The Sun.
London, England, 1853-11-30 00:00:00

LA ir INTELLIGENCE.

COURT OF QUEEN'S BENCH, Nov. 29.
(Sittings at Nisi Prins, at Westminster, before Lor d
Chief Justice Campbell and Common Juries.)
A CLEAR BENEFIT-"STILL-VAULTING."-LEVT V. BAELLY
("THE CLOWN.")
This was an action brought by Mr. Lawrenee L‘s•vy,
an equestrian and theatrical manager, to recover damages
against the celebrated Tom Barry, the clown, for an
alleged breach of an engagement, by which defen dau,t
pleaded he had sustained a loss. The two points at 'issue
were, whether the engagement was for twelve nights, as
the plaintiff alleged, or for nine nights, as Tom 7e,arry
contended, and on those points they joined issue, the
defendant pleading a denial of the agreement.
Mr. Serjeant Wilkins and Mr. Home appeared for
the plaintiff ; and Mr. Serjeant Thomas supported Tom
Barry, who sat immediately under him, looking "as
grave as a judge."
Mr. Serjeant Wilkins stated the case, and called
Mr. Levy, who deposed as follows—I am the plain-
tiff in this action, and am a wine-merchant, carrying on
business at Woburn-place, and proprietor and manager
of an equestrian establishment at Brighton. I was at
that place in October last with my equestrian company,
and I then saw defendant, who asked me if I 11.,(1 an
opening for him. He was celebrated as a " clown, and
I asked him what his terms were ? Mr. Newsome, the
equestrian, was present. He (Barry) wanted to play a
week for a "half clear benefit," but I objected to those
terms.
Mr. Thomas wished to know what a " half clear
benefit" meant ?
Lord Campbell said that the celebrated David Garrick
was once asked that question in this court, in an action
in which he was a witness, and that, actor though he
was, the only answer he was able to give was that " a
clear benefit was a clear benefit." (Laughter.)
Examination resumed—Half a clear benefit, in my
understanding of it, means that the performer is entitled
to take half the gross receipts of the house, and pay no
expense but that of his own printing for bills and tickets.
I objected to the terms, and proposed that he should
play a fortnight for it. He at first objected, but, after
some conversation, consented, upon condition that the
benefit should be on Wednesday night, the 19th of
October. He asked me to get some bills out, and I got
bills out with woodcuts, and paid for them. His en-
gagement was to begin on the following Monday, the
10th of October, and to terminate on the Saturday
fortnight, as he and other performers, who were with
me, had to appear at Drury-lane on the following Mon-
day. It poured in torrents on the Wednesday (the
benefit) night. The defendant had performed up to that
night, and on that night the receipts amounted to 581.
odd. I paid him half the amount of the receipts on the
Wednesday night, andhe remarked that he expected 100/.
in the house. I promised that he should have one-third of
the receipts on the following Saturday. He objected,
and proposed that I should give him 151. for the use of
his name, instead of one-third, considering that lie had
taken a benefit. I would not consent to the propesai.
Barry took the check-box away to ascertain what
money had been taken. On the next day I was obliged
to come to London, and on the following Friday after-
noon I returned to Brighton, where I saw defendant on
the Saturday morning. I had ascertained that he had
not performed on the Thursday and Friday following the
benefit night; and I did not sp,-ak to him'S from that time
to the present. I was at the pit-door on the Saturday
night, and several persons asked, "if Barry was gi,ing
to play that night." Hearing that he was not, some
went in, and some went away' ; those who went away,
not paying.
Cross-examined by Mr. Serjeant Thomas—l have been
engaged in the theatrical business for 19 years, and have
leased numerous theatres in that time ; amongst them
the Victoria and City of London. I have been a
Sheriff's officer, a wine-merchant, and a money-lender
occasionally, and have an office in Falcon-court. I have
engaged clowns at T. a-week, and some at more, some
at less.

Sergeant Thomas— What is the largest sum you have
paid ?
Plaintiff—l do not like to expose the circumstances
of professional men, lest I might injure them. To some
I have paid as low as 30s. ; but I have never paid to
any as high as 51. My wife told me that Barry had
refused to play unless I would guarantee the payment
of the printing, but I do not think that Barry ever paid
for the printing himself.
Mr. Henry Stirling, a licensed victualler, deposed
that he had acted temporarily as treasurer of the plain-
tiff's establishment, but was not present at the engage-
ment of Mr. Barry. He recollected Mr. Phillips, the
printer, corning to him and asking him, " What is to be
done with this printing bill which I have brought against
Mr. Barry, amounting to between 51. and 6/. ?" I an-
swered 1,5,(1 nothing to do with it, not having given
any order s about it. I then told Barry that Mr.
Levy was summoned up to London in consequence
of the illness of his brother, and that he bad better
see him on his return. He said he was not going
to be humbugged. He refused to play, and I paid him
half the receipts on the night in question, by order of Mr.
Levi. He expressed himself well satisfied, but eventually
refused to play after that night.—[Witness here ex-
plained the conditions on which benefits and half clear
benefits are arranged between managers and actors.]—
Several persons presented themselves (he continued) at
the doors that night, but went away again on finding
that Barry was not to play. The average morning re-
ceipts during Barry's performance were about 81., and
that amount did not discouragingly fall off after he had
left. On his (Barry's) benefit night the receipts were
581. 3s. 6d. The witness then stated the respective re-
ceipts of several other nights, including those of the
benefit night of Madame Newsome, which were not so
large as might be expected.
Cross-examined by Mr. Serjeant Thomas.— The gross
receipte on those nights were, respectively, 131. 155.,
201., 101. Bs. 11d., 161. 135., and 191. 35., and out of
those sums plaintiff had to pay all expenses, including
actors, salaries, printing, &c. All sorts of bills were
printed, including posters, broadsides, with "clown's "
head in the centre, handbills, &c. Mr. Barry said he
would not play unless the printer's bill was paid, and
that there was nothing in the agreement as to the benefit,
binding or rendering him liable for the printing expenses.
He had been at great trouble, he said, in getting the
benefit up, and Mr. Levy was to have full half, while ho
(Barry) was endeavoured by that person to be made
liable for the printing.
Mons. James Newsome examined, deposed that he
was an equestrian performer on the occasion in question,
and that he had spoken to Mr. Levy respecting Mr.
Barry, and was present at the conversation between
them on the subject of the engagement of the latter.
Barry was to play a fortnight for " half a clear benefit. '
I met Mr. Barry on Tuesday, and said to him, " Tom,
you may as well play for my benefit, and not be pre-
vented by your quarrel with Levy," and he answered
that he would not unless I would pay for his bill printing.
Cross-examined by Mr. Serjeant Thomas.—l was not
entitled to a benefit, having lent my name to plaintiff,
who agreed to give me so much after payment of the
expenses.

Edward Leonard, money-taker, cheque-taker, door-
keeper, bill-deliverer, bill-sticker, &c., examined by Mr.
Serjeant Wilkins, remember the night that Mr. Barry
first refused to play, and thought that a hundred persons
had gone away that night. On the Thursday night the
people asked him if Barry wa
va to "clown" it that
night, and hearing that he Na!;.oh)g
no they pulled down
the barrier-wall. He thought twoti dried persons had
gone away without paying on the ni,l; following Barry's
benefit, in consequence of hearing that he was not to
play.
lotherthat he had
Witness in cross-examination, admitted 3
acted as Sheriff's officer, in addition to b
Mr. Serjeant Thomas then addressed the j
for the
duties.
defence, and urged upon them that the plaintiffs
in bringing this action was not so much with the hope object
ecot
thef
getting damages himself, as of putting costs into
pockets of his own son, who was the attorney for him in
this action. What, he would ask, was the damage sus-
tained by Mr. Levi, that could justify him in instructing
his son to bring this action. He thought this was a
very hard action against Mr. Barry, and that Mr. Levi
was materially benefitted by the speculation, in receiving
a considerably larger sum of money on Barry's benefit
night than on any other night ; for the people, finding
that Mr. Barry was to play, went to the arena, not-
withstanding the wetness of the night. Mr. Barry had
incurred considerable trouble to get up the benefit,
and he ought not to be mulcted in the expenses of the
experiment. The noble and learned lord on the bench had
told them that an action of this sort had been once brought
in this court in which Garrick was a witness ; but Gar-
rick, although a manager, knew less of those matters than
Mr. Levy, with his 19 years of experience ; and Garrick
had not, like Mr. Levy, a son, an attorney, into whose
pockets he was anxious to put the costs of the action. ---
(Laughter, in which Mr. Levy joined.) His client, Mr.
Barry, whom his learned brother, Mr. Serjeant Wilkins,
was far more intimately acquainted with than he was—
(laughter)—gave quite an opposite version of the terms
of' the engagement to that which Mr. Levy had given.
Mr. Levy stated, in his evidence, that Mr. Barry was to
play 12 nights, and Mr. Barry, on the other hand de-
posed, that the engagement was only for nine nights,
and a half clear benefit. Mr. Levy was spoken of by
his (Mr. Serjeant Thomas's) brother Wilkins, as "a
o?d-natured man ;" but was it good natured in him to
m'lng this action against a poor player like Barry, who
was little better than "a fool ?' (Laughter.) The
Jaelarn-a
Sergeant then called the defendant, who

Mir name .
all
-one
Tom. Barry—(Laughter.) I have been
near y
forty-one years foef,ctmg as a " down ;" something like
Lord Campbell _ln that character ?
Tom Barry—yes
hands, as we ~,proier lord.. I had a few days on my
down to Brighton, ];Wowing say, and I thought I'd go
there, and just try to Zing there was a circus open
time previous to the
opening of Drury Lane, wclilleZre trni Ywas engaged to exhibit.
I proffered my services to
"half a clear benefit." He sa:idLie;73, for one week for
that, I then said, "What do you could not agree to
ad " I'll open
proposed nothing. (Laughter.
a.nd take a
) I tAPenr°Pc."7" and he
and
play nineWednesdayniliollo,
with you on Monday,
half clear benefit on the
He said "he would give me half a clear benefit," and
then said, " What are you going to do the other tlrd
nights ? You may as well play them out." I said
" Well, if I should be 5/. short on my benefit, I darei
say you'll not object to give them to me for playing the
other three nights," and he answered (leaving me with
M. Newsome), " Oh, it's all right," and he went one way
and I went another. (Laughter.) I played. I got my
money on the Wednesday, and on Thursday I had a biil
presented to me by the printer. I paid the money, but I
didnot oweliiin anything before, although I had often pre.
viously employed him. Before I paid the bill, I called
on Mr. Levy and on the managing man, and I asked
them if they were going to pay it, and they refused to
pay it, or even half of it, and even to guarantee the pay

meat of it; and I then declined to perform, stating that
I was ready to perform if they would guarantee the pay-
ment of the bill. I have taken many benefits insny life,
and when I took a half elear benefit, the proprietor
always paid the expenses. That was the rule of the
profession.
Cross-examined by Mr. Serjeant Wilkins—ls this bill
your composition ?—" Tom Barry, King of Clowns, will
appear every evening during bite week, whose benefit is
on Wednesday."
Tom Barry—Yes, that is my composition. (Laughter.)
I had been at considerable expense beyond the 5/. 9s.
demanded by the printer. I paid 1/. 2s. for 1,000 day
or extra bills, out of my own pocket, and that expense
was independent of the Si. 95., which I protested against
paying. The bills charged Si. 9s. for did not contain
the programme of the performances on my benefit night ;
they were merely announcements without particulars.
Mr. Serjeant Wilkins here re-called Mr. Levy, who
swore that he never gave the defendant Barry authority
to order the bills in question, and Barry repeated that
he had.
Mr. Serjeant Wilkins replied on the evidence, and
said, often as he had seen Barry—and he had seen him
with delight, he was sorry to see him defendant in the
present action. The defence was sought to be supported
by vilification and vituperation against Mr. Levy, who
deserved better treatment, and who ought not to be
taunted with having brought this action for the purpose
of putting costs into the pocket of his son. Such was
not the case. He had been injured in this case by the
defendant, and he brought the action to obtain redress
at the hands of a jury for the injury.
Lord Campbell, in summing up, said the verdict of
the jury should depend upon whether they believed the
agreement to be for twelve or nine nights, for it was
upon those two issues the plaintiff and defendant were
before them. He thought the evidence preponderated
to show that the agreement entered was that stated by
the plaintiff ; but if they should find for the plaintiff;
the damages ought to be small, seeing that Mr. Levy's
own account set his loss down as not exceeding 7/.
The jury conferred together in the box for some time,
and thenir.
Serjeant
returned
Wilkinsverdict
pfpoiir
applied
et
o the
defendant.
Court to stay
execution till next Term.
Lord Campbell thought he ought not to interfere. If
he had been on the jury he should have found a different
verdict--at least on one of the issues, for the plaintiff ;
but he could not say that the jury were wrong, nor in-
terfere with their function. It was certainly open to
Mr. Sergeant Wilkins to move for a new trial ; but he
(Lord Campbell) could not interfere with the decision of
the jury.
The Court was crowded during the trial, and many
expected to see some " ground and lofty tumbling"
under the anticipated influence of Mr. Serjeant Wilkins'
cross-examination of the witty clown ; but the learned
serjeant, who is neither very nice nor very meally
mouthed when acting for his client, declined to cross-
examine Barry, and great was the disappointment.
Barry, when the verdict was given in his favour,
shook his learned serjeant heartily by the hand, crossed
the floor of the Court, and said something sotto voce to
Mr. Serjeant Wilkins, who seemed either not to notice
him, or disinclined to recognise him.
Barry then left the Court surrounded by his friends,
to play his part upon another " stage"—that of Drury-
lane.

COURT OF COMNION PLEAS—Nov. 28.
LEE V. COLES CHILD.

The plaintiff in this case is a sail-maker in Leadenhail-
street, and the defendant a coal-merchant at Belvidere-
wharf, Lambeth. The action was brought to recover
28/. 2s. 2d. for 200 bags and 5 pieces of coal-sacking.
The only question in the case was, whether the plaintiff
bad given credit to the defendant, or to a person named
Howard, who had ordered them of the plaintiff on be-
half of the defendant, and as the plaintiff was called to
prove distinctly that he refused to give credit to Ho-
ward, and sold the goods only to the defendant, though
he agreed to give Howard a share of the profits, and
the defendant, though in court, was not called to con-
tradict this evidence, the jut), returned a verdict for
the plaintiff.

Mr. Phinn having applied to the Court to stay the
judgment until next term,
The Lord Chief Justice refused, observing that he had
a very strong opinion of the merits of the case.
Mr. Serjeant Byles and Mr. Lush were counsel for
the plaintiff; and Mr. Chambers, Q.C., Mr. Phinn, and
Mr. Simon, for the defendant.