the higher court, his honor says : " I will not attempt to distinguish this case from the cases before the Court of Appeal, but I will say that I do not consider them as abso lutely binding upon me in the present in stance, and for this reason that as I do not know the principle upon which the Court of Appeal founded their decisions, I cannot tell whether I ought to follow them or not. If those decisions do lay down any principle, I am bound by it; but 1 have not the remotest notion what that principle is." And after discussing them, he concludes : " Not be ing at liberty to guess what the principle of those decisions is ... I am only bound to follow them in a precisely similar case; con sequently as the legal decisions do not stand in my way, I dismiss the summons with costs." Nothing is more common when he is about to upset some precedent than this prelude : "Although I wish to treat the decision with every possible respect," etc.1 Thus in one case he begins : " Now, speaking with the most sincere deference for his lordship, I am utterly at a loss to conceive on what ground his judgment was founded;"2 and in another he says : " And yet that learned judge, of whom I wish to speak with the greatest respect [Sir J. L. Knight Bruce, V. C.], refused specific performance. ... I am utterly at a loss to know what were the grounds of his decision."3 So in Re Inter national Pulp Co., where two decisions of the Court of Appeals were cited : " With the greatest possible respect for the Court of Appeals, I must say that those decisions do not commend themselves to my mind."4 This is not altogether unlike the process by which the boa-constrictor is said to preface an act of wholesale deglutition; or, as one may say, Jessel only states his respect for his adversary when he is about to show that he entertains none, — a negative like the in1 2 3
Gledhill v. Hunter, 14 Ch. D. 492, 495. Levy v. Walker, 10 Ch. D. 436, 447. Camberwell Big Soc. v. Holloway, 13 Ch. D. 754, 761. 6 Ch. D. 556, 558.
scriptions of " brave," " intrepid," and " val iant " which the Chinese soldiers bore on their backs, from which their foes never knew that they were " brave " and " valiant" until they ran away. A decision perhaps as illustrative as any of his combative style where even this conventional politeness dis appears was Johnson v. Crook.1 There the question was whether a gift over when the first legatee dies before he shall have " actu ally received " the legacy is operative, though the legacy had vested in the first taker, if not yet paid to him. The Master of the Rolls held that it was. He begins characteristi cally : " The first question I have to decide is what the will means. Then I have to de cide whether or not I am at liberty by law to give effect to the -will as it stands. Now, as to the will, I really think, speaking of course of the impression on my mind, there is no doubt whatever. It does not appear to me doubtful that ' actually received ' means ' actually received.' " To a proposi tion thus put denial certainly seems some what difficult. He proceeds : " The only question I have to decide is whether the law will allow effect to be given to this will. Now, there is no statute law or common law to prevent. If there is any law to prevent it, it must be found in some law manufac tured by the judges of the equity juris diction. This will is clearly expressed. Uncertainty, in my opinion, there is none; difficulty in ascertainment there is none; general policy there is none." Certainly this is no " uncertain sound." But we might be curious to inquire why so much energy in a perfectly clear case? Unhap pily it appears that, like the eleven obstinate jurymen, most of the equity judges, includ ing ex-Chancellor Selborne, thought the other way; and the Master of the Rolls proceeds to pay his compliments to them very much as Mr. Samuel Weller did to the constabu lary of Ipswich, who were obeying the be hests of Mr. Nupkins, the mayor. " If there is such a law, it must have been made about 112 Ch D. 439.
