The Meaning of “Pek Incuriam”

Publication Date01 Nov 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00329.x
AuthorD. G. Valentine
602
THE
MODERN LAW REVIEW
VOL.
IS
of the close, and therefore greater in extent that the ones claimed
in
counts
one and four of the present action, there existed the
doubt whether
in
proving the larger easement the plaintiffs had
proved the lesser.
It
was held that there was nothing objection-
able to this on the grounds of variance, as the larger easement of
necessity included the lesser.
On this decision, Danckwerts
J.
comments:
If
the four
judges comprising the court had thought that the original grant
and the evidence of user had disclosed an attempt to impose on
the land a right not recognised by the law as an easement the
plaintiff’s case must have failed.” Further the learned judge
pointed out that this case was not cited in
International Tea Stores
v.
Hobbs
119031
2
Ch.
165
so
that he throws doubt on some of the
dicta of Farwell
J.
in that case and does not follow them.
It
is
on the authority of these two cases that Danckwerts
J.
felt himself
obliged to hold that a right to walk about, to sit down and possibly
to picnic can exist as a legal easement.
This
learned judgment will of necessity,
it
is felt, cause a
flutter among the footnotes and a reappraisal of accepted notions.
This is indeed no bad thing; yet one can only judge for oneself
whether adequate authority has been advanced for the upheaval.
D.
G.
VALENTINE.
THE
MEANING
OF
PER
INCURIAM
IN
Morelle Ltd.
v.
Wakeling
[1955]
2
W.L.R.
672;
[1955]
1
All
E.R.
708,
the Court of Appeal was asked to consider the meaning
of the words
per incuriam.”
It
will be remembered that
it
was
held in
Young
v.
Bristol Aeroplane
Co.
Ltd.
[l944]
K.B.
718
that
the Court of Appeal was bound to follow its own previous decisions,
and those of courts
of
co-ordinate jurisdiction except where the
court must choose between its own conflicting decisions
or
where
a case, although not expressly overruled, cannot stand with a
decision of the House of Lords, and finally where the court is
satisfied that its decision was given
per incuriam.
In the present action a limited company registered in Eire,
but neither incorporated nor registered under the Companies Acts
and having no place
of
business in this country, had accepted the
transfer of the residue of a lease for a term of years of a dwelling-
house and was seeking to sue the sub-tenants for rent that had
become due after the date of this transfer. The sub-tenants
contested this claim mainly on the ground that as the company
had not obtained a licence from the Crown in mortmain, the lease
was forfeit by virtue of section
1
of the Mortmain and Charitable
Uses Act,
1888.
This contention was based on the strength of
Morelle
v.
Waterworth
119551
1
Q.B.
1,
a case decided only a
few months previously by the Court of Appeal, holding that
the

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