Parish v. Pitts/Concurrence Smith
GEORGE ROSE SMITH, Justice, concurring. I join in Special Justice Moorhead's opinion, but I should like to add a word in reply to the dissentient suggestion that our statute adopting the common law of England exempted that body of rules from judicial modification, leaving the power of repeal in the legislature alone. If that were true we would be absolutely bound to follow an English precedent announced 300 years ago, no matter how wrong we thought it to be, if no later case on the point could be found. The practical point of view, and I think the right one, is that when we adopted the English common law there was included in that heritage the fundamental common law rule that a court can and should overrule an erroneous judicial decision when it can be done without injustice to past or future litigants. That is all the court is doing today.