SOME THINGS ABOUT THEATRES. III. By R. Vashon Rogers. NOW let us consider a few of the results of the contests when Greek has met Greek — when actors and managers have been at loggerheads. The proprietor of a theatre, or the mana ger of a troupe, cannot send a performer to jail because he will not play nor sing, neither can he compel him to do his duty; he apparently can only recover damages against him for breach of contract. The proprietors of Covent Garden Theatre agreed with Kean, the actor, that he should play for twentyfour nights during a certain period at £50 per night, and that meanwhile he should not perform anywhere else in London. Kean cut up rusty; and the Vice-Chancellor con sidered his high court powerless in the matter; that as it could not enforce the posi tive part of the contract, it therefore would not restrain by injunction a breach of the negative part. His Lordship thought that if Kean refused to act, sequestration was out of the question, and that a man could not be sent to the Fleet for refusing to act; so he decided to leave the complainants to their remedy at law and not interfere by giving the partial relief and preventing Kean performing elsewhere. (Kemble v. Kean, 6 Sim. 334.) This was in 1828. A few years afterwards the same learned Judge ad mitted that the court might execute a nega tive contract; he said he remembered a case in which a nephew wished to go on the stage, and his uncle gave him a sum of money in consideration of his covenanting not to perform within a certain district; that, he ' remarked, was a covenant which the court would execute on the ground that a valuable consideration had been given for it. (Kimberly v. Jennings, 6 Sim. 340.) The
law remained for some time uncertain as to whether or no one could, by injunction, compel a player not to play in any place but where he had agreed to act. However, at last Lord St. Leonards settled the dispute and established the principle that the court may enforce the negative part of an agree ment by an injunction, although the affirm ative part is of such a nature that it cannot be specifically enforced by decree. Mlle. Wagner had closed an engagement to sing at Lumley's Theatre and not to sing at any other; however, with the fickleness with which the angelic sex is usually credited, she soon wanted to sing at Mr. Gye's theatre. The Lord Chancellor put his foot down and restrained her from going to Gye's, although all the king's horses and all the king's men could not make her sing at Lumley's. His Lordship said, " The case is a mixed one, consisting not of two correlatives to be done, one by the plaintiff and the other by the de fendant, but of an act to be done by the defendent alone, to which is superadded a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, the one being auxiliary to, concurrent and operating with the other. This agreement to sing for the plaintiff during three months at his theatre, and during that time not to sing for anybody else, is not a correlative contract, it is in effect one contract. The engagement to perform at one theatre must necessarily exclude the right to perform at another theatre." (Lumley v. Wagner, 1 D. M. & G. at page 618.) His Lordship agreed with the dictum that a person cannot be in two places at once, unless she is a bird, and Mlle. Wagner was neither a Swed
