The Sun.
London, England, 1855-08-21 00:00:00

THEATRI"AL TRIAL, AT ME BOURNE.

SUPREME COURT, MELBOURNE, VICTORIA.
FRIDAY, MAY 11.
.(Before his Honour Mr. Justice Barry, and special juries
of four.)
BERG V. LEWIS.
This important trial to the theatrical world attracted
" all the talent" of all branches it the profession to this
court on Friday last ; and occupied the attention of his
Honour the whole day.
Mr. Michie and Mr. Follows for the plaintiff ; Mr.
Ireland and Mr. Higinbotbam for the defendant.
Mr. Fellows stated the case. This was an action to
recover damages for breach of an engagement entered
into between the plaintiff, in behalf of himself, his wife,
his sister, and a boy, on the one side, with the defen-
' dant, the lessee of Astley's Amphitheatre, on the other
side. The agreement was entered into through the
agency of Mr. Henry Birch, who was, at the time of its
execution, on a visit to England for the express purpose
of engaging a troupe of equestrians, &c., in behalf of de-
fendant. The agreement was to the effect that plaintiff
was to act as ringmaster ; his wife was to perform cer-
tain acts of equestrianism therein specified ; his sister
was to perform the equestrian feats known technically
by the names of the "trick act," "the double trick act,"
and sundry other acts, specified in the contract. Forthis
the plaintiff was to receive 501. per week. The agree-
ment also specified that these parties were to enter upon
the duties of their engagement feur days after their arri-
val in Melbourne. They arrived here on the 23d of Dec.
last, and the defendant was so anxious for their imme-
diate appearance that he induced them, against their
wishes, to commence their performances on the even-
ing of the 26th of December. During one of the
hurried rehearsals that took place, the sister fell off the
horse, from want of practice, and sustained an injury
to her leg ; she however, took part in certain per-
formances from time to time, until the defendant broke
the contract on the s:h of March. It was to recover
damages for this breach of the contract that the present
action was brought.
The agreement was put in and admitted. It con-
tained tne conditions of the engagement as described
above ; one, that the boy should also do tho " trick act,"
and contained a clause that if, through illness, accident,
or other unavoidable cause, any of the party should be
absent, and unable to perform, then the full salary was
to be paid for the first three weeks ; subsequent arrange-
ments to be at the discretion of the manager.
Mr. Adolphe Berg, the plaintiff, who was examined
through an interpreter, deposed to the agreement having
been entered into while his company were fulfilling an
engagement at Vauxhall Gardens. Birch, the defen•
dant's agent, saw himself, his sister, and the boy per-
form several times before the agreement was entered
into. Arrived here in the Stebonheath on the 23d De-
cember, after a voyage of 109 days. Defendant met
them on board ship, and said that he should want them
to play on the Tuesday following (within the four days
agreed upon). Plaintiff objected ; but they attended
the next morning for practice. Mr. Barlow, "an artist
on horseback," came out by the same vessel, and fell
several times on the first day for want of practice.
Plaintiff again objected at the first morning's practice
in behalf cf his wife and sister. They practised three
times. Were knocked up by the sea voyage. Plaintiff's
sister could not ride in public on Tuesday in conse-
quence of an accident at the rehearsal. She was lame
in consequence of this accident for four weeks. She
performed two weeks in a quadrille, the third on horse-
back, and on the fourth she was prevented by the
advice of a medical man. Defendant put an end to
the engagement by letter, dated the 3d of March.
Plaintiff arid his sister went to perform on the sth of
March, as their Dames were in the bills. Defendant
would not let them stet. Plaintiff and his sistsr then
paid their money, and went into the theatre aumeg the
audience, when they were turned out by the defendant
and the police. The whole of plaintiff's company, except
his sister, performed until the 3d of March. For the
first three weeks defendant paid them at the rate of 501.;
f..r the fourth week, 251.; for the remainder of their en-
gagement, 301. per week. There was a balance of 1751.
due to plaintiff up to the time that the engagement was
broken off.
Cross-examined by Mr. Ireland—Witness himself ap-
plied to have a horse on Mon-lay miming Did nut
understand what "trick act" meant exactly. It was
quite ad libitum. (Loud laughter.) It might mean
jumping through garters, hoops, balloons, or it might
mean something else. His sister did not perform any of
these things on Sunday. "She rode on horseback
standing." She had a rope to support her on that occa-
sion. It was before nine o'clock on Tuesday morning
that the accident occurred. P aintiff performed on
Tuesday. Did not hear an apology made on account of
the absence of witness's sister. The boy of his company
did not perform the trick act. He danced, he sprang,
he jumped through hie leg. He was held on by a rope
with defendant's permission. During the fourth or fifth
week the boy broke his arm by felling off the horse.
Plaintiff had the rope in his band at the time. Whea
his sister came back on the sth of March she was able
to do anything. In the quadrilles spoken of the horse
danced t e quadrille, and plaintiff's sister sat on the
horse. Plaintiff's sister made her first public appear-
ance as an equestrienne on the 22d of February. She
then danced a shawl dance. She ha'' performed in
pantomime before. Was quite sure that on the morn-
ing of' the sth of March the bills announced that his
sister was to appear on that evening. Defendant's
doctor had attended his sister. Witness hal refused
to allow her knee to be examined by two surgeons.
Plaintiffs sister had complained of weakness in the
knee before the accident. The boy did not jump through
any hoop nor over any garter. He had never been asked
to jump through five-and-twenty balloons. Other mem-
bers of defendant's company had jumped through one or
two hoops.
Re-examined—The boy had performed everything lie
bad been required to do by the defendant.
The court, as well as the learned counsel for the de-
fence, had frequently to complain of the answers of the
sworn interpreter. Indeed, the services of that gentle-
man did not appear necessary, as the witness occasion-
ally made lung answers and explanations without his aid.
Madlle. Antoinette Berg examined—Was a rider. Had
been for the last eight years. Played at Paris, Berlin, arid
London. Performed in London at Drury-lane, at Ast-
ley's, and at Vauxhall-gardens. Left Vauxhall a fort-
night before leaving England. Arrived here on Satur-
day, 23a Dec., -when Mr. Lewis came on board and
asked them to supper at an hotel. It was then fixed for
her to perform on the following Tuesday. She and her
brother both entreated Mr. Leaiis to delay thcirappearance
for a while. She rehearsed on Sunday, Monday, and
Tuesday morning, and performed on Tuesday evening.
She then fell off and injured her knee. She was ill four
weeks. and after that again danced on horseback. While
so performing was told by Dr. Eades, who attended her,
to dismount, for fear of further injury to her knee.
Dr. Eades examined—Was called on the 31st Decem-
ber to attend Mdlle. Berg. It was the second week of
this attendance before she went to exercise. Did not
think she was fit to undergo the risk at the time, in con-
sequence of weakne,,s of the knee joint: It would be apt
to agsravate the complaint. From what he had seen in
various capitals, should say she was a very graceful
rider. Saw her do various tricks; amongst others, pray
like a nun. Had never seen a nun pray on horseback,
or otherwise.
Cross-examined— Was certain he was not called in un-
til the 31st December. Complained that he had not been
called in earlier, as the previous treatment was wrong.
Dr, Gibbee examined—Had examined Mdile. Berg's
knees ten days ago, and found no indications of weak-
ness.
Madame Mina Berg—Deposed that Birch had not
seen her ride before the engagement. Defendant had
no good "trick horse" in his establishment. Had told
defendant that as soon as he procured a good " trick
horse" she would ride it. A "trick horse" is one that
Can perform manoeuvres.
His Honour—Not what people in this colony call a
"buck-jumper." (Laughter.)
Examination continued—The horse offered to witness
was not a "trick horse." Was at Franconi's for seve-
ral years. Had been 20 years in the profession.
Mr. Wrn. Barlow—Was an equestrian of 16 years'
standing. Came to this colony in the same vessel as the
Bergs. Did not remember falling on the first day's
practice. Considers circus horses here as good as in Eng
land. Saw the boy perform. He did not do a " trick
act." Doing a "trick act" means, first standing on a
horse galloping round, then striking graceful attitudes,
then jumping over garters. then leaping over broad
canvas sheets, finishing with jumping through balloons
and the like. A " trick horse" In sans a horse that
can dance a minuet or a polka, or perform any such act
by himself after training. The defendant has two " trick
horses," one of them plays in " St. George and the
Dragon." He rears up on his hind legs to fight the
dragon.
Cross-examined by Mr. lifiginbotharn—Mdlle. Berg
did not do tire " trick act." She did not appear an ex-
pert performer while at Astley's. M. Berg performed the
duties of ringmaster very well.
Re-examined—Had seen Mdlle. Berg act at Fran-
coni's. She performed the " trick act" there.
Mr. Tom Barry deposed that he had had considerable
experience in circus and theatrical business. There was
not what witness called a first-rate " trick horse" in de-
fendant's establishment. A "trick act" means dancing
on horseback, jumping over garters and canvas, through
a number of hoops, balloons, and other difficult objects.
A metamorphosis while going round on hur-eback is a
"trick act." Jumping over a whip, or "through the leg,"
is not. A "double trick act" is two performers riding
together with two horses side by side. Mdlle. Berg per-
formed at Vauxhall very well indeed. Witness was 92
days en the pas-age from England. Believed he did feel
rather the worse for the voyage. (Loud laughter) The
boy had not performed a " trick act," but merely a
child's act.
Cross-examined--A " trick act" could not be done
with a rope round the rider's waist.
Mr. Ireland addressed the jury for the defence, and
stated that be should prove that the contract entered
into had been voluntarily abandoned, and a weekly en-
gagement at a less price substituted. The original agree-
ment was, that the boy was to perform a " trick act ;"
Mdlle. Berg was described in the agreement as "equal
to the best rider of England, France, and Germany ;"
the plaintiff was to act as ringmaster ; and there were
other conditions with which the plaintiff had been unable
to comply. He should prose that the defendant had Ira ie
every effort to have the agreement carried out, and had
treated M. Berg and his party with great liberality.
Every act of the defen ant spoken to by plaintiff's wit-
nesses, as well as others, he. should .prove to them as
having taken place, showed his extreme anxiety to carry
out the arrangement. The plaintiff's company had been
unable to comply with the terms of the agreement. The
boy conld not perform. The sister was a bad and un-
skilful rider and not able to do the "trick act," the
"double trick act," &c., as agreed ; and defendant had
offered to cancel the agreement, and give the plaiiitiffe