Cas. 372, Lord Blackburn said that Coke's utterance in the J'innel case was but a dictum, and that he knew " of no case in which the question was raised whether a payment of a lesser sum could be satisfac tion of a liquidated demand," from that case " down to Cumber v. Wane, i Str. 476, a period of 115 years." Hut the Lords, in Foakes v. Beer, stuck to Coke's dictum, and Lord Blackburn, although he thought •• that there was no such long-continued action on this dictum as render it improper in this House to reconsider the question." did not persist in his opinion and assented to the judgment. (One naturally asks himself, how long does it require to establish the working of "stare decisis"!) Lord Fitzgerald said : — "I have listened with much interest, and I may add( with no small instruction, to the judgment of my learned friend, Lord Hlackburn. He has as usual gone to the very foundation, and I regret that I have been unable to assist him in overturning the resolution of the Court of Common Pleas as reported by Lord Coke in PinneFs Case, or in ex punging from the books the infinitesimal remains of Cumber v. Wane. . . . My noble and learned friend, Lord blackburn, has shown us very clearly that the resolution in Pinntl's Cas? was not necessary for the decision of that case, anil that the principle on which it seems to rest does not appear to have been made the foundation of any sub sequent decision of the Exchequer Chamber or of this House, and further, that some of the distinctions which have been engrafted on it make the rule itself absurd. But it seems to me that it is not the rule which is absurd, but some of those distinctions emanating from the anxiety of judges to limit the operation of a rule which they con sidered often worked injustice. That resolution in PinneVs Case has never been overruled. For 282 years it seems to have been adopted by our judges. During that whole period it seems to have been understood and taken to be part of our law that the payment of a part of a debt then due and payable cannot alone be the foundation of a parol satisfaction and discharge of the residue, as it brings no advantage to the creditor, and there is no consideration moving from the debtor, who has done no more than par tially to perform his obligation. Though it may not have been made the subject of actual decision, yet we find that every judge in this country who has had occasion to deal with the proposition slates the law to be so. ... I should
hesitate before coming to a decision which might be a serious inroad on that rule, but I concur with my noble and learned friend that it would have been wiser and better if the resolution in Pinnel's case had never been come to," etc.
Such is the slavery of courts to precedent, even when founded on mere dicta, in spite of the boasted "elasticity and adaptability" of the common law. We admire the independence and good sense of the Mississippi court in refusing to be bound by that foolish old dictum, the silliness of which is demon strated by Coke's own admission that the acceptance of a horse, hawk or robe would work a satisfaction ••because it might be more beneficial to the plaintiff than the money, in respect of some circumstance, or otherwise the plaintiff would not have accepted it in satisfaction." Just so, as the Mississippi court point out, the certainty of the smaller sum may be deemed by the creditors more beneficial than the chance of getting the whole amount, with its attendant delay, expense, and risk of eventual payment. The court very forcibly ask why the acceptance of a horse worth $100 m payment of a note for $1000 should be bind ing, and yet the acceptance of $999 would not be? Coke himself with great simplicity unintentionally showed that the smaller should be deemed a satis faction for the greater, " otherwise the plaintiff would not have accepted it in satisfaction." The Mississippi court cited Harper v. Graham. 20 Ohio, 105, in which the Ohio court said : "The rule and the reason were purely technical and often fostered bad faith. The history of judicial decisions upon the subject has shown a constant effort to escape from its absurdity and injustice." In Kellogg v. Richards, 14 Wendell, 116, the court said : " The rule is technical and not very well supported by reason " : and in Brooks 7'. White, 2 Metcalf, 285, the court said: "A moment's attention to the cases taken out of the rule will show that there is nothing of principle left in the rule itself." The J'innel case is another ex emplification of the theory of the elder courts, ex pressed in the famous case of Bloss т'. Tobey, 2 Pick. 320 : •• In a matter of technical law, the rule is of more importance than the reason of it."
