is invariably the precursor of
uncertainty and confusion. Apply to it a test, which may be set down as
unerring, never failing soon to discover the true metal from the base
counterfeit: its effect upon litigation. A decision in conformity to
established precedents is the mother of repose on that subject; but one
that departs from them throws the professional mind at sea without
chart or compass. The cautious counsellor will be compelled to say to
his client that he cannot advise. One cause is the general uncertainty
to which it leads. Men will persuade themselves easily, when it is their
interest to be persuaded, that if one well-established rule has been
overthrown, another, believed to be quite as wrong and perhaps not so
well fortified by time and subsequent cases, may share the same fate.
Shall counsel risk advising his client not to prosecute his claim or
defence, when another bolder than he, may moot the point and conduct
another cause resting upon the same question to a successful
termination? The very foundations of confidence and security are shaken.
The law becomes a lottery, in which every man feels disposed to try his
chance. Another cause of this uncertainty is more particular. A court
scarcely ever makes an open and direct overthrow of a deeply founded
rule at one stroke. It requires repeated blows. It can be seen to be in
danger, but not whether it is finally to fall. Hence it frequently
happens that there is a sliding scale of cases; and when the final
overthrow comes, it is very difficult to determine, whether any and
which steps of the process remain. Shortly after the decision in Post
_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the
inferior courts; in which the Judge, thinking that Post _v._ Avery,
however the intention may have been disclaimed, did in fact overrule
Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal
plaintiffs, a retiring partner, who upon dissolution had sold out for a
price _bona fide_ paid, all his interest in the firm to his copartners,
who continued the business. A motion was made for a new trial, and
before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)
had appeared, and the court, on the authority of that case, which
decided that an assignment must be colorable and made for the purpose of
rendering the assignor a witness in order to exclude him, ordered a new
trial. Before the case was again called for trial, the first vol