STANDING BY (See also ESTOPPEL, vol. 7, p. 12).—The term "standing by," so often used in the books and reports in discussing cases of estoppel, does not mean actual presence or actual participation in the transaction, but it means silence where there. is knowledge and a duty to make a disclosure.1 STARE DECISIS. (See also DICTA, vol. 5, p. 661; RES JUDICATA, vol. 21, p. 127; UNITED STATES COURTS.) I. Definition; Obiter Dicta, 19. 2. Interpretation of Language of 3. A Divided Court, 23. 4. Single Decision and Deci- 5. Adopted Statutes, 25. 6. Recent English Decisions, 25. 26. 8. Executive Departments of Government, 27. III. Erroneous Precedents as Rules of Property, 28. 1. In General, 28. 2. Decisions of Inferior Courts, 30. 3. Claim to an Office, 30. IV. Decisions Construing Constitutions and Statutes, 31. V. The Law of the Case, 33. 1. General Principles; Extent of Rule, 33. 2. Matters of Fact; Change of 3. Questions of Jurisdiction, 36. 1. DEFINITION; OBITER DICTA.-The doctrine of stare decisis is in no way affected by dicta, nor does the doctrine change or control the dicta in any way. Dicta are casual or incidental comments by the court, which are neither binding nor conclusive. The mind or general tendency of the court is shown by them, perhaps, and an inkling is given as to what the decision would be if the court should be called upon to make it. This doctrine has to do only with direct decisions upon important and vital issues. Any positions or utterances of the court upon the issues necessarily to be decided in a case cannot be dicta, but are direct and controlling decisions establishing precedents for future cases involving the same or similar issues. The very name of the doctrine shows that it has to do only with real decisions; and chance. or collateral hints are of no binding force, and establish nothing to be relied upon subsequently. It is not material whether the 1. Anderson v. Hubble, 93 Ind. 573; 47 Ark. 394; Gatling v. Rodman, 6 Ind. 289; Catherwood v. Watson, 65 Ind. 576; Richardson v. Chickering, 41 N. H. 380; 77 Am. Dec. 769. 2. Peck v. Jenness, 7 How. (U. S.)612; Ex parte City Bank, 3 How. (Ú. S.) 292; Alexander v. Worthington, 5 Md. 488; Michael v. Morey, 26 Md. 261; 90 Am. Dec. 106. In Cohens v. Virginia, 6 Wheat. (U. S.) 399, the court, by Chief Justice Marshall, said: "It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent; other principles, which may serve to illustrate, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." In Carroll v. Carroll, 16 How. (U decision rests upon principles of the common law or upon the interpretation of a statute. If it settles directly a question in issue, it is a matter decided, and will have a bearing in future cases raising the same issues. A matter, though of secondary importance, if decided, is as completely subject to this doctrine as the principal question in issue. There may be two or more issues, independent each of the other, and the doctrine applies equally to them all, even though they are all embodied in the same case. A trifling or seemingly insignificant issue may have its legal status fixed. The doctrine applies to all decisions, the question being whether the court has really rendered a decision upon the point.1 Dicta, while not binding in themselves, may become finally a part of the recognized law of the land. Even though they have not the merit of having regarded legal principles accurately, yet, having by frequent repetition and approval obtained a familiar place in the current decisions, they may ultimately be clothed with, or substantially with, the strength and importance attached to precedents.2 Both dicta and decisions are subject to reversal or confirmation by the courts, and the latest position taken regarding them will become the binding one in S.) 287, the court, by Curtis, J., said: "If the construction put by the court of a State upon one of its 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. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs. 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." 1. Crogg v. Atlanta, etc., R. Co., 77 Ga. 202; 4 Am. St. Rep. 79; Florida Cent. R. Co. v. Schutte, 103 U. S. 143; Levy v. Hitche, 40 La. Ann. 500; School Trustees v. Stocker, 42 N. J. L. 117; Forepaugh v. Delaware R. Co., 128 Pa. St. 217; 15 Am. St. Rep. 672; Bates v. Taylor, 87 Tenn. 325; Porter v. Lee, 88 Tenn. 783; Carroll v. Carroll, 16 How. (U. S.) 287; Weare v. Deering, 60 N. H. 56. 2. Ocean Beach Assoc. v. Brinley, 34 N. J. Eq. 439. In Groesbeck v. Golden (Tex. 1887), 7 S.W. Rep. 363, the court, by Maltbie, J., says: "The doctrine is, without doubt, a wise and useful one, and should be upheld with a firm hand and unshaken purpose on all proper occasions. There are a few general rules of almost universal application underlying and supporting this doctrine. For instance, where a decision has been made, adhered to, and followed for a series of years, it will not be disturbed except on the most cogent reasons, and it must be shown in such case that the former decisions are clearly erroneous; and where property rights have grown up under the decision, the rule will not be changed for any reason. But if the decision is of recent origin and the error plain, the court will usually declare the law as it really is. The supreme court in this State, in a number of cases, has changed the rule on the second appeal of said cases. We do not think that any court has ever held that when there has been an erroneous decision in one case only, and when the doctrine of all cases that have preceded and followed it in reference to the matters decided is contrary to the doctrine of that case, it will be upheld as stare decisis, although never having been expressly overruled for the sole purpose of taking a piece of property from one man and giving it to another." future cases involving the same issues.1 Where the decision of any tribunal is subject to appeal to a higher court, such decision is not affected by the doctrine of stare decisis until passed upon by the higher tribunal of last resort.2 It may be difficult sometimes to determine what are dicta and what are not. It need not be that points decided must have been fully and completely considered in every detail, in order that they may be regarded as decisions and not merely as dicta. The determining point is rather whether the issue is directly involved in the case than whether it has been exhaustively considered.3 In some courts it is held that points treated, which are outside the record, are not really decided, but that the language of the court regarding them is and can be only dicta; while in other States, this has nothing to do with determining the status, it depending upon the directness of the issue and the elaborateness of treatment by the court.4 II. THE LAW OF PRECEDENT-1. In General.-There is a marked distinction between dicta and decisions. The former simply indicate, as it were, the sympathies of the court, while the latter are conclusive in the higher tribunals from the decision of which there is no appeal. Matters outside the record are generally considered as merely incidental or collateral to the direct decision upon the principal issues in a case. Sometimes analogies are given, sometimes illustrations only, and none of these are intended as decisions to be in any way binding in the rendering of subsequent decisions. Decisions are precedents, dicta are not. In the con 1. Paul v. Davis, 100 Ind. 422; Louisville, etc., R. Co. v. Davidson County Ct., 1 Sneed (Tenn.) 695; People v. Mayor, etc., of N. Y., 25 Wend. (N. Y.) 256; 35 Am. Dec. 669. 2. Allen v. Allen (Cal. 1891), 27 Pac. Rep. 30; Lucas. Tippecanoe County, 44 Ind. 541; Bridge v. Johnson, 5 Wend. (N. Y.) 372. 3. Michael v. Morey, 26 Md. 261; 90 Am. Dec 106; People v. Winkler, 9 Cal. 236; Pass v. McRae, 36 Miss. 148; Holcomb v. Bonnell, 32 Mich. S. 4. Buchner 7'. Chicago, etc., R. Co., 60 Wis. 264: Alexander v. Worthington, 5 Md. 488: State v. Baughman, 38 Ohio St. 455; Etting v. Bank of U. S., 11 Wheat. (U. S.) 59; Morse v. Goold, II N. Y. 285; 62 Am. Dec. 103. 5. In Louisville, etc., R. Co. v. Davidson County Ct.,1 Sneed (Tenn.)695, the court, by Caruthers. J., said: “It may not be out of place here to remark, as the subject seems to be so often and by so many misunderstood, that the generality of the language used in an opinion is always to be restricted to the case before the court, and it is only authority to that extent. The reason. ing, illustrations, or references, contained in the opinion of a court, are not authority, not precedent, but only the points in judgment arising in the particular case before the court. The reason of this is manifest. The members of a court may often agree in a decision-the final result in a casebut differ widely as to the reasons and principles conducting their minds to the same conclusion. It is then the conclusion only, and not the process by which it is reached, which is the opinion of the court, and authority in other cases. The law is thus far settled, but no farther. The reasoning adopted, the analogies and illustrations presented, in real or supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not. So of the principles concurred in and laid down as governing the point in judgment, so far as it goes, or seems to go, beyond the case under consideration. If this were not so, the writer of an opinion would be sideration of the doctrine of stare decisis the interpretation is to be broader than is generally given to decisions, or rather the effect of prior decisions is more comprehensive and wider reaching. For not only are actual decisions followed, but it is even claimed that any subsequent allegations as to what is determined under the necessity in each case, though his mind is concentrated upon the case in hand and the principles announced directed to that, to protract and uselessly encumber his opinion with all the restrictions, exceptions, limitations, and qualifications which every variety of facts and change of phase in cases might render necessary." The foregoing language was adopted with approval by the Indiana court in Lucas v. Tippecanoe County, 44 Ind. 541. In People v. Mayor, etc., of Brooklyn, 9 Barb. (N. Y.) 544, the court said: We look into these opinions in vain for the evidence of that solemn argument and mature deliberation which, upon the doctrine of stare decisis, should give to this case the weight of authority sufficient to foreclose the judgment of all other tribunals upon the same question." In Harris v. Clark, 2 Barb. (N. Y.) 94, the court, by Gridley, J., when pressed with a former decision, responded as follows: "In opposition to this doctrine, however, the case of Wright v. Wright (1 Cow. (N. Y.) 598) is pressed upon us as an authoritative adjudication which we are bound to follow. We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to preserve the stability, the certainty, and the symmetry of any system of jurisprudence; and, therefore, if we had any reason to believe that the decision in this case was made upon deliberate consideration, and that the adoption of the reasons assigned by the judge was necessary to the decision of the questions before the court, we should certainly regard it as an authority binding upon us, and leave the error, if any there were, to be corrected in the court of the last resort. But we do not think the case of Wright . Wright entitled to the authority of judgment upon the point in question. The case itself was a non-enumerated motion. The disposition of this class of cases is constantly made upon equitable considerations, which address themselves to the discretion of the court; and relief is frequently granted on equitable terms against the strict legal rights of the parties. The judgment in this case was merely a refusal to stay the proceedings in a cause after verdict, to enable the applicant to move for a new trial upon newly discovered evidence; and the decision might well have been placed upon the ground assumed by the circuit judge in refusing to grant the same order which, in no respect, involved the principle now under consideration. It is manifest from the report of that case that it did not receive a deliberate examination either by the counsel or the court. No one of the cases upon the subject of gifts causa mortis appears to have been brought to the notice of the court, and none of the objections which in other cases have been held fatal, were alluded to by the judges in the brief remarks that fell from them in disposing of the motion. For these reasons, we consider ourselves at liberty to dispose of this interesting and important question, unembarrassed by the authority in the decision in Wright 7. Wright. We may also add that that case has been reviewed and its conclusions disapproved by the courts of Massachusetts, Connecticut, and Vermont." Greenbaum v. Stein, 2 Daly (N. Y.) 226; Holcomb v. Bonnell, 32 Mich. 8. Decisions long acquiesced in should not be changed if incorrect. State v. Whitworth, 8 Lea (Tenn.) 594. The effect of decisions as precedents is not changed by the setting off of new States or varying the boundaries so that it might seem that an old decision would not be a precedent in a different State. Pyles v. Riverside Furniture Co., 30 W. Va. 123; Wilson v. Perry, 29 W. Va. 169. The decisions of the full bench will control the opinion of a single justice, unless there has been some flagrant error committed, sufficient to justify a change. Bentley v. Goodwin, 38 Barb. (N. Y.) 640; Loring v. U. S. Vulcanized Gutta Percha Co., 30 Barb. (N. Y.) 646; Adams v. Bush, 2 Abb. in any case is to be respected, so that not only the particular case but any subsequent interpretation or explanation of its meaning is to be regarded as coming within the doctrine and final.1 2. Interpretation of Language of Court. The language used in the opinions of the court must be construed in the light of the circumstances connected with each case. Its influence and weight as a precedent is also largely dependent upon them. The language in argument, or findings, may have a restricted or enlarged interpretation by reason of its connection with a specific statement of facts.2 3. A Divided Court.-A decision rendered by a court equally divided in opinion, while binding in the particular case as fully as a decision rendered by a unanimous court, is not binding as a Pr. N. S. (N. Y.) 118; People v. Mayor, etc., of Brooklyn, 9 Barb. (N. Y.) 544; Harris 7. Clark, 2 Barb. (N. Y.) 101. A decision of the supreme court becomes the law of the case upon the points involved, even though erroneous. Lindsay . People, Idaho,N. S. 438; Barton v. Thompson, 56 Iowa $7 41 Am. Rep. 119. Yet if the decision is overruled before the final trial of the case in the court below, it is the duty of that court on the trial to follow the rule last established by the supreme court. Barton v. Thompson, 5, Iowa 571; 41 Am. Rep. 119. The principle of stare decisis applies equally on appeal. Adams County v. Burlington, etc., R. Co., 55 Iowa 94. Decisions of long standing, which have been frequently relied upon, should be leniently considered and reversed only where their inaccuracy is plain. Davidson v. Biggs, 61 Iowa 309; Henry v. Quackenbush, 48 Mich. 415. There is no vested right to claim the benefit of any particular decision of a court. Taliaferro v. Barnett, 47 Ark. 359. The rule of stare decisis will not prevent the overruling of a previous decision ascertained to be wrong. Paul v. Davis, 100 Ind. 422. 1. Bennett . Bennett, 34 Ala. 53; Matheson v. Hearin, 29 Ala. 210; People v. Benzie County, 34 Mich. 211; Baker v. Lorillard, 4 Ñ. Y. 261 ; Davidson v. Allen, 36 Miss. 421; Richmond St. Railway Co. v. Reed, 83 Ind. 9. This was afterwards followed in a case of larceny of cattle, in which the indictment stated the value of the cattle without adding the words "lawful money of the United States." Upon this, the court, by Burnett, J., said: "It is true that the language of that opinion, taken without reference to the circumstances of the case, would bear the construction contended for; but the rule is well settled that the language of an opinion in general must be held as referring to the particular case decided. In that case, Cohen was indicted for converting money to his own use whilst he was the bailee of another. The defect was in describing the thing converted. The thing stolen must be correctly described, for the purpose of identification. And when a party is indicted for stealing coin, the kind of coin must be specified. But in this case, the indictment, was for stealing cattle, and the value of the animals stolen was alleged in the language of the statute. The statute defining the offense does not use the words lawful money of the United States.' The allegation of the value was sufficient, being as certain as the language of the statute." People v. Winkler, 9 Cal. 236; Mellinger v. Von Behren, 53 Iowa 374. In Pass v. McRae, 36 Miss. 148, the court, by Harris, J., said: "Such is the flexibility of language, and even of sentences disconnected from their context, as well as the special state of 2. Where there was an indictment facts to which they have been applied, against a bailee for the larceny of that in courts it has become a settled money it was held that all the particu- rule that all adjudications are to be lars should be set forth including the considered only in connection with, allegation that it was lawful money of and as explained by, and limited to, the the United States. People v. Cohen, state of circumstances appearing in 8 Cal. 42. the record." |