the contract will be subject to the terms of a yearly tenancy, so far as such terms can be applicable, and therefore the usual term as to notice in the case of a yearly tenancy would apply. Even if the permission to post advertisements amounts only to a licence, the wrongful revocation of such licence gives a cause of action. [He also referred to Vaughan v. Hampson. (1)]

Joseph Randolph, for the defendant. The county court judge was right in acting on the authority of the decision in Wood v. Leadbitter (2), which has often been approved and followed. All the authorities shew that a licence such as was given to the plaintiff is revocable, whether consideration has been given for it or not: Fentiman v. Smith (3); R. v. Horndon-on-the-Hill (Inhabitants) (4); Hewlins v. Shippam (5) ; Bryan v. Whistler. (6) No doubt before a licence can be revoked reasonable notice must be given to the licensee: Cornish v. Stubbs (7); Mellor v. Watkins (8) but that has been done here, for as early as November 23, 1896, the defendant wrote requiring the removal of the advertisements, and he did not remove them himself until December 17, nearly a month later. The plaintiff, therefore, was given a reasonable time in which to remove them.

Turrell, in reply, referred to Rymer v. McIlroy. (9)

LAWRANCE J. I am of opinion that the learned county court judge was wrong in the conclusion at which he arrived. He ought to have gone on with the trial, in order to ascertain what the contract really was which had been entered into between the parties. He appears to have thought that, on the authority of Wood v. Leadbitter (2), he could not go on further with the case. His view was that there was only a licence to put up the advertisements, and that, the licence having been revoked, there was an end of the whole case. I have come to the conclusion that this view was wrong. There is no case

(1) (1875) 33 L. T. (N.S.) 15.

(2) 13 M. & W. 838.

(3) (1803) 4 East, 107.

(4) (1816) 4 M. & S. 562.

(5) (1826) 5 B. & C. 221.

(6) (1828) 8 B. & C. 288.

(7) (1870) L. R. 5 C. P. 334, at p. 339, per Willes J.

(8) (1874) L. R. 9 Q. B. 400, at p. 405, per Blackburn J.

(9) [1897] 1 Ch. 528.

1897

KERRISON

v.

SMITH.

1897

v.

SMITH.

Lawrance J.

among all the authorities which have been referred to that is KERRISON exactly on all fours with that now before the Court. In all the cases cited for the defendant the decisions proceeded on the ground that there was only a licence, which could be revoked; but there is no case in which the point was specifically taken which is now taken before us, namely, that an action will lie to recover damages for revoking a licence. I am of opinion, therefore, that the county court judge was wrong, and that he should have allowed the plaintiff to prove the contract on which he relied, and to give evidence of such damage as he could shew to have arisen from the breach of such contract by the defendant. Our decision, therefore, must be in favour of the plaintiff's contention, and the action must go back to the county court for a new trial.

COLLINS J. I am of the same opinion. The county court judge has assumed that the right to revoke a licence, which unquestionably exists on the authority of Wood v. Leadbitter (1), was enough to decide the present case against the plaintiff. The case was considered in the Court below on the footing that there was a licence and nothing more. It was conceded that the grantor has a right to revoke a licence, but the point set up by the plaintiff, that there was a contract, for the breach of which the plaintiff was entitled to recover damages, was never properly dealt with. There appears to be no case in which the point has been specifically raised and decided, as to whether there is a right to maintain an action for breach of contract, if a licence is revoked, although there is a right to revoke the licence, but on principle it seems to me that the two rights are compatible with one another. In delivering the judgment of the Court of Exchequer in Wood v. Leadbitter (2), Alderson B. expressed himself as follows: "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 right of action against those from whom he purchased the (1) 13 M. & W. 838. (2) 13 M. & W. 838, at p. 855.

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." This
language leaves the point open; but it seems rather like a
suggestion that such a cause of action might be successfully
supported. In Wells v. Kingston-upon-Hull Corporation (1),
the defendants allowed ships to be repaired in their dock, under
certain printed regulations, and the plaintiff verbally agreed
with the defendants for the use of the dock, upon the terms of
such regulations. The regulations provided that the dock
should be "let," and that vessels should be allowed to enter
according to the order of entry in the defendants' book, and
further contained provisions tending to shew that the defendants
intended to retain possession of and control over the dock while
in use by vessels. In an action for breach of contract in not
admitting the plaintiff's vessel in her turn, it was held that the
contract was not for an interest in land, and therefore need not
be in writing, and, secondly, that it need not be under the seal
of the corporation. The point as to the licence was certainly
taken on behalf of the defendants in that case (2); and the
argument was dealt with by Lord Coleridge C.J. (3), holding
that the contract was not a demise. He said: "Here I think
the defendants did not intend to confer any interest in land,
though they did give plaintiff a right to go on to the land in
order to carry out the contract. I do not think we are called
on to discuss the nice question raised upon the effect of Wood
v. Leadbitter (4) in Mr. Cave's ingenious argument, viz., as
to whether the plaintiff was a licensee without an interest, and
so must fail, because the licence had been revoked; or a licensee
with an interest, and so the licence, being irrevocable, amounted
to an interest in land. The dilemma suggested does not, as I
think, arise. The contract did not relate to the possession or
enjoyment of the land or any right over it, but only to the use
of it under very stringent regulations, the defendants retaining
(3) L. R. 10 C. P. at
p. 409.
(4) 13 M. & W. 838.

(1) L. R. 10 C. P. 402. (2) L. R. 10 C. P. at p. 405. VOL. II. 1897.

1897

KERRISON

V.

SMITH.

Collins J.

1897

KERRISON

v.

SMITH.

Collins J.

themselves complete possession of and all rights over it." That seems to narrow down the right of the plaintiff there to a licence. Therefore the actual decision is favourable to the plaintiff in the present case. There is another case which seems to be very much in point-Butler v. Manchester, Sheffield and Lincolnshire Ry. (1), in the Court of Appeal. There the plaintiff was a passenger by the defendants' railway under a contract, by which he was to produce his ticket when required, but, having lost the ticket, was unable to produce it. In an action for assault in forcibly removing him from the carriage, it was held, that the contract did not by implication authorize the defendants to remove the plaintiff on his failing to produce a ticket and refusing to pay the fare as required by the condition; that the defendants were not justified in so removing him; and that the action was therefore maintainable. That was an action of tort; and it would seem that what the plaintiff had was merely a licence, and that the defendants could determine such licence, on the authority of Wood v. Leadbitter (2), which was referred to in the argument; but the learned judges seem to suggest that it might be a breach of contract to revoke the licence. Lord Esher M.R. said (3): "What is the nature of the relation between the plaintiff and the defendants? It is, as it appears to me, a contractual relation. It was alleged that the contract was for a right to go on the defendants' land in the nature of an easement, but that, there being no grant of an easement under seal, there was only a licence given by the defendants to go on their premises, which they could revoke. All I will say with regard to that contention is that, though it may have been quite right for the defendants' counsel to suggest the point, it seems to me when considered to be contrary to good sense." Lindley L.J. said in the same case (4): "It seems to me to be a totally different thing from a contract for an interest in land; and it seems to me absurd to treat the case as one of a revocable licence. It is a case of a contract for carriage. The doctrine of Wood v. Leadbitter (2) does not appear to me to be at all applicable to the case of such a con

(1) (1888) 21 Q. B. D. 207.
(2) 13 M. & W. 838.

(3) 21 Q. B. D. at pp. 210, 211. (4) 21 Q. B. D. at p. 213.

tract." The judgment of Lopes L.J. is to the same effect. It is clear, therefore, that the Court did distinguish Wood v. Leadbitter (1) from the case then before them. The other cases which were cited on behalf of the defendant are not authorities to shew that an action might not be maintained for the revocation of a licence. In Clerk and Lindsell on the Law of Torts, 2nd ed. p. 302, the law is stated as follows: "Such a licence, even though it may have been made by deed and for valuable consideration, is revocable at any time by the licensor; the licensee cannot after revocation justify entering upon the land for the purpose of using the privilege; his only remedy against his licensor, where the revocation is wrongful, is upon the contract." In the case which I put in the course of the argument of a licence to fish a salmon river, giving up the fish caught to the owner, could it be contended that immediately after receiving payment in consideration of granting the licence to fish, the owner could revoke it? For the reasons which I have given I am clearly of opinion that the mere fact that the licence was revoked is not enough to defeat the plaintiff's claim as it was put forward in the present case. It follows that the plaintiff was wrongly nonsuited, and there must be a new trial.

Judgment for the appellant.
Leave to appeal granted.

Solicitors for plaintiff: Seeley & Son.

Solicitors for defendant: Maitlands, Peckham & Co.

1897

KERRISON

v.

SMITH.

Collins J.