Barnard Gregory v C. F. A. W. Duke of Brunswick and H. W. Vallance
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1844 |
| Date | 25 January 1844 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 1178
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, N. R. 972; 1 D. & L. 803; 13 L. J. C. P. 34; 8 Jur. 148; 3 C. B. 481. See Temperton v. Russell, [1893] 1 Q. B. 728; Allen v. Fllod, [1898] A. C. 66; Quinn v. Leathem, [1901] A. C. 511; Giblan v. national Labourers' Union, [1903] 2 K. B. 632.
[953] barnard gregory v. C. F. A. W. duke of brunswick and H. W. vallance. Jan. 25, 1844. [S. C. 7 Scott, N. E. 972 ; 1 D. & L. 803; 13 L. J. C. P. 34; 8 Jur. 148; 3 C. B. 481. See Temperton v. Russell, [1893] 1 Q, B. 728; Allen v. Flood, [1898] A. C. 66; Quinn v. Leathern, [1901] A. C. 511; Giblm v. National Labourers' Union, [1903] 2 K. B. 623.] In an action on the case for conspiring to prevent the plaintiff, who was about to perform as an actor at a theatre, from acquiring fame and profit in that performance, and for hiring persons to hoot, hiss, groan, and yell at the plaintiff during the performance, and for hooting, hissing, &c. together with such persons, it was proved at the trial that, on an occasion when the plaintiff appeared as an actor, there was a great disturbance in the theatre, consisting of hooting, &c., in which the defendants took a prominent part. The plaintiff rested his case entirely on the conspiracy. The judge left it to the jury to say whether what took place was the result of a preconcerted arrangement between the defendants and persons in other parts of the theatre: Held, a proper direction.-The plaintiff had joined issue on the plea of not guilty, and two other pleas, and demurred to a fourth, upon which judgment was given for him. The venire was as well to try the issues in fact as to assess the plaintiff damages on the issue in law. The jury having found a general verdict for the defendants, upon all the issues of fact, no damages were assessed on the issue in law : Held, that the plaintiff was not entitled to a venire de novo. Case, for conspiring to prevent the plaintiff, who was about to use and exercise the profession or occupation of an actor at a theatre for his emolument, profit and advantage, and to perform as such actor for reward to be therefore paid to him, from acquiring fame and profit in that performance, and for hiring persons to hoot, hiss, groan, shout and yell at the plaintiff during the performance, and for hooting, &c. together with such persons, &c. (a). Pleas, first, not guilty; secondly, that the plaintiff was not about to use or exercise the profession or occupation of an actor, for the emolument, &c. of him the plaintiff, or to perform, as such actor, for reward, &c. modo et forma; concluding to the country. Thirdly, as to so much of the said alleged grievances as related to the hooting, &c. by the defendants at the said plaintiff, and making a noise, outcry, uproar and E 954] riot, at and against the plaintiff, and persuading, instigating, causing, procuring, sading and inducing other persons present in the said theatre, to join in the said hooting, &c., and in making such noise, &c.; that the plaintiff did not become such actor, and use or exercise the said profession or occupation of an actor for his emolument and profit, nor appeared or performed as such actor for reward to be paid to him the plaintiff, modo et forma; concluding to the country. There was a fourth plea, as to hooting, &c. at the plaintiff, that the plaintiff was the proprietor and publisher of the Satirist newspaper, wherein were constantly published indecent, obscene, lewd, filthy and disgusting articles, &c., and was therefore (a) See the declaration set out at length, ante, p. 205, upon the argument on a demurrer to the fourth plea. 6 MAN. &G. 955. GREGORY V. THE DUKE OF BRUNSWICK 1179 an unfit and improper person to appear before the public. This plea was held bad on demurrer (vide ante, p. 205). At the trial of the cause, before Tindal C. J., at the sittings for Middlesex after last Trinity term, the following facts appeared in evidence:-The plaintiff, who was the proprietor and publisher of a weekly newspaper called the Satirist, had. on several occasions appeared as an amateur actor on the stage. An arrangement had been entered into between, him and Mr. Buim, the then lessee of Covent Garden Theatre, that the plaintiff should appear at that theatre, in the character of Hamlet, on the 13th of February 1843. A very large audience was assembled on that evening; and the two defendants occupied one of the 0. P. private stage-boxes (b). As soon as the plaintiff- made [955] his appearance on the stage in the second scene of the tragedy, a great uproar commenced, consisting of hissing, hooting and yelling, in which both of the defendants took part; the defendant Vallance, in particular, advanced to the front of the box, and addressed the audience in a violent strain of invective against the plaintiff, describing him as a person of infamous character, and unfit to appear before the mothers, wives and daughters of England. The uproar and confusion increased to such a pitch, that the plaintiff was obliged to retire from the stage, and the performance terminated. For the purpose of shewing that the two defendants were acting in concert with other portions of the audience, it was proved that some persons had been hired (but it was not shewn by whom) to go to the theatre in order to prevent the plaintiff from acting; and that both of the defendants, after leaving the theatre, were seen in the neighbourhood with other persons, and were heard to express great pleasure at the result. The counsel for the defendants, in his address to the jury, read, and commented upon, the fourth plea, observing that the plaintiff, by demurring to it, had admitted the truth of the allegations contained in it. It was objected, on the part of the plaintiff, that as there was no issue in fact upon that plea, it ought not to be referred to; but the Lord Chief Justice said he could not prevent the counsel for the defendants from doing so, as the plea was on the record, and the jury were to inquire what damages the plaintiff had sustained on occasion of the premises, whereof the court had given judgment for the plaintiff, namely on the fourth plea (vide post, 960 (b)). His lordship, in summing up the case, told the jury that two overt acts of the alleged conspiracy were stated; the first, that the defendants hired a number of [956] other persons to engage in the same design, and, by their hissing and hooting, produced the effect intended by themselves in the conspiracy; the second, that the defendants themselves joined in the hooting : that as to the law upon the subject, the public at a theatre had, undoubtedly, the right to express their free and unbiassed opinions of the merits of the performers; but that parties had no right, by a preconcerted plan, to make such a noise that an actor, without any judgment being formed as to his performance, should be driven from the stage by such a scheme; which might be concocted for an unworthy purpose; that it was unnecessary, on that occasion, to give any opinion upon the right of the public to deal with the private character of actors, as the question for their consideration was, whether or not that which took place in the theatre, was the result of a preconcerted plan and systematic design. His lordship then, after commenting upon some parts of the evidence, observed, that when it was proved that such a general tumult existed in the theatre, it behoved the jury to be cautious in identifying the conduct of the other persons in other parts of the house, with that of the persons in that box occupied by the defendants. There had been a great deal of hissing and hooting from that box; and if it could be established against the defendants, that they had so acted in consequence of a preconcerted plan to drive the plaintiff off the stage, they would, without question, be liable in that action; but that their acts were not to be connected with those of (&) In theatrical language, the terms 0. P. and P. S. are used to signify the right and left sides of the stage, with- reference to the actor,^P. S. meaning the prompter's side, being the side on which the prompter sits, and 0. P. the side opposite the prompter. The well-known 0. P. riots, out of which the case of Clifford v. Brandon, 2 Campb. 358, arose, have no connection with this application of the term. They were so called from the endeavours on the part of the audience, to restore the old prices at Covent Garden Theatre. 1180 GREGORY V. THE DUKE OF BRUNSWICK 6 MAN. & G. 957. persons similarly engaged in other parts of the house, unless the jury were satisfied that the whole tumult was the result of a preconcerted arrangement with the persons in the 0. P. box ; and that unless such arrangement had been shewn to the satisfaction of the jury, there was no case against the defendants. The jury returned a verdict for the defendants. [957] Shee Serjt., in last Michaelmas term, moved for a new trial on the ground of misdirection, and that the verdict was against evidence ; and also for a venire de novo. The learned Serjeant contended that it was not necessary to establish every link of the preconcerted arrangement leading to the overt acts complained of, but that such preconcerted arrangement might be proved by the concurrence of the acts of the defendants with those of others connected together by a correspondence in point of time, and a manifest adaptation of means to effect the same object; East, P. C. p. 97, 2 Stark. Ev. p. 324, 3d ed.; that it was enough to shew that the two defendants conspired together (a) and that there were many cases to shew that such an action as the present, though commonly called an action for conspiracy,'was in reality an action for a tort, and would lie, though only one party was guilty. He referred to Skinner v. Gunton (1 Wms. Saund. 228 c.), Saville v. Roberts (1 Ld. Kaym. 379, Garth. 417), Palk v. Duning (1...
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