule of property by a judicial
decision, is always attended with the
most injurious consequences. It does
not simply act prospectively, as would
THE VERMONT BAR JOURNAL • SPRING 2016

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