The Sun.
London, England, 1817-12-11 00:00:00

KIRKPATRICK V. KIRKPATRICK.

.sit SAMUEL 1-LomILLY in this ease moved, that
,Eliiibeth,Thompson, oflsletvorth, widrivr; and Ca-
tharine Turner, of the same place,.spinster, might
he committed to the Fleet Prison, they haying dis-
obeyed an 'Order of Injunction issued from the
Cow t, restraining them Irom baying any commb-
iiication 'with George William Kirkpatrick, an in-
fant and a Ward of the Court., SirSAmtTEL also
pi vetl, that Matianne ThoMpson,•daughter of
Mrs. E!izabetlr Thompson, might be restrained
from having any Communication with the said
infant.

Mr. ROS'PELL requested that the motion might
stand till \loudly next,. in order that he might he
endibl•_.(l tq file itiLlavits mAde'hy Life Ladies above
fuvutiooled, which it was of imp6rtance to their
ease should he made..

The Loin CHANCELLOR (Sir S. Romilly not
objvcting)'orderedthe case to be set down for ar-
gument on Monday next.,

FRISBY AND OTHERS V. STAFFORD.

Sir SAMUEL ROMILLY, with 'reference 16 this
cause, prayed that the tlefi.:ndartt might be com-
mitted to the custody of the Warden of the Fleet
PriSon, for the breach of an injunction issued on
the I7th of February last, restraining her from
cutting down certain useful and ornamental tim-
_bey. and, also from committing .waste on an crate
devised to -Ann•Stafford as tenant for life, subject
to the payment of certain annuities, at whose
ceai,e the property in question was to go to the
ten children, one of whom was the plaintiff, Mrs.
Frisby, who being entitled to the estate in re-
mainder, filed the present bill -to •restrain. the de-
fendant from proceeding to cut down the timber
and commit waste. i•The injunction accordingly
issued, hot not witlt4tiiniti 'this, the defendant,
as alleged by. the plaintiff, had - cut• down ..some
hundreds of the young treet.On the estate. •

Mr. LEACH contended that no waste had been
committed, nor had any but full grown trees been
felled, Which were thepurpose.of
Mcg: B:atford had not lived on the estate,
nor did she give any instructions to tell any but
grown:tre-eS., but . contrary, had given
the strictest injunctions to the steivard. .not to
cut dawn any but those suited to the purposes of
ship-building.. He read the affidavits of the de-
fendant, her steivard,• and various other persons,
as corroborative of what he had asserted, and
submitted, that from the allegations contained in
'diem, it was deal• that it bath been the wish of
Mrs. Stafford to act up to the order of the Court
in every particular.

After further observations from the Counsel on
both sides, and: from the Lord Chancellor, who
suggested to the-parties to refer the matter to ar-
titratioii, the case was ordered to be sent to the
Master to appoint a proper person to inquire whe•
*her the defendant had contravened tie injunc.
tion, and,to report to the Court the issue of such
inquiry.

CLUD HOUSIS.

TARLETON V. HOLLAND.

This was an application to his Lordship:re-
specting an injunction granted by the Vice-Chan-
Cellar, whereby the defendant was restrained from
proceeding on a bill'of exchange f0r,2501. The
plaintiff, it appeared, had lost a considerable suin
of money in a.house, 64, in kept for
" Society and Play," and being unable to pay the
same, he gitve two bills to the Hon. Robert Cur-
zon, Manager of the Club in that 130115 c.. It. was
generally customary during the play,. for parties
who unfortunately were:losers, to pay their losses
by counkem, and:then in-money at the end of the
play.
The L6l CHANCELLOR-13y counters! what
do you, mean by .that.?: .
Mr. WAKEFIELD said, they were small pieces of
ivory or silver, and in some cases, of bone.
Loan CHANcELLOII-0, they are, I see,. the
circnlating inedium of Club-houses.

It further 'appeared that the plaintiff had paid
the two bilis, hut•tmfortunately for him, one of
them hail remained in the hands of the Hon. Ito,
hart C9rzon, who, two years after this ttaus-
action, indorsed to a Mr.. Staples, who being
indebted in the sum of 801. to.the defendant, who
is proprietor of. the' Cocoanut Tree, St. James's-
street, gave him-this bill of 250/. as security for
801. and the defendant was, raising an action for
the recovery of the whole bill, though his debt,
was" only 801. when the plaintiff applied to the
Vice-Chancellor, who, on hearing the case, in=
stoutly._ granted an injunction, to confirm which
was the preSent application.
The -LORD CHANCELLOR-1 shall look over the
hill' and answer to-night, and if I say nothing to-
morrow bbout• it, yon may
u rest assured I have ap-
prved of his Honour's decision, 'and if I do not
approve of it, I shall then speak on the case.

COURT OF KING'S BENCH.

THEATRICAL. ENGAGEMENTS.

ARNOLD V. fIARLEY•

Mr. CURWOOD opened the pleading's, and stated
that this was au action brought•by the proprietor
of the•LyeeumTbentre„ in the Strand, now better
known by th'e name of the English Opera House,
to. recover a ,compensation from. the defendant-,
for the breach Of an agreement
.eptered. into .by
him with the plaintiff, for performing at the said
theatre for five years, at a rising salary of 61.
.71.
81. 91. and la per week. The defendant pleaded
that he was not liable. .

Mr. ScAtitaTT was proceeding to. state the
plaintiff's case to the Jury, when •
Mr. Guatiay,• for the defendant, interposed,
and, suggested the propriety of referring the cause
of action to the adjudication of an arbitrator.--,
The action was brought for -the non-performance
Of an agreement, and certainly if the agreement
was in 'fact broken, the plaintiff would be entitled
to recovvr some damages ;. a consequence which
would inevitably 'drive the parties into a. Court of
Equity. • it appeared to •him., however, that the
wiser conrse t% mild be, to refer the matter to the
arbitration of.some disbeet person out of Court.

,AIr!:SCARLETT, on the part of the plaintiff, felt
it to lie his duty to decline' this proposal. The

object of Mr. Arnold itf !Winging this action was,
not to visit the defendant with heavy damages tOr
a wanton breach of his agreement, but to take'the
sense of oa Court of lAA, upOn,a question most
important to his interests, as the Proprietor of a
publicTheatre. He entertaiged nOpersonal.hosti-
lily toward§ the defehdaht, but he felt it to be his
duty to take the opinion of the Noble and Learned
Ju.lt;e on rile.liench, upon a question which was,
0f the Utmost consccinence to the plaintiff, who,
if the opinion of the Court should be against him
on the present occasion, must adopt a different course
of Troceeditig from that which he had hitherto
pursUed in his ,'ngagernents With the -numerous
persons who performed' at his Theatre. The
114iht iff I.t.ai the proprieior of the English Opera

House, an establishutent which did the highest
credit-to its founder, as a distinguished ornament
al. the Metroprili, and a nursery for the native
dramatic talents of Great Britain. It was well
' ktruw!l that he taste, the liberality, and the na-
*nal feelings of the plaintiff, Irad induced him to
hold out encouragement to every candidate for
public applause, and that by means of these highly
creditable qualities he had brought under general
notice the•genius of many distinguished ornaments
of the stage, who but for him, might have lan-
guished in obscUrity in theconfined field of a provin-
cial theatre. Many engagements, under his auspices,
had given an opportunity for the display of ta-
lents, which procure) the candidates for applause
. valuable connections, first with the. summer
theatres, and afterwards with the winter temples
of Melpomene and Thalia. The plaintiff had
beard Something of thedramatio.merits of Mr.
llarley, who, in the year 1814 Was performing
at the Theatre .Royal.at York, and in the month
of October in that year, a correspondence was
opened 'between the parties, which led to an'
agreement that tire; defendant should enlist
hiMself among the plaintiff's corps tb-amatique for
the summer season of 1815, at the rate of five
pounds per week. The defendant, in his letters;
bad represented himself to be capable of sustaining
more than a hundred different- characters, and
certainly though, some' allowance.should be made
fOr human vanity in all situations. of life, Mr.
Harley had amply justified his pretensions to me-
rit as an accomplished comedian. • He was a than
'perfectly qualified to sustain the parts which he
had enumerated to the plaintiff; and so•perfectly
-satisfied was. the latter of his merits, that when. he
came to town in 1,815, and had exhibited his ta-
lents, the plaintiff, voluntarily agreed to pay him
six pounds per week, instead of five pounds, Which
was at first proposed. Upon further acquaintance,
the plaintiff found him 'so valuable an acquisition,
that he offered to engage him for five years, at a
rising salary 0f.61. 71. 81. 91. and 101. per week,;
hat Mr. Arnold, in that spirit of liberality which
had always governed him, cautioned the de;
fendant against entering into such an agreement,
if he thought he could make.a more advantageous
engagement. with the winter' Theatres ; Mr. Har-
ley, however, was so satisfied with the proposal
made, that be drew up a memorandtim of agree-
ment in his own hand-writing, upon the above-
mentioned terms, stipulating that he shOuld he
paid his salary " play or spay "—meaning that be
should be paid not withstanding any closure of the
T:reatre by reason of public mourning. In pur-
suance of this agreement the plaintiff caused the
usual forin of printed articles used in the Theatre
to be filled' up, in the terms of the defend-
ant's agreement, and called upon hint to sign
it in the year 1816. But it appeared that
shortly atter the defendant's engagement at
the 'English Opera, his talents bad brought hiM
into
,such notice, that an overture wtis made to
him by one of the Winter Theatres, which he 'ac-
cepted, and therefore when Mr. Arnold called
upon hii»to sign tire articles, he declined so to do,
urging that his engagement -with Drury-lane
Theatre wonld not enable him to fulfil his agree-
ment with the ,English Opera. • The defendant
was "afterwards urged in more peremptory terms
by,the plaintiff's solicitor to sign the agreement,
but he positively refused to complete, his engage,
ment. He was asked what objection.he had to
'the agreement, and he signified his inability to
'perform on the terms proposed, in consequence
of his engagement with Drury-Lane. The agree-
ment was left with him, and he made such
alterations in it, in his own band-writing, as
he , thought would enable him to conform to
the wishes of the plaintiff.- The principal alteration
was, that he should have the same salary at the
English Opera as •heitad at Drury-lane, when he
was called upon to perform at the former theatre.
With this stipulation the plaintiff refused to corn-
ply,,and insisted upon the execution of the origi-
nal agreetnent. In the mean
,time the plaintiff
suffered considerably in consequence of the de.
fendant's having withdrawn from the theatre, his
talents having contributed mainly to the profits of
the • house. After some further consideration,
however, Mr. Arnold, desirous of accommodat-
ing their difference, proposed that the defendant
should sign the agreement in tire altered terms
which be had introdueed, willing if Possible to
avail himself of, the defendant's talents; but
even this agreement he again positively refused to
sign, or return to the' theatre. It was for this
breach that the present action was brought. The
penalty usually introduced into theatrical engage-
ments, was 10001. in case of a-breach : but this
was not the measure of damages which. the plain-
tiff sought to recover. In consequence of the de-
feridanes refusal to play any longer, ,Mr. Arnold
was obliged to etpploy other persons, less quali-
fied than, the defendant, to perform the parts which
'he had undertaken, and pay them rtuch higher
salaries. The' rule therefore which Must govern
the Jury in estimating the damages' was by kre-
ference to the additional expence to ‘vhich tire•
plaintiff had been put in order' to engage other;
persons to supply the defendant's place, and the
Learned Counsel had no doubt that the Jury would
do that which 'the, justice of the case required.—.
After the statement of the plaintiff's case was con- ,
eluded, .

Lord ELLENIiOROPGII interposed, and asked
the defendants'a Counsel _whether he could get
rid of the effect of the defendant's own positive
agreement ? The agreement, was expressly /set'
fortb—the defendant had not conformed to it
and lie had not pleaded a licence or dispensation:
for its non-performance.
'Mr. GuitNEY said, that he was afraid he co,tijdj

not resist a verdict against his client ; but he had
no doubt that he should be able to spew, that
there'were circumstances in the case which vivai
cate the defendant from the imputation of intim).
per conduct.

'Lord ELLENBOROUGH.—CertainIy it will' be
extvemely'difficult indeed ; it is a difficulty -almost
insurmountable, to find out at Nisi Prius the mode
of ascertaining
,the compensatiod due to the plain-
tiff. If you can give no answer to the case, I
should think the better way would be to ascertain
the damages out of Cotkrt.

Mr. GURNEY said, that the difficulty he felt was
this :--He was now. representing the interests of
a person whose existence depended upon the es-
timation in which he should be held by the public;
.and if it should go forth that be had wantonly
and without any reason violated his engagement
with the plaintiff, that in itself would be (teatime-
tive of all his present and future hopes of success
in his profession. In point of law he certainly had
no defence. in this 'Court ; but he was quite-per-
suaded, from his instructions, that the defendant
had a most. satisfactory moral defence.
Lord. ELLENBUROUGH.-.-We have only to try the
legal effect of the-agreement, and have nothing to
do with the, morality of the case here.
, Mr. GURNEY said, that he was only desirous,
on the part of his client, of doing away the im-
pression which his Learned .friend's' Speech
(which would go forth to the Public) must have
to the defendant's prejudice, by stating that the
defendant could urge circumstances in his defence,
which would remove all'idea of improper conduct
on his part. The'plaintiff.was*certainly entitled
to a verdict in point of law ; and, without wishing
to make a speech npOn the subject, he only desired
to say, that the ejelendant could place the circum-•
stances of the case in a very different light before
the Jury.
Lord ELLENBOROUGH thought that Mr. Scarlett
had done the most ample justice to the defendant's
talents, and had spoken of him in the u►ost libe-
ral manner.

Mr. Go RNEY said, that although he could not
resist a verdict, yet he could shew such circum-
stances in•the defendant's case, as would reduce
the damages to a mere nominal amount hut he
had no objection to have the. damages estimated
out of Court.;

Mr. SCARLETT said, that it was by no means
his client's wish to impute any thing. improper to
the defendant, who it was fair to presmite had
acted tinder ill advice. Had Mr. Gurney coasene-.
ed, in the- first instance, to a verdict being re-
corded for the plaintiff, certainly be (Mr. S ) should
not have addresied
.the Jury, the object of Mr.
Arnold being only to try the legal question. • .
After some further cbnversation„.iLwas agreed
that the. plaintiff . should have! .a .verdict for 10001.
subject to a reference to Mr.. Gazelee.

OLD BAILEY.—No trial of any interest took
place yesterday.

SAVANNAH, (GEo.) OcT. 20.

(From• an-American Paper,),

To 'HK' PLIBLIC.—Pn the :15tb of _Septem-
ber I sailed from Nassau (N. I'.) botind to Ba-
racoa; laden with goods to the amount of one
thousand two hundred dollars. This can easily
be proved by my papers and- the documents of the
Custom-house. On the 27th 9f the same month,
arrived off the coast of Cuba ; at 5 P. M. dis-
covered a fishing-boat; with two men, making
towards us, and when at a.hailing distance, they
enquired where I was bound to, and being in-
formed that was going to Baracoa, they sup-
plicated me to give them a passage—observing
that they were inhabitants of that place, and that
their boat was leaky and about sinking, I by
humanity gave ,tife'm passage. On the. 2sth„ at
4 A. M. beingto'the east of 'Punta Midas, I was
taken by a schooner from Amelia, named Sarra,
commanded by Edward Fennell, and owned by
John Morrison, of that place., We were boarded
without any kind of respect to the flag of his Brim
tannic Majesty, old without examining the papers,
commenced plundering—l was robbed of my
watch, font teen dollars and my clothes. At eight'
A. M. the two vessels were anchored at a 'thee
named Orange Harbour. These pirates proceeded
to examine Emmy papers, after whichPtliey- decided
on sending my crew ashore. This was imme-
diately done ; however, not before my poor fel-
lows had been robbed of all they had.
When they were landed on the beath, three
muskets were fired at them foi the purpose of
forcing them to retire in the woods. At the place
were we had anchored, there was a_ Spanish
schooner, laden with tobacco, which was also
taken. The two vessels were then ordered to the
Island of Amelia, and escorted by tbe'privateer.
On the 4th of. October, as we were about enter-
ing the harbour of
.the above-mentioned place;
we were boarded by the boat of the United States
brig Saranac, John Elton,'Esq. comm.ander, which
ordered us alongside of the brig. The Captain,
af[er being informed of
.the circumstances which
had brought us to that , port, sent off a boat to
Order the privateer alongside also.---The pirates
were arrested and put on board of the Saranac ;
and on ,the 6th, the Two Brothers was ordered to
Sairannah, with an officer, five 4nen, the captain
of time privateer and one of his sailorS. When
watering on Jekyl Island, the Captain (Fennell)•
made his escape. ••
The same privateer in hercruise before the, last,
had robbed from on ,board an English schooner,
fifteen hundred dollars belonging to an inlia-
b,itant of the island of -St. Andros, one of the
Bah a Inas. •

I think it my duty to give this to the public,
as it will keep thetn.orithekr guard against the
privateers fitted out at Amelia for na.other
pur-
pose than that of plundering the, vessels of all,
nations. . •
•
'Captain of:tke British Schooner Two- Brothers.
MANUEL ARCON; Ntate.r' ,
JOHN ARCON, Seaman.

The Magistrates of the Thames police-offire
have ordered several ships in the river !o be fmni-
E.7.ated, inotiler to prevent fever; an ahrtn having
been •exdited by the illness of several sailors,
Wilo7howeVer; are now dbing