decides a question of law. Next in order comes the English Court of Appeal. It binds itself and all other courts save the House of Lords, and a decision of one of its divisions or branches is binding on the others until reversed by the House of Lords.8 Coming now to decisions on questions of law by a single judge sitting in the High Court of Justice, I do not think that they have invariably been considered as absolutely binding on another judge of the same court in another case, although there is high judicial authority in favour of their being accepted as conclusive as much for reasons of convenience as to avoid the disconcerting spectacle of contradictory decisions coming from the members of the same court. (See Halsbury, Laws of England, vis. Judgments and Orders, No. 335). As said by Sir W. M. James, V.C., in Hotchiss's Trusts.o "I do not think it seemly that two branches of a court of coordinate jurisdiction should be found coming to contrary decisions upon similar instruments, and encouraging, as it were, a race, by inducing persons who might wish for one construction to go to one court, and those who wish for another construction to go to another. I should have simply affirmed the Vice-Chancellor's decision (referring to a decision relied on but which he held did not apply) with the intimation of my wish that the whole matter should be brought before the Court of Appeal." It is, however, interesting to note that in a comparatively recent case (Forster v. Baker10), Mr. Justice Bray, on the question whether the assignee of part of a judgment debt had the right to issue execution, refused to consider himself bound by a previous decision of Mr. Justice Darling, and his judgment was upheld by the Court of Appeal. In a still later case, Papworth v. Battersea Borough Council (No. 2), Mr. Justice Scrutton said: 11 "My view of the Judges of this Division of the High Court is that they follow, and should follow, the decision of another judge of the same division on a point of law, leaving it to the Court of Appeal to say whether or not that decision was wrong." There are other decisions, which although not of the higher courts, are recognized as binding even by the latter. These may be described in the language of Lord Thesiger, in Pugh v. Golden Valley Ry. Co.,12 who, referring to a decision of the Court of first instance which was 12 See however Neilson v. L. & N. W. Ry. Co., 1922, 1 K. B., 192, overruling Foster v. G. W. Ry. Co., 1904, 2 K. B. 306. In re L. R. 8 Eq. 641 at p. 647. 10 (1910) 2 K. B. 636. 11 84 L. J. K. B.. 1881, at p. 1885. 12 49 L. J. Ch. 723. not binding on the Court of Appeal, stated however that "it constitutes an authority which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be overruled by this Court, except upon very special considerations." And Lord Herschell, in Tancred Arrol & Co. v. Steel Company of Scotland,13 referring to a proposition considered to be settled Scotch law, said, p. 141: "I think that that doctrine having been laid down so long ago, whether it rests upon any sound basis or not, it would be most improper to depart from it now, because one would be really altering the contract between the parties; for we have a right to suppose that they have entered into it upon the basis of that which for nearly a century has been understood to be the law." With these expressions of opinion, however, should be considered what Lord Macnaghten said in Hamilton v. Baker, when criticising certain decisions not binding on the House of Lords which had been followed by the Court of Appeal:- "I am sensible of the inconvenience of disturbing a course of practice which has continued unchallenged for such a length of time and which has been sanctioned by such high authority. But if it is really founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes your Lordships from correcting the error. To hold that the matter is not open to review would be to give the effect of legislation to a decision contrary to the intention of the legislature, merely because it has happened, for some reason or other, to remain unchallenged for a certain length of time." Probably the last word has been said in the notable case of Bourne v. Keane,15 on the question whether a long-standing decision should be overruled by a higher court. Lord Wrenbury, dissenting, thought it should not be (p. 917). Lord Birkenhead, L.C., was of the contrary opinion (see p. 858), and so were the other members of the court. Now to sum up what I have said with regard to the rule stare decisis as applied in England, the decisions of the House of Lords are binding on all courts and on the House itself, those of the Court of Appeals are conclusive as to itself and its different branches and all lower courts, finally judges of the High Court, generally, but not invariably, recognize the binding authority of decisions by the other judges of the same Court. To that add that an old and long un 13 15 A. C. 125. challenged decision of any court on which a course of practice or dealing has been founded will usually not be disturbed even by a higher court, for if an amendment to the law is desirable it is far better to obtain an Act of Parliament which will apply only in the future, than to overrule an old decision with the effect of impugning a long course of dealing into which men have entered on the authority of a pronouncement, long unchallenged, of a court of law. I have not mentioned among the English courts, except en passant, the Judicial Committee of the Privy Council, for it is not an ordinary Court of Appellate jurisdiction in England. It is, with some restrictions, and these restrictions are growing rather than decreasing, our ultimate Court of Appeal, but its jurisdiction in England is limited to special matters, such as appeals from ecclesiastical, admiralty and prize decisions. According to Halsbury (Judgments and Orders, No. 538), the decisions of the Judicial Committee are not theoretically binding on the High Court, but are treated as being of great weight and are commonly followed in like cases. A case where the House of Lords practically overruled a decision of the Privy Council is the very important. case of London Joint Stock Bank, Limited v. MacMillan and Arthur,16 The head note says this decision was "considered," which is a polite way of saying that it was overruled and will never be considered again. I may add that in a recent case in the English Court of Appeal, Stephenson v. Thompson, a dictum of Lord Hobhouse, speaking for the Privy Council, in Tennant v. Howatson,18 was expressly dissented from. 17 What, however, is interesting to note is that, unlike the House of Lords, the Judicial Committee does not consider itself absolutely bound by its own decisions. It has expressly so, stated in Ecclesiastical cases (see Read v. Bishop of London),19 where Lord Halsbury cited with approval the opinion of Lord Cairns in Ridsdale v. Clifton.20 But as said by Mr. Justice Anglin in Stuart v. Bank of Montreal,21 "the Judicial Committee is not a court of law in the strict sense. Its decision is the advice of the Board to the Sovereign." Of course, it may be added, the form of the judgments of the Judicial Committee is less important than their real nature and effect, for although they are issued in the shape of orders in council, they are nevertheless judgments and are rendered by the Judicial Committee sitting in reality as 16 1918 A. C. 777. 17 1924, 2 K. B. 240. 18 13 A. C. 489. 19 1892 A. C. 644 at p. 654. 20 2 P. D. 276 at p. 305 and following. 21 41 Can. S .C. R. 516 at p. 545. a court of justice, notwithstanding the constitutional fiction that their Lordships merely tender advice to His Majesty. Now, the rule. of stare decisis in England is, as I have already stated, that a judicial decision is only authority for the legal proposition on which it is founded or which it declares to be the law applicable to the case. But let this be clear, and I can best express the extent and limitations of the rule by using the language of Lord Haldane in Krelinger v. New Patagonia Meat and Cold Storage Company Limited.22 "The binding force of previous decisions, unless the facts are undistinguishable, depends on whether they establish a principle. To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from being unsettled and vague. In this respect the previous decisions of a Court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. But when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance." I may complete this statement of the effect of decided cases by quoting a few words from the judgment of Lord Halsbury in Quinn v. Leathem.23 "There are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all." 22 1914 A. C. 25 at pp. 39 & 40. 23 1901 A. C. 495 at p. 506. That is the law in England as to the authority of decided cases. I may add that it is unquestionably the law in all common law provinces in the Dominion, where the courts are bound, undoubtedly, by decisions of the House of Lords and the Privy Council and also by decisions of the English Court of Appeal (see Trimble v. Hill2*), not by those of the High Court. These provinces also recognize the binding authority of decisions of the higher Canadian Courts. In Ontario, section 32 of the Judicature Act (R.S.O. 1914, ch. 56) expressly states that decisions of Divisional Courts or of Courts of coordinate authority are binding on courts of the same rank. As the provisions of this statute are, I believe, unique in the British Empire, I will quote them here: "32. (1) The decision of a Divisional Court on a question of law or practice unless overruled or otherwise impugned by a higher court shall be binding on all Divisional Courts and on all other courts and · judges and shall not be departed from in subsequent cases without the concurrence of the judges who gave the decision. "(2) It shall not be competent for any Judge of the High Court Division in any case before him to disregard or depart from a prior known decision of any other judge of co-ordinate authority on any question of law or practice without his concurrence. "(3) If a Judge deems a decision previously given to be wrong and of sufficient importance to be considered in a higher court, he may refer the case before him to a Divisional Court. "(4) Where a case is so referred, it shall be set down for hearing, and notice of hearing shall be given in like manner as in the case of an appeal to a Divisional Court. Coming now to what is my main subject, I will endeavour to answer the question: What is or should be the authority of decided cases in Quebec? Let me first say-and this is a consideration that we cannot entirely overlook-that the French system is entirely different from the English law as to the authority of decided cases. M. Planiol, in his Traité de Droit Civil, vol. 1, Nos. 123 and 124, says: "123. La jurisprudence présente des caractères qui lui sont propres. Elle ne travaille pas à la façon des écrivains ou des professeurs qui exposent leurs idées sous une forme synthétique et coordonnée, qui construisent des systèmes sur des ensembles de matières. Les tribunaux statuent au jour le jour, sur les points qui leur sont soumis, et qui sont presque toujours des questions de détail, et en tous 24 5 A. C. 342. |