1843.

WEBB

v.

PAGE.

ledge-without such testimony, the course of justice must be stopped. The latter is under no such obligation. There is no such necessity for his evidence, and the party who selects him must pay him.

Mr. Wyche, the plaintiff's attorney, gave his undertaking to pay the witness, who was then examined.

Dowling, Serjt., and Petersdorff, for the plaintiff.

Bompas, Serjt., and Kennedy, for the defendant.

[Attornies-Wyche, and M. Lewis.]

Sittings at Westminster after Trinity Term, 1843.

BEFORE LORD CHIEF JUSTICE TINDAL.

June 21.

The public, who

go to a theatre,

have a right to

GREGORY V. DUKE OF BRUNSWICK AND VALLANCE.

CASE. The declaration stated that, before and at the time of the conspiracy thereinafter mentioned, the plaintiff was about to become an actor, and to use the profession or biassed opinions Occupation of an actor for profit and advantage, and to

express their

free and un

of the merits of

the performers perform the character of Hamlet in a certain tragedy at

who appear

upon the stage; but parties have no right to go to a theatre, by a preconcerted plan to make such a noise that an actor, without any judgment being formed of his performance, should be driven from the stage; and if two persons are shewn to have laid a preconcerted plan to deprive a person who comes out as an actor of the benefits which he expected to result from his appearance on the stage, they are liable in an action for a conspiracy.

In an action for a conspiracy to hiss an actor, the defendants cannot, under the general issue, give in evidence libels published by the plaintiff, with a view of shewing that the plaintiff was hissed on account of those libels, and not by reason of any conspiracy of the defendants.

In an action for a conspiracy, the defendants pleaded the general issue, and also a special plea of justification, which plea was demurred to, and held bad by the Court, who gave judg ment on it for the plaintiff, and the award of venire was as well to try the issue joined "as to inquire what damages the said plaintiff hath sustained on occasion of the premises whereof the Court hath given judgment for the said plaintiff:”—Held, that on the trial at Nisi Prius, the defendant's counsel, in addressing the jury, had a right to refer to the allegations contained in the special plea, and to comment upon them.

Covent Garden Theatre for reward, to be therefore paid to
the plaintiff by Alfred Bunn, the then manager of that
theatre. Yet the defendants, with divers other persons,
contriving, &c., on the 13th day of February, 1843,
"falsely,
wickedly, and maliciously did among themselves conspire,
combine, confederate, and agree together to prevent the
plaintiff from performing in public as such actor as afore-
said in the character of Hamlet in the performance of the
said tragedy in the theatre aforesaid, and to prevent the
public audience, which might be assembled to witness the
performance of the said tragedy in the said theatre on the
occasion when the plaintiff was to perform as aforesaid,
from hearing or appreciating the performance of the said
character by the plaintiff as aforesaid in the said tragedy,
and to compel the plaintiff to desist from the performance
of the said character, and to deter and prevent the mana-
ger of the said theatre from allowing or retaining the
plaintiff to perform as such actor as aforesaid in the said
theatre, and to prevent the plaintiff from exercising his
said profession or occupation of an actor in the said
theatre, and from gaining or acquiring any profit, fame, or
reputation by his performance as an actor in the character
aforesaid." It then went on to aver that the defendants
and the other persons "in pursuance of, and according to,
the said conspiracy, combination," &c., "and, in order to
carry the same into fulfilment, hired and engaged divers,
to wit, 200 persons, to attend as part of the audience in
the said theatre on the occasion when the plaintiff was to
perform as aforesaid, and did perform, to hoot, hiss, groan,
and yell at and against the plaintiff during his perform-
ance," and to aid the defendants in carrying the conspiracy
into effect; and that afterwards the plaintiff, at the re-
quest of the said Alfred Bunn, did appear in the character
of Hamlet in the said theatre before a public audience,
nevertheless the defendants, in further pursuance of the
conspiracy, and to carry it into effect, did, with the other
persons so engaged as aforesaid, hoot, hiss, groan, and yell

1843.

GREGORY

v.

DUKE OF BRUNSWICK.

1843.

GREGORY

v.

DUKE OF BRUNSWICK.

at the plaintiff, and made an uproar against the plaintiff, so that the performance of the character of Hamlet by the plaintiff could not be heard, understood, or appreciated ; and it was stated, as special damage, that Mr. Bunn would not retain the plaintiff as an actor in the said theatre for gain and reward to the plaintiff, as he otherwise would.

Pleas, first, not guilty; second, to the whole declaration, that the plaintiff was not about to use the profession or occupation of an actor for profit; third, as to the hissing, hooting, &c., and procuring others to do so, that the plaintiff did not use the profession or occupation of an actor for profit; fourth, as to so much of the said grievances as relates to the hooting, hissing, &c., at the plaintiff, and making an uproar against the plaintiff, that for five years before the committing of the last-mentioned grievance, the plaintiff was the proprietor of the Satirist newspaper, 10,000 copies of which were sold on the Sunday in every week; and that the plaintiff had been, and was in the habit of writing and publishing, and causing to be written and published in the said newspaper, divers indecent and disgusting articles against good morals, and in violation of the laws, and divers false and malicious libels of and concerning her Majesty, and of and concerning divers persons, and divers blasphemous and seditious libels; and that the plaintiff was a common libeller, and in the habit of receiving money from divers persons, for suppressing, and promising to suppress, defamatory matter, which such persons were induced to believe would appear in the said newspaper, unless they made such payments; and the plaintiff, during all the times aforesaid, notoriously gained his livelihood by the means and practices aforesaid, and that the plaintiff, being such person as aforesaid, appeared as a public actor at the said theatre, to the great scandal, nuisance, and outrage of the persons in the said theatre, and against public morals and decency, wherefore the defendants being present in the said theatre, as part of the

1843.

GREGORY

v.

DUKE OF

audience, did then, in order to compel the plaintiff to desist and forbear from appearing on the said stage, as such actor and performer, and to prevent, as far as in them lay, the said scandal, nuisance, and outrage, a little hiss, BRUNSWICK. groan, and yell at the plaintiff, as they lawfully might, (concluding with a verification).-Replication to the first, second, and third pleas, a similiter, and to the fourth plea a demurrer, assigning for causes, that this plea was only pleaded to a part of the declaration not divisible from the conspiracy; that the matters of the plea did not justify the conspiracy; that they did not warrant the noise &c., so as to cause the damage mentioned in the declaration; that the audience of a theatre have no right to hiss, hoot, &c., an actor so as to injure him, merely because he may be chargeable with offences unconnected with the stage, or with his performances as an actor; and that the charges in the plea were too general, in not setting out the particular libels, and the names of the persons from whom the plaintiff received money for suppressing, or promising to suppress, defamatory matter, and the sums received, and the times when. To this demurrer there was a joinder, and judgment for the plaintiff on the demurrer, "that the said last plea of the said defendant is not sufficient in law." The Nisi Prius record then went on as follows:-"Wherefore the said plaintiff ought to recover his damages upon occasion of the premises against the said defendants, but because it is unknown to the court what damages the said plaintiff has sustained on occasion thereof, and because it is convenient and necessary that there be but one taxation of damages in this cause, therefore let the inquisition of damages in this behalf be stayed until the trial of the said issues above joined, between the said parties, to be tried by the country, thereupon as well to try the said issues, above joined between the said plaintiff and the said defendants, as to inquire what damages the said plaintiff hath sustained on occasion of the premises, whereof the court hath given judgment for the said plaintiff, the sheriff is com

1843.

GREGORY

v.

DUKE OF BRUNSWICK.

manded that he cause to come here forthwith, twelve &c., by whom &c., and who neither &c., to recognize &c., because as well &c."

In his opening, Shee, Serjt., for the plaintiff, referred to the case of Rex v. Leigh and others which occurred in the year 1775, which was an indictment for raising a disturbance at Covent Garden Theatre for the purpose of procuring thedischarge of Mr. Macklin, and cited the case of Clifford v. Brandon (a), in which Sir James Mans