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	England and Wales High Court (Exchequer Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Exchequer Court) Decisions >> Wood v Leadbitter [1845] EWHC Exch J83 (22 February 1845) URL: http://www.bailii.org/ew/cases/EWHC/Exch/1845/J83.html Cite as: (1845) 13 M & W 838, 153 ER 351, [1845] EWHC Exch J83

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IN THE COURT OF EXCHEQUER

		22 February 1845

Trespass for assault and false imprisonment. Plea, that, at the time of the said supposed trespass, the plaintiff was in a certain close of the Earl of Eglintoun, and that the defendant, as the servant of Lord Eglintoun, and by his command, gently laid his hands upon the plaintiff, in order to remove him from the said close, using no unnecessary violence in so doing, which is the same supposed trespass in the declaration mentioned, etc. Replication, that, at the time of the said removal, the plaintiff was in the said close by the leave and license of Lord Eglintoun. Rejoinder, traversing the leave and license, and issue thereon.

At the trial, before Rolfe, B., at the Middlesex Sittings after last Trinity Term, the facts appeared to be these: The Earl of Eglintoun was steward of the Doncaster races, 1843. Tickets for admission to the Grand Stand, which were issued under the authority of the stewards, were sold in the town for a guinea each, and it was understood that they entitled the holders to come into the stand, and the inclosure surrounding it, during every day of the races, which lasted four days. The plaintiff purchased one of these tickets, and came into the inclosure on one of the race days; and while the races were going on, the defendant, who was an officer of police, by the order of Lord Eglintoun, desired him to go out of the inclosure, (in consequence of some alleged malpractices of his on a former occasion, connected with the turf), telling him that if he did not do so, force would be used to turn him out. The plaintiff refused to depart, whereupon the defendant, by the order of Lord Eglintoun, took him by the armaand forced him out, using no unnecessary violence.

The learned Judge directed the jury, that, assuming the ticket to have been sold to the plaintiff under the sanction of Lord Eglintoun, it still was lawful for Lord Eglintoun, without returning the guinea, and without assigning any reason, to order the plaintiff to quit the inclosure, which, on this record, was admitted to be his property; and that, if the jury were satisfied that notice was given to the plaintiff, requiring him to quit the ground, and that, before he was forcibly removed by the defendant, a reasonable time had elapsed during which he might have gone away voluntarily, then the plaintiff was not, at the time of the removal, on the ground by the leave and license of Lord Eglintoun. Upon this direction, the jury found a verdict for the defendant on this issue.

In Michaelmas Term, Jervis obtained a rule nisi for a new trial, on the ground of misdirection; contending, that, under the circumstances, the license to come into the inclosure during the races, given upon the purchase of the ticket, was not revocable during the races, or, at all events, not without returning the price of the ticket, and therefore that the plaintiff remained there, at the time of the trespass, by the leave and license of Lord Eglintoun. In Hilary Term, (Jan. 17th), cause was shewn against the rule by

Kelly, Wortley, Martin, and Peacock; and on subsequent days (Jan. 18th and 21st)

Jervis, Humfrey, and Petersdorff were heard in support of the rule.

The arguments and authorities are so fully stated and considered in the judgment, that it appears to be unnecessary to report them in detail. The following authorities were referred to and commented on: Termes de la Ley, title "Easement"; Gale and Whatley on Easements, 18, 33; Bro. Abr., Licences, pl. 9, 15; Co. Litt. 9 b.; 2 Bla, Comm. 20; Shep. Touchst. 231; Com. Dig., Pleader, (3 M,), 42; Duchess of Suffolk's case, 13 H. 7, f. 13; Webb v. Paternoster (2 Roll. Rep. 143, 152; Poph. 151; Palmer, 71; Godb. 282; S. C. nom. Plumer v. Webb, Noy, 98), Hoskins v. Robbins (2 Ventr. 123, 163), Bradley v. Gill (1 Lutw. 69), Wood v. Lake (Sayer, 3), Dennett v. Grover (Willes, 195), Mayor of Northampton v. Ward (1 Wils. 107; 2 Str. 1238), Buckeridge v. Ingram (2 Ves. jun. 652), Fentiman v. Smith (4 East, 107), Winter v. Brockwell (8 East, 308), Doe d. Foley v. Wilson (11 East, 56), Clifford v. Brandon (2 Camp. 358), Ditcham v. Bond (3 Camp. 524), Tayler v. Waters (7 Taunt. 374), Rex v. Hagworthingham (1 B. & Cr. 634; 3 D. & R. 16), Hewlins v. Shippam (5 B. & C. 222; 7 D. & R. 783), Bryan v. Whistler (8 B. & C. 288; 2 Man. & R. 318), Liggins v. Inge (7 Bing. 682; 5 M. & P. 712), Cocker v. Cowper (1 C. M. & R. 418), Carrington v. Boots (2 M. & W. 248), Bridges v. Blanchard (1 Ad. & Ell. 536; 4 Ad. & Ell. 176), Bird v. Higginson (2 Ad. & Ell. 696; 6 Ad. & Ell. 824), Wallis v. Harrison (4 M. & W. 538), Thomas v. Marsh (5 C. & P. 596), Williams v. Morris (8 M. & W. 488), Wood v. Manley (11 Ad. & Ell. 34; 3 Per. & D. 5).

Cur. adv. vult.

The judgment of the Court was now delivered by

ALDERSON, B. This was an action tried before my Brother Rolfe at the sittings after last Trinity Term. It was an action for an assault and false imprisonment. The plea (on which alone any question arose) was, that at the time of the alleged trespass the plaintiff was in a certain close of Lord Eglintoun, and the defendant, as the servant of Lord Eglintoun, and by his command, laid his hands upon the plaintiff in order to remove him from the said close, using no unnecessary violence. Replication, that, at the time of such removal, the plaintiff was in the said close by the leave and license of Lord Eglintoun. The leave and license was traversed by the defendant, and issue was joined on that traverse. On the trial it appeared that the place from which the plaintiff was removed by the defendant was the inclosure attached to and surrounding the great stand on the Doncaster race-course; that Lord Eglintoun was steward of the races there in the year 1843; that tickets were sold in the town of Doncaster at one guinea each, which were understood to entitle the holders to come into the stand, and the inclosure surrounding it, and to remain there every day during the races. These tickets were not signed by Lord Eglintoun, but it must be assumed that they were issued with his privity. It further appeared, that the plaintiff, having purchased one of these tickets, came to the stand during the races of the year 1843, and was there or in the inclosure while the races were going on, and while there, and during the races, the defendant, by the order of Lord Eglintoun, desired him to depart, and gave him notice that if he did not go away, force would be used to turn him out. It must be assumed that the plaintiff had in no respect misconducted himself, and that, if he had not been required to depart, his coming upon and remaining in the inclosure would have been an act justified by his purchase of the ticket. The plaintiff refused to go, and thereupon the defendant, by order of Lord Eglintoun, forced him out, without returning the guinea, using no unnecessary violence.

My Brother Rolfe, in directing the jury, told them, that, even assuming the ticket to have been sold to the plaintiff under the sanction of Lord Eglintoun, still it was lawful for Lord Eglintoun, without returning the guinea, and without assigning any reason for what he did, to order the plaintiff to quit the inclosure, and that, if the jury were satisfied that notice was given by Lord Eglintoun to the plaintiff, requiring him to quit the ground, and that, before he was forcibly removed by the defendant, a reasonable time had elapsed, during which he might conveniently have gone away, then the plaintiff was not, at the time of the removal, on the place in question by the leave and license of Lord Eglintoun. On this direction the jury found a verdict for the defendant. In last Michaelmas term, Mr. Jervis obtained a rule nisi to set aside the verdict for misdirection, on the ground, that, under the circumstances, Lord Eglintoun must be taken to have given the plaintiff leave to come into and remain in the inclosure during the races; that such leave was not revocable, at all events without returning the guinea; and so that, as the time of the removal, the plaintiff was in the inclosure by the leave and license of Lord Eglintoun. Cause was shewn during last term, and the question was argued before my Brothers Parke and Rolfe and myself; and on account of the conflicting authorities cited in the argument, we took time to consider our judgment, which we are now prepared to deliver.

That no incorporeal inheritance affecting land can either be created or transferred otherwise than by deed, is a proposition so well established, that it would be mere pedantry to cite authorities in its support. All such inheritances are said emphatically to lie in grant, and not in livery, and to pass by mere delivering of the deed. In all the authorities and text-books on the subject, a deed is always stated or assumed to be indispensably requisite.

And although the older authorities speak of incorporeal inheritances, yet there is no doubt but that the principle does not depend on the quality of interest granted or transferred, but on the nature of the subject-matter: a right of common, for instance, which is a profit a prendre, or a right of way, which is an easement, or right in nature of an easement, can no more be granted or conveyed for life or for years without a deed, than in fee simple. Now, in the present case, the right claimed by the plaintiff is a right, during a portion of each day, for a limited number of days, to pass into and through and to remain in a certain close belonging to Lord Eglintoun; to go and remain where if he went and remained, he would, but for the ticket, be a trespasser. This is a right affecting land at least as obviously and extensively as a right of way over the land,-it is a right of way and something more: and if we had to decide this case on general principles only, and independently of authority, it would appear to us perfectly clear that no such right can be created otherwise than by deed. The plaintiff, however, in this case argues, that he is not driven to claim the right in question strictly as grantee. He contends, that, without any grant from Lord Eglintoun, he had license from him to be in the close in question at the time when he was turned out, and that such license was, under the circumstances, irrevocable. And for this he relies mainly on four cases, which he considers to be expressly in point for him, viz. Webb v. Paternoster, reported in five different books, namely, Palmer, 71; Roll. 143 and 152; Noy, 98; Popham, 151, and Godbolt, 282; Wood v. Lake (Sayer, 3), Tayler v. Waters (7 Taunt. 374), and Wood v. Manley (11 Ad. & E. 34; 3 Per. & D. 5).

As the argument of the plaintiff rested almost entirely on the authority of these four cases, it is very important to look to them minutely, in order to see the exact points which they severally decided.

Before, however, we proceed to this investigation, it may be convenient to consider the nature of a license, and what are its legal incidents. And, for this purpose, we cannot do better than refer to Lord C. J. Vaughan's elaborate judgment in the case of Thomas v. Sorrell, as it appears in his Reports. The question there was as to the right of the Crown to dispense with certain statutes regulating the sale of wine, and to license the Vintners' Company to do certain acts notwithstanding those statutes.

In the course of his judgment the Chief Justice says (Vaughan, 351), "A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after -to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten, and in the wood burnt. So as in some cases, by consequent and not directly, and as its effect, a dispensation or license may destroy and alter property."

Now, attending to this passage, in conjunction with the title "License" in Brooke's Abridgment, from which, and particularly from paragraph 15, it appears that a license is in its nature revocable, we have before us the whole principle of the law on this subject. A mere license is revocable: but that which is called a license is often some-[845] thing more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident.

It may further be observed, that a license under seal (provided it be a mere license) is as revocable as a license by parol; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the license is a mere license; it is not an incident to a valid grant, and it is therefore revocable. Thus, a license by A to hunt in his park, whether given by deed or by parol, is revocable; it merely renders the act of hunting lawful, which, without the license, would have been unlawful. If the license be, as put by Chief Justice Vaughan, a license not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a license annexed to come on the land: and supposing the grant of the deer to be good, then the license would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol license to come on my lands, and there to make a watercourse, to flow on the land of the licensee. In such a case there is no valid grant of the watercourse, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the license would be irrevocable.

Having premised these remarks on the general doctrine, we will proceed to consider the four cases relied on by Mr. Jervis for the plaintiff. The first was Webb v. Paternoster. That, as appears from the report in Rolle, was an action of trespass, brought against the defendant for eating, by the mouths of his cattle, the plaintiff's hay. The defendant justified under Sir William Plummer, the owner of the fee of the close in which the hay was, averring that Sir W. Plummer leased the close to him, and therefore, as lessee, he turned his cattle into the close, and they ate the hay. The plaintiff replied, that, before the making of the lease, Sir W. Plummer had licensed him to place the hay on the close till he could conveniently sell it, and that, before he could conveniently sell it, Sir W. Plummer leased the land to the defendant. The defendant demurred to the replication.

From the arguments, as given in Rolle, it appears that the plaintiff's counsel, who was first heard, contended, first, that the license, being a license for profit, and not merely for pleasure, and being also for a certain time only, namely, till he could sell his hay, was not revocable: and, secondly, even if the license was revocable, still that the lease to the defendant was an implied, and not an express revocation, and therefore was inoperative against him without notice? and for this he referred to Mallory's case (5 Rep. 111). To this latter proposition the Court appears to have assented; but Dodderidge, J., suggested, that, even if the license was in force, still the licenser did not by such a license preclude himself, nor, consequently, his tenant, from turning cattle on the land, and that the licensee ought to have taken care to protect the hay from the cattle. As to this, however, the Chief Justice expressed a doubt. The defendant's counsel was heard some days afterwards, and he alleged that it appeared by the record, that the plaintiff had had two years to sell his hay before the defendant's cattle had eaten it; and he argued that the Court would say, as matter of law, that this was more than reasonable time; and to this the Court assented. The plaintiff's counsel, in reply, reverted to the distinction between the license for profit and a license for pleasure; but Dodderidge denied it, and said that a license to dig gravel, though a license for profit, is revocable; and he said that the true distinction was between a mere license, and a license coupled with an interest. Judgment was eventually given for the defendant, on the ground that the plaintiff had had more than reasonable time to sell the hay.

It will be seen, therefore, that the only two points decided were, first, that the question of reasonable time was for the Court, and not for the jury; and, secondly, that two years was more than a reasonable time. The decision, therefore, itself has no bearing on the point for which it was cited; and the only support which the case affords to the doctrine contended for by the present plaintiff is what is said, in the report of the case in Popham, to have been agreed by the Court, namely, that a license for profit for a term certain is not revocable; a proposition to which, with the qualification we have already pointed out, we entirely accede. It is, moreover, by no means certain that the license in Webb v. Paternoster was not a license under seal. The defendant's counsel appears, from the report in Rolle, to speak of the plaintiff as grantee of the liberty to stack hay, etc.; a form of expression not very appropriate, if used in respect of a party who had a mere parol license; and the Chief Justice, according to the report in Popham and Palmer, says that the plaintiff had an interest which charged the land, into whose hands soever it should come. And Dodderidge, J., according to the report in Palmer, arguing that the lessee certainly might turn his cattle into his own field, and was not bound to stop their mouths, says it was folly of the plaintiff that he did not, together with the license, take a covenant that it should be lawful for him to fence the hay with a hedge. From these expressions, (and there are others in the various reports of the case having a similar aspect), it certainly seems possible that the license was under seal; and then the only point would be that which alone was in fact decided, namely, whether, supposing the plaintiff to have acquired by grant a right to stack his hay on the land, for a limited time, that limited time had expired. Even supposing the license to have been a mere parol license, yet the strong probability is, that Webb had purchased the hay from Sir W. Plummer as a growing crop, with liberty to stack it on the land, and then the parol license might be good as a license coupled with an interest. Be this, however, as it may, the decision, as we have already pointed out, has very little, or rather no bearing on the case before us; and the judgment of Dodderidge, J., as given both in Rolle and Palmer, is in strict accordance with what was afterwards laid down by Vaughan, C. J., and which we consider to be consonant both to principle and authority.

The next decision in order of time is that of Wood v. Lake, in Sayer, p. 3. There the defendant had, by a parol agreement, given liberty to the plaintiff to stack coals on the defendant's land for a term of seven years. After the plaintiff had enjoyed this privilege for three years, the defendant locked up the gate of the close. No report is given in Sayer of the arguments at the bar. But from a MS. report of the same case, referred to by Gibbs, C. J., in the case of Tayler v. Waters, and which MS. we have had an opportunity of consulting, through the kindness of the representatives of the late Mr. Justice Burrough,^[1] it appears that the argument turned wholly on the point whether the privilege of stacking the coals did or did not amount to a lease; for if it did, then the defendant contended it was void after three years, under the Statute of Frauds, as not being in writing. Lee, C. J., and Denison, J., held it to be no lease, nor uncertain interest in land; but Foster, J., doubted, and desired time to consider. On the last day of term, the Court gave judgment for the plaintiff, Foster non dissentiente.

Supposing the Court to have been right in deciding that this was not a lease, (which, however, is doubted by Sir E. Sugden, see 1 V. and P., last edit., p. 139), yet no grounds are stated on which it could be held good as an easement originating merely by parol. Up to this case, not a single decision is to be found giving countenance to any such proposition; and we are compelled to say, that, if the Court proceeded on the ground that the plaintiff had acquired the easement by the parol license, we do not think it can be supported. But the case may, perhaps, have been decided on another ground. The defendant himself was the party who had agreed to give the easement to the plaintiff; and although the action is stated to have been an action on the case, it may have been a mere assumpsit -an action on the case on promises; and in such an action the plaintiff would certainly be entitled to recover, if the contract was not (and probably the Court considered it was not) a contract concerning land, within the 4th section of the Statute of Frauds.

The next case on which the plaintiff relies is Tayler v. Waters, reported in 7 Taunt. 374. It was an action by the plaintiff against the door-keeper of the Opera house, for preventing him from entering the house during the performance of an opera. It appeared that one W. Taylor, being in possession of the Opera-house, as lessee for a long term of years, by a deed, dated the 24th of August, 1792, assigned his interest therein to trustees, on various trusts, for creditors and other claimants, and ultimately in trust for himself. After the execution of this deed, Taylor continued in possession by the permission of the trustees, and he carried on and managed the affairs of the theatre. In March, 1799, he, by deed, granted to one Gourgas, for a valuable consideration, six silver tickets, entitling the holders to admission to the theatre. One of these tickets was sold by Gourgas to the plaintiff, in July; 1799, but no deed of assignment to him was executed. In 1800, Taylor's trustees took possession of the theatre. The plaintiff, however, was allowed to attend the theatre, by virtue of his ticket, until the year 1814, when the defendant Waters, as servant of the trustees, prevented him from entering the theatre; and for this obstruction the action was brought. The cause was tried before C. J. Gibbs, and a verdict found for the plaintiff, and that verdict was afterwards upheld by the Court of Common Pleas. The grounds of the judgment were, that the right under the silver ticket was not an interest in land, but a license irrevocable to permit the plaintiff to enjoy certain privileges thereon; that it was not required by the Statute of Frauds to be in writing, and, consequently, might be granted without a deed.

The Chief Justice, in support of that doctrine, relied on Webb v. Paternoster, which, he said, shewed that a beneficial license, to be exercised upon land, might be granted without deed, and could not be countermanded, at least after it had been acted on. The same case, he added, shewed that the interest was not such an interest in land as was required by the Statute of Frauds to be in writing; as to which last point all doubt, if there remained any, had (he said) been removed by the case of Wood v. Lake.

This judgment is stated by the learned reporter to have comprised the substance of the arguments on both sides, and which, therefore, he does not give in his report. We must infer from this that the attention of the Court was not called in the argument to the principles and earlier authorities, to which we have adverted. Brooke, in his Abridgment, Dodderidge, in the case of Webb v. Paternoster, and Lord Ellenborough, in the case of Rex v. Horndon-on-the-Hill (4 M. & Selw. 562), all state in the most distinct manner that every license is and must be in its nature revocable, so long as it is a mere license. Where, indeed, it is connected with a grant, there it may, by ceasing to be a naked license, become irrevocable; but then it is obvious that the grant must exist independently of the license, unless it be a grant capable of being made by parol, or by the instrument giving the license. Now in Taylor v. Waters there was no grant of any right at all, unless such right was conferred by the license itself. C. J. Gibbs gives no reason for saying that the license was a license irrevocable, and we cannot but think that he would have paused before he sanctioned a doctrine so entirely repugnant to principle and to the earlier authorities, if they had been fully brought before the Court. Again, the Chief Justice is represented as saying that the interest of the plaintiff was not an interest in land within the Statute of Frauds, and that consequently it might be granted without deed. How the circumstance, that the interest was not an interest in land within the Statute of Frauds shewed it to be grantable without deed, we cannot discover. The precise point decided in Webb v. Paternoster is not adverted to, and it is assumed, without discussion, that the license there must have been a parol license, and a naked license, unconnected with an interest, capable of being created by parol. The action was not, as it may have been in Wood v. Lake, an action founded on the contract. It was an action on the case for the obstruction, and was founded on the supposition that an actual right to enter and remain in the theatre had vested in the plaintiff, under the license conferred by the silver ticket. With all deference to the high authority from which the judgment in Tayler v. Waters proceeded, we feel warranted in saying that it is to the last degree unsatisfactory; an observation which we have the less hesitation in making, in consequence of its soundness having obviously been doubted by the Court of King's Bench and Mr. Justice Bayley in the case of Hewlins v. Shippam.

The fourth and last case relied on by Mr. Jervis was the recent case of Wood v. Manley, in the Queen's Bench (11 Ad. & E. 34; 3 Per. & D. 5). That was an action for trespass quare clausum fregit: plea, that defendant was possessed of a large quantity of hay being on the plaintiff's close, and that by leave of plaintiff he entered on the close in question to remove it. Replication, de injuria. It was proved at the trial, that the hay in question was sold in January, 1838, by the plaintiffs landlord, who had seized it as a distress for rent. The conditions of the sale were, that the purchaser of the hay might leave it on the close until Lady-day, and might in the meantime come on to the close from time to time, as often as he should see fit, to remove it. These conditions were assented to by the plaintiff. The defendant became the purchaser, and afterwards, and before Lady-day, the plaintiff locked up toe close. The defendant broke open the gate in order to remove the hay. A verdict was found for the defendant, Erskine, J., telling the jury that the license to come from time to time to remove the hay was irrevocable. Mr. Crowder moved to set aside this verdict, on the ground that the license was necessarily revocable, and was in fact revoked. But the Court of Queen's Bench refused to grant a rule, and, we think, quite rightly. This was a case not of a mere license, but of a license coupled with an interest. The hay, by the sale, became the property of the defendant, and the license to remove it became, as in the case of the tree and the deer, put by C. J. Vaughan, irrevocable by the plaintiff; and the rule was properly refused. The case was analogous to that of a man taking my goods, and putting them on his land, in which case I am justified in going on the land and removing them: Vin. Abr. Trespass (H.), a. 2, pl. 12; and Patrick v. Colerick (3 M. & W. 483).

It appears, therefore, that the only authority necessarily supporting the present plaintiff in the proposition for which he is contending, is the case of Tayler v. Waters, in which the real difficulty was not discussed, nor even stated. It was taken for granted, that, if the Statute of Frauds did not apply, a parol license was sufficient, and the necessity of an instrument under seal, by reason of the interest in question being a right in nature of an easement, was by some inadvertence kept entirely out of sight; and for these reasons, even if there had been no conflicting decisions, we should have thought that case to be a very unsafe guide in leading us to a decision, on an occasion where we were called on to lose sight of the ancient landmarks of the common law.

We are not, however, driven to say that we shall disregard that case merely on principle. Giving it the full weight of judicial decision, it is met by several others, which we must entirely disregard, before we can adopt the argument of the plaintiff. In the cases of Fentiman v. Smith (4 East, 107) and Rex v. Horndon-on-the-Hill (4 M. & Sel. 565), which were before Tayler v. Waters, Lord Ellenborough and the Court of King's Bench expressly recognized the doctrine, that a license is no grant, and that it is in its nature necessarily revocable, and the further doctrine, that, in order to confer an incorporeal right, an instrument under seal is essential. And in the elaborate judgment of the Court of King's Bench, given by Bayley, J., in Hewlins v. Shippam (5 B. & C. 222) the necessity of a deed, for creating any incorporeal right affecting land, was expressly recognized, and formed the ground of the decision. It is true that the interest in question in that case was a freehold interest, "and on that ground Bayley, J., suggests that it might be distinguished from Tayler v. Waters; but in an earlier part of that same judgment, he states, conformably to what is the clear law, that, in his opinion, the quantity of interest made no difference; and the distinction is evidently adverted to by him, not because he entertained the opinion that it really was of importance, but only in order to enable him to decide that case without, in terms, saying that he did not consider the case of Tayler v. Waters to be law. The doctrine of Hewlins v. Shippam has since been recognized and acted upon in Bryan v. Whistler (8 B. & C. 288), Cocker v. Cowper (1 C. M. & R. 418), and Wallis v. Harrison (4 M. & W. 538), and it would be impossible for us to adopt the plaintiff's view of the law, without holding all those cases to have been ill decided. It was suggested that, in the present case, a distinction might exist, by reason of the plaintiff's having paid a valuable consideration for the privilege of going on the stand. But this fact makes no difference: whether it may give the plaintiff a right of action against those from whom he purchased the ticket, or those who authorized its being issued and sold to him, is a point not necessary to be discussed; any such action would be founded on a breach of contract, and would not be the result of his having acquired by the ticket a right of going upon the stand, in spite of the owner of the soil; and it is sufficient, on this point, to say, that in several of the cases we have cited, (Hewlins v. Shippam, for instance, and Bryan v. Whistler), the alleged license had been granted for a valuable consideration, but that was not held to make any difference. We do not advert to the cases of Winter v. Brockwell (8 East, 308) and Liggins v. Inge (7 Bing. 682), or other cases ranging themselves in the same category, as they were decided on grounds inapplicable to the case now before us, and were, in fact, admitted not to bear upon it.

In conclusion, we have only to say, that, acting upon the doctrine relative to licenses, as we find it laid down by Brooke, by Mr. Justice Dodderidge, and by C. J. Vaughan, and sanctioned by Hewlins v. Shippam, and the other modern cases proceeding on the same principle, we have come to the conclusion, that the direction given to the jury at the trial was correct, and that this rule must be discharged. Rule discharged.

Note 1   The following is a copy of the report in the MS volume of Mr. Justice Burrough. Case. A parol agreement that the plaintiff should have liberty of laying and stacking of coals upon defendant's close, for seven years. Afterwards, defendant forbids plaintiff to lay any more coals there, and shuts up his gates. Defendant says, that plaintiff was but tenant at will. Quaere, if this was an interest within the description of the Statute of Frauds. Serjeant Booth. This is but a personal license or easement: 1 Roll. Abr. 859, p. 4; Roll. Rep. 143, 152; 1 Saund. 321. A contract for sale of timber growing upon the land has been determined to be out of the statute, 1 Ld. Raym. 182. Vide -the difference of a license and a lease, 1 Lev. 194. This must be taken only as a license, for that the coal-loaders also are to have benefit, as well as plaintiff. Serjeant Poole, for defendant. Question is, if any interest in land passed by the agreement; for, if interest passed, it is within the statute, ergo void, being for longer term than three years: Bro. License, p. 19;Thome v. Seabright, Salk. 24;Webb v. Paternoster, Poph. 151. A license to enter upon and occupy land amounts to a lease. The plaintiff not confined to a particular part of the close, and might have covered the whole if he pleased, on that account it is an uncertain interest. The distinction of license to plaintiff and his coal-loader is nothing; he could not stack the coal himself, and it is merely vague. Easement may be of more value than the inheritance; ex. gr. way-leave. LEE, C. J. If this be a lease, as it is argued, it is within the statute, and void, for not being in writing. No answer as yet is given to the case in Popham, when the stacking of hay, which is similar, was determined to be a license. The word uncertain, in the statute, means uncertainty of duration, not of quantity. License was not revocable, and here is no case to shew this to be considered as a lease. DENNISON, J. This seems not to be an interest, so called in the language of the law, although easements, in general speaking, may be called interests. Had the plaintiff such an interest as to have maintained a clausum fregit. Certainly not. If a man licenses to enjoy lands for five years, there is a lease, because the whole interest passes, but this was only a license for a particular purpose. FOSTER, J. These interests, grounded upon licenses, are valuable, and deserve the protection of the law, and therefore may perhaps have been within the intention of the words of the statute. Desired further time for consideration: stood over. N.B.-Afterwards, upon motion for judgment the last day of term, and gave judgment for plaintiff, Foster non dissentiente.     [Back]