The Sun.
London, England, 1827-04-12 00:00:00

TAILORS' BIGHTS TO HAVE EE-rARTE INJUNCTIONS..

Mr. Silsanwzr.r. moved a few dap, ago before the Vice-
Chancellor, ex-parte, for an injunction, on behalf of one
tailor against another. H His Honour considered, that if he
granted the injunction, it would ba abusing the principle
on which the ex-parte injunctions had been granted, by
applying the principle to a squabble between two tailors.
We believe the parties live at Bath, and that the plaintiff is
the father of the defendant.

Mr. SHADIVELL applied yesterdry, et the rising of
the Court, to his Lordship, in the shape of an
appeal. As his Lordship was then on his legs, just
going out cf the Court, he desired the learned Counsel to
follow him into his room, whither he went, and stated
the circumstances.

His LORDSHIP said to-day, he wished to know what he
was to do about the tailors ?

Mr. SnAnwELL considered the only question to be,
whether the Court would grant the injunction or not?
His LORDSHIP thought he could not refuse it merely
because the parties were tailors. The next point was,
whether the sum of 250/. stated to be in dispute between
two tailors, WAS a sum too small for the jurisdiction of this
Court ? And upon this point, his Lordship did not feel
authorised to say that one tailor was not entitled to have
the interference of the Court against another tailor, in con-
sideration of that sum, (laughter) and therefore the injunc-
tion would have to go.

WILLESLIEY V. DUKE OF BXAUFOLT.
Mr. SHADWELL said that this was a petition, which
stated that the law expenc,es which had been incurred in
this cause amounted to about 5,000/. ; that they would be
considerably more, in consequence of tho appeal Mr. W.
had carried to the House of Lords ; that the receiver had
a clear sum of 6,0001. in his hands ; that he was about to
receive another half-yearly rent, amounting to upwards of
50001.,and that it prayed the Court to order the receiver to pay
out of the money in his hands to Messrs. Hutchinson and
Holdsworth, the solicitors of the infants, the sum of 20001.
on account of their bill of costs amounting to 2,6001. and
that the same might be allowed to the receiver in passing
his accounts. The Learned Counsel could not conceive
that there could be any serious objection to the making of
such an order.

Mr. TRrsi.ovr. appeared on the same side. He stated
that Mr. Wellesley, the father of the children, had hQen
served with a copy of this petition, but he could not under-
stand why it was thought necessary to have served him,
or what objection he could have to make. The eldest
child was entitled to an estate in tail worth 17,0001. a-
year, subject to certain charges to be paid for the benefit
of the younger children. Mr. Wellesley had no personal
interest in that estate, nor in the fund in Court.

Mr. HART, contra, felt surprised to hare heard the pro-
position, that the father of children had no right to inter-
fere for the purpose of seeing that his children's property
was duly appropriated. It was the first time he had ever
heard of a proposition so extravagant, as that Mr. WeHee-
Icy ought not now respectfully to submit to the Court,
that his Lordship would not throw a lumping sum
of 20001. into the lap of the attornies, without any bill
having been delivered, or any statement made, chewing
that such a sum had been incurred. If the few hearings
that had taken place, had incurred costs to the amount of
2,6001., he felt perfectly satisfied that if the same propor-
tion of costs were incurred in the future progress of the
cause, before it could possibly be concluded, every farthing
resulting from the estates belonging to the infants would be
swallowed up in law charges ; and it was upon this prin-
ciple Mr. Wellesley now contended, one shilling ought not
to be paid at this moment.

His LORDSHIP would certainly not lay down any general
rule whatever with reference to the cases in which Mr.
Wellesley should or should not have notice. This was an
extremely delicate point, and notwithstanding the atten-
tion that had been paid to Mr. Wellesley's rights
of authority, as the parent of his children, yet it
was due, that the Court should take care, itc inter-
ference was not of a harsh nature. At the time the
subject of giving notice to Mr. N. of this petition had
been mentioned to the Court, it had struck his Lordship
that a question might have arisen upon the receiver's in-
ability to pay the sum now asked for, on the ground
that Mr. NV. himself had admitted that he had re-
ceived some of the rents of the estates, instead of the
receiver, which were, as he had alleged payable to mort-
gagees. This question, however, had not been varied.—
On the present occasion, the Court could not interfere on
behalf of the children, without liberating Mr. Wellesley
from their maintenance, and the dry question certainly was,
whether it would he for the benefit of the infants that the
prayer of their petition should now be granted, or whether the
matter should be referred to the Master in the first place to
tax the costs, which would certainly be an additionally ex-
pensive proceeding. The Court had no objection to order
the immediate payment of 15001. to the solicitors, they
undertaking to account for it.

Mr. SH►DW'YLL expressed himself content with such an
order.

Hie Lonnsitir adder!, that he had no objection, if it
was liked better, that the solicitors should carry in their
bill to the Master's Office, and that the whole that was
allowed upon a taxation, should be forthwith paid to them.
Mr. HART did not object to this, provided Mr. Wel-
lesley was permitted to attend the taxation.
Hie Loansme enquired, whether Mr. Wellesley would
himself bear the expense of his going there ?
Mr. HART was not prepared to say he would, and there-
fore the leave was not granted.

LUNATIC PETITIONS.
Hie LORDSHIP said he would read again all these peti-
tionP, and such orders upon them as he could send without
hearing
would do so on Saturday
n
on the day before or after the First Seal, whenever Counsel
igthtohsee
that adverse
required
piaredrtie arguing,
he
ng,
would
have
to
be
taken
chose.

His Loimsgir rose at 20 minutes past 12 o'clock,
stating that it
,was not in his power to sit longer.

VICE-CHANCELLOR'S COURT.
JUDGMENT--COVENT-GARDEN THEATRE.

JAAARIS V. XEMBLIS, WILLICT, IORBE9,
AND OTHEILS.
The Vicit-CstaNcruoa gave judgment this morning
in this case, which was argued at considerable length in the
course of last term, and occupied the Court for nearly a
week. His Honour observed, that in March 1822 the
plaintiff, Henry Harris, who was proprietor of 14-24
shares of Covent-garden Theatre, entered into an agree-
ment to which the defendants, Charles Kemble, Messrs.
Wdlet and Forbes, were parties, as well as Mr. Conet, who
Maimed three 24th shares, as executor under the will of
the late Mrs. liartendale. This agreement provided that
the plaintiff, and Messrs. Kemble, Willett, and Forbes
were, in the first instance, to ensign their respective
shares to a Mr. Harrison, and that moan. Kemble,
Willett, and Forbes were then to take a lease
of the Theatre from this gentleman, for ten years,
commencing on the first of Mpg, 1822, at a rent of

It6oo/. a year. The effect of this arrangement Would be
that the plaintiff was to receive 7000/, a year for his own
share. This rent was to be paid him by Harrison, who
was a trustee, merely for the purpose of facilitating the
arrangements. There was at this time a heavy debt affect-
ing the estate, and it was agreed between the parties, that
no part of the rent should be paid to the plaintiff Harris,
until that debt was discharged; all the profits of the theatre
were to be applied in the first instance to the payment of
the incumbrances. It appeared, however, said his Honour,
that the plaintiff had no other property but the theatre, and
it was therefore agreed that he should in the mean time re-
ceive for his maintenance certain rents paid to the proprie-
tors ; he was to get the rent paid by Mr. Roswel for the use
of the fruit-room ; and also the rent paid for the use of the
theatre for concerts; he was to have the 210/. a-year paid
by Sir E. Antrobus for a private box ; making in all about
13601. a-year. This KIM be was to get in the nature of a
loan, to be accounted for by him out of the 7,000 a-year,
when the debt of the establishment was discharged. The
plaintiff's father, who was proprietor of half the theatre, died
in October, 1S20; he had for several years been the
manager of the theatre, at an annual salary of 1,0001. ; he
was succeeded in that situation by hie son, the present
plaintiff, who having been educated for the bar, relin-
quished that profession, and for some time before his
death assisted his father. The defendants being, as it
appeared, dissatisfied with the management of the plaintiff,
and with the salary which he was receiving, entered into
an agreement with him for his share of the establishment.
At first it was proposed that the annual rent to be paid by
them should bear a proportion to the profits of each year ;
this was objected to by the plaintiff, who offered to take
the shares of himself and the defendants, at a rent
of 13,5001., the effect of which would be, that
each of the defendants would receive a portion of
that sam corresponding with his share. The de-
fendants questioning the responsibility of the plaintiff,
refused this offer, and the agreement which it was now
sought to enforce was entered into. The defendants ex-
pecting that Mr. Const as the proprietor of 3-24ths would
consent to this arrangement, introduced his name into the
draft of the agreement. In this they were disappointed,
and immediately after, the plaintiff retired from the super-
intendence of the theatre, and the defendant tucceeded him,
Mr. Const filed a Bill in the Court of Chancery, for the
Purpose of .earrving into effect a deed executed on the 15th
March, 1812, by the then proprietors of the theatre, and
provided among other things, that the profits of the Es-
tablishment should be solely applied to the payment of cer-
tain debts affecting it, until the whole were satisfied. An
order was in consequence made by the Lord Chancellor, that
a receiver be appointed, and that the profits of the theatre
be applied by him according to the provision of the deed.
Four days after this order the defendants, Kemble, Willett,
and Forbes, caused a letter to be written to the plaintiff,
in which they repudiated the agreement altogether, stating
as a reason the appointment of the receiver, under a dead
to which the plaintiff was a party, and the existence
of which lie had wilfully concealed from them. The deed
of 1812, had been acted on for a year or two only, and
10,000/, remained unpaid of the debts intended to be pro-
vided for under it. On the 11th of March, 1824,
the plaintiff filed his bill in this Court, for the
specific performance of the contract for the lease.---
To this Bill he made Const a party, not because
he had been an executing party to the deed, but on
the grounds that he had subsequently identified him-
self with it. With respect to Const, continued his
Honour, I am bound to say, that, in my opinion,
no case has been made out against him by the plaintiff,
and that as far as the bill concerns Const, it must be dis-
missed with costs. Now the defendants say, and
by the defendants, I mean Const, Kemble, Willett, and
Forbes, that they were induced to enter into the agreement
solely from a desire to have the exclusive management of the
Theatre, and that having lost that by the proceeding of
Coast, to which Harris was a party, they are no longer
bound by the deed of 1822. Now, it is to be observed,
said his Honour, that in that deed the plaintiff declares he
is not to be in anywise affected by it, unless as far as
it is applicable to himself, whilst the defendants not
only covenant for themselves, but as far as it can
thise apicable to Const. With sixth a provision as
in the deed, it must be impossible to consider the
1 plaintiff as bound by the act of Const. Now, the defen-
dants attribute to the plaintiff a wilful concealment of the
deed of 1812, to which they were not parties, and say,
that this deed has since defeated the agreement, as well as
their motives for entering into it, and therefore they insist
that they ought to be released from it. The plaintiff could
hardly be, said wilfully to conceal the existence of the deed,
for it had been long lost sight of by all the parties to it.—
The persons from the defendants derived had signed it
as well as the plaintiff. The fact of the concealment, Ido
not think material, said his Honour, but if it were material,
would be judicially bound to think that the defendants
ought, in this Court to be affected with notice of the deed.
It had been charged against the plaintiff, that he assisted
Const, while the proceeding was pending in the other Court,
but if he did do so, that support cannot he considered as
evidence of the plaintiff's intention to abandon the agree-
ment. He got notice from the defendants that they would
repudiate it, and having a large share in the theatre, it
was but natural that he should wish to have the profits
placed in safe hands, in the event of the defendants suc-
ceeding in their attempt. I am therefore of opi-
nion that the conduct of the plaintiff, in this re-
, spect, was no waver of the agreement. The next
charge alleged against the plaintiff was, that he had
misrepresented the profits of the Theatre, and raised
in the minds of the defendants expectations which were not
founded in fact, and which led them into the agreement.
It appears that the accounts of the theatre, were for many
years, kept by a person named Brandon, who was suc-
ceeded by his son James. The elder Brandon it seems
admitted on all hands, kept the books very imperfectly, and
the defendants also acknowledge that the plaintiff was a bad
accountant. He took his statement of the average profits
from Brandon's account, and not being, as the defendants
themselves say, a person skilled in calculation, it
cannot be attributed to him that he wilfully mis-
represented. Besides, the books of the theatre were
open to all the proprietors, so that the defendants had
the opportunity of examining them. The plaintiff,
it appeared, had written a letter to the defendants, in
which he stated the average receipts for twelve seasons to
be 82,0501, and added, that one-third of that sum might
he considered as clear profit. The defendants now say
that this sum tva4 partly made up of the receipts on benefit
nights, and that a great part of it was subsequently paid
over to the actors. Hie Honour here proceeded into a
variety of details, for the purpose, as he said, of showing
that the plaintiff had not wilfully misrepresented either the
profits of the theatre, or the probable reduction which
could be effected in the expenses of it. The first
he had taken from Brandon's books, and it was
clear that the reduction to which lie alluded, was
according to his own statement, partly effected through
his connection with the Dublin theatre. The next
charge against the plaintiff was, that he concealed from the
defendant a transaction which took place between him and
Sir Edward Antrobus, with respect to a private box in the
theatre. This box had been let to the Duke of Gloucester,
for every alternate week, at an annual rent of 2101. The
elder Mr. Ifarris sold the box to Sir Edward Antrobus
for the alternate week, during the term of 21 years.
At the same time, he represented to the other Proprietors that
he had let the box at the same rent the Duke of Gloucester
paid for it, and Mr. Harris accounted to them for that sum.
His son also, after the death of his father, continued that
practice. This was not discovered until the defendants got
the Theatre into their hands under the agreement of 1822.
to the table of annuities I find, said his Honour,
that
e aena
cent. is worth' 26251., which is some-
whatnnoity of 210/. for 21 years, at the rate
e On r
f fit
peryefrring
than Mr. Harris received from Sir
Edward Antrobus. Now, it appears, that Mr. Harris
more
was the proprietor of one half the theatre, and surely that
property Must be considered a sufficient security to his co-
proprietors for the due payment
of either the pur-
chase-money, or the annuity which he undertook
to pay in respect of it. In the same manner the
plaintiff's share in the establishment, became a sufficient
security. Unless, therefore, it could be shown that
the case, therefore, said his
this concealment waswienreejuedgieuiaarliyto
itnhoepeinratteiryees.ts of
Undertlte
defendant, it could not, his Honour thought, operate as an
aalnlswtehr.ctoireuthilnveshtißacnhilcle.,
of
fhere were two other charges of
concealment
Honour, I am of opinion, that the plaintiff is entitled to
a decree for the specificperformance of the contract against
Messrs. !Celt-11)1e, Willett, and Forbes. I will therefore
refer it to the master to settle the form of a deed, having
regard to the fact that Const might not he made a party to
it, and that his interest must not therefore be affected by
it. I shall also direct that a new trustee he appointed in
the place of Benison. With respect to Trotter, who has
been made a party to the bill, in consequence of
his being executor to Mr. White,
wue ose daughters are
married to the defendants, Willett and Forbes, I think
that there was no necessity for making him a party.
The bills Must therefore be dismissed as against him, with
costs.
Harrison, the trustee under the agreement, was,
I think, a
necessary party; I shall therefore direst that
hie costs be taxed and paid by the plaintiff ; I shall then
direct that the plaintiff's costs be taxed, and that those costs,
as well as the costs paid by him in the first instance to
Harrison, be afterwards paid over to the plaintiff by the
defendants, Messrs. Willett, Kemble, and Forbes.