Odger's English Common Law

CONFLICTING CASES. 67
decision before him, and then contrast them with the essential
facts of the case on which he is advising. To test whether
a fact is or is not essential he must ask himself, Would the
case be decided otherwise if this fact were absent ?
Having thus ascertained from each decision separately the
principle which governed it, his next step is to contrast each
of these decisions with others bearing on the same point.
But it sometimes happens that the decisions seem to be in
conflict. Often this conflict is apparent rather than real ; on
investigation it will be found that the essential facts of the
two cases are not identical ; hence decisions, which are
apparently in conflict, will often be reconciled as soon as one
ascertains on what facts they respectively depend. The first
case may be on one side of a border line, and the second on
the other. One case, for instance, may refer to a compulsory
and the other to a voluntary liquidation ; or in one case
the female defendant may have been married before January
1st, 1883, and in the other after that date ; and so any
apparent discrepancy disappears.
But if the conflicting cases cannot be thus distinguished,
the practitioner is face to face with this difficulty : different
Courts, when dealing with identically the same facts, have
laid down different rules of law. Even for this calamity
well-known rules of practice have been provided. " There is
no statute or common law rule by which one Court is bound
to abide by the decision of another of equal rank ; it does so
simply from what may be called the comity among judges.
In the same way there is no common law or statutory rule to
oblige a Court to bow to its own decisions ; it does so again
on the ground of judicial comity." * This so-called comity
has, however, been formulated into rules which, though
unwritten, are habitually followed by our Courts.
The most recent decision of the House of Lords on any
point is binding on all Courts of inferior rank. It is also
binding on the House of Lords itself. This is so, even
although on the former occasion the House was equally
i Per Brett, M. B., in The Vera Crux (No. 2) (1884), 9 P. D. at p. 98.
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