168 F. 617 (8th Cir. 1909), 2,654, Westhus v. Union Trust Co. of St. Louis

Docket Nº:2,654.
Citation:168 F. 617
Party Name:WESTHUS et al. v. UNION TRUST CO. OF ST. LOUIS.
Case Date:March 01, 1909
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 617

168 F. 617 (8th Cir. 1909)

WESTHUS et al.

v.

UNION TRUST CO. OF ST. LOUIS.

No. 2,654.

United States Court of Appeals, Eighth Circuit.

March 1, 1909

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

PER CURIAM.

It is now urged that we are bound by the judgments of the Supreme Court in Eidman v. Tilghman, 203 U.S. 580, 27 Sup.Ct. 779, 51 L.Ed. 326, and the other cases like it. In other words, it is claimed that, when an affirmance of a judgment results from an equal division of the Justices of the Supreme Court who participate in the hearing, it not only conclusively settles the particular

Page 618

case as between the parties and their privies, but also establishes a principle of law to be followed by inferior courts in subsequent cases.

That seems to be the rule in England. In Regina v. Millis, 10 Cl. & Fin. 534, 8 Jur. 717, an indictment for bigamy involved the validity of a marriage without the presence of a person in holy orders. A jury at the assizes found a special verdict setting forth the facts, and the cause was then removed by certiorari to the Court of Queen's Bench in Ireland. The Justices of that court were divided in opinion, but to obtain a review in the House of Lords one of them withdrew, and the accused was thereupon acquitted. In the House of Lords the question put, according to the custom, was whether the judgment complained of should be reversed, and it appeared the votes were equal. 'Whereby, according to the ancient rule in law, 'Semper praesumitur pro negante,' it was determined in the negative. Therefore the judgment of the court below was affirmed and the record remitted. ' Shortly afterwards Regina v. Millis was recognized in the Court of Exchequer as binding authority for the doctrine that a valid marriage can be contracted only in the presence of a clergyman in holy orders. Catherwood v. Caslon, 13 M. & W. 261. Later the House of Lords had occasion again to consider the question, and also whether the only clergyman present, being the bridegroom, could perform the ceremony. The former decision in Regina v. Millis, so far as it went, was recognized as establishing a principle binding not only upon all inferior tribunals, but upon the House of Lords itself, and it was said that to change it the house would be arrogating to itself the right of altering the law and legislating by its own separate authority. Beamish v. Beamish, 9 H. L. Cas. 274.

In London Tramways Co. v. London County Council, 67 L.J. 559, 561...

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