suggesting some reflections on the question, whether any thing can be so well established as not to be impeached or overruled and it is said, that until the decision in that case, it was thought by the profession, in consonance with a positive enactment, that the accounts of guardians, executors, and administrators, finally settled according to law, could not be appealed from after a year from the confirmation.' What is the statute, and what is the alleged violation of it? The enacting clause limits the appeal to a year from the time the accounts are finally settled: and the alleged violation is in deciding that the accounts are not finally settled till all the accounts are settled. Now the legislature has not defined what is a final settlement, and that being left to the courts, the error, if there is one, is in the construction, and not in a disregard of the mandate. But by using the word 'finally' the legislature indicate that they supposed there may be accounts which though settled are still not finally settled, and to which the limitation is to be inapplicable: and it is the difference between these which is said to have been thought by the profession to be without previous foundation. Is it possible that the gentlemen of the Philadelphia bar are so little versed in the practice of the Orphan's Court as to be ignorant of a distinction which has been perfectly familiar to us in the back woods from time immemorial! Let us see. In Richard's appeal, 6 Sergt. & R. 462, decided in Philadelphia so early as 1821, the distinction between a partial and a final settlement was explicitly stated and recognized as being, the one the subject of an interlocutory, and the other the subject of a definite decree. The question there was whether the confirmation should discharge the guardian without directly involving the ward in personal liability for a balance found against him; and it was determined that it should. 'An opposite rule,' said the judge, who delivered the opinion of the court, would be attended with disastrous consequences to the ward; for though thirty days notice is required previously to the confirmation of the account, still the previous settlements are not unravelled as a matter of course, except when the WHOLE is brought up on appeal to the Supreme Court.' Again in McGrew's appeal, 14 Sergt. & R. 396, decided in 1826, when the conclusiveness of the clause in question was partic

ularly considered, it was determined that the confirmation of a partial account, does not preclude the court from inquiring into errors in it at the settlement of a subsequent account. What more did the court determine in Walker's case? Of the two decisions that preceded it, we think it fair to remark, that the first of them was in the time of the late able and eminent Chief Justice Tilghman' and by the former court,' as the reviewer somewhat quaintly calls the three judges of which it was constituted at the time, and on whom he professes not to intend any reflection; and that the second was the unanimous act of the same three judges in conjunction with two others appointed the same year, pursuant to an act of assembly to augment their number. One of these decisions was pronounced in the hearing of the assembled members of the Philadelphia bar, and both were published in the reports of the respective periods: yet the reviewer asserts that the distinction recognized in Walker's case had no previous existence in the law, and that the profession had never dreamt of such a thing. Truly, we were not prepared for such an assertion from any one familiar with 'Pennsylvania Practice.'

As proof of disregard of precedent Gray v. Brackenridge, 2 Penn. Reps. 75, is adduced; and this case certainly does overrule Mooney v. Lloyd, 5 Sergt. & R. 412, by which it had been determined that the law will not raise a promise in consideration of services rendered by counsel. Of this last case it may be truly said, not only that it was received with disapprobation by the counsel from the interior '—a form of speech intended to express the peculiar respect felt for the profession, in the counties west of the permanent bridge, by their brethren in the rest of the state-but that its soundness was afterwards doubted by Chief Justice Tilghman himself. Of judge Gibson's sentiments in respect to it, we can judge only by the alacrity with which he concurred in the judgment by which it was overruled. It, however, continued to be a favorite of Judge Duncan, at least we have never heard him impugn it. No one would defend the morality or justice of the rule established by it in the abstract: and the adaptation of it to the state of the profession here, where the lawyer is both counsel and attorney, would deprive him of compensation 6

VOL. XI.NO. XXI.

for which an action could be maintained, even in the country from which we have borrowed it. With us the most troublesome and frequently the most lucrative part of a lawyer's practice is that which is the proper business of an attorney in England; and certainly an attorney may recover there. No one now pretends that Mooney v. Lloyd was rightly decided; and the matter comes to this- may a former decision be departed from for any reason, or must the errors of a court of the last resort be perpetual? Decisions have been overruled by every judge that ever sat on any bench; by Chief Justice Tilghman himself, in Waler v. Sherman, 8 Sergt. & R. 357, where he overrules Parish v. Stevens, 3 Sergt. & R. 298, quorum magna pars fuit. Look at the decisions of the Supreme Court of New York touching its former decisions on the subject of implied warranty on the sale of chattels, or the retention of possession as a badge of fraud. Lord Chancellor Talbot said he thought it much better to stick to the known general rules than to follow any one particular precedent. Cases in Cha in Lord Talbot's time, 26, 27. And per Lord Mansfield, 'The law of England would be a strange science indeed if it were decided on precedents only. Precedents serve to illustrate principles and to give them a fixed certainty. But the law of England which is exclusive of positive law enacted by statute, depends upon principles; and these principles run through all the cases according as the particular circumstances of each have been found to fall within the one or the other of them.' Jones v. Randall, Cowper, 39. "But I wish not to be understood,' says Chancellor Kent, 1 Com. 477, 'to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted or limited in their application. It is probable that the records of many courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony destroyed by the perpetuity of error. Even a series of decisions is not always conclusive evidence of what is the law; and the revision of a decision very often resolves itself into a mere question of expediency, depending

upon the consideration of the importance of certainty in the rule, and the extent of property to be changed by it.' How admirably are these remarks fitted to the business and condition of the Supreme Court of Pennsylvania. In consequence of the right of appeal being untrammeled, and the costs of the losing party being almost nothing, nearly the entire business of the State passes through it in a course of review. Engaged as the judges are for eleven months in the year in circuit duties, or reviewing their own decisions and the decisions of the fifty-six courts, of Common Pleas, as well as those of the Orphan's and criminal courts, besides determining questions on writs of habeas corpus, mandamus and quo warranto, and with occasional vacations of but a few days that are insufficient for an examination of the reserved cases, it would be strange indeed if crude and hasty decisions were not made, and these, when discovered, must be removed, or remain like noxious weeds blighting their wholesome brothers.

The case of Howell v. Atkyn, 2 Rawle, 282, is said by the reviewer to have overturned Eberle v. Mayer, 1 Rawle, 366, and to have been overturned itself by the Commonwealth v. Strembeck, 3 Rawle, 341. Let us inquire what was the point decided in each of these cases; for that, and not the dicta of the judges, is the test. In Eberly v. Mayer it was held that the bare leaving of property levied on, in the hands of the debtor, even with the plaintiff's consent, is not fraudulent per see; but it was determined that an order given by the plaintiff to the sheriff to stay proceedings till further directions, is a waiver of his priority in favor of a second execution. These are distinctly the points decided. Then as to the Commonwealth v. Strembeck, 'It is not the practice to remove goods;' said Judge Rogers in delivering the opinion of the court and the fact that they are not so, is not a badge of fraud.' But it was held there precisely as it had been in Eberle v. Mayer, that if the plaintiff after having levied an execution on personal property directs the sheriff" to stay proceedings till further orders" the levy is gone.' Now what was the decision in Howell v. Atkyn supposed to be overruled? Barely this, ' that if goods levied upon by the sheriff, be left in the defendant's possession with the plaintiff's permission, the lien is not lost in favor of a subsequent execution

unless there is fraud, which may be inferred from circumstances.' Where, then, is the contradiction? Howell v. Atkyn, is destitute of the distinctive circumstance- the order to stay proceedings which ruled the question in the other two cases; in which as in Howel v. Atkyn, it was determined that merely to leave the goods in the hands of the defendant with the plaintiff's consent is not a badge of fraud. Can it be possible that these decisions were purposely misrepresented ? We are almost compelled to adopt the affirmative by a belief that no mind of ordinary intelligence could fail to perceive that there is no difference of principle between them; and by the use that is made in many parts of the article of garbled expressions of the judges to shew a discrepance which has no existence in fact. Thus an expression of Chief Justice Gibson in Kline v. Gathart, 2 Penn. Reps. 490, is adroitly turned into a disaffirmance of the principle of Muntorf v. Muntorf, 2 Rawle, 18, in which it was determined that the rule of the English law which exempts an executor plaintiff from costs, on a nonsuit or adverse verdict, is not in force in Pennsylvania. The question in Kline v. Guthart turned on the right of an executor to sue in a representative character for an injury to the assets after having been reduced to possession; and the Chief Justice, it seems, treated it as involving not only the payment of costs in certain cases, but the joinder of jarring counts in the same declaration.' Really, when we first read the report of Kline v. Guthart, we did not suspect that the Chief Justice intended to ground an argument on this particular rule as still existing among us, but we supposed that he was examining the question on original grounds, and as it was supposed to be affected by principles of general law; and in that aspect his argument would have been entirely legitimate to show what the right of the executor to sue in a representative character is now, by causes which originally contributed to its present form, even though these causes were removed by a statute.

It would be an imposition on the patience of those professional readers in our sister States, for whom our remarks are intended, to drag them through all the sinuosities of the reviewer; and we will tax their patience with an examination of but one more of his specimens. He has contrasted the case of Campbell v.