Page:The Green Bag (1889–1914), Volume 05.pdf/24

 Sir George Jessel. instance held that I was not so bound. I then reconsidered my position, and thought I was not bound by any decision of a court of co-ordinate authority, and I have since fre quently declined to follow their authority." J And of this he gives abundant proof. Thus in Re Parker,2 when considering whether first cousins once removed are in cluded under the term " second cousins," he deals with a case 3 relied on in the affirma tive as one " which with great deference to successive counsel and successive judges I may say has been wholly misunderstood. The case is by no means so absurd as it looks at first sight." After explaining what in his view it meant, — and there can be but little question his view was right, — he says : "Mr. Sugden argued 4 that the case of Mayott v. Mayott has established that it is not material by what name relations are designated, provided they are within the degree of relationship which the testator meant to include in his bequest. Mayott v. Mayott established no such thing; and I have no doubt that this statement of the supposed principle in Mayott v. Mayott was invented for the occasion." The Vice-Chan cellor, Sir J. Leach, next received his atten tion : " Now here is a case in which the Vice-Chancellor was misled by a statement of counsel of eminence into considering that Mayott v. Mayott established what it did not establish, and then supposing he was fol lowing it, he altered the will without, as far as I can see, any ground for so doing." "The next case is a very apt illustration of what happens when you follow authorities without looking at them, or seeing what is the principle on which they are decided." So, in Re Hallett's Estate,5 referring to a decision by Fry, J., that upon authority the cestui que trust could not follow money mixed by the trustee with other money of 1 Osborne c-. Hewlett, 13 Ch. D. 774, 779; Re Jack son 's Will, 13 Ch. D. 189, 198. ' Mayott v. Mayott. 2 Bro. С. С. 125. 4 Tiicox i>. BelK Sim. & Stu. 301.
 * 15 Ch. D. 528.
 * 13 Ch. D. 676, 711, 712.

his own, he says : " First of all, this decision of Mr. Justice Fry's may do mischief if it is not corrected; and secondly, it appears to me, speaking with the greatest possible re spect of such an eminent master of equity as Mr. Justice Fry, that he has entirely misconceived the proper use of authorities in holding himself to be bound by a long line of authorities to decide against that which he saw most clearly was good equity, in other words, in utter oblivion of what I will take the liberty of stating, is the right mode of viewing authorities." He then asks : " What is the proper use of authori ties? " and declares it to be " the establish ment of some principle which the judge can follow out in deciding the case before him." * He then returns to the unfortunate Mr. Justice Fry. " So here," he says, " he de cided the case wrongly, in deference to a long line of authorities. That being so, I feel bound to examine his supposed long line of authorities "which are not very numerous, and show that not one of them lends any support whatever to the doctrine or princi ple which he thinks is established by them." That a decision to be a binding authority should proceed upon some principle properly applicable to the case in hand, will command general assent; and a judge would yield to it upon its applicability appearing. But the rule suggested by Jessel had in his concep tion a very different side to it, for if he did not regard the principle as sound, even though enunciated by a higher court, he felt quite at liberty to say that there was no principle whatever. An apt illustration of the convenient working of this rule, that a determination even of a higher court is not binding unless it decides a principle which the judge of the lower court recognizes as such, occurred in Re International Pulp Co.2 Pressed by the authority of two cases previously decided by 1 This rule he repeatedly reaffirmed and acted upon. See Re Parker, 15 Ch. D. 528, 530; Emmins v. Bradford, 13 Ch. D. 493, 496; Re Jackson's Will, Ib. 189, 195. 2 6Ch. D. 556.