requires two things, antiquity of decision, and the practice of mankind in conducting their affairs."-Er parte Willey, In re Wright (1883), 23 Ch. D. 118, at pp. 127, 128; 52 L. J. Ch. 546, at p. 548, Jessel, M. R.

"I perfectly admit that, although there has been no such judicial decision, yet if I could find that this had been an accepted dictum of law, and that it was likely to have affected divers contracts and dealings between man and man, and that by not following it I should be disturbing anything which had been done in former times over and over again on the faith of the dictum, I should feel myself bound by it, and I should decline to decide in opposition to it."—In re Rosher (1884), 26 Ch. D. 801, at p. 821; 53 L. J. Ch. 722, at p. 731, Pearson, J.

"I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience the judgments come with far more weight and gravity when they come upon points which the judges are bound to decide, and I think that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the judges who have uttered them, and are a great source of embarrass ment in future cases. Therefore I abstain from putting a construction on more than it is necessary to do for this particular case.” -Cooke v. New River Company (1888), 38 Ch. D. 56, at pp. 70, 71; 57 L. J. Ch. 389, at p. 390, Bowen, L. J.

"Sir George Jessel has pointed out in Quilter v. Heatly (1883), 23 Ch. D. 42, at p. 49, and in Ex parte Willey (1883), 23 Ch. D. 118, at pp. 127, 128, what I think everyone must agree in the inexpediency of deciding any case upon the authority of the dicta of modern judges. There are old dicta of great judges, which have been followed by many decisions and have become maxims of the law, but modern dicta are but attempts to embody, in a short form, the result of decisions on statutes which any lawyer can examine for himself."-Dashwood v. Magniac, [1891] 3 Ch. 306, at p. 376; 60 L. J. Ch. 809, at p. 826, Kay, L. J.

"No dicta of text-writers or judges, however eminent, if contrary to fixed principle or the words of a statute, can have the force of an amending Act of Parliament, or absolve us from the duty of ourselves applying the principle or construing the Act."In re McCallum, McCallum v. McCallum, [1901] 1 Ch. 143, at p. 157; 70 L. J. Ch. 206, at p. 214, Rigby, J.

Decisions on Identical Words or Similar Grounds. Decisions on the interpretation of instruments, if the words are identical, are not strictly binding.

Decisions on the interpretation of instruments if the words are only similar or somewhat similar are not binding.

On a question of interpretation even the decision of the Appeal Court on similar grounds is not binding on another Court and much less on a Court of equal jurisdiction.

"No judge objects more than I do to referring to authorities merely for the purpose of ascertaining the construction of a document, that is to say, I think it is the duty of a judge to ascertain the construction of the instrument before him, and not to refer to the construction put by another judge upon an instrument perhaps similar, but not the same. The only result of referring to authorities for that purpose is confusion and error, in this way, that if you look at a similar instrument and say that a certain construction was put upon it, and that it differs only to such a slight degree from the document before you, that you do not think the difference sufficient to alter the construction, you miss the real point of the case, which is to ascertain the meaning of the instrument before you. It may be quite true that in your opinion the difference between the two instruments is not sufficient to alter the construction, but at the same time the judge who decided on that other instrument may have thought that that very difference would be sufficient to alter the interpretation of that instrument. You have, in fact, no guide whatever; and the result, especially in some cases of wills, has been remarkable. There is, first, document A., and a judge formed an opinion as to its construction. Then came document B., and some other judge has said that it differs very little from document A.-not sufficient to alter the construction-therefore he construes it in the same way. Then comes document C., and the judge then compares it with document B., and says it differs very little and therefore he shall construe it in the same way. And so the construction has gone on until we find a document which is in totally different terms from the first, and which no human being would think of construing in the same manner, but which has, by this process, come to be construed in the same manner."-Aspden v. Seddon (1875), L. R. 10 Ch. 394, at p. 397, note (1); 44 L. J. Ch. 359, at p. 363, Jessel, M. R.

'Nothing is better settled than that the construction put upon

an instrument by a Court of law or equity is not binding on another Court of law or equity, even of inferior jurisdiction, as regards the construction of an instrument couched in somewhat similar language."-In re New Callao (1882), 22 Ch. D. 484, at p. 488; 52 L. J. Ch. 283, at p. 285, Jessel, M. R.

"Nothing is better known than that on a question of mere construction even the decision of the Appeal Court on similar grounds is not binding on another Court, and much less on a Court of equal jurisdiction. As regards the construction of the instrument, even if there are the identical words, although we follow them (decisions), they are not strictly binding; but on similar words they are not binding."- Hack v. London Prorident Building Society (1883), 23 Ch. D. 103, at p. 111; 52 L. J. Ch. 541, at p. 542, Jessel, M. R.

"It appears to me that a lamentable waste of judicial time and power is often involved in examining decisions with regard to the meaning of words which with one context are capable of one meaning and with another context of another meaning."-Foulger v. Arding, [1902] 1 K. B. 700, at p. 704; 71 L. J. K. B. 499, at p. 502, Collins, M. R.

"In a question of construction, in my view, no judge is bound by the decision of another judge. He is obliged to express his view of the meaning of the document which he has to construe, and in expressing that view, in my opinion, he is not bound by the view of somebody else. I remember hearing Sir George Jessel say that he should not regard himself as bound by the decision of a previous judge on the construction of the identical document and the identical passage of the document which he had to construe." -Pedlar v. Road Block Gold Mines of India, Ltd., [1905] 2 Ch. 427, at pp. 437, 438; 74 L. J. Ch. 753, at p. 758, Warrington, J.

Decisions and Judgments affirmed on Different Grounds. A judgment affirmed on different grounds from those of the Court below, renders the judgment of the Court below no longer binding.

A decision affirmed on different grounds from those of the Court below is binding, but not so the reasons given for it.

"The decision of the Court of Appeal was affirmed, but not the judgment, and that is a very important distinction. When the House of Lords affirm a decision on different grounds from those of the Court below, it is evidence, in fact proof, to those who know

the practice of the House of Lords, that they do not agree with those grounds. Therefore a judgment so affirmed, so far from leaving the judgment of the Court of Appeal intact, shows the contrary, and that you are no longer bound by it. The mere affirmance of the decision is quite a different thing. You are bound by the decision but not by the reasons given for it."-Hack v. London Provident Building Society (1883), 23 Ch. D. 103, at p. 112; 52 L. J. Ch. 541, at p. 542, Jessel, M. R.

SECTION III.

DECISIONS OF COURTS.

Decisions of Courts of Co-ordinate or Concurrent Jurisdiction

Superior Courts ...

Lord Chancellor's Court

House of Lords-

Conclusiveness of Decisions

Independent Reasons of Lords

Irreconcilable Cases of House of Lords

Privy Council

Ecclesiastical Courts

Railway Commissioners

Scotch and Irish Courts

Scotch Court of Session

American Courts

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Decisions of Courts of Co-ordinate or Concurrent

Jurisdiction.

By the comity or courtesy of Courts, Courts of co-ordinate or concurrent jurisdiction follow one another.

Courts of co-ordinate jurisdiction must act upon the opinion of the majority.

On the grounds of judicial comity a Court bows to its own decisions.

If two cases in the same Court or in Courts of co-ordinate jurisdiction are in conflict, a Court must say with which of them it agrees.

When a Court is equally divided, if the case comes before it again, it will exercise an independent opinion and abide by one of the two views.

When a Court is equally divided, its judgment is not binding on a Court of co-ordinate jurisdiction.

"The rule is this: that wherever there is a decision of a Court of concurrent jurisdiction, the other Courts will adopt that as the

basis of their decision, provided it can be appealed from. If it cannot be appealed from, then they will exercise their own judgment."-Leech v. The North Staffordshire Rail. Co. (1860), 29 L. J. M. C. 150, at p. 155, Pollock, C. B.

"That is, where they think the judgment of the other Court was clearly wrong; not where it is a doubtful matter."Ibid., Martin, B.

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Though I have the highest respect for the authority of Williams, J., I think we must, in a Court of co-ordinate jurisdiction, act upon the opinion of the majority, even if I did not think, as I do, that it puts the law on a just and convenient ground."-Donald v. Suckling (1866), L. R. 1 Q. B. 585, at p. 617; 35 L. J. Q. B. 232, at p. 250, Blackburn, J.

"The whole theory of our system is that the decision of a superior Court is binding on an inferior Court and on a Court of co-ordinate jurisdiction, in so far as it is a statement of the law which the Court is bound to accept."-Merry v. Nickalls (1872), L. R. 7 Ch. 733, at p. 751; 41 L. J. Ch. 767, at p. 771, Sir W. M. James, L. J.

"It would not be right to overrule the decision of a Court of co-ordinate jurisdiction, unless we were very clearly satisfied that it was wrong; and it would lead to endless confusion and interminable litigation if the Courts were to make or find minute differences in the language of instruments for the purpose of escaping from the authority or apparent authority of previous decisions."-Wake v. Varah (1876), 2 Ch. D. 348, at p. 357; 45 L. J. Ch. 533, at p. 537, James, L. J.

"When I first had the honour of sitting here, I used to think myself bound by any decision of a Vice-Chancellor that was twenty years old; but the Court of Appeal in one instance held that I was not so bound. I then reconsidered my position, and thought I was not bound by any decision of co-ordinate authority: accordingly, I have since frequently declined to follow such authority."-Osborne to Rowlett (1880), 13 Ch. D. 774, at p. 779, Jessel, M. R. (cited by Joyce, J., in In re Ravensworth, [1905] 2 Ch. 1, at p. 3).

"That [the Courts of Queen's Bench, Common Pleas and Exchequer following each other's decisions] was a matter of courtesy. The ViceChancellors did not consider themselves bound by each other's decisions. I have differed frequently from Courts of co-ordinate

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