Court Of Chancery, Friday...
The Times, 1824-02-07T00:00:00

LAnW RRPO1T. -'* '- "5K' ANQELLOR Sauti thtie tills Was as motion for rel straining the defeldants from applyin' 'the money receiyed 1in th6 way of rent, proftt, or produce for Covent garden Theatie, id any other manner, or fo: any other pbrposes, than those specified and provided for in an agreerient d,sted the bth of M1arch 1812; also that it might be referred to the 31astet to consider of a ft a-id proper parson to be appointed treasuret and receiver to the said theatre, and that it would cause to be received and paid eut fron time to time under its own asthority, all the rents, profits,and produce, agreeably to the conditions of the before-mentioned agreement of 1812 ; and that the defendants might be bound in sufficient obligasilets 9pecifi- cally to perform the samne agreement, and thUt aecounts might I be 'taken of the receipts anrd jatgel'sS of the theatre from the time of the discharge of U1ohm Brandon, late treasurer and that the defendants thDuld be required to refund all isSueS of money mnade by or to hirm, or on his behalf, wlich had been ulAke contrary to the intent and provisions of the said deea bf 1812; aid that upon full and entire satisfaction of all the debts and payments for which that deed had provided5 and not beforethe plaintifF should be admitted to the enjoym,ent of his share ofthe profits according to the terms of the no;rinent. H{is. Lord- ship apprehended that the Coiurt wosld nO6t undertake, rmerely at the desire of paties, to manage any partoiership concern, by agents of its own, aided by directtons tb he obtained according to present neces- sitl by Interlocutory rhotions, but there must be some probable etbcct to be troduceer conveient for the ends of justice, which fully iuthorized tc onterfnresce of the Court; and if this principle applied in generl conctrnr of partnership, there was nothing particularlv inviting to the jurisdiction in the conccrns of a theatre to tempt tbat interference. 8everal of the objects prayed in the bill were not to be found in the notice of motion; and for that, among other reasons, must be left out of the considerations of his judgment. The first thing to ascertain was the exact nature of the agreementI of 1812. MIr. Thomnas Harris, MtIr. Const, Mir. White, AMrs. Martindale, Mhlr. John P. Kemble, were all parties to the deed. It first recited the unfortunate accident of the flre, which consumed the theatre, and then it described the sha-esl which each of the Darties owned respectively. Mir. TlHomas Harris, o-l2ths: 5Ir. J. P. Kcmble, 2-lgths; Al r. George White, i-1bth; lr. H. Harris, 18th, Mrs. Martindale, 1i th: It then stated that a new theatre was erected, to the charges of wlhich the parties contribute(d according to theii respeetive shares ; that great expenses vere incidetnt to the undertaking, and chat considerable sums of money were due or owing from the proprietors on that account; and to secure the pavilment thereof, bills of exchange and bonds were to be given, according to the annexed schedule-bv three of the parties, Thomas Harris, John P. Kemnble, and Henry Harris,-for them.- selves and all other th^ proprietors. His Lordship understood that a considerable portion, though not all, of these bonds and bills of exchange,bedbeen paid off. The agreemrent then stipulated that the funds of the theatre should be exclusively bound and ap. propriatedl to the parment of thg bonds and bills of exchange; and the treasurer of the theatre, for the time being, whoever he Might be, should be irrevocably difected to make appropria- tion of the funds according to the provisions of that deed. So that no language could be stronger, no directions plainer. than were here given and agreed upon for the administration of the funds of this theatre. The parties then entered into mutual bonds that they would not, under any pretence, attempt to divert the funds, oc in any way hinder the treasurer from doing with them according to the appointed order, direction, and appropriation, and the true interest and meaning of the indentures; and that they would not impede or interrupt the arrangements of the said treasurer, unti}, the deel should be fulfilled agreeably to the fair understanding and intention of the contracting parties, and that nothing should be changed or al- tered by any of them afrer the entire payment of all the contemplated delmands, until the treasurer should have madle up his accounts to the end of the season, concluding after the last of the payments. And after the entire fulfilnent of all the before-mentioned con- ditions, then, and not before, the treasurer was to pay over, as they accrued, two-thirds of the profits to the proprietors, in propor- tions relative to their shares, the remaining one-third to be kept back and laid out in the general improvement or preservation of the property, and the agreement finally forbade any other mode of ap- plying 'lhe produce of it. He had read over the trust instruments and the bonds, and certainly he never had seen anv documents in which the uses were more immutablv and irrevocablr fixed. There could be no new principle for partnerships in theatres. If they would persist in coming into Court, theY must be bound by the principles which prevail in aU other cases. The majority could not exclude the rninority from their share of the interference, directio or administration, except it were shown in the course of an applica- tion to the Court, that the right of objecting was unvisely or indiscreetly exercised. The parties also enitered into re- ciprocal obligations to indemnify these who might advance I money beyond the proportion of their shares. The deed comprised within it a rental of the reat produce of the theatre- from which it appeared that there was a considerable sum received for Yearly rent of private boxees,: yearly rentof the Piazzacoffee.house315l. ; vearly rent of the fruit-room, 5651. ; hire of the theatre for oratoi`os in Lent, 6301.; rent of a dwelling-honu-, 601. These, together with the general receipts or profits, were to be received and applied by the treasurer according to the deed. The bill went on to describe the changes and devolutions of trust, which were not very material. AMr. Thomas Harris, who had glided into a sort of customary and unquestioned managenment of the tleatre, was succeeded by his son, Mr. Henry Harris, who had assisted him in that manageiment, and cnntinted in it by tacit or implied consent of the parties. ir. Charles Kemble succeeded Sir. John P. Kemble. lfr. (Gonst took to Mrs. Mlartindale's share, as executor and tenant for life. The bill then stated, that abmitt the vear IS21, disputes hap- pened between Mr. CharleK Kemble, Ar. Fovbes, and Mr. 1H. JIarris, the two foirmer having found objections to the ex- clusive management of the latter. The parties bein;? unable to set- tle their differences anmicably, it was at length agreed that Mir. Har- ris slhoulld lease the theatre to M1r. C. Remble and Mr. Forbes, and upon this agreement, separately made with Air. Elarris,.having now entire domiision over 7-8ths of the property, they proceeded to take the management upon themselves. The bill complained, that for a centurv past it had been the practice of the theatre for the treasurer to make up (daily accounts of the receipts of' the house on the previous night, together with the nurmber of persons ad- mitAted, distinguishing the numbers admitted tree of ex- pense; also the amount of any bills which had been paid for the concerns of the theatre; so that the manager and proprietors always had the means of making a rough guess at the state of the property; and that this practice had been given up under the new management. The answer gave as a reason for it, that the daily accounts got thereby into improper hands, and irere used to the dis- cre(lit and (lisadvantage of the propertv. In the propriety of this euggestion his lordslhip concurred; but he could not say the same thing of their having withheld the usual armual account with which the bill also charged themn. The next complaint was of a more weighty k(ini; it was, that against the intent and meaning of the deed of 1812, the lessee had ai-reed to pay, and had actually paid out of the tunds, the sum. of 1,9751. for his share of the rent of 10,500S. due on him share of 7-12ths of the theatre. This was the gravanlen of the bill ; and thle complaint was that this fund should have been sn.de available, in comnmoii with all the rest, for the paympnt of those sims for which the deed of 1812 provided. The bill complained of the tischarge of Brandlon, the treasurer, alleging it to have been done for the purpose of facilitating these repeated breaches of the contract. He 'was of opinion that it was beyond all question that Air. Const had a right to be consulted upon that subject before any step were taken and upon his general right as executor, as well as tenant for life, he could not look over the extrenie dlanger and responsibility he would have incrurred hadl this been a simple demise in which he was only acting as trustee, should he have assented to so entire a destitution of his power of interference as he now complained of. The le.sees pleaded ignorance of the fact that any deed like that of 1812 was in existence. It seemed strange that they should have been ig- norant of it: but giving them credit for so strange a want of know- ledire, Mlfr. Harris could bot pretend to be ignorant of it. They coula take under the instrument of 1822 no more than MIr. Harris had to give them, and that was just as mucht as the deed of 1812 left to SIr. Harris. In their ten years'lease thev must be subiect to all the conditions wleichl would have been binding on Mr. Harris. His Lordship, after recitimdg some common covenants of the agree- ment which existed between Mr. Harris and the lessees, finding him. self toomuch exhausted toreach the conclusion, postponed what more he had to say till to-morrow morninm. THOMPSON V. TtO3tPso?f. This was the case of yesterday, which involved the question of right to sue in forina p.aiperis. The LORD C17ANC.7LLOF had looked at Air. Brown's notesof the case of "Paradise and Shephard," and there it was expressly en- tered that the application was refused, because the plaintiff sued en aitre droit. That niust be taken, therefore, for tlhe general principle of the Court. There were peculiar difficulties in this case: the poor woman sued not only for others,but for herself, as it appeared that stbe was entitlcd to one-third of the sum in question. There was rather a nice point involved which respected the costs, because. upon two- thirds s!,e might become entitled to what Mr. Mladdox used to call uvcs costs; and upon the other third only poor costs; and the Court would look with jealousy apon cases whicb were of such a comr- plexion as to render it possible that an attorney might put his client to sue as a pauper with a view to obtain rich costs. [fe would en. dleavour, however, to pen an order which would meptth^-qP COMRT OF CRANlE.RY ThrnAV WVn A COVEgT-GAREHNTREATRE9STV. HAfkA.-4re4VP.r