The rule with regard to domestic servants is established; but that rule applies only in the absence of any fact which would tend to show that an annual hiring was not contemplated. Thus, if there be a reservation of weekly wages, the inference of a hiring for a *year does not arise. In the present case the only proof given was, that some service was performed by the plaintiff, and that weekly wages were paid to him. There is also another circumstance which tends to throw a doubt upon the supposition that there was a yearly hiring, namely, that the defendant said if the work were not conducted to his satisfaction, he should give it up. In such a state of things it is not very probable that he should hire persons to be concerned in the management of the publication for a whole year. There is, therefore, in my opinion, no presumption of a yearly hiring; and I do not see that the jury have come to an unreasonable conclusion on the subject. ERSKINE, J.: I also think that my brother Bompas has failed in pointing out any misdirection in this case. Assuming that the general rule of presumption, arising from an indefinite hiring, might apply to such a case as the present, and that, if a general hiring had been proved, the jury ought to have been told that it should be taken to be a yearly hiring, still it is enough to say that a general hiring was not proved in this case. The facts in evidence clearly do not amount to such proof. It appears that the plaintiff was paid three guineas a week, with a prospect of increase of salary; and there is the fact of some service having been performed: but there is nothing to show what passed at the time of the engagement. The terms of the hiring were therefore a question for the jury. And I think the circumstance of its being a new periodical, of which the plaintiff was to have the management, was worthy their attention in considering the probability of a yearly engagement having been entered into with reference to such a publication, whatever might be the usage in the case of an old-established work. It seems to me, therefore, that the whole question was properly left to the jury. CRESSWELL, J.: I am of opinion that my Lord did right to leave the question upon the first count, as an open question to the jury. That question was, whether there had been a contract between the parties for a yearly hiring. Now, it is clear that no express contract was proved. But it is said that a contract is to be inferred; and that, upon two grounds. First, that a usage was proved that such a contract between publishers and editors was a contract for a year. be contended that this was not a question for the jury. And it was certainly a fair observation by counsel, that all the instances that were proved had reference to old and established works. Then, that ground failing, the rule of law was referred to in the second instance, namely, that a general hiring,—or to use more correct terms, a hiring for an indefinite period,-is to be taken as a yearly hiring. But what is the evidence of the hiring in this case? There is nothing to show it was an indefinite hiring. The progressive increase of salary would apply as well to the second as to the first year. An indefinite hiring has been held to be a hiring for a year; but if any other facts appear, such as payment by the week, the presumption of a yearly hiring may be rebutted. In some of the earlier cases upon questions of settlement Lord KENYON directed the justices at Sessions, in stating a case, themselves to draw the conclusion of a hiring. His Lordship (1) must have meant a conclusion of fact, not of law-as to whether or not there had been a yearly hiring. Upon the whole, I am of opinion that this was an open question for the jury; and that it was quite right that the case should have been so left. As to the issue on the second plea, the weight of evidence certainly seems in favour of the plaintiff; but if the rule is made absolute as to that, it may be a very grave question what would be the effect of a verdict for the plaintiff upon an issue going to the whole right of action, where there was a verdict for the defendant upon another issue similarly circumstanced. Talfourd, Serjt., on behalf of the defendant, consented that the verdict should be entered for the plaintiff on the issue joined upon the second plea, with all legal consequences. Rule refused for a new trial; absolute, in the first instance, by consent, to enter verdict for the plaintiff on the issue joined upon the second plea. (1) See R. v. Inhabitants of Lyth, 5 T. R. 327. BARNARD GREGORY v. THE DUKE OF BRUNSWICK (6 Man. & G. 953-962; S. C. 7 Scott, N. R. 972; 1 Dowl. & L. 803; 13 L. J. 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. 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. (1). 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 formâ; 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 riot, at and against the plaintiff, and persuading, instigating, causing, procuring, leading 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 formâ; 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 an unfit and (1) See the declaration set out at length, ante, p. 760, upon the argument on a demurrer to the fourth R.R.-VOL. LXIV. plea; [and see note (1), page 759, and 57 1844, Jan. 25. [953 ] [*954] improper person to appear before the public. This plea was held bad on demurrer (1). : At the trial of the cause, before Tindal, Ch. 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. Bunn, 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 O. P. private stage-boxes (2). As soon as the plaintiff made *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 showing 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 shown 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 (1) Vide ante, p. 759. (2) In theatrical language, the terms O. P. and P. S. are used to prompter. The well-known O. P. riots, out of which the case of Clifford v. Brandon, 2 Camp. 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. GREGORY t. THE DUKE OF 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 BRUNSWICK, plaintiff has sustained on occasion of the premises, whereof the Court had given judgment for the plaintiff, namely on the fourth plea. 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 *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 the 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 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 O. P. box; and that unless such arrangement had been shown to the satisfaction of the jury, there was no case against the defendants. The jury returned a verdict for the defendants. Shee, Serjt., in last Michaelmas Term, moved for a new trial [ *956] [957 ] |