Odger's English Common Law

630 CIVIL CONSPIRACIES.
of the conspiracy hired and procured persons to go to the theatre and
hoot the plaintiff, and they did so and interrupted his performance, and
thereby caused the plaintiff to lose his engagement, and to be brought
into public scandal and disgrace, it was held that the pleading disclosed
a good cause of action. But at the trial of the action the plaintiff failed
to satisfy the jury of the existence of the alleged conspiracy ; there was
no other evidence of malice in the defendants ; and the jury therefore found
a verdict against the plaintiff. 1
This case is generally cited as an authority for the proposition that
though an act may in itself be lawful, nevertheless, if several persons agree
together beforehand to do that act from malicious motives and without any
just occasion, they will be liable to a civil action for conspiracy should
damage result to the plaintiff. But it must not be overlooked that the
defendants in this case did not seek to justify their hooting as a fair
comment on any performance of the plaintiff; they claimed a right to
hiss him off the stage as soon as he made his appearance because of his
private life, alleging that he was a general libeller, blackmailer, &c. The
Court nowhere decided that to hiss an actor thus prematurely and for such
a reason as this was a lawful act. Indeed, the remarks cited above from
the summing up of Tindal, C. J., directly suggest the contrary. More-
over, in Clifford v. Brandon 2 Sir J. Mansfield, C. J., stated explicitly
that " the audience have certainly a right to express by applause or hisses
the sensations which naturally present themselves at the moment ; and
nobody has ever hindered, or would ever question, the exercise of that
right. But if any body of men were to go to the theatre with the settled
intention of hissing an actor, or even of damning a piece, there can be no
doubt that such a deliberate and preconcerted scheme would amount to a
conspiracy, and that the persons concerned in it might be brought to
punishment."
But the area of this class of cases was greatly diminished
by the decision of the Court of Appeal in 1889 (subsequently
affirmed by the House of Lords) in the case of Mogul
Steamship Co., Ltd. v. McGregor. 5
Their Lordships decided
that a combination made by two or moi-e persons with the
object of protecting and extending their trade and increasing
their profits, and not for the purpose of injuring the plaintiff,
is not a conspiracy on which any action for damages can be
based, so long as they had employed no means in them-
selves unlawful—and this although the plaintiff had in
fact suffered serious damage as a result of the combination.
A more determined blow was struck at the existence
1 Gregory v. Duke of Brunswick (1843), 1 C. & K. 24 ; 6 M. & G. 205, 953.
2 (1809), 2 Camp, at p. 369.
» 23 Q. B. D. 598 ; [1892] A. C. 25.