The Sun. — London, England, 1801-12-28 00:00:00

ian 1 laird mist t can here m of s t be, :he rties 1e to lould ut i ►ills•, :ano le to mae se ten Rent Chargers, and the ten'Rent • Cheript I think it is for the interest of. the Proprietors of the private boxes--•I think it is to the interest of Mr. 'Sheridan-4 think it is for the interest of Mr. Grubb, in whatever charaaer he stands--I think. It is to the interest of Mr.. Richardson, in what. ever charaaer he may stand, to take the thing as it is now, and, by mutual sacrifices to each other, to make the best of it, as it stands. They have it in their power to assist each other, but I am not sure that if any one of them insists on his absolute tight, any one of the. rest, or -the rest altogether, Can contest with that one, without demolishing the whole of this concern. That is what occurs to me Upon this subjea : I would only add; .that what I wish should be done is, to give the parties an • pp_ portunity of considering this matter upon these hints which I have thrown out,. until the day I Wive mentioned, taking care in the -mean time, as I-cer tainly shall do,' there shall be some arrangement by which it shall be prOvided that no debt Of a Tradesman or of any Performer shall go beyond what it is now. .---The business originated in the ye a r 1791, pe e _ vious to that, there existed an interest in Killigrew's Patent, and also iu the Patent possessed by Messrs. Garrick and Lacy. The latter was pledged to a considerable amount, he believed 72,0001. and also. subjea, as to Lacy, to rent-charges to the amount of 75,0001. besides other charges. In 1791 those , proposals were made relative to re-building the . Theatre, which,were contained in the first Schedule of the, Deed of the. t6th June, 1793. After those proposals were madesin -the year -1791, through va- ' rious causes of delay, a year and three-quarters were filled up by performances at the Opera House,' which it appeared were not only'not beneficial, ,but were attended, with a heavy loss. The interest of the Mortgages and Rent-charges in the mean time v. , e nt on, and it might easily be conceived that great difficulties must in consequence accrue to the concern, Here he could not help observing upon the impropriety of appropriating any specific sum to the payment of the Renters, until the profits were ascertained. The Proposals held out the idea of building a magnificent Theatre, with buildings around h, the whole of which, it was contended by Mr. Sheridan, Mr. Holland contracted to finish for 80, 000 1. This was denied' by Mr. Holland, who alledged that he was merely the Architetit and Sur veyor, and not the'ContraCtor. It did not appear very clearly that there was such a contra& on the part of Mr. Holland, since there .was a clause in the Proposals, by which provision was made for raising a further sum of money by sale of the Pri vate Boxes, under the supposition that the former su m would be insufficient. The sum of 150,0001. was to be raised by 300 subscribers, at cool. each, and the Mortgagees paid. The Trust Deed of T 793 was, however, executed. .The Theatre was opened, but only 4.2,0001. of the old mortgages was paid : off. In considering this Deed it must evidently appear, that the Duke of Bedfiird was mot bound to.grant any lease, ;till the wholebuild ings were finished according to the plan ; nor were the Mortgagees bound to consent to it, till their mortgages were satisfied. The latter, however, having consented to that Deed, as if their mort_ gages were' .paid, it became a question, how far they could set up a claim against a subsequent in. Cumbrance, .igoorant of the faa ? The _Ds'eti !Diced covenant upon. covenant, and proviso upon Proviso ; but there appeared a degree of negligence in the execution-of the trusts, which however cir cumstances might stand between the parties e could not be allowed 'for in that Court. The Trustees were, by the provisions-of the Deed, to take pos **iota of the Theatre, if the payments were not tclule,:.by,,.the Proprietors according to the :stipula tions.of that -Deed. - He did not wonder that the Trustees, when the time came, should shrink from ' the execution of that duty which they had imposed upon themselves, and decline the task of taking , upon themselves the management of such a concern. Still, however,. that Court was bound to say, that the Trustees ought to have ailed according to the trusts contained in that Deed. By that Deed, the sale of the Private Boxes was provided for, the pro-. duce to be paid into the hands of the Trustees, and applied, if necessary, in aid of the 80,0001. appro prilted for '.building and completing the Theatre and surrounding buildings : the Private Boxes had, however, been sold, and the monies arising there from - paid, with the privity of the Trustees, to Mr. Sheridan,. the Proprietor. He wished to put it to the consideration of the Proprietors of the*Private boxes, how far their title' was secure, if the Rent- Charger's should insist on the money' being applied to the finishing of the Theatre. If a Bill had been filed against the Trustees for that purpose, the Court must have compelled them to complete the Theatre, and appropriate all the monies originally allotted for' that purpose. The Private Boxes must therefore have been liable, 'until the Theatre was placed in a finished and complete state. Thus far the Deed. He now cattle to a transaction of a verrsingulat nature, which had given rise to the claims of Grubb, and to the - dispute between him and Mr.. Sheridan. This, it was enritended by Mr. Gttibb, was in August, 1795, and by Mr. Sheridan, not till Sep tem b er , 1 7 9 5. The question was, whether Mr. Grubb was a Proprietor or a' Partner; and if a ran ter, and not i Proprietor, whether he had com mitted any as of forfeiture ? If he was to be con_ sidered as a Partner, he certainly had a right to be indemnified. The AgreeMent, however, as set up by Mr. Grubb, was in Aug ust, 1795; and if .Mr. . Sheridan would consent to such kind of Agreement, interlined as it was, and without any designation of the parties, except initials, he must not 'complain of Law expences. A more' extraordinary Agree_ tient appears of the 46th September, 1795, accord ing to which it should 'seem, that bOth Mr. Rich.: arason and Mr. Grubb were to be imagined Pro -I;ri“ors, Mr. Sheridan giving them a power to aft In his absence, and agreeing to abide by their alts ; each to be entitled to one-seventh of the profits. lie was not learned enough in the concerns of the Theatre, .to say what was the' difference between th e profits of the Proprietary and the profits of the Management ; but this was certain, that the exe cution of such kind of ambiguous Deeds, betrayed great negligence and inattention.—The next Deed Was that-of the 7th of April, 1796, between Mr. Sheridan and the Linley famiiy, and other Gentle °len, ;amongst whurc , were Messrs. Grubb and Hol. land, -by which the latter held in trust the shares in Killigrew's Patent, the Theatre, Buildings, Scenery, Wardrobe, 84c. ; and were to sell the thir, ty-seven shares which had been created, of 11. each, under the direction of Mr. Sheridan, for the most money that, could .be had for them, no one to be sold for less than pool. But no notice was in thin taken of the Private Boxes. In December, 1796, however, it appeared by a Deed of that date, that the Private Boxes were not sold, but deposited in a trust as securities for the Mortgagees. The Theatre remained at that time, as at this, un finished, whilst this Deed recited the trusts of the Deed of 1793, by whielv , lr was expressly stipulated, that if the molies appropriated were not sufficient to complete .the Theatre, the Private Boxes should be sold to supply the deficiency.— There could be no question therefore thi'at those who had possessed themselves of the Private Boxes under - such a Deed, had taken them, stabled, with their eyes open, to All the provisions of the Deed of 1793, and with full notice of those provisions at - the time they abed under the Deed of 1796. Of the execution of this trust an account was now rendered in December 18ot. Mr. Sheridan complained of law expences, but he was convinced, if Mr.' Sheri_. dan had filed a Bill to compel,an account of the exe, cation of this trust, he would not have incurred one sixth of the expences, that it appeared by this ac_ count he had. With respea to the 37 one pound shares, Mr. Sheridan had sent him a letter, inform ing him he should read a paper in Court, which contained an account of their distribution. To this he had no objeCtion, but he could not help making use of this opportunity to reprobate the praaice of sending letters to him upon the subjea of causes be fore the Court. To such a 'height had this evil arisen, that scarcely a cause now came before the Court, in which letters from the Parties were not sent to the Judge who was to try it. If such a praftice was continued; he must take some strong measure to repress it. He must do Mr. Sheridan the justice to say, . that he had withheld no Paper whatever that , could in any degree tend -,t),elucidate the matter,. before the Court, or afford any _in- formation upon the subjed. If Mr, Sheridan's mind had been too' feeble to struggle with the difficulties of his situation, he wished him to con template the Theatre with a well grounded hope, as , he thought it had stamina stafficient to resik the pressure it now experienced. I-!, should now pro- ceed to the'Deed of isth of September 1798, by which Messrs. Sheridan, Richardson, and Grubb were all stated to be Proprietors of the Theatre.— This Deed affected to abstract. the Pit-money from the rest of the Funds, whiCh could not be abstracted without first satisfying the priorities of the Deed of 1793. Mr. Grubb agreed that this Deed made him a Proprietor. It did so to a certain extent, but excluded' him at the same time, for Mr. Grubb had submitted to an Indorsement upon the . aced, by which the exclusive right and property of Mr. Sheridan in the Theatre, was expressly reserved, whilst, at the same time, 'the rights of Mr. Grubb were expressly referred hack to the Agreement of 1795. The Bills of Exchange also drawn by Mr. Sheridan, upon himself, Richardson, and - Grubb, Proprietors Of the Theatre, . were strong evidence on behalf of Mr. Grubb's claim, and there could be no doubt, that Mr. Grubb.was, as to , the Holders of those Bills, a Proprietor of the Theatre. The keeping the Accounts also as a joint concern,' and the Deed to Mr. Westley, -were other strong circumstances, and it ` was extremely diffiCult to say, what the adual interest of Mr. Grubb was, or whe ther a Jury, having all this evidence before them, alight not deem him a Proprietor ,- but he thotight Mr. Grubb would aft advisedly, if he endeavoUred to get rid of his concern in the Theatre., If ,an agreethent did not take place, the Court must, most probably, send an issue upod the question, to be tried by a Jury ; but he thought it would be an hu- , mane act to relieve Mr. Grubb from all further lia bility relative'to the Debts of the Theatre. This Deed was followed by the Orders, by which the Pit-money, after deducting 451. per night, and a part of the Box-money were to be abstraaed from 'the Fund, and to remain subject to the direetions of the Court. He wished the Deeds had been read at the time those 'orders were Made. The Court was then called upon to aft without sufficient information upon the stabled, and in hopes of speedily settling all differences between the Parties, had made those orders. It was foUnd it had done that which must stop the hand of every Tradesman who had previ ously supplied the Theatre with the necessaries of its existence, and shut the mouth of every Per.:' former, upon whose exertions the Theatre must de pend for support. • The effea of those orders would then be, as it had been sworn by , Mr. Peake, the Treasurer, in his Affidavit, to shut up'the Theatre. had formerly been the prance of the Court for no Counsel to consent to any proceeding without the fullest information upon the subjea, and he iliust say, that the Court could not protea itself front be ing surprized into a similar measure with that which he had just commented upon, and which would. have been ruinous to the concern it was intended to benefit, if Counsel would not bring into Court full Briefs, and a greater pottion of information upon the matter before the Court. Under these circumstances, and the general corn, plexion of the Case, his Lordship said, he had no difficulty in saying, it was his business to abstain as long as the Parties would allow, from giving his judgment upon this complicated Case. He laid but little, very little claim to the applause which seem ed to be due to quick proceedings in the Admini stration of Justice ; he had not talents to enable him so to dispense Justice. He did not Wish to acquire such a talent ; he had rather suffer any thing that a Party :could objet to hirriin that re- I sped, than for the sake of quirkness' in 'the- dispatch of business, he should lay his and - on - those prin ciples which must in a degr e, apply to all the distribution of property by order of a Court of Justice, or tothe - rights of those to whom it .be. longs; and here he could not help indulging a hope, that by mutual forbearance, founded on a considera tion of all the. circumstances of the Case, and bot tomed in real attention to the true interest of all the Parties, he might look for a better settlement' of 11116 complicated business • than could be obtained by an . ) , decision of a Court of Justice; for the Parties might find, in their own prudence, more reakadvan. tage than they could find in any Cc:lW,- lettered ' it was, and must be, by rules.--. , --Put he could not part from this subject, without saying that if. this matter was no better for .him td consider it onithe next day he came into Court to consider it, than it was- at.preSent, he .. must take care it should be no worse. He,felt for the demands of the Tradesmen, if duly made, and the demands of the Performers who ex:. erted their talents, and gave up the best labour of their lives for the support - of the life of the Theatre, and withoUt which the Concern could not go on for one hour they should, therefore not be curtail ed- in their remuneration for any thing:they should' do hereafter, and therefore he. did exiied that if he had persuaded any of the Parties, that it was to their interest to accede to whit he had ventured to re conimend, it -Would be on the terms of providing daily hereafter 'for the Tradesmen of the Theatre and the Performers ; and this was an order which he was even now prepared to make:—sci much 'was he impressed with the propriety of this determina lion, that he was ready to say, the Tradesman who served . the Theatre this night, and the Performer who went throUgh his part this night at that Thea tre, 'Should be paid to his or ,her satisfaction, for without this, there was nothing in the colour of Justice ever likely to take place. Now his Lord ship said, that he had adverted to the conduct .of Mr. Grubb and of Mr. Sheridan in several, parts of this most complicated business =he had, however, • adverted to them no further thanas they referred to matters of fad before him, He had nothin to do with: negligence, nor with irregularity in. any of the Parties, except as they weie 'manifested in that On which he was called upon judicially. 'to 'decide,' standing as they did, stutois in, that Court. But, in' that sense, and in that sense only, speaking with re ference to the one and to the other 'of these Gen tlemen, he had no difficulty in saying their conduct was marked with such a degree,of, negligence 'and irregularity, he must be tunderstood to advert to what professional men, in a Court' of Justice, called irregularity ; marked with such a degree of negli_ gene and irregularity, he said, and other parts of the, case partook so strongly of the same quality, tha he thought ir.wOuld be doing injustice to both if he were .to pronounce any thing upon the sub jai generally,; because his judgment would amount Co nothing more, AC best, than reasonable conjec ture. Whether 'Mr. Grubb was a proprietor, or whether , Mr. Richardson was. a proprietor, or whether Mr. Grtibla was a partner with ' interest ; (not interest as due ;to him on property advanced), but a partner ;with interest in the' property, whe ther he had forfeited that character by any ad, or that he . was meant to be a partner, on • some conditions which he had not performed, whether Mr. Grubb was right, or Mr. Sheridan was right, the one alledging that he was - a partner, the other that he was none, were points which, if litigated at all, must be sent to that Tribunal which had constitutional, fitness ,to . dispose of them, namely, trial by Jury ; or if the whole went, as in this par ticular case, hiS Lordship could not 'help recom mending,, to arbitration, due care should be had so order the production of all documents nece ‘ ssary • for complete. information upon the,subjeCt. But if, upon inquiry,-.it should turn out .that Mr. Grubb was-no proprietor or.no.partner, having no interest in the profits, yet that since A ugust -or Sep tember ine, that he had had an actual concern as A partner, and was held out as such to the world, although not, really entitled to the benefit of the concern, as between Mr. Sheridan,. Mr. 'Richard son, and Mr. Grubb,' that was matter, to be re gulated by them; but as to the Public, the case must stand, in many respects; as if he was -a part ner, ,that is; all - the ads which he did' in that cha .rader, would bind the property as if he was ac tually a partner, and then would come the consi_ deration, in that Court, whether,, if Mr: Grubb, was not be entitled to the benefit, he should not have, at least, • the indemnity of a party who .had been in this concern • for he had a right to say to Mr. Sheridan. and Air. Richardson, " If you send me out. as no' Proprietor, without a farthing of money in my pocket-, you have suffered me to sub- : jest myself to large demands, and great embarrass mentsa I have partakeri':of the misery of 'the con dition of a Proprietor ; -I have, at least, a right to be indemnified for what has been done by me in that character." This language Mr. Grubb would have a right to hold out towards those who re mained'Proprietors of this Theatre ; and his Lordship observed that whatever ambiguity there• was in the situation of Mr. Grubb, he had in this Concern an • interest which that Court must take care of, and see that it be secured, if that Court Iwas to arrange the interests Of the different Parties ;. and here he would take permission to observe, without pre judice to any Deed which was executed by any of the Parties, Mr. Sheridan had perMitted Mr. Grubb to draw Bills of Exchange.—Drawing a Bill of Exchange .Was . a solemn at, a prodigiously solemn aft, as one of a Firm, by one who was no partner-,-but so it stood, Mr. Sheridan had permit.. ted Mr. Grubb to draw Bills of Exchange as a part ner in the Firm of the Theatre. This was certain. ly holding Mr. Grubb out to the Public as a Pro, prietor of Drury.dane Theatre . ; he must be so taken by every one into whose hands these BUIS had 'found their way, 'for it was one thing to consider,. whether'any holder of any' oneof these. Bills - would have taken it, if it had the - responsibility of Mr. Grubb only, and another' to consider.that it was the, Bill oil Exchange of a Proprietor of the Theatre.— Therefore 'as to these Bills of. Exchange, Mr. Grubb most unquestionably was a Partner. It was-very easy to see what must be done in this Case ; it must go before a jury, or .before a more ineffec tual Forum, the Office of. the Master, unless the Parties would have. ,mercy upon theinselVes, by , agreeing to refer the..whole, of this matter to the determination of ajtidge of their own chusing.— The next question was on the 'Petition - which was presented against-Mr. Holland; and the Answer he made in his Affidavit. The object of that applica. tion,•was to make Mr. 'Holland pea - forth what was alledged to be his - contra& ; for, as .to that part of the case which referred to the Box Annuities, and the remaining share of - Mr. Killigrew's Patent, his Lordship dismissed it for the present, observing, it was useless to order the Trustees to do any thing in that business, 'because there were not, at present, 'any funds in the hands of the Trustees applicable to ' sti'dt I.iurpose, Villa! might be er.lcreti to be dnne' when . they have f 09.1, 5; quite question. - With respett to tbe . Petition reApettihg Mr. Holland, calling in to do th.tt which drew from -Mr. Mansfield an obseryationby which lie clri. taEteriz,ed this case as the most extraordinary that ever came before a Court of Justice or Equity.; .he was not surprised that the case .had drawn forth that expression from that very able. and experiewed professional man ; the Case was certainly, taken altog6ther a wonderful Case ; it was difficult in the very nature of the thing, for it was Ibunded on the execution of Trust Deeds, emulated with pecuni.4 interests, and he could not help hesitating. a little, ,when • he was told 'alias either that or any other Court of Justice, was able to ,aft with satisfaaion to all Parties, or indeed with satislaCtion to itself, when it had to regulate compliCated interests whiell arose wit of speculation in public amusements, for the rules of a Court of Equity would not dispense. with the absence of parties ; the Judge of S uc h Court would not take upon himself the power-of pronouncing on the rights of those who were not -before him, and be was called upon here ) en do , that which he would not attempt, in the present state of fads, he meant in . the present state of fads unascertained ; to decide upon all the interests ..of all theparties concerned ; that no man could ex peet,.of him, until the extent of those interests were - ascertained . in the way in which contested facts could alone be ascertained; namely, by a jary.—:- Besides this, he must observe, upon the pradical inconvenience of entertaining. sucfi case,z, that if . there were' many of them, all the other Suitors of the__ Court muss remain without any hope of having jus tice done to them ; and here his Lordship said, he - must submit to the Counsel in this case, the cons, sideration, of the necessity of being - mere fully in:.' struCted than many of theinhad had an opport aid ty of being in this case, in order that they might inform age Court, for that was the chief office of a Counsel, so that the Court might know what the. interests - were that .came Under its consideration ; at present, unless the Judge blended, in himself several distina characters, he would have no means of doing any, thing like justice. in the first place, he must be.. come a .Party in the Concern, to understand In - the next place, a Solicitor in the ,Cause to -- prepare the materials whereon to discuss In the third place; he must become a Counsel in the Cause to exttain it, and that, as well for those ,1 who were absent as those who were present, as the suitors of it ; anlin the last place, he ' must' exe...! cute the duties of a Master of the Court, to ex amine into fans, and report thestate of them, toge. - cher with his opinion theredn. Now,' under all this. complication, he confessed he did not clearly, or with comfort to himself, see his way through this business, unless indeed he took up an idea ex pressed by Mr. Mansfield, and consider the neccs q = sity of the case as a justification for a measure which otherwise would be unjustifiable, and. taking the latter up as the Master -would take it. Then taking up the part which regarded Mr. Holland on petition, . his Lordship observed, that his- first -affidavit was broUght 'before the, CoUrt 'a little irregularly, but under feelings' -thatt might, perhaps, excuse that; it was answer to Mr. Sheridan's peti. tion. 'Now if he were to .consider this subje6 as if Mr. Sheridan's petition were n bill tiicd against Mt. Holland,' and Mr.' Hollanks- affidavit were an answer to it, and that the prayer of the bill wits, that Mr. Holland should make a specific performance of his contran ; it would be impossi ble for the Court to order that Mr. Holland should make that specific contract. In the first place,- the . contract was to be gathered from what' was con tained in all these instruments taken together; and when they were read with correctness and attention, his Lordship was persuaded they would not bear the construction whieh had been put.upon them, and partiCularly the words at the - bottom, upon which so much stress had been laid.—The estimate of the plan, amounting to 80,0001. " for which sum " Iwill engage that shall be done," were the words. Now these words, taken literally, might be taken, by some, to mean one thing, by others another ; they might be capable of two meanings— it must mean one of two things ; eitherit must mean as if Mr.' Holland 'said to the Proprietors, " I will do it if you please," in which case it would not be binding, unless he had been specifically directed to do it, ,and the sum had been tendered to him, from time to time, as he might want it for that purpose ; or else, it must mean, that by these, words he bound himself, at all events,, to perform the thing, what ever difficulty might afterwards arise to himself for having so done. What was his Lordship to do in . that state of things? Why, he must look not only at the proposal, but.also at all the acts of the par- . ties since the proposal was made ; 'for Mr. Holland said he did not engage to do it, as -was contended by Mr. Sheridan. This proposal might be consi dered as one part of evidence of a contract, but mot conclusive evidence of the contract being a.tl.lAlly entered into, or of the meaning of the contract; for, before that could be established in a Court of jus tice or Equity, the whole body of the transanions between the parties must be entered into, and they must be read through, before a correct idea could be righted upon the matter, such, as-his Lordship said he had done, for he did not like'ro imitate those who had subscribed their sool.a-prece, and thought .that nothing more was necessary to be done . ; and having gone through the whole of the transactions, • 'with reference ,bearing they had upon that .subjth, he owned it did appear to him that these, words were so far . from being a .confident statement, that the Building 'could be completed, or that Mr. Holland would complete it for the sumvf 8o,000l: that it appeared to be the express declaration of Mr. Holland there would be wanting, in addition to this, the sum of 35,0001. to complete the build.. ing ; and when the Deed of 1793 came to be executed, to which Mr. Holland himself was a parry, there was no charge made against M r . Holland for the non-performance of his contrait. In the Deed of 1793 there was a power for the Partners (they were to judge. of their 'own- contrad) to apply certain large sutras of money, either in the purchase of Kil ligrew'S patent, or the renc.eharges of soot. a-year. They did raise rent-charges of 6001. a.year. Now these words of Mr. Holland could not amount to a contraEt in a Court of Justice.—ln the place in which he sat, his Lordship said, he was to look at the !es anti gement i satis- sidera- put by r-seven e Mr. he had Fore he gilt to estate. Lion to then of the reater of, or ied on of en- Grubb .ed on e done r that tra to rs swear have )t . help ,e sub- mos C ght in how- in the ..ounds. upoa -a tars, might the sel for 7o the think Arbi- E..r en. ustees said Arbi, )e esita. e ex. Agar, ie the pitraw Mr. }not St Era re in.. the 1 ter.. ights :d by r sum ether state hould ry to I i vett come COM.. tree. that dace, s at the' eathp t for the ft to eman t.. no.. e the i6th. save' tnpel &ion lake, more