In Bank of New South Wales v. Piper, 1897, A.C., Sir Richard Couch, in delivering judgment, says at page 388:

"It is to be observed that in the first part of S. 7, which relates to the sale of delivery of wool that is under a lien, the words 'with a view to defraud' are introduced as an essential quality of the offence; but in the part of the section which relates to the sale and disposition of sheep or cattle that have been mortgaged these words are omitted. This cannot be considered to be an unintentional omission unless it is shown to be so by the context of the section. Their Lordships do not see any ground for construing the section as if the words with a view to defraud' had been inserted in this part of it. They cannot alter the offence created by the Statute by the introduction of words which the Legislature has omitted." In Regina v. Hunt, 6 Q.B., at page 412, Erle J. said:

"I had been for some time in hopes that I might find language to express this meaning, but it is impossible to do so without inserting words in the section; for it is enacted that his decision on the reasonableness as well as the legality of the charges shall be final,' and not that his decision on the reasonableness shall be made in the same manner as on the legality of the charges. Neither can I read 'final' as meaning 'final unless appealed against.' Probably that was the object of the Legislature; but it cannot be done without reforming the words of the Statute; and therefore I agree that this rule must be discharged."

The decisions of the Courts of highest authority therefore make it clear that the Court erred in coming to the conclusion that the enactment that the decision of the Supreme Court was to be final and conclusive on all parties was to be considered as subject to the right of appeal, although the Statute itself provides no such limitation. These decisions are, of course, binding on both the Court of Appeal and myself. In fact, the Privy Council declared in Trimble v. Hill, 5 A.C. 344, that it was the duty of the Colonial Court of Appeal to follow the decision of the English Court of Appeal in preference to its own former decision where they came in conflict, which admonition has been followed by the Court of Appeal for Ontario, e.g., Mason v. Johnson, 20 A.R. 414. See, also Hollenden v. Foulkes, 26 O.R. 61. A fortiori it is my duty to follow and apply the decisions of the highest courts of judicature in preference to those of the local Court of Appeal where they are in conflict.

It is not enough, however, merely to say that the Court had no jurisdiction. An order of a Court made without jurisdiction may be void only if and when it is set aside and declared void by a higher tribunal, as, for instance, where the jurisdiction was conditional on the existence of certain facts or on certain proceedings being taken. Decisions made when the conditions necessary to the existence of jurisdiction did not exist are not necessarily void, especially where the complaining party might have brought the true position to the attention of the Court and failed to do so. But there is vital distinction between a case where there is a limited or conditional jurisdiction to do a judicial act and the case where, as in this case, there is no jurisdiction o do it under any circumstances. In the latter case it is void in the

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absolute sense and is just as inoperative for any purpose as if it had never been pronounced. It can establish no right or impose any obligation. It affords no protection to anyone who acts under it. It is, in short, a nullity and, as Chancellor Boyd said in McLeod v. Noble, 28 O.R. 528, of an injunction which had been issued out of the High Court of Justice with no jurisdiction to do so, a thing of naught which cannot be disobeyed."

Before taking the step which I am of the opinion I am forced to take, I may say that I have also considered whether or not I should adjourn the matter in order to enable the defendant, with the consent of the Crown, to make another application to the Court of Appeal to reconsider its decision as to its jurisdiction, or, if that were impracticable, then by way of Order of Reference.

But one difficulty is that the Court affirmed its jurisdiction on at least two if not three different occasions, although, as already pointed out, the former cases did not conclude the Court in the present case. The other difficulty is that two of the learned judges have already expressed themselves in the present case as opposed to the reconsideration of the question. In fact, Mr. Justice Martin said in objecting to rehearing the question of the Courts' jurisdiction in the present case:

"I, for one, do not propose to say that I sit here at the beginning of this term and make a ruling which sends one man to the penitentiary and later on in this term or the first of next term to make another which frees another man guilty of exactly the same offence from the same consequences. I give on these questions one ruling once and for all."

And in his judgment referred to Velesky, Ltd., v. Inland Revenue Commissioner, 1914, 3 K.B., 458. With all deference, I am unable to see the justice of sending more men to prison because one man has already been wrongly sent there, nor am I able to see the relevancy of the case cited. It was a taxation case, and examination of it shows that the ground on which the English Court of Appeal refused to overrule their former decision was that that decision had been brought to the attention of the House of Lords on the argument in a similar case and that, as that tribunal did not disapprove of it, it was not for them to unsettle the law.

As a matter of fact, the highest tribunals do not hesitate to overrule their former decisions and those of co-ordinate courts, whenever they consider it right, and to show that that is so it may not be amiss to cite the following instances:

In a case involving the question of the legislative power to imprison for contempt, the Privy Council in Kielley v. Carson, 4 Moore P.C. 63 overrule Beaumont and Barrett, 1 M.P.C. 59, Baron Parke delivering both judgments.

In Sidney v. Bourke it overruled Bathurst v. McPherson, 4 A.C. 256, on the question of the distinction between misfeasance and nonfeasance.

The United States Supreme Court has frequently overruled former decisions of its own, as, for instance, Leisy v. Hardin, 135 U.S. 100, overruled Pierse v. New Hampshire, 5 Howard 504, although that decision was the result of full consideration and was the law for forty years. In Telghman v. Proctor, 102 U.S. 707, it

671 overruled Mitchell v. Telghman, 19 Wall 287, although the validity of the same patent was in issue in both suits and the patentee was a party to both. In Killbourne v. Thompson, 103 U.S. 168, they overruled Anderson v. Dunn, 6 Wheaton 204, on the question of the authority of Congress to commit for contempt. In the English Court of Appeal in re Dewhirst's Trusts, 33 Ch. D. 419, Cotton, Lindley and Lopes, L.JJ., overruled the decision of a former Court of Appeal consisting of James, Baggallay and Brett, L.JJ., in Re Dalgleish, 4 Ch. D. 143, which had been followed by Jessel, M.R., in Re Crowe, 14 Ch. D. 304. In Fowler v. Barstow, 20 Ch. D. 240, they overruled their former decision in Great Australian Gold Mining Company v. Martin, 5 Ch. D., on one point. In Re Hallett's Estate, 13 Ch. D. 696, they overruled the decision of the Court in Pennell v. Deffell, 4 D.M. & G. 372, on one point. In The Bernina, 12 P.D. 58, they overruled the decision of Thorogood v. Bryan, 8 C.B., 115. The Divisional Court in Bowen v. Anderson (1894), 1 Q.B. 164, overruled its former decision in Sandford v. Clarke, 21 Q.B.C. 398, on a question of law. In Fortescue v. Vestry of St. Matthew (1891), 2 Q.B. 170, they overruled Vestry of St. Mary v. Goodman, 23 Q.B.D. 154. And on the hearing of the appeal the learned Chief Justice said:

"We have on one or two occasions overruled decisions of the full Court. In Re Tiderington (1912), 17 B.C. 81; in Re Rahim (1912), 17 B.C., 276, in which the Court, consisting of Irving, Martin and Galliher, JJ.A., and myself, overruled the decision of the full Court in Ikezoya v. C.P.R. (1907), 12 B.C. 454, Irving, J.A., dissenting.

Of course, in considering whether a former decision should be overruled, the Court has always to decide whether the principle of stare decisis or that error should be perpetuated is to prevail, and the principle clearly is that the Court should in each case consider whether it would be less mischievous to adhere to the error and leave it to be corrected by some higher authority or to correct the error. I venture to think that it is less mischievous to refrain from sending men to prison without the authority of law than it is to keep on doing so out of deference to an erroneous view of the law.

To sum up the matter, in view of what has taken place, I do not think that I can reasonably require the defendant to make another application to the Court of Appeal to reconsider its decision on the question of its jurisdiction, and therefore I have no alternative but to express my own opinion as to the legality of his imprisonment, and, indeed, I am required to do so on an app'ication for a writ of habeas corpus, as pointed out by the House of Lords in Cox v. Hakes, 15 A.C. 506.

The only conclusion I can come to is that the decision of the Court of Appeal in the present case, by which it assumed to set aside my order, was the result of a series of misconceptions and must be regarded as having been given per incuriam, especially as the principles laid down by the Privy Council in relation to the interpretation of the Statutes were evidently not brought to their attention. If that is so, there is high authority for saying that a decision given