The Sun.
London, England, 1823-06-06 00:00:00

LAW INTELLIGENCE,

VatEedNT•GAbßilDliEladN
bTeleinEfiAieTdßb
COURT OF CHANCERY, JUNE 5.
Mr. HART StC°
CONST
theirs ARRIS AND OTHERS.
yElgr. Const in
this case, as the owner of an Bth share of Covent. Garden Theatre,
,against the owners of the other 7-tithe, the object of which was
to oblige the defendants to carry into effect the provisions, cove-
nants, and agreements, of the deed of March 9, 1812; and to
have a receiver appointed to take the rents and profits of the con-
cern, and apply them to the payment of those debts and expences
to which the property was primarily intended to be applied.
—The defendants demurred to this bill, on the ground that
all the parties interested were not named. In the bill it
was stated that White constituted Harris and Trotter his
executors, that was sufficient (Mr. Hart maintained) to main-.
tain the suit; but the bill further stated, that White be-
queathed his property to his two daughters, and their rights be-
came vested in their husbands by virtue of marriage; yet it
was alleged as a ground of demurrer, that the wives were not
named in the bill. The Learned Counsel combated that ground
of demurrer, by arguing that it was unnecessary to name the
wives, as their property on their marriage devolved upon
their husbands. Another allegation was, that Mrs. Mar-
tindale had made a will constituting the plaintiff her executor,
and that by her will she bequeathed her property to him
for life, with remainders over; and the bill omitted to
mention the parties entitled to the remainders. His Lord-
ship had certainly intimated his opinion that that was a good
ground of demurrer; but he (Mr. Hart) respectfully con-
tended, that it was enough that the pleeptiff was men-
tioned as executor, for in that character he represented '
all the legal interests as vested in hiniself. However, it was
not very material, as he (Mr. Hart) had understood his Lord.
ship to say, that notwithstanding these demurrers, the motion
might still be heard. The Learned Counsel here contended
against the principal that a demurrer should be allowed to all
the proceedings in the case, which might be attended with most
mischievous consequences if it were established. Taking it
now as a case in which he was at liberty to proceed on the merits,
the question was, whether or not the plaintiff was right in saying
that the defendants should not do what they were at present doing.
As this case did not turn simply on the affidavit of the plaintiff;
but also on the joint affidavit of the three defendants, it was his
duty to go through the latter ; for if he had no evidence of his
own, there was enough in their affidavit to entitle him to an
injunction. The Learned Counsel then proceeded to read the
deed of the 9th of March, 1812, executed by and between
Thomas Harris of the first part ; John Philip Kemble, now
represented by Charles Kemble, of the second part; George
White,- now represented by his executors, of the third part ;
Ann lilartindale, wife of John Martindale, standing by virtue
of the deed of settlement, in die situation of femme sole, of the
fourth part ; her husband of the fifth part ; Henry Harris of
the sixth part; and John Brandon of the seventh part. This
last party was appointed a species of trustee, for the partnership
purposes. After stating that considerable debts had been con-
tracted by rebuilding and fitting up the theatre, it set forth that
several bonds, as appearing In the first echedule,'had been en-
tered into by the co-partners, in which they were jointly and
severally bound for themselves, their heirs, executors, and as-
signs. They agreed for the regular payment of these bonds
out of the proceeds of the theatre, and that the treasurer for the
time being should be irrevocably directed to make such appli.
cation of die monies he received as was thereinafter specified.
—They covenanted that the Treasurer should be irrevocably
directed to appropriate the money received for the admis.
sion of persons into all parts of the theatre except the pro.
prietors' boxes, to the payinent—lst, of the performers and of
the current debts and expense* of the theatre; 2dly, to the pay.
men t of 1,0001. to Mr. Copland ; and :idly, to the payment of the
several bills of exchange and sums of money which were secured
by bonds, until all Should be paid ; subject to a Proviso therein
named. They covenanted that they would not interrupt
any sum coming to the treasurer in any way contrary to this
indenture; or in anywise obstruct the payments to be made by
him. The deed contained other covenants for similar restrictive
purposes ; and one from Mr. Brandon, binding himself to ap.
propriate the money as directed by the deed. In the first schedule
were set forth bills to the amount of 21,0001. • in the second,
bonds amounting to 49,0001. ; in all 70,0001. debts to he pro-
vided for. The bill stated, that in addition to the ordinary
profits arising from the admission of persons to witness the
performance, several large rents were received : as„ for the
fruit-room 500/. or 600/. per annum ; for letting the house for
the performance of oratorios ; and for the Piazza Coffee-house,
which was let at a rent of 500/. per annum, &c. It stated the
death of Mr. White, the death of Mr. Harris, the assignment
from John .to Charles Kemble, the will and death of Mrs. Mar. '
tindale, and that the plaintiff was her executor. It proceeded
to state the disputes which arose between the parties in 1821,
their refusing to allow Mr. Harris any longer to remain in the
exclusive management of the concern, and the agreement to
farm the theatre in 1822. This arrangement the gentlemen
IT) ade' between themselves, by which all contreul over the affairs
of the concern was vested in the three persons who had' put in

the demurrer, Messrs. Nl'illet, Forbes, and Charles Kemble.
In consequence of that arrangement (Mr. Hart continued) the
first step they took was to discharge Mr. Brandon, who had
executed a bond for 10,0001. to secure the application of
the money to the payment of the debts, and appoint another
to his situation, of whom he would only say, that he was not
known to be sufficient security, nor was he bound by. his bond
Personally or otherwise as the other was. In violation of the
deed, Mr. Harris had been paid 1,9971., which they explained
by saying there was a mistake in the entry of the payment,
and that Mr. Harris had a demand against the theatre which
~
he set off against that payment. Another allegation was, that -
Messrs. NVillet, Forbes, and Kemble, permitted Mr. Harris to
take those rents which belonged to the united fund; viz. 600/. . -
for the fruit-room; 630/. for oratorios; for private boxes a sum
not mentioned ; and 6001. for the coffee-house. The bill pro-
ceeded to state, that for the period of a century past a usage
prevailed between the co-partners, that the treasurer, every morn-
ing
after a representation, should draw up an account, stating •
what number, of persons had entered the house for payment, and
what without payment; thereby, in addition to furnishing the
means of ascertaining the extent of gratuitous admissions, re-
cording in right of every
.person interested in the concern, a
series of documents against the treasurer, whereby the ac-
counts might be settled in cases of calamity. However, in
January last, these gentlemen thought proper to order these ac-
counts to be discontinued; but directed the treasurer to tell
their co-proprietor, that he was at liberty to come and examine
the accounts whenever he chose. These facts were stated in
the affidavit of the plaintiff; which he need not repeat; the
result of them was, that he had a right to assert, that un-
less there was something to set aside that deed, all the
parties were bound by its covenants, and were not at li-
berty to deviate from them. His irdship would be sur•
prised to hear that these gentleman stated, that until the filing
of this bill, they were ignorant of the existence of the deed of
1812; but even though that were true, still it did not render that
1 deed unbinding. Another singularity was, that neither Mr.
Harris nor Mr. Trotter, the representatives of White, made
any affidavit at all. Perhaps the surprise that this occasion.
ed would subside, when these gentlemen came to explain
what their conduct had been. The three gentlemen who made
the affidavit, swore they verily believed that that deed had not
been acted on for a number of years, but had lain dormant and.
a dead letter. They then went on to state the sums by which
the debts had been diminished ; the disputes that existed be.
tween the proprietors for several years prior to 1820, as to the
mode in which the concern was • conducted ; the several discus-
sions that took place since the death of Thomas Harris, in the
years 1821 and 1822, relative to the arrangements to he made,
at one of which the plaintiff was present, and all of which were
communicated to him ; that lie was invited to be a party to
them, but he declined, saying that he would not join in any
act whereby lie might render himself personally liable for any
thing beyond the assets of the testatrix. They could not,
Mr. Hart said, insist that these arrangements were to hold be-
cause he dissented from them; it was because they proceeded
with their arrangements, notwithstanding his dissent, that he
came to thii Court. He then proceeded to observe that,
although they paid off the greater part of the 70,000/., they had
done so by contracting other debts to the amount of 69,0001., so
that they were in the same state with respect to debts as they
were in 1812.

Mr. HEALD said, there were other debts before the bills and
the bonds to the amount of 70,0001. more, making together-
-140,000/.
Mr. HART said that did not appear in any part of the affidavit.
Mr. HEALD—The plaintiff knows it.
Mr. HART—Where does that appear?
Mr. HEALD—We charge it. I now say so.
111 r. HART complained of these interruptiors.
Mr. HEALD said he would, then, in future take a note of any
inaccuracy in the statements of Counsel, and not set him right
till after he had sat down. In this case he had interrupted his
Learned Friend, lest his statement should go abroad before it
was explained.
Mr. lIART.—Then it was on account of the Newspapers that
the interruptions took place.
The LORD CHANCELLOR observed, that the rule of the
Court certainly was for counsel to proceed with his statement,
and then, if he had been inaccurate, for the other side to con-
tradicte:tensthidee rerttlahese
of the
dthbeeen
Courtinco incorrect. It
accountlt wreisf
Mr. HEALD did not care for the Newspapers one sixpence,
proceeding was legal, let it take its
so far as he was concerned; but he wished to know if in acthoheustrsNlnie7hinilhnaroP:.tesh,rskerthteherhrlffuwthaseiarnother place to resort to for redress.
ofe
to Counsellay d untilown a heny
formal rule upon this subject ; but if he were to say any thing,
sat fu-
ture
Tdhleire was
m(smtn:t
it would be that Counsel should not interrupt. The apology .
il
nragt the
made for every interruption which he remembered was, lest
C7A:CeCEtTt.hLeOßmids: tnenotlenlitk
''' an impression should go abroad."
TAfirie.fii,EoiAsnynapo
pcveriooicAo;oecciztveditaoStrnhr.e_ShaTasinhuseetradetedßis.ounroillydosutobptp-t
Lordship going out of Court for a similar. purpose.
statement
111 r. HART.—IIIy Learned Friend knows, that if I am mak.
ing a mistake, a whisper from him will be sufficient to make
me correct myself.
Mr. HEALD.—I have never raised my voice until I have
found my whisper to fail.
Mr. HART then proceeded with his statement. The defend..
ants alleged that it was agreed that a clear rent of 12,0001. which
would not be liable to any uncertainty arising from a good or
bad season, should be received for the theatre, and be appro.
primed to the payment of the debts; but that being dissented
from by the plainuff, they agreed that the other severi-eightlis
should be leased at 10,000/. per annum. In pursuance of Which,
articles of agreement between Henry Harris and the deponents
were entered into in March, 1022, by which it was agreed that
the whole property should be vested in James Harrison, of Lin.
coln's-inn, Esq., as trustee, at a pepper corn rent, in trust that 1
a lease be ,matte to Henry Harris for ten_ years, from August
1821, at the clear yearly rent of 10,500/. The object of this de..
mice (Mr. Hart contended) was to put these three gentleman.
into the exclusive and unqualified controul of the property.
They provided that this rent, together with Mr. Const's
share, should be paid to Mr. Harrison, obe applied by
'him to the payment of the expences, 'debts &c. &c. of 1
the theatre. Mr. Harris was to receive 1,1.100/. a-year, . ;
and the rest was to form a sinking fund for the payment of • ' 1
the debts. In point of fact, Mr. Harris had appropriated 1,3001
a-year for a year and a half to his own purposes. The
Learned Counsel then detailed the various forms in which the I
accounts of the theatre had been kept with their banker, Mr.
• Stephenson, with a view to the exclusion of any participation .
on the part of the plaintiff. He next read a passage from the ..
defendant's affidavit, which introduced an abstract from a letter
of the plaintiff's, intended to show that his ground of dissatis-
faction '1
was his receiving no present income from the theatre: -
even if that were so (%Ir. Hart contended), it was no answer to
thecthenounwt
treasurer'siitedt
ha
was
oarnateesrgydthatdh proceedinga
vtt
01es tilikel
proceeded
ereston st
accounts
to eno
bafilamwr
vte
hga
seee
,dailuirifi
thato)ra
I:. rnrcstrlnefssdett I
I.r
reports
ti
pseca or
part
oTn
heelnot i 5....
his grounds ofqy, ut he insisted it bore no such
nuance of ceHofe
tern,iager n abroadet that a c
ot
the case, when he was interrupted by -. 1
The LORD CHANCELLOR, who said he was obliged to go
away for the purpose of attending a Committee.

CIRCUITS OF THE JUDGES.--The Judges yesterday made
the selection of tho- Circuits—Norfolk Circuit, Chief Justice'
ABBOTT and Justice RICHARDSON.— Home, Justice DALLAS!,
and Baron GRAHAM.—Midland, CHIEF BARON. anti Baron.
GARROW.—Oxford, Justice PARE and Baron HymmcK.-.
Northern, Justice BAILEY and Justice HOLUOYD.—Westerut
Justice BURRO' on and Justice BEST. .

BIRTHS.
On the 10th of April, at Zante, the Lady of Philip James
Cheep, Esq., Consul-General for the Mores, of a bon.
On the 4th instant, the Lady of the Rev. John Coles, of MII.
land-house, Sussex, of a son.