The Sun.
London, England, 1865-12-23 00:00:00

THE SUN, LONDON, SATURDAY EVENING, DECEMBER 23 1865.

LAW INTEL LIGENCE —This Day

COURT OF QUEEN'S BENCH.

(Before the Lord Chief Justice and a Special Jury.)

SWANBORO UGH V. SOTHERN.
This was an action brought against Mr. Sothern,
the celebrated representative of Lord Dundreary, by
Mr. Swanborough, thelessee of the Prince of Wales's
Theatre, Birmingham, for breach of engagement.
The court was crowded by members of the
theatrical profession. Amongst those present were
Mr. Buckstone, Mr. C. Mathews, Mr. Creswick,
Mr. Addison, Mr. Emery, &c., &c.
Sergeant Ballantine appeared for the plaintiff,
and Mr. Bovill for the defendant.
Mr. Field having stated the case, called
Mr. Swanborough, who said he was the lessee of
the Prince of Wales's Theatre, Birmingham. In
the year 1865 he entered into an engagement with
Mr. Sothern to appear at his theatre in Birmingham,
and in consequence of a telegram from Mr. Sothern,
he came to London and saw Mr. Sothern at the
Café de l'Europe, in the Haymarket, who said he
had made an engagement with Mr. Henderson at
Liverpool, and that he could not carry out his en-
gagement at Birmingham. He told him he must hold
him to his engagement, to which Mr. Sothern said
he must do the best he could with Henderson, but
that he had thought that £lOO would be an ample
compensation for the non-fulfilment of the en-
gagement at Birmingham. He (Mr. Swanbo-
rough) said that £3OO would not compensate
him, to which Mr. Sothern said, " Very well, old
boy, I'll play for you." He afterwards received
from Mr. Sothern the sketches of the scenery re-
quired for " David Garrick" and " Brother Sam."
It was arranged that " David Garrick " should be
the opening piece at Birmingham. He proceeded
to make his arrangements, and made certain en-
gagements, and he received special sketches from
Mr. Sothern for the securing of " Brother Sam,"
and also drafts for the play bills. He advertised
his appearance at the Prince of Wales's Theatre.
Before Mr. Fletcher appeared he posted the whole
of Birmingham with " David Garrick" bills. His
stage master saw them, as he had to study a long
part, and consequently took a long country walk.
(Laughter.) He adopted all the usual means to
make known the engagement. Mr. Sothern was
to have a clear half of the receipts, and he (Mr.
Sothern) was to pay all the expenses out of his
half. He spent £llO in preparing the scenes, and
the furniture for the piece cost between £3O and
£4O. On the 12th of September he received a
telegram from Mr. Sothern stating that as he had
not been properly advertised the engagement was
null and void. The telegram came from Plymouth.
He replied that he had been properly advertised in
every part of Birmingham. He recollected the 9th
of September. Mr. Sothern's agent arrived in
Birmingham that day. He was on the stage at
rehearsal. A ballet was the first piece performed
that evening; it lasted about 20 minutes, and then
afterwards " David Garrick" ought to have been
performed ; but when the first piece was concluded
Mr. Sothern had not arrived. He sent his stage-
manager to the railway station to look after him,
and he (Mr. Swanborough) afterwards went to the
box entrance of the theatre and there he saw Mr.
Sothern, who was sitting in a cab in the street.
There was a large mob round the cab, and he
asked Mr. Sothern to come into his room. ' It took
fully 10 minutes or a quarter of an hour to per-
suade him to enter the theatre. Persons would not
go in because Mr. Sothern had not arrived. He
told him (Mr. Swanborough) that he could not
act in consequence of sudden hoarseness. By the
permission of Mr. Clifton and myself he entered
the theatre. He told him if he did not appear it
would be ruinous to him, and he said, " How can I
appear when lam so hoarse ?" I replied, " Will
you come before the curtain with me, and show the
public you are here and let them see it is no fault
of mine?" He said, " I will not make au exhibition
of myself for you or anybody else." Mr. Morton,
the stage manager, said, " Surely you ought to have
some sympathy with Mr. Swanborough," and he
(Sothern) said he had no sympathy with Mr. Swan-
borough, his sympathies were for himself. He (Mr.
Swanborough) then said, " Will you, or will you
not, appear before the audience ?"• and • he said
hastily, " No." The members of the company heard
him say this. He called them all to witness that
he should hold Mr. Sothern responsible for
any damage he might sustain, and then directed
his stage-manager to tell the audience that Mr.
Sothern would not appear, that their money would
be returned, and that any expense they might have
been put to in coming to the theatre would be de-
frayed by himself. Mr. Sothern hearing this, said,
" Oh, if that's the case, that ends the matter," and
he then walked out of the theatre and went away.
He said that in a good voice; in fact, he never heard
him in better. His voice during the conversation
was a little husky, but then that is the case gene-
rally with actors. He returned the whole of the
receipts, and between £4 or £5 for " dead heads."
Lord Chief Justice—What's that ?
Witness—Parties applying for money who had
never been in the theatre at all. (Laughter.)
There was a great disturbance at the theatre.
The people said it was all humbug, and that they
would never come to the theatre again. He
saw Mr. Sothern at his private residence next morn-
ing. He was smoking his cigar. He said, " I'm
very glad you've come. I'm going to bring an ac-
tion against you." He (Mr. Swanborough) replied,
" Don't talk nonsense. I've come to talk business.
Do you intend to carry out your engagement with
me or not ?" He replied, "I'll not play under this
engagement if it cost me £l,OOO. Fechter and
Burnett have got hold of you to break my engage-
ment." He (witness) said, " How can that be pos-
sible? lam more interested in the engagement
than you are, inasmuch as I've gone to a great ex-
pense, and you are to have a clear half of the re-
ceipts yourself." At this time Mr. Andrews, a
solicitor, came into the room, and Mr. Sothern ex-
plained that his non-appearance arose from illness.
Mr. Andrews said he had not been consulted pro-
fessionally, he had called by accident, and he would
endeavour to adjust the matter amicably for us both
if possible. Mr. Sothern said he had taken an oath
he would not play under the•old engagement, and
would only do so under a new one. A new agree-
ment was drawn up by Mr. Sothern, and he under-
took to play 16 nights. This was on the 20th of
September, 1865. He played four nights, but the
audiences were not good. They were about a
third less than usual. Mr. Sothern had played
three or four engagements with him before this.
He played David Garrick. Sothern said the piece
was spoiled, and that he (Swanborough) must do
his best to force " Uncle Sam" for the Monday
night. Sothern walked through the town with him
next day, to show he was there. Sothern told him
to " paper the house," in order that there might be
a good one.
The Lord Chief Justice—What is that ?
Witness—To issue free admissions. To let in
persons without paying.
The Lord Chief Justice—Oh, that is papering a
house, is it ?
Witness—The house was not over good. Mr.
Sothern said paper audiences were always cold
ones. He played very well, and had capital notices
in the papers. He went next day to Mr. Sothern,
who was then staying at the Hen and Chickens'
Hotel. He was smoking a cigar, and he said he
could not play. He (witness) told him such a de-
termination would be fearful to him. He said he
was ill, and he (witness) asked him if he could not
get through one act. He said, "My dear boy, I
can't; there's the medical certificate." The docu-
ment went on to say that if Mr. Sothern appeared
it would be at the risk of his life--that he would
require a fortnight's rest—andthat perhaps he would
have to undergo a surgical operation. He toldhim he
should have to close the theatre, but Mr. Hender-
son, who was there, advised him not to do that.
Mr. Sothern positively refused to appear, and then
his medical certificate was printed and posted out-
side the theatre. He had not seen Mr. Sothern
since. When the theatre was opened that evening
there was fearful confusion. The people said it was
a swindle. The people that were in demanded their
money, and those that were admitted with orders
I also demanded money. There was about £6 13s. in

derson ?

11 18
12 1}
12 1t
25 55
25 55
13 9
25 17
25 45
25 45
121
10 85
10 85
30}
6 28/
47

48t
25 65
25 65
25 65
25 65
25 65
25 65

the house. He had sustained considerable loss from
Mr. Sothern's non-fulfilment of his engagement.
He (Mr. Swanborough) considered he should have
made a profit of at least £l,OOO by the engage-
ment.

Cross-examined by Mr. Bovill—He was sure
that Mr. Sothern said he had made an engagement

with Mr. Henderson.
Mr. Bovill—You are sure he did not say that he
was desirous to make au engagement with Mr. Hen-

Witness—l am sure he did not.
Mr. Bovill—That is about as true as the whole of
the story you've told.
Witness—l'm on my oath, and I'm not in the
habit of telling untruths.
The Lord Chief Justice—Mr. Bovill, that obser-
vation of yours is very offensive.
The cross-examination then proceeded—He never
knew or heard that his stge manager received a
telegram from Mr. Sothen, stating that he could
not appear on the evening that he was announced.
Ho never heard that such a telegram had ever been
received by Mr. Morton. lie might, however, say
that as he and Mr. Morton were leaving the place
where they had been dining he was told in the
course of a casual conversation at about six
o'clock that a telegram had been received, stating
that Sothern was hoarse, bu; that he would be there
at half-past 6. This conversation took place about
6on the evening Mr. Sothem was to appear. He
never threatened to have Mr. Sothern arrested.
He said he should consult Its solicitor. He never

lost his temper while talking to Mr. Sothern. He
might have told Mr. Sothem he never intended to
act at Birmingham. He ad not know that Mr.
Sothern was, owing to illness, anxious to go to
London to see his wife. He did not know that he
had had to send for Dr. Flee3her on account of his
ill-health. He sustained great loss in consequence
of the non-fulfilment of the engagement, but he
could not go the lengt h of saying that Dr. Fletcher h ad
given a fictitious certificate for the purposes of de-
ception. The nightly expenses of the theatre were
about £3O or £4O a night. The receipts of the first
night of Mr. Sothern's performance was less than
the second and third. This arose from the public
not attending the theatre from the fear of it being
overcrowded. The audiences always improved as
his engagement proceeded. He had played, at the
Prince of Wales' Theatre to a £2OO house.
Re-examined--Dr. Fletcher is one of the first

practitioners in Birmingham. Before he took any
legal proceeding he heard Oat Mr. Sothern appeared
at the Dublin Theatre on Saturday, 7th October.
[This was within the fortnight. Dr. Fletcher's
certificate stated Mr. Sothern would require rest.]
Mr. Johnson said he was at the Theatre Royal,
Dublin, on Saturday, the 7th Oct. Mr. Sothern
acted on that occasion. That gentleman had been
advertised to play in that city for about a week.
He acted in the piece with him.
By Sergeant Ballantine—Mr. Sothern appeared
to be in very good health.
This was the case for the plaintiff.
Mr. Bovill then addressed the jury for the de-
fendant, and called
Mr. Sothern, who was examined by Mr. Haw-
kins—He said during the time he was under
engagement to Mr. Swanborough, he had no
other engagements for that time. He had heard
the conversation spoken to by Mr. Swanborough at
the Café de l'Europe, and he denied that he ever
said that he had made .an engagement with Mr.
Henderson, of Liverpool, which would prevent him
fulfilling his engagement with Mr. Swanborough.
He said he wished to make an engagement with Mr.
Henderson, not that he had made one. His en-
gagement with Mr. Swanborough would terminate
on October 7, and his next engagement was in Dublin,
at which place he was to appear on the 9th. Pre-
vious to coming to Birmingham he was at Ply-
mouth, and there he had to apologise to the audi-
ence for illness. He suffered very much from bron-
chitis. His throat had been bad for two or three
weeks previous. He hid made arrangements
to fulfil his engagements at Birmingham. Mr.
Addison had gone before me. He is engaged
specially for that purpose by me, and a day after
Mr. Andrews also started for Birmingham by my
directions. He, Mr. Sothern, had consulted a
surgeon in Exeter about his throat previous to his
departure for Birmingham.
.(Tho case was proceeding when we wont to press)

POLICE INTELLIGENCE.—This Day,

England and the United States

A series of twelve official documents, which have been
exchanged between Mr. C. F. Adams, the American Minis-
ter in London, and her Britannic Majesty's Secretary of
State for Foreign Affairs, on the subject of the late cruiser
Shenandoah, were published last night in a supplement to
the London Gazette, in continuation of the correspondence
on this subject which was published on the 11th ult.

The first of these communications is from Mr. Adams to
Earl Russell, and is dated on the 21st of October last. In
it the American Minister takes occasion to specifically state
that, "in view of the origin, equipment, and manning of
that vessel (Shenandoah), my Government claims to look
to that of Great Britain for indemnification for this and
other losses that have been occasioned by her depreda-
tions." Mr. Adams then recapitulates at length the pre-
sumed facts of the case, and argues in support of the posi-
tion his Government bad assumed. On the 25th of Oc-
Ober Earl Russell acknowledged receipt of this communi-
cation in the briefest terms; and on the 7th of November,
when 31r. Adams's next letter was dated, it was addressed
to Lord Clarendon, who had just assumed office. This
letter officially communicated to the Foreign Secre-
tary the news that the Shenandoah had come into the
Mersey, and her Majesty's Government was requested to
take possession of the ship with the view of delivering
her over to the United States, that her career of lawless-
ness might bs surely brought to a close ; and that the
property on board might be taken care of. Concerning
the disposition of the crew, Mr. Adams expressed the hope
that, under the circumstances, her Majesty's Government
" will be induced voluntarily to adopt that which may
most satisfy my countrymen." To this last letter Lord
Clarendon replied on the 11th of November, having simply
acknowledged receiving it on the 7th. After informing
Mr. Adams :that on the previous day (the 10th) the She-
nandoah, which had been given up by her captain to the
British naval authorities, had by theni been formally de-
livered to the representative of the United States, Lord
Clarendon goes on to state that there were several severe
cases of illness among the crew of the Shenandoah; and
that instant action for disposing of tbosAkon board appeared
to him necessary. That any proceedings against these
men could only be taken upon some definite charge of an
offence cognisable by British law, and supported by evi-
dence, and that in the absence of such charge her Majesty's
Government could not assume the power of keeping any
of them under any kind of restraint. But the Government
did not possess any evidence to invalidate the assertions of
Captain Waddell, whose report upon arrival (already pub-
, lished), Lord Clarendon enclosed. It remained, however,
to ascertain whether any of the crew were British sub-
, jects, who would, in that case, be liable under the provi-
sions of the Foreign Enlistment Act. "In pursuance of
these instructions the senior naval officer at Liverpool
at once proceeded on board the Shenandoah, and having

mustered the crew, he reports himself to have been " fully
satisfied that they were all foreigners, and that there were
none known to be British-born subjects on board;' where-
upon they were all landed with their effects."
Mr. Adams wrote on the 14th of the same month,
stating that the prompt delivering up of the Shenandoah
to the United States would "give great satisfaction to
my Government," but affirming that as regarded the release
of the crew, he should " carefully abstain from any un-
authorised word of mine which might tend to make a situa-
tion already much too grave still more serious." On the
18th of November the Earl of Clarendon replied to Mr,
Adams's communication of the 21st October, in which the
American Minister enunciated the claim of his Government
for indemnification from losses resulting from the cruise of
the Shenandoah. Hislordship argued that the circum-
stances of the vessel's equipment were not such as in the
eye of the English law, or, consequently, in the view of the
English Government, could belregarded as illegal. Allud-
ing pointedly to Mr. Adams's assertion that her Majesty's
Government had, by receiving the Shenandoah into port
after knowing of her origin and manner of outfitting, as-
sumed a responsibility for all the damage done, Lord Cla-
rendon says : "If I needed (which in this case Ido not) to
find an answer to a claim founded upon such principles, I
should have to seek no further than the records of recent
American law, and the practice of modern American states-
men." On the same day (Nov. 18) Mr. Adams addressed
Lord Clarendon, beginning his letter with a statement of
"the most profound regret that I am thus compelled to
open my relations with your lordship in a spirit of contro-
versy." The letter was in reply to that one of Earl Rus-
sell's dated the 2d November (published with the first por-
tion of this correspondence on the 11th ult.), in which his
lordship argued against the liability of Great Britain on
this question, from the precedent negotiations of the Go-
vernment of the United States with the Government of
Portugal, on a like occasion. Mr. Adams now maintained
, that the respective action of the United States towards
Portugal, and of Great Britain towards the United States,
differed so essentially and radically as to make it impos-
Bible to bring them within a reasonable parallel. The two
letters which conclude the series aro appended, and need

no comment :
"Mr. Adams to the Earl of Clarendon.—(Received Nov
21, 1865.)
"Legation of the United States, London,
November 21, 1865.
"My Lord,—l have the honour to inform your lordship
that the notes elicited by the proposal for a commission
to consider certain classes of claims growing out of the
late difficulties in the United States, made by your pre-
decessor the Right Honourable Earl Russell, in his let-
ter addressed to me on the 30th of August last, have received
the careful consideration of my Government. Adhering,
as my Government does, to the opinion that the claims it
has presented, which his lordship has thought fit at the
outset to exclude from consideration, are just and reason-
able, I am instructed to say that it sees now no occasion
for further delay in giving a full answer to his lordship's
proposition. lam directed, therefore, to inform your lord-
ship that the proposition of her Majesty's Government for
the creating of a joint commission is respectfully declined.
" r pray your lordship to accept the assurances of the
highest consideration, with which I have, &c.,
(Signed) " CHARLES FRANCIS ADAMS."
" The Earl of Clarendon to Mr. Adams.
" Foreign-office, Dec. 2, 1865.
" Sir,—l have the honour to acknowledge the receipt of
your letter of the 18th ult., having reference to the letter
which my predecessor addressed to you on the 3d ult.
There are many statements in yours which I should be pre-
pared to controvert if it were not that her Majesty's Go-
vernment consider that no advantage can result from pro-
longing the controversy, of which the topics are generally
exhausted, but which might possibly, if continued, intro-
duce acrimony into the relations between this country and
the United States ; two nations who from kindred origin
and mutual interest should desire to be knit together by
bonds of the closest friendship. Such a desire is strongly
felt by the Government and people of this country, and her
Majesty's Government do not doubt that it is shared by the
Government and people of the United States. While ab-
staining therefore from any discussion of the passages In
your letter, to the correctness of which I am unable to sub-
scribe, it is nevertheless my duty, in closing this correspon-
dence, to observe that no armed vessel departed during the
war from a British port to cruise against the commerce of
the United States, and to maintain that throughout all the
difficulties of the civil war by which the United States have
lately been distracted, but in the termination of which no
nation rejoices more cordially than Great Britain, the Bri-
tish Government have steadily and honestly discharged all
the duties incumbent on them as a neutral Power, and have
never deviated from the obligations imposed on them by
international law.—l am, &c.,
(Signed)

" CLARENDON."

SHIPPING INTELLIGENCE—This day.

4,-, r-

LONDON, Dec. 23.—Wind this day at noon—South.
Easterly ; moderate breeze, and fine weather, but rather
cloudy.
LIVERPOOL, Dec. 21.—Wind S.W.—Arrived— Jhelem,
from Constantinople; Amalia, from Corunna ; Valentina,
from Rochefort. _ _

FALMOUTH, Dec. 22.—Wind S.W.—Arrived—Johanna
Ludvig, from Galatz.
CLYDE, Dec. 22.—Wind S.W.—Arrived—Glen Tilt,
from Monte Video.
SWANSEA, Dec. 21.—Wind S.W.—Arrived—Rose of
England, from Caldera.
PORTSMOUTH, Dec. 22.—Wind W.S.W.—Arrived—
Theresa, from Madras.
PLYMOUTH, Dec. 22.—Wind S.W.—Sailed—Robertson
for Jamaica.

DIY ELECTRIC TELEGRAPH. 1
GRAVESEND, Saturday Morning.
Arrived, Dec. 23.—Leo, screw steamer, from Antwerp
Hyanite, from Guernsey; King of Tyre, from Seville ;
Moselle, steamer, from Antwerp.
DEAL, Saturday Morning.
Passed, Dec. 22 —Citizen, screw steamer, from London,
for Bordeaux ; Tasso, screw steamer, from London, for
Newport ; Queen of the North, from Table Bay ; Prince
Oscar, from Calcutta—both for London.

GREAT EASTERN RAILWAY.—It is stated that
Mr. R. Moseley, who has been for 20 years associated with
railway affairs in the eastern counties, is likely to be ap-
pointed general manager of the Great Eastern system.
The chief difficulty with which Mr. Moseley has for some
time had to contend is an insufficiency of plant ; and pro-
bably the new management will apply itself vigorously to
the correction of this grievance. The coal traffic from the
north, proposed to be developed in connection with the
Great Northern Railway, is not expected to be commenced
before April.
THE OLDEST INHABITANT.—James APCormick,
said to be the oldest man in the United States, died at
Newburgh, New York, on the 11th November. His age
is stated to have been 114 years, three monthst and five
days. He did not marry until he was 45 ;he then became
the father of 14 children.

Two WAYS OF LOOKING AT IT.—Exeter-hall says
the case against Governor Eyre is plain. In their hands,
we say, it is coloured.—Punch.