Page:Harvard Law Review Volume 8.djvu/357

341 SUPREME COURT ON JUDICIAL LEGISLATION. 34 1 eral law," ^ " general jurisprudence," ^ and " common lavv,"^ it will not follow the decisions of the local courts,* even though the construction of a statute be involved ; and it is equally emphatic in the declaration that it will protect contract rights in all cases where the decision of a court under which they have accrued has been subsequently overruled by that court.^ Of the first line, the typical and leading case is Swift v. Tyson; of the second, Gelpcke V. Dubuque. Swift V. Tyson came before the court in 1842 on a certificate of division of opinion from the Circuit Court for the Southern Dis- trict of New York. It was a suit on a bill of exchange by an indorsee, a citizen of Maine, against the acceptor, a citizen of New York. The defence was fraud and failure of consideration. The answer to a bill of discovery, filed by the defendant, disclosed that the bill had been taken by the plaintiff in satisfaction of a pre-existing debt, and thereupon the question arose on the trial whether the defendant was entitled to give evidence of fraud and failure of consideration against the plaintiff, as if the suit had been between the original parties to the bill, — in other words, was the plaintiff a holder for value? This was the question certified to the Supreme Court. It was argued for the defendant that by the law of New York the satisfaction of a debt in such cases was not a valuable consideration, and that the New York decisions should be conclusive to admit the evidence. The Supreme Court decided that the evidence offered was inadmissible. Mr. Justice Story, in delivering the opinion, reviewed the New York cases, and an- nounced that in the absence of a positive opinion of the Court of Errors on the point, the law of that State could not be regarded as finally established. Here, then, seems to have been a proper opportunity for the Supreme Court to render an independent judg- ment, there being, one might say, no State law governing the case. Had the learned justice done this, without more, the case would probably have escaped the torrent of hostile criticism that has been directed against it. The opinion, however, went on to as- sume that it was firmly settled by the law of New York that the 1 Hough V. Railroad Co., 100 U. S. 213, 226. 2 Railway Co, v. Prentice, 147 U. S. loi, 106; Insurance Co. v. Broughton, 109 U. S. 121, 126. ' Chicago V. Robbins, 2 Black, 418. question in this court."
 * See the cases collected in the note to Burgess v. Seligman, 107 U. S. 20, 34.
 * • In Taylor v. Ypsilanti, 105 U. S. 60, 71, this is said to be "no longer open to