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

LA W INTELLIGENCE.

COURT OF QUEEN'S BENCH, Nov. 29.
(Sittings at Nisi Prius, at Westminster, before Lord
Chief Justice Campbell and Common Juries.)
A CLEAR BENEFIT-"STILL-VAULTING."-LEVY V. BARRY

("THE CLOWN.")
This was an action brought by Mr. Lawrence Levy,
an equestrian and theatrical manager, to recover damages
against the celebrated Tom Barry, the clown, for au
alleged breach of an engagement, by which defendant
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 Barry
contended, and on those points they joined issue, the
defendant pleading a denial of the agreement.
Mr. Serjeant Wilkins and Mr. Horne appeared for
the plaintiff; and Mr. Serjeant Thomas supported Torn
Barry, who sat immediately under him, looking "as
grave as apdge."
Mr. Serjeant Wilkins stated the case, and called
Mr. Levy, who deposed as follows—l 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 ha,xl 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, and he remarked that he expected 1001.
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 he had
taken a benefit. I would not consent to the propesal.
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 speak to him from that time
to the present. I was at the pit-door on the Saturday
night, and several persons asked, "if Barry was going
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 2i. 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 Si. 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, coming to him and asking him, " What is to be
done with this printing bill which I have brought against
Mr. Barry, amounting to between Si. and 6/. ?" I an-
swered I had nothing to do with it, not having given
any orders 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 had 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
58/. 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. lid., 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 he
(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, remembered the night that Mr. Barry
persons
had refused to play, and thought that a hundred
had gone away that night. On the Thursday night the
people asked him if Barry was going to " clown" it that
night, and hearing that he was not, they pulled down
the barrier-wall. He thought two hundred persons had
gone away without paying on the nights following Barry's
benefit, in consequence of hearing that he was not to
play.
Witness in cross-examination, admitted that he had
acted as Sheriff's officer, in addition to his other duties.
Mr. Serjeant Thomas then addressed the jury for the
defence, and urged upon them that the plaintiff's object
in bringing this action was not so much with the hope of
getting damages himself, as of putting costs into th. o
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 ;t
very hard action against Mr. Barry, and that Mr. Levi
was materially benefitted by the speculation, in receivinL;
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
l'ay 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
good-natured
bring this action ;" but was it good natured in him to
against a poor player like Barry, who
was little better
than
" a fool ?" (Laughter.) The
Learned Sergeant thensaid— called the defendant, who

My name is Tom an.,
(Laughter.) I have been
nearly all my life acting as':-
forty-one years of it. " clown ;" something like
Lord Campbell—ln that character
Tom Barry—Yes, my lord. I had'? f
wasl thought I'd go
praevicoireus open
hands, as we " professionals" say, arida -ew days on my
down to Brighton, knowing there
to the
one
week
there, and just try to occupy my time
to
os
opening of Drury Lane, where I was engagedfor
I proffered my services to Mr. Levy
"half a clear benefit." He said he could not aeerekeefo:
that. I then said, "What do yod propose?" -and. a
proposed nothing. (Laughter.) I then said " open
with you on Monday, and play nine nights, and take a
half clear benefit on the Wednesday following them."
He said "he would give me half a clear benefit," and
then said, " What are you going to do the other three
nights ? You may as well play them out." I said,
" Well, if I should be 51. short on my benefit, I dare
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 bill
presented to me by the printer. I paid the money, but I
didnot owe him 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-