The plaintiff had paid to enter the cinema, but was asked to leave by the manager who said he had not paid. He was forcibly removed. The jury found as a fact that he had paid the entrance fee. The defendant argued that the plaintiff had only a revocable licence to enter the premises, and had no interest which would entitle him to stay after revocation of the licence.
Held: The Court of Appeal rejected this argument holding that in the circumstances the contract provided him with a licence plus a grant of an interest which was enforceable in equity and which after the judicature Acts clearly provided not withstanding the absence of a legal interest (created by deed).
Buckley LJ said: ‘We have listened in this case to a very ingenious and interesting argument from Mr. Mackinnon, but, if I may borrow the words of Lord Esher in Butler v. Manchester, Sheffield and Lincolnshire Railway (1888) 21 Q.B.D. 207, 211, it may have been quite right for the appellants’ counsel to suggest the point, but when considered it is contrary to good sense. I may add that I think it is not only contrary to good sense, but contrary also to good law as administered since the Judicature Act in this Court. The proposition Mr. McKinnon sets out to affirm is that if a man has paid for his seat at the opera, or the theatre, and has entered and taken his seat, and is behaving himself quite properly, it is competent to the proprietors of the theatre, merely because they choose so to do, to call him to withdraw before he has seen the performance for the enjoyment of which he has paid; that what he has obtained for his money is a mere revocable licence to come upon the land of the proprietor of the theatre, and that the proprietor may, simply because he chooses, say ‘I revoke your licence; go.’ If that proposition be true, it involves startling results.
Kennedy LJ has suggested one. Suppose that there be sitting in the stalls a man who is a constant patron of the opera or the thentre, to whom the management pay great deference, whether from his rank or his habit of attendance: he goes to the management and says, ‘I do not like the person sitting in front of me or next to me; ask him to go.’ It would be competent to the management to go to that person and say: ‘Please go; you cannot have your money back, go.’ Further, if the proposition is right, it follows that, having let the seat to A., the management may come to A. at the end of the first act or before and say, ‘I revoke your licence, go,’ and he has to go. The management may let the seat to B. for the rest of the performance, and at the end of the second act or sooner they may come to B. and say, ‘I revoke your licence, go.’ He will have to go, and they may let the seat a third time to C. Those consequences ensue from this proposition if it be well founded.
It was for that reason I said at the outset of my remarks that it seems to me, when the point comes to be considered, it is contrary to good sense. Next it is to my mind contrary also to good law. The proposition is based upon the well-known decision in Wood v. Leadbitter 13 M. and W. 838.
Let me at the outset say what Wood v. Leadbitter seems to me to have decided. It affirmed that a mere licence, whether or not it be under seal, by which I mean a, licence not coupled with an interest or a gra.nt whether it be under seal or not, is revocable. It affirmed also that if there be a licence coupled with an interest or coupled with a grant, it is not, or at any rate in general it is not, revocable. For those two propositions I read these two sentences from the case of Wood v. Leadbitter at p. 844: ‘A mere licence is revocable; but that which is called a licence is often something more than a licence; 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 licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and, on the other hand, a licence by parol, coupled with a grant, is as irrevocable as a licence by deed, provided only that the grant is of a nature capable of being made by parol.’
Those are propositions with which, as it seems to me, no one quarrels or can quarrel. Wood v. Leadbitter rested, I think, upon one of two grounds-I will indicate them both-but I think it was the second of those which I am going to mention. The first ground is that the man who bought his ticket for the race meeting not obtained any grant of the right to come during the currency of the meeting to see any particular spectacle from its commencement to its termination. If that were the ground, it would, I think, be erroneous. I conceive he had the right to see what was to be seen during the days covered by his ticket. But I do not think that was the ground on which the Court decided it. They decided it upon the ground, which will be found at p. 842 and onwards, that no incorporeal inheritance affecting land can be created or transferred otherwise than by deed, a proposition which was discussed with some elaboration in the course of the judgment.
What Alderson B. was saying there was: this man has got no deed; he has got nothing under seal; he has therefore not got a grant; he cannot in this Court be heard to say he is a grantee, and because he is not a grantee he is a mere licensee, and being a mere licensee (whether it is under seal or not under seal does not make any difference) the licence is revocable.
Let me for a moment discuss this present case upon the footing that Wood v Leadbitter stands as good law at this date. I am going to say presently that to my mind it does not, but suppose it does, stand as good law at this date. What is the grant in this case? The plaintiff in the present action paid his money to enjoy the sight of a particular spectacle. He was anxious to go into a picture theatre to see a series of views or pictures during I suppose, an hour or a couple of hours. That which was granted to him was the right to enjoy looking at a spectacle, to attend a performance from its beginning to its end. That which was called the licence, the right to go upon the premises, was only something granted to him for the purpose of enabling him to has e that which had been granted him, namely the right to see, he could not see the performance unless he went into the building His right to go into the building was something given to him in order to enable him to have the benefit of that which had been granted to him, namely, the right to hear the opera, or see the theatrical performance, or see the moving pictures as was the case here. So that here there was a licence coupled with a grant. If so, Wood v. Leadbitter does not stand in the way at all. A licence coupled with a grant is not revocable; Wood v. Leadbitter affirmed as much.
So far I have been treating it as if Wood v Leadbitter were law as now administered in every Court. Let us see how that matter stands. Wood v Leadbitter was a case decided in a Court of law before the Judicature Act; it was a case to be decided, therefore, simply upon the principles which are applicable in a Court of law as distinguished from a Court of Equity. What was the principle which would have been administered in a Court of Equity in the year 1845, the date of Wood v. Leadbitter, or subsequently. For that I look at the decision of Wood V.C. in Frogley v. Earl of Lovelace (1859) John. 333. Other cases have been cited to us; I select this one because it seems to me to be the most pertinent, and to state the proposition in the most plate manner. The facts in Frogley v. Earl of Lovelace were these: the defendant was lessor to the plaintiff of certain lands for twenty-one years; he had executed a lease to him, but preciously to the execution of the lease this was [the lessee] but was not under seal: ‘It is hereby agreed that [the lessee] shall have the exclusive right of sporting over, and killing the game upon, the lands included in the withinwritten lease, and also upon the lands adjacent thereto belonging to the said Earl’ (describing such adjacent lands) ‘during the continuance of the said term, if the said Ralph Frogley shall so long live; he undertaking to keep and leave a fair stock of game thereupon, and not to keep such an excessive quantity of hares and rabbits as to do damage to the said Earl or his under-tenants in the neighbourhood.’ On February 9, 1859, the lessor served the lessee with a notice that after that date he revoked, rescinded, and put an end to that agreement. The question was whether he could do so or not. The suit was brought in a Court of Equity for specific performance for the execution of a proper instrument under seal giving effect to the document which was not under seal. The plaintiff moved for an injunction as prayed by his bill, namely, an injunction to give effect to his rights until that deed had been executed, and that was the matter which came before the Vice Chancellor. At p. 339 the Vice-Chancellor says this: ‘ The memorandum is a mere writing not under seal and the case of Wood v. Leadbitter has decided that, in order to acquire a right such as that which is here claimed by the plaintiff an instrument under seal is necessary; and that, at law, an instrument purporting to grant such a right, though given for a valuable consideration, is revocable at all:- time, and without paying back the money. At law, therefore, the plaintiff has no remedy until the defendant shall have executed a deed containing a proper and legal grant of the exclusive right of sporting in accordance with the terms of the agreement.’ Finding, therefore, that the plaintiff’s interest was incapable of being supported at law upon the footing of Wood v. Leadbitter, he gave him relief in equity, and in so doing so, he says: ‘It appears to me that the plaintiff is clearly- entitled to an injunction in the interval until the defendant shall has-e executed proper legal grant of the right claimed bethe plaintiff.’ What could be plainer ? According to Wood v. Leadbitter the plaintiff would have been dismissed from a Court of Law; he would have had no case. He comes into a Court of Equity and he obtains relief in equity because he would have no remedy at law, and his remedy is given until he has been clothed with such rights under a proper instrument as that he has a remedy at law, and then he is left to his legal rights. I will read a few words from the judgment of Kay J. in McManus v Cooke 35 Ch. D. 681, Kays J. says: ‘Hewlins v Shippam 5 B. and C. 221, Wood v Leadbitter 13 M. and W. 838, and other authorities at common law were cited, and it was argued that the right claimed could only be granted by deed, and that therefore the licence was revocable; but this common law doctrine was not allowed to prevail in equity.” As I have shown in Frogley v. Earl of Lovelace John. p.333 it was not allowed to prevail in equity.
The position of matters now is that the Court is bound under the Judicature Act to give effect to equitable doctrines. The question we have to consider is having regard to equitable considerations, Wood v Leadbitter is now law, meaning that Wood v Leadbitter is a decision which can be applied in its integrity in a Court which is bound to give effect to equitable considerations. In my opinion, it is not. Cozens Hardy J, as he then was, the present Master of the Rolls, in the case of Lowe v Adams  2 Ch 598, at p. 600, said this: ‘Whether Wood v. Leadbitter is still good Iaw having regard to Walsh v. Lonsdale’ 21 Ch. D. 9 -which is a decision of the Court of Appeal-‘is very doubtful.’ The present Lord Parker, then Parker J., in the case of Jones v. Earl of Tankerville  2 Ch 440, at p. 443 says this: ‘An injunction restraining the revocation of the licence, when it is revocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which but for the absence of a seal would be a right at law, and since the Judicature Act it may well be doubted whether the absence of a seal in such a case can be relied on in any Court.’ What was relied on in Wood v. Leadbitter, and rightly relied on at that date, was that there was not an instrument under seal, and therefore there was not a grant, and therefore the licensee could not say that he was not a mere licensee, but a licensee with a grant. That is now swept away. It cannot be said as against the plaintiff that he is a licensee with no grant merely because there is not an instrument under seal which gives him a right at law.
There is another way in which the matter may be put. If there be a licence with an agreement not to revoke the licence, that, if given for value, is an enforceable right. If the facts here are, as I think they are, that the licence was a licence to enter the building and see the spectacle from its commencement until its termination, then there was included in that contract a contract not to revoke the licence until the play had run to its termination. It was then a breach of contract to revoke the obligation not to revoke the licence, and for that the decision in Kerrison v. Smith  2 QB 445 is an authority. So far I have dealt with the law.
‘I will say a few words as to what were the facts in this case. The plaintiff entered this picture theatre and paid 6d. for his admission. The defendants denied that he had paid, and that was the question for the jury in the case. The jury have given the plaintiff a verdict; they have found that he did pay his 6d., and that fact is not now in contest before us. Alleging that the plaintiff had not paid, the attendant at the theatre, and then the manager, called upon him to go out of the theatre, treating him as a fraudulent person, a person who had come in without payment. There was some conversation with, I think, one attendant and a second attendant, and then the manager came, and the manager called upon him to go out. A police constable was then called in, and in the presence of the audience the man was again called upon to come out. The police constable was asked to take him out, but declined and said the doorkeeper could take him out if he were so minded. Thereupon the doorkeeper laid hands upon him to remove him by force, and the plaintiff, as a reasonable man, yielded at once to the man and went out. There was in law an assault, and an assault of a grievous kind. He was exposed to indignity, and it is for that indignity, I suppose, that the jury have given him a verdict for 150l.’
‘The defendants had for value contracted that the plaintiff should see a certain spectacle from its commencement to its termination. They broke that contract and it was a tort on their part to remove him. They committed an assault upon him in law. It was not of a violent kind, because, like a wise man, the plaintiff gave way to superior force and left the theatre. They sought to justify the assault- by saying, that they were entitled to remove him because he had not paid. He had paid, the jury have so found. Failing on that question of fact, they say: that they were entitled to remove him because his licence was revocable. In my opinion it was not. There was, I think, no justification for the assault here committed. Under the circumstances it was for the jury to give him such a sum as was right for the assault which was committed upon him, and for the serious indignity to a gentleman of being seized and treated in this way in a place of public resort. The jury have found that he was originally in the theatre as a spectator, that the assault was committed upon him, and that it was a wrongful act.
I think that the appeal which has been brought before us, and which is founded simply upon the question of law which I have discussed at the beginning of this judgment, fails and must be dismissed with costs.’
Kennedy LJ said: ‘I am of the same opinion. The facts as well as the law have been very fully dealt with, and I do not propose to add much. We have heard a very careful and interesting argument chiefly affecting the character of Wood v. Leadbitter. Personally, I am indifferent as to whether that case has or has not been subjected to some slight imputations upon its character. It was decision of a great Court, and I desire to treat it myself with the utmost respect, but I do not think it governs this case. The plaintiff was in this picture theatre and was assaulted and subjected to indignities which were entirely unjustifiable by those who handled him and compelled him to go out. What is his position? He says ‘I was there by right; I was occupying a sent for which I had paid in a place of public entertainment,’ he says that if you pay a certain price you must be entitled to the possession of the seat. The seat, I understand, is one which he may choose; it is not a reserve seat, but a seat which he entered. He did enter that seat, and they took him out again practically, in the eyes of the law, by force. Now the defendants have to justify that, and they justify it by saying that there is a point of law apart from the defence in fact which failed, namely that he was not there by right because he had not fulfilled the condition of payment. The defendants say through their counsel, ‘In point of law, even if you did pay, we had a right to turn you out, although you were behaving in the way in which those who go into places of public entertainment are bound (by implied contract at any rate) to behave.’ They say, ‘In law we are justified because all that you had was a revocable licence. When we use the words ‘revocable licence,’ ‘ say the defendants, ‘we mean that we can at will require you to leave this building, and you are bound to obey. Therefore, as we can legally require you to do so, you must go quietly, and if you do not go quietly we are right, using no more force than is necessary, in putting you out.’ For the reasons I ventured to refer to in the course of the argument by way of illustration (which have been still better illustrated by Buckley L.J. in his judgment) such an astounding conclusion is one which one would require as a matter of law, I think, and as a matter of common sense, to be strictly justified. The justification is hung entirely on the peg of the doctrine which is said to be the doctrine established by the considered decision of the Court of Exchequer in the year 1845. With regard to that decision, I am not going myself to say, and I should feel I was presumptuous in saying, that it was not at the time a perfectly good decision. It has been quoted frequently with respect, and I am not going to say a word in dimiution of that respect. But what was the decision ? It is stated, and I think with perfect correctness, at the bottom of p. 838: ‘A right to come and remain for acertain time on the land of another can be granted only by- deed; and a parole licence to do so, though money be paid for it is revocable at any time, and without paying back the money.’
‘Now I hold that this case, as Buckley LJ has intimated, the contract would not be correctly expressed by saying that it was a right to come and remain for a certain time on the land of another. In this case I think there was, if you were to put the contract into terms, a contract that there should be an irrevocable right to remain until the conclusion of the performance. I do not lay stress upon that point, and for this reason, that in the case of Wood v. Leadbitter, the plaintiff, who ho was in a particular part of the racecourse, might have said that he had the same sort of contract, but he did not say it, and therefore I will leave the matter alone. What was decided by the case was that the grant, to be effectual and irrevocable, must be a grant valid in law, and such a grant could only he made by deed. Passages have already been quoted from that judgment, and I am not going to take up time by quoting them again, but I think that it is important to remember that at the very commencement of the judgment of Alderson B. he points out that the question arose upon the plea and its replication, and the replication, he points out, is that: ‘At the time of such removal, the plaintiff was in the said close by the leave and licence of Lord Eglintoun.’ It was not there suggested by the plaintiff, ‘My right to remain is not merely by leave and licence of Lord Eglintoun; I have an implied contract that I should be there and that contract is not subject to revocation.’ Therefore, as I say, one must deal with that case upon the pleading, and upon that pleading the judgment of the Court cannot be put more specifically or more correctly than in the passage I have quoted from the headnote. There must be a grant by deed; if you show only a parol licence, you have no case. There are several passages which show that. When the learned Alderson B. is commenting on the case, from the decision in which the Court differed, of Talyer v. Waters (1817) 7 Taunt. 374, he says at p. 854: ‘It was taken for granted that, if the statute of Frauds did not apply, a parol licence 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.’ There is language used in the passage on p. 845 which has been already cited by Buckley L.J. to the same effect, and which states this in one sentence: ‘But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the licence is a mere licence; it is not an incident to a valid grant, and it is therefore revocable.’ Does that apply now? Since the Judicature Act there is no doubt we have to apply the principles of equity, and according to those principles there was in this case that which was not granted by a deed, and which need not be granted by deed, and therefore there was that which is valid now in equity as a good title upon which this gentleman, the plaintiff, being in possession of a seat, had a right to stay and say ‘It is no use your saying to me I am obliged to go because I have not got in the language of Wood v. Leadbitter (l) a grant by deed; this is an interest which, whether you call it an easement or not, is an interest which I can now acquire in equity by parol, and I have that interest.’
‘The passage which has been quoted from Parker J.’s judgment in Jones v. Earl of Tankerville states that which I believe to be right, namely, that an injunction restraining the revocation of the licence, when it is revocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the Vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which, but for the absence of a seal, would be a right at law. There is also the judgment of Kay .J. in McManus v. Cooke 35 Ch. at p. 697. The learned judge sets out number of propositions established by the authorities in regard to these questions, and amongst other things he says that the equity applies ‘wherever the defendant has obtained and is in possession of some substantial advantage under a parol agreement which, if in writing, should be such as the Court would direct to be specifically performed. The doctrine applies to a parol agreement for an easement, though no interest in land is intended to be acquired.’
‘I have come to the conclusion, therefore, putting,’ aside altogether the question what the contract was in this case, that in fact to treat it upon the basis of Wood v. Leadbitter, being good law is wrong because of more modern legislation. It is no longer good law to do such act as the defendants have done here.
I think I ought to add that that which we are now asserting in this Court has been recognised in the passage to which I referred in the course of the argument from Sir Frederick Pollock’s work upon Torts. He points out carefully at p. 390, referring to Wood v. Leadbitter and Tayler v Waters, which was there overruled, that even in such a case, where there had been part performance, specific performance is sometimes decreed, and equitable rights are now enforced by all the Courts. (See also Roscoe’s Nisi Prius, vol. ii., p. 930.) It seems to me that there was here a good equitable right which rendered the act of the defendants in the present case bad in law.’
Buckley LJ, Kennedy LJ, Phillimore LJ
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Cited – Wood v Leadbitter ExcC 22-Feb-1845
The plaintiff complained of being assaulted. He had been on Doncaster Race Course with a ticket. The owner’s servant requested him to leave, and when he refused gently laid his hands on the plaintiff to remove him. The plaintiff said that his . .
Lists of cited by and citing cases may be incomplete.
Contract, Equity, Land
Updated: 15 May 2022; Ref: scu.377908