9 H. L. C. 338, 339. Lord Campbell's view seems to have prevailed. See Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 125, per Lord Wensleydale; Hadfield's Case, L. R. 8 C. P. 313.

The most striking difference in the Common and Civil Law, at least as the latter is administered on the Continent, is that under the Civil Law a judge is at liberty to disregard the decision of a higher court. In the Common Law this is never done unless the higher court has committed a palpable error, as for example in Drummond v. Drummond, L. R. 2 Eq. 335, where Lord Westbury had decided a case in ignorance of a statute. The only other case

I recall in England is Hensman v. Fryer, L. R. 3 Ch. 420, where the ruling of Lord Chelmsford, C., that specific devises and pecuniary legacies should abate pro rata, has been repudiated by all the Vice Chancellors before whom the question has since come. Collins v. Lewis, L. R. 8 Eq. 708; Dugdale v. Dugdale, L. R. 14 Eq. 234; Tomkins v. Colthurst, I Ch. D. 626; Farquharson v. Floyer, 3 Ch. D. 109. This was not the case of forgetting a statute, but of a sheer blunder. All the recent writers agree that this was so.

In the United States the general rule and practice as to the weight due to a precedent in the court which made it or in a court of co-ordinate jurisdiction is substantially the same as in England. Naturally, considering the character of the people and of institutions, the weight attached to judicial precedent is somewhat less than in England, but the difference will hardly admit of any precise definition, and it does not seem worth while to attempt it.

The House of Lords will not overrule its own decisions. No such doctrine prevails in America; the highest courts of the respective States, as well as the Supreme Court of the United States, all consider that they have the power to depart from their former rulings, however inexpedient it may be to exercise it. The Supreme Court of the United States has overruled its previous decisions in questions of the gravest moment. Thus in 1825 that court decided that the Admiralty Jurisdiction did not extend on the great rivers above the ebb and flow of the tide, and reaffirmed the doctrine in 1837. But in 1851 it overruled those cases, and held that the Admiralty extended over the great rivers wherever actually navigable. Again in the Legal Tender Cases that court in 1871 changed the ruling which it had made in 1870. Great feeling prevailed in some quarters as to the supposed mode in which this change had been brought about; but the power of the court was not questioned.

The same rule as to the duty of a lower court to follow a prece dent established by a higher court prevails in America as it does in England.

It has been said in the United States that a judgment made by an equally divided court, though conclusive in the particular case, should have no weight attached to it as a precedent. See Bridge . Johnson, 5 Wend. 342, 372; People v. Mayor of New York, 25 Wend. 252, 256; Etting v. Bank of United States, 11 Wheat. 59, 78.

There are several questions within the domain of the Common Law on the effect of precedents. For instance: What is the degree of authority, in the courts of one jurisdiction, of the decisions in courts of other jurisdictions, as compared, on the one hand, with the decisions of the former courts themselves, and on the other hand with dicta of judges, or the writings of non-judicial persons? My learned colleague, Professor Wambaugh, has some valuable suggestions on this in the ninth chapter of his treatise on the Study of Cases. Again: What is the weight attributed in the United States to the decisions of the English courts made (1) before the planting of the Colonies; (2) between the planting of the Colonies and the American Revolution; (3) since the Revolution? So again: What authority in the Federal courts of the United States is attributed to the decisions of the courts of a State as determining the law of that State? Or, finally: Are judicial decisions to be considered as making new law, or as simply declaring law previously existing? But to discuss these here would exceed all reasonable limits.

John Chipman Gray.

EXECUTORS.

T the present day executors and administrators hold the assets of the estate in a fiduciary capacity. Their rights and liabilities in respect of the fund in their hands, are very like those of trustees. But this way of regarding them is somewhat modern. I wish to call attention to several changes in the law which have taken place at different times and without reference to each other, for the purpose of suggesting that they are witnesses of an older condition of things in which the executor received his testator's assets in his own right. As usually is the case with regard to a collection of doctrines of which one seeks to show that they point to a more general but forgotten principle, there can be found a plausible separate explanation for each or for most of them, which some, no doubt, will regard as the last word to be said upon the

matter.

I have shown elsewhere that originally the only person liable to be sued for the debts of the deceased, if they were disputed and had not passed to judgment in the debtor's lifetime, was the heir.1 In Glanville's time, if the effects of the ancestor were not sufficient for the payment of his debts the heir was bound to make up the deficiency out of his own property.2 In the case of debts to the king, this liability continued as late as Edward III, royalty like religion being a conservator of archaisms. The unlimited liability was not peculiar to England. While it continued we may conjecture with some confidence that a judgment against the heir was not confined to the property which came to him from his ancestor, and that such property belonged to him outright. At a later date, M. Viollet tells us, the French customary law borrowed the benefit of inventory from the Roman law of Justinian. The same process

1 Early English Equity, 1 Law Quart. Rev. 165. The common Law, 348. Bracton 407 b, 61, 98 a, 101 a, 113 b. The article referred to in the Law Quarterly Review shows the origin and early functions of the executor. It is not necessary to go into them here.

2 "Si vero non sufficiunt res defuncti ad debita persolvenda, tunc quidem hæres ejus defectum ipsum de suo tenetur adimplere: ita dico si habuerit ætatem hæres ipse." Glanville, Lib. 7, c. 8. Regiam Majestatem, Book 2, c. 39, § 3.

8 2 Rot. Parl. 240, pl. 35. St. 3 Ed. I., c. 19.

Ass. Jerus., Bourgeois, ch. cxciii. 2 Beugnot, 130. Paul Viollet, Hist. du Droit Franç. 2d ed. 829.

had taken place in England before Bracton wrote. But in the earliest sources it looks as if the limitation of liability was worked out by a limitation of the amount of the judgment, not by confining the judgment to a particular fund.1

As was shown in the article above referred to, the executor took the place of the heir as universal successor within the limits which still are familiar, shortly after Bracton wrote. His right to sue and the right of others to sue him in debt seemed to have been. worked out at common law.2 It hardly needs argument to prove that the new rights and burdens were arrived at by treating the executor as standing in the place of the heir. The analogy relied on is apparent on the face of the authorities, and in books of a later but still early date we find the express statement, executores universales loco hæredis sunt, or as it is put in Doctor and Student, "the heir, which in the laws England is called an Executor."

Now when executors thus had displaced heirs partially in the courts, the question is what was their position with regard to the property in their hands. Presumably it was like that of heirs at about the beginning of the fourteenth century, but I have had to leave that somewhat conjectural. The first mode of getting at an answer is to find out, if we can, what was the form of judgment against them. For if the judgment ran against them personally, and was not limited to the goods of the deceased in their hands, it is a more than probable corollary that they held those assets in their own right. The best evidence known to me is a case of the year 1292, (21 Ed. I.) in the Rolls of Parliament. Margery

1 Viollet, op. cit. The Common Law, 347, 348. "Hæres autem defuncti tenebitur ad debita praedecessoris sui acquietanda eatenus quatenus ad ipsum pervenerit, sci. de hæreditate defuncti, et non ultra," &c. Bracton, 61 a.

"Notandum tamen est, quod nullus de antecessoris debito tenetur respondere ultra valorem huius, quod de eius hereditate dignoscitur possidere." Somma, Lib. 2, c. 22, § 5, in 7 Ludewig, Reliq. Manuscript. 308, 309. Grand Coustum. c. 88. Compare also St. Westm. II. (13 Ed. I.) c. 19, as to the liability of the ordinary: "Obligetur decetero Ordinarius ad respondendum de debitis, quatenus bona defuncti sufficiunt, eodem modo quo executores hujusmodi respondere tenerentur si testamentum fecisset." See the cases stated below. I know of no early precedents or forms of judgments against heirs. I wish that Mr. Maitland would give the world the benefit of his knowledge and command of the sources on the matter. Later the judgment against heirs was limited to assets descended. Townesend, Second Book of Judgments, 67, pl. 26.

2 Y. B. 20 & 21 Ed. I. 374, 30 Ed. I. 238. II Ed. III. 142. Id. 186. (Rolls ed.) 8 Lyndwood, Provinciale. Lib. 3, Tit. 13. c. 5. (Statutum bonæ memoria), note at word, Intestatis. Dr. & Stud. Dial. 1, c. 19.

4 1 Rot. Parl. 107, 108. It may be remarked, by the way, that an excellent example of trustee process will be found in this case.

Moygne recovered two judgments against Roger Bertelmeu as executor of William the goldsmith. In the first case he admitted the debt and set up matter in discharge. This was found against him except as to £60, as to which the finding was in his favor, and the judgment went against him personally for the residue. In the second case the claim was for 200 marks, of which the plaintiff's husband had endowed her ad ostium ecclesia. The defendant pleaded that the testator did not leave assets sufficient to satisfy his creditors. The plaintiff replied that her claim was preferred, which the defendant denied. The custom of boroughs was reported by four burgesses to be as the plaintiff alleged, and the plaintiff had a judgment against the defendant generally. The defendant complained of these judgments in Parliament, and assigned as error that there came to his hands only £27 at most, and that the two judgments amounted to £40 and more. The matter was compromised at this stage, but enough appears for my purposes. If the defendant was right in his contention, it would follow in our time that the judgment should be de bonis testatoris, yet it does not seem to have occurred to him to make that suggestion. He assumed, as the court below assumed, that the judgment was to go against him personally. The limitation for which he contended was in the amount of the judgment, not in the fund against which it should be directed.

There is some other evidence that at this time, and later, the judgment ran against the executor personally, and that the only limitation of liability expressed by it was in the amount. In the first case known to me in which executors were defeated on a plea of plene administravit it was decided that the plaintiff should recover of the defendants "without having regard to whether they had to the value of the demand."1 Afterwards it was settled that in such cases the judgment for the debt should be of the goods of the deceased, and that the judgment for the damages should be general. But whether the first case was right in its day or not, the material point is the way in which the question is stated. The alternatives are not a judgment de bonis testatoris and a general judgment against the defendants, but a judgment against the defendants limited to the amount in their hands, and an unlimited judgment against them.

1 Y. B. 17 Ed. III. 66, pl. 83.

2 Y. B. 11 Hen. IV. 5, pl. II. Skrene in 7 Hen. IV. 12, 13, pl. 8. VI. 44. pl. 26. Danby in 11 Hen. VI. 7, 8, pl. 12. Dyer, 32 a, pl. 2. D. pl. 3. I Wms. Saund. 336, n. 10.

Martin in 9 Hen.

Roll. Abr. 931,