CORRESPONDENCE
| Published date | 01 January 1954 |
| Date | 01 January 1954 |
| Author | R. Borregaard |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb02145.x |
56
THE MODERN LAW REVIEW
VOL.
17
Perhaps the best estimate that one can make is that if a suitable
case were taken to the House of Lords today, there would be even
chances that the House would overrule
Chatterton’s
case and lay
down rules similar to those recognised by the Supreme Court
of
the
United States.
J.
MILNES
HOLDEN.”
interlocutory remarks, which were many and apparently unpremeditated, Lord
Esher was prone to be most inexact in his use
of
language. Notwithstanding,
then, the aberration in
Chatterton
v.
London and County Bank,
no lawyer
will have much daculty in concluding that the English law
as
to entries in
a
pass book is identical with the American decisions; that there is a duty on
the customer to inspect his pass book, and that entries in
a
pass book com-
municated to
a
customer are in the nature of an account stated, which may be
impugned by the customer on the ground either of mistake or fraud, but
which raise a prima facie case against the customer and put
on
him the onus
of displacing them
”
:
Negligence in Law,
3rd ed. (1908),,gp. 1277.
all rather startling
and shocking some things which come as
a
severe shock to my sincere admiration for him
”
:
Journal
of
the Institute
of
Bankers,
Vol. XXIV (1903), pp. 281-2.
Paget said,:hat the decision in
Chatterton’s
,pase was
and that Lord Esher had said
*
Dr.
J.
Milnes Holden, u.B.,
PH.D.,
A.I.B., is
a
practising barrister.
CORRESPONDENCE
To
the Editor of the
Modern
Law
Review.
SIR,
Tactical Irritation
of
Tenants
16
M.L.R.
522
May
I
suggest that
it
is not necessary to grope among the niceties
of
eviction, trespass and nuisance in order to find
a
suitable cause of action for
such
a
case
as
Perera
v.
Vannliyar
[1953] 1
W.L.R.
672,
C.A.; and that, while
New Zealand and other Commonwealth countries’ authorities may and should
be adduced on occasions, on this particular occasion resort should have been
had to history rather than to geography.
The cause of action which
I
have in mind is derogation from grant.
In
Bim*ngham, etc., Banking Corporation
v.
Ross
(1888) 38
Ch.D.
295,
C.A.,
Bowen
L.J.
described the maxim that a grantor shall not derogate from his
grant as
“
really as old,
I
will not say as the hills, but
as
old as the Year Books,
and
a
great deal older.” In support of the proposition that the maxim
applied to the facts before the court, reference could have been made to such
decisions as
Grosvenor Hotel
Go.
v.
Hamilton
[l894]
2
Q.B.
836,
C.A., and
Aldin
v.
Latirner
Clark,
Muirhmd
&
Co.
[1894]
2
Ch.
637.
The conduct
of
the defendant landlords in those cases was egoistical and callous rather than
cruel and wicked, most reprehensible, or malicious (such being the descrip-
tions applied by Evershed M.R., Birkett
L.J.
and Ro.mer
L.J.,
respectively),
but if an award
of
exemplajr damages was to be made and upheld, clearly
derogation from grant would have been
a
better basis than breach of contract.
It
may possibly be arguable whether the maxim confers a benefit to which
a
statutory tenant becomes entitled: but the reports of
Perera
v.
Vandiyar
are more consistent with the plaintiff having been
a
contractual tenant at
the time of the irritation, to which he appears to have reacted by barking
up
several wrong trees.
R.
BORREQAABD.
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