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E. T. 1860. Flood (a), the Court of Queen's Bench, and in Bewley v. Haugh. Exchequer. ton (b), Baron Pennefather upheld a general avowry by a landlord, for rent in arrear, under the 25 G. 2, c. 13, not containing any averment of compliance with the 9 & 10 Vic., c. 111, s. 10, on the ground that the statute did not, as to the privilege of pleading by a general avowry, repeal the former statute. In the case before us the avowry cannot be maintained under the statute 25 G. 2, c. 13, and must be supported, if at all, at Common Law.

Two questions arise: first, shall we follow the decision of the Common Pleas, if it applies? secondly, does it apply? I take them in that order, as the most convenient. First, I think we are bound by the decision of that Court, if it applies. Two Judges of the Court of Queen's Bench have already referred to it as an authority; a third did not deny it; the fourth did not profess (as I collect) to overrule it. It appears to me that Mr. Justice Crampton's judgment in Spratt v. Murphy gives the most satisfactory reasons for his opinions on this point. I think, with him, that this is a case in which we ought to defer to the judgment of a Court of co-ordinate jurisdiction. Stability and certainty, in the rules which are to regulate suitors and their advisers, are of especial importance in matters of mere procedure, such as this is. It may be well to advert to a few examples, showing, on the one hand, the course adopted by Judges of the highest authority, in so abiding by what has been once solemnly considered and determined, and showing, on the other, the great inconvenience resulting from a different course having been sometimes followed. In Sharpe v. Wagstaffe (c), the Court of Exchequer in England, though plainly dissenting from a decision of the Court of Queen's Bench on the effect of an Act of Parliament, felt themselves bound by that decision, and followed it, expressly on the ground that they were "only a Court of concurrent jurisdiction." The statute 1 & 2 G. 4, c. 78, enacted that the acceptance of a bill of exchange should be treated as a general acceptance, unless it should express that it should be payable at a banker's house, or other place only, and not otherwise or elsewhere. (b) 7 Ir. Com. Law Rep. 283.

(a) 4 Ir. Com. Law Rep. 332.

(c) 3 M. & W. 521.

The Apothecaries Act, 55 G. 3, c. 194.

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Lord Tenterden thought it also clear that this Act did not apply to
a bill made payable, in the body of it, at a particular place; that in
Fayle v. Bird (a), he nonsuited the plaintiff. The judgment of
the Court of Common Pleas, ruling otherwise, in Selby v. Eden (b),
was not then reported. When the case of Fayle v. Bird (c) came
before the Court in Banc, though Lord Tenterden declared that he
"should certainly have doubted whether this case fell within the
statute 1 & 2 G. 4, c. 78, had it not been for the authority cited "
(Selby v. Eden), he nevertheless reversed his own Nisi Prius deci-
sion, and followed that of the Court of Common Pleas, stating as his
reason, that "it is of the highest importance that there should be
“uniformity in the decisions of the several Courts of Westminster
“Hall upon all questions, but especially upon questions affecting ne-
'gociable instruments of this description." Upon this very question,
of general and special acceptances of bills of exchange, a long con-
troversy had for several years subsisted between the Courts of King's
Bench and Common Pleas in England, which caused great uncer-
tainty and inconvenience, which was ultimately terminated by the
decision of the House of Lords in Rowe v. Young; but in the
course of which a practice had prevailed in the accepting of bills
of exchange, rendering necessary the passing of the statute 1 & 2
G. 4, c. 78, which enacted the reverse of what Rowe v. Young
had decided; and upon this statute, and on the very points of the
judgments in Selby v. Eden and Fayle v. Bird, a new controversy
arose, and continued to exist for several years, in consequence of
the decision of the Court of Exchequer in Ireland in Roach v.
Johnston (d). In that case, this Court pronounced a judgment
professing, expressly, to overrule Selby v. Eden and Fayle v.
Bird. The result was, that for a series of years the law affecting
the acceptances of bills of exchange was administered according
to two distinct rules, operating, so far as they were applied, as
two distinct laws, directly opposed to each other, on the one side
by the Courts in England, on the other side by the Court of

(a) 2 Car. & Payne, 303.

(b) 3 Bing 611; S. C., 11 Moore, 511.
(c) 6 Barn. & Cress. 531; S. C., 9 D. & Ryl. 639.
(d) Hayes & Jones, 246.

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following the English decisions, determined in Davis v. O'Hara (a) in direct opposition to the judgment of this Court in Roach v. Johnston. The controversy was not closed until the year 1848. It appeared to be a mischief hardly tolerable in a commercial community, to live under what were substantially two opposite and conflicting laws, affecting the same subject-matter, and applied to that subject-matter according as the suitor chanced or chose to proceed in one Court or in the other. In 1848, fifteen years after the decision in Roach v. Johnston, the other Members of the Court concurred with me in opinion, that the time had come for redressing this mischief, by yielding to the opposing authorities in England and in Ireland; and this was done by our judgment in Elliott v. Fiely (b). We there overruled Roach v. Johnston, and followed the English authorities, although the majority of the Members of the Court (including myself) still dissented from the original judgment in Selby v. Eden. We all remember the inconveniences resulting from the difference in practice between the Courts of Queen's Bench and Exchequer in this country, in ejectments for non-payment of rent; this Court holding the affidavit of service to be part of the plaintiff's title; the Court of Queen's Bench holding differently; and the one Court nonsuiting in exactly the same circumstances in which the other directed a verdict for the plaintiff. A similar state of things existed during the controversy, as to the right of a plaintiff to maintain ejectment for non-payment of rent, without a legal reversion, between the Court of Queen's Bench, acting in conformity with its judgment in Lessee of Fawcett v. Hall (c), and this Court, abiding by its opposite decision in Lessee of Walsh v. Feely (d); a controversy which was at last terminated by the concurrence of this Court with the Court of Queen's Bench in Lessee of Porter v. French (e): and there is now a very inconvenient difference between this Court and the other two Courts of Law, on a matter so small as the form of an affidavit to

(a) 5 Ir. Law Rep. 337.

(c) Alc. & Nap. 248.

(b) 10 Ir. Law Rep. 485.
(d) I Jones, 413.

(e) 9 Ir. Law Rep. 514.

be used in obtaining an order for security for costs; so that the same Judge, sitting in Vacation to hear motions for all the Courts, determines differently, upon facts precisely similar, according to the Court in which the action happens to be pending. I have taken this opportunity of stating, once for all, some of my reasons for the almost unconquerable reluctance which I feel, which I have long felt, which I have often expressed from this Bench, and which I believe will govern me as long as I have a seat on it, to deciding, even in accordance with my own strong opinions, against a judgment once deliberately pronounced by a Court of competent authority. I speak not of mere dicta, to which, I own, I pay little regard. They are not unfrequently loosely worded and imperfectly understood. They are very liable to be inaccurately reported, in reference to the discussion by which they are elicited; and they are for the most part used for discussion only, and not for judgment. Neither do I speak of cases in which the law casts upon the Judge, or the Court, the obligation of applying a discretion to particular circumstances in which the suitor is entitled to require the exercise of that discretion, and in reference to which previous exercises of similar discretion afford very imperfect guidance. I speak of a decision deliberately made, after argument and consideration, on a question clearly raised for judgment. Uncertainty must exist, to some extent, in the exposition of all human laws. Few subjects can be presented to different minds without suggesting different views; and cases will from time to time arise, in which hasty rules will be reviewed by co-ordinate tribunals. I believe these cases ought to be rare exceptions. I am sure that uncertainty—a great evil in jurisprudence-would be materially diminished, if the members of every tribunal were influenced by disposition rather to regard with acquiescence, than to scan with criticism, the decisions of other Judges. Although, therefore, I were disposed to differ from the judgment of the Court of Common Pleas in Madden v. Bryan, I should still, until it should be reversed by the proper tribunal (a Court of Error), defer to it as an authority. But I am not, as at present advised, disposed to dissent from that decision.

It is founded on the very intelligible proposition

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E. T. 1860. that the rule of pleading laid down in Stephen on PleadExchequer. ing, 4th ed., p. 402, in reference to acts "valid at Common Law, but regulated as to the mode of performance by statute," only applies where the statutable requisites are comprised in, and could be proved under, the Common Law allegation. This cannot be said of the word "distrain," which does not necessarily import a distraining according to law. If the rule referred to applied to such a case as Madden v. Bryan, then the question of compliance or non-compliance with the requisites of the statute would be open upon a mere traverse, stating "that the defendant did not distrain," and there would be no necessity for one party to allege compliance, or for the other party to allege non-compliance, with those requisites. So applied, this would be a very inconvenient rule of pleading; for it would expose a defendant to the difficulty of going to trial without knowing whether what the plaintiff relied on was, that there was in fact no distress at all, or that the distress was made in contravention of the provisions of the Act of Parliament. I may observe that the rule referred to in Stephen on Pleading, p. 403, 4th ed., is laid down in somewhat different terms (more limited and guarded) in 1 Wms. Saund., p. 277 A, n. (2) ; p. 211 n. (2); p. 276 n. (1). It is there stated as founded on the Anonymous decision in 2 Salk., p. 519; which is in nearly the same terms as that in Birch v. Bellamy (a), and is (as the Lord Chief Justice says in Madden v. Bryan) probably only another version of the same case. According to those authorities, the rule applies where, at Common Law, a matter might have been lawfully done by parol; but where a statute, altering the Common Law, requires that matter to be done in writing, or requires, in reference to it, a writing, as evidence of what is done, there the Common Law allegation describes the thing as having been done, without stating whether it was or was not done by parol. The same allegation, with equal truth, describes the thing as having been done, whether it was or was not done in writing, or whether it is or is not evidenced by a writing. The Common Law allegation, therefore, lets in no proof of either; and the question, whether or not it was done lawfully under the statute, arises upon the evidence. Serjeant Stephens

(a) 12 Mod. 540.

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