Ruminations |
a change of the rule by the act of the legislature , but it acts also upon past transactions . It has been frequently said with great propriety , that courts should not reverse a judgment contrary to many precedents long established . When a principle has once been settled , it is well that it should stand , even though we might think it founded in error . And still it must be admitted that a new precedent , affecting property , unfulfilled contracts and existing instruments , and changing an established rule of law , or of evidence , by which they are to be governed , should not prove an insurmountable barrier to restoring what is to be regarded as the old rule . We apprehend that until the very recent opinions to the contrary , it was understood by business men and the profession generally , that simply taking additional collateral security , on time , for the payment of an antecedent debt , did not of itself have the effect to discharge previous sureties on the same debt , and that the enunciation of a different principle was received with some little surprise . 33
In 1943 , in Central Vermont Public Service Corporation v . Eitapence , the high court overruled Atkinson on another point of law , holding that a promise to forbear
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enforcement of a claim for rent in consideration of the pledge of something of value cannot be inferred ; it must be proven . 34
Hackett v . Callendar ( 1859 ) overruled Bigelow v . Topliff ( 1853 ), holding that an attaching creditor ’ s right , if made without notice , is not superior to that of a bona fide purchaser if notice of the conveyance occurs before execution is levied , and “ that until such application he has parted with nothing on faith of the title being ” in the debtor , and stands in the rights of that debtor . 35 In 1860 , in Kinsman v . Page , Judge Bennett announced the overruling of the 1814 decision in Farnsworth v . Tilton . Farnsworth held that “ a plea , stating a commitment of the debtor in execution , without showing that he still remained a prisoner , is bad ,” but Bennett explained , “ yet no such opinion was called for by the case before the court ; and however much we are disposed to reverence the memory and admire the learning of the late Ch . Justice CHIPMAN , yet we are inclined to think this opinion unsound .” 36 That was bold . Nathaniel Chipman is otherwise regarded as the Vermont Solomon . But when something is unsound , it is no longer precedent .
In the 1861 decision of Baldwin v . Aldrich , Judge Asa Aldis disposed of the ruling in Brown v . Turner ( 1826 ) by calling the statement by Judge Titus Hutchinson mere dictum , when Hutchinson had held that
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there could be no partition of a saw mill , mill yard , and pond . Aldis stated ,
If Judge Hutchinson ’ s opinion extended to this — that when property held in common could not be divided without great inconvenience to the parties interested , the court should refuse to make an order for assignment or sale pursuant to the statute , unless the petitioner could prove that he was hindered in the enjoyment of his share , we think the position untenable . 37
Hodges v . Fox ( 1863 ) recognized that an unreported case from the previous term , Latham v . Lewis , overruled Mattison v . Westcott ( 1841 ), on the grounds that there is acceptance of the whole when a place of delivery is agreed on and property has been delivered to the proper place . 38 Johnson v . Edson ( 1827 ) drew fire from the court , along with three other decisions , in Flanagan v . Hoyt ( 1864 ), where it was decided that all official acts by a deputy are regarded as done by the sheriff , not as agency or identity , but “ in the sense of official relation and of responsibility cast by law upon the sheriff for the acts of his deputy .” 39 It is a fine distinction , a clarification that amounts to a repudiation . Judge James Barrett wrote , “ it would have been as well , even in those cases , to have adopted a different view , and one that could have been practi-
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