Odger's English Common Law

HISSING IN A THEATRE. 629
though not of an indictment ; and there are undoubtedly
cases in which two or more persons can render themselves
liable to civil proceedings by combining to injure the plaintiff,
although, if one of them did the same act by himself and
without any preconcert with others, he would escape liability,
both civil and criminal.
Any party to a contract is always at liberty to put an end to the contract
by giving proper notice or adopting any other agreed method of determining
it. His motives for wishing to do so are immaterial. And it is
no tort for any one to persuade him to do that which he has a perfect right
to do. But the case is different where many persons combine to do all in
their power to persuade the workmen at a certain factory simultaneously
to give notice that they will stop work at the earliest legal opportunity.
Very few workmen are engaged for more than a week at a time ; many
only work by the day or the hour. Hence a widespread combination
might close the works on very short notice without any breach of contract
being committed. If this were done without any just occasion or excuse,
it is submitted that the employer would have a good cause of action
against those who form the combination to recover any special loss which
he may have sustained
neither a tort nor a crime. 2
;
x and this although the combination in itself is.
It is no tort—still less is it a crime—for one man to bring a vexatious
civil action against another in his own name, even though this be done
maliciously and without reasonable or probable cause. But if a man
who is solvent agrees with a man whom he knows to be insolvent that they
will harass a third person by bringing a vexatious action against him in
the name of the insolvent man, this is a conspiracy in respect of which
an action on the case will lie, provided the plaintiff has thereby sustained
some special damage, other than the payment of " extra costs." The fact
that the plaintiff was thus compelled to pay "extra costs" to his own
solicitor is insufficient, as such costs are not legal damage. 3
" The act of hissing in a public theatre is prima facie a lawful act." *
" There is no doubt that the public who go to a theatre have a right to
express their free and unbiassed opinions of the merits of the performers
who appear on the stage. ... At the same time 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 on his performance, should be driven
from the stage by such a scheme, probably concocted for an unworthy
purpose." 6 Hence where a declaration alleged that the plaintiff was
an actor and was engaged to perform the character of Hamlet in
Covent Garden Theatre, and the defendants and others maliciously
conspired together to prevent him from so performing, and in pursuance
i See ante, pp. 263, 264.
2 Jote v. Metallic Roofing Co. of Canada, Ltd., [1908] A. C. 514 ; and see ante, p. 262.
» Cotterell v. Jones (1851), 11 C. B. 715 ; Coondoo t. Afookerjee (1876), 2 App. Cas.
186 ;
and see ante, p. 552.
* Per cur in Gregory v. Duke ofB'ruuxirick and another (1844"), 6 M. & G. at p. 959.
« Per Tindal, C. J., lb. (1843), 1 C. & K. at pp. 31, 32.