3° die Julii 1707.
To the right honrble William Lord Cowper Baron of Wingham Lord high Chancellor of Great Brittaine
Humbly Complaining, Sheweth unto yr Lordship your Orator Richard Steele of Westmer Gent That your Orator haveing writt Severall Comedyes & Playes at the request of & for Christopher Rich Esqr for the use of the Theater or Playhouse in or near Bridges Street in Covent Garden in the County of Middx of which playhouse the said Christopher Rich was & is cheife Patentee or has an assignmt or some other Conveyance of the Patent thereof or otherwise hath the cheife Interest therein and the profitts ariseing from the acting of Playes there He the said Christopher Rich to induce your Orator to write further for him on or about the Month of December in the year of our Lord one Thousand seaven hundred & two advanced & payd to your Orator the Summe of Seaventy & two pounds upon this Agreement then or about that time made between them That your Orator should bring to him the said Christopher Rich & for his use the next Comedy your Orator Should be the Author of and out of the Profitts when the same should come to be acted that belonged to your Orator as the Author according to the Usage and Custome in such Cases he the said Christopher Rich was to deduct & pay himself for the said seaventy & two pounds and Interest thereof and in the meane time for the said Christopher Rich's security your Orator was prevailed with to give and accordingly did give his bond of one hundred forty and four pounds penalty condiconed for the payment of the said seaventy two pounds and alsoe a Warrant of Attorney to enter up Judgment on the said bond to him the said Christopher Rich And afterwards (viz.) sometime in or about the Month of Aprill in the Year of our Lord one thousand seaven hundred & four[145] your Orator being the Author of the Comedy called the Tender Husband he did bring to and deliver into the hands of the said Christopher Rich the said Comedy being the next Comedy your Orator was author of and it being then in an ill season of the Year and your Orator being therefore unwilling to have it then acted the said Christopher Rich promised to & agreed with your Orator that it should not be to your Orator's losse or Detriment but that your Orator should have assigned to him the profitts of Two Nights made by acting of the said Play the next following Winter in Lieu of his Two dayes Profitts according to the Usage & Custome in such case And the said Christopher Rich did cause the said Comedy or Play to be acted on the said Theatre in or about the Month of Aprill & year one thousand seaven hundred & four aforesaid And severall dayes in the Autumne or Winter following which proved very successefull and the said Christopher Rich made & received great profitt thereby And by the Agreement aforesaid and accordinge to Usage & Custome in the like Cases your Orator was to have the whole profitts of the first third day it was acted in Autumne or Winter aforesaid without any diduccon of Charges of Acting and alsoe of the second third day or Sixth day it was acted on as aforesaid diducting only the charges of Acting Which profitts of the said two dayes came to the hands of & was received by the said Christopher Rich and was more than sufficient to pay & satisfye the said Seaventy two pounds & Interest Whereupon your Orator expected as he had reason that the said Christopher Rich would have delivered up to your Orator the said bond & acknowledged satisfaccon on the Record of the Judgment which the said Christopher Rich had caused to be Entred upon Record against your Orator and would have payd your Orator what was over & above the said seaventy Two pounds & Interest thereof—But now soe it is May it please your Lordship That the said Christopher Rich minding to oppresse your Orator and extort great summes of Mony from him refuses to allowe your Orator the profitts of the said two dayes Acting in Autumne or Winter following according to his Agreement or any dayes profitts or any other profitt whatsoever in consideracon of the said Comedy or Play but threatens to Sue your Orator on the said Judgment & take your Orator in Execucon for the same and hath caused a Scire facias or some other Suite or accon to be commenced against your Orator on the said Judgment[146] In Tender Consideracon of all which premisses & for as much as your Orator can have noe releife therein save in a Court of Equity and for that your Orator's witnesses who could prove all & singular the premisses are either dead or in parts beyond the Seas or in other parts remote & to your Orator unknown To the end therefore that the said Christopher Rich may true & perfect answare make to all and singular the premisses as if here againe particularly interrogated and charged and in a more particular manner sett forth & discover what Playes your Orator hath brought & delivered to him & for his use And whether he did not advance & pay your Orator the said summe of seaventy two pounds upon such Agreement as aforesaid or upon what other Termes or Agreement and whether your Orator did not bring and deliver to him for his use the said Comedy or Play called the Tender Husband and when the same was soe given or delivered as aforesaid & whether he & your Orator did not come to such agreement for your Orator's share of the profitts of the said play as aforesaid and what other Agreement was made between him and your Orator about itt and how often the same play was acted in the summer of the said Year one thousand seaven hundred & four & how often in the autumne or Winter of that year and whether your Orator was not to have been allowed all or any and what profitts of any & what days and what & how much he the said Christopher Rich hath received of the said profitts and that the said Christopher Rich may come to an account with your Orator and that the said bond may be delivered up to your Orator and the said Christopher Rich may acknowledge satisfacion of Record on the said Judgment and your Orator may have what is over and above the payment of the said seaventy two pounds and Interest payd to him and may be further relieved in all & singular the premisses according to Equity & good Conscience & that in the Meantime all his vexatious proceedings att Law against your Orator may be stayed by the Injuncon of this honrble Court May it please your Lordship to grant unto your Orator her Majtyes most gracious writt of Spa to the said Christopher Rich directed therein & thereby commanding him personally to be & appeare before your Lordship in this honrble Court at a certaine day & place therein to be limited & appointed to true & perfect answare make to all & singular the premisses and further to stand to abide & obey such Order & Decree as your Lordship shall think fitt to make touching the premisses And your Orator shall ever pray etc.
Jno Squibb.
Rawling.
DEFENDANT'S ANSWER.
Jurat 9 die Novembris 1707 Coram me Jo: Edisbury.
The Answere of Christopher Rich Esqr Deft to the bill of Complaynt of Richard Steele gent Complaynant.
This deft now & att all times hereafter saveing & receiving to himselfe all & all manner of Benefitt & advantage of Exeption that may be had or taken to the manyfold Errors untruthes unsufficiencies & Imperfections in the Complaynant's said Bill of Complaynt conteyned ffor answere thereunto or unto as much thereof as this Defendt is advised is any wise materiall for him this Deft to make answere unto Hee this Deft answereth and sayth That this Deft being one of the Assignees of the patents of the Theatre or Playhouse in or neare Bridges Street in Covent Garden as the Complt's Bill menconed and of one other Theatre or Playhouse in Dorsett Garden London and owner of part of the shares or profitts arising by acting (if any) To his owne use the Complaynant in or about the month of October in the yeare of our Lord One thousand seaven hundred and one brought a Comedy or play to this Defendt which he the Complaynant alleadged he had written and stiled the ffunerall for which he the Complaynant came to an Agreement with this Defendt in writing on about the Ninth day of October Anno Dni 1701 and thereby for the Consideracon therein menconed sold the same to this Deft to be acted by the Actors under this Deft's Government as soone as they could conveniently which Comedy was soone after acted in pursueance of the said Agreement and the said Complaynant was paid and satisfyed in full according to the Conditions and the tenor and true Intent of the said Agreement and to the Content and Satisfaccon of him the Complt as he acknowledged and declared and this Deft is informed and beleiveth that he the Complt gave a Receipt to Mr Zachary Baggs[147] the then and now Treasurer of the said Company for his the Complaynt's profitts arising by acting of the said Comedy by vertue of the Agreement aforesaid And this Defendt further sayth that the Complaynt in or about the month of January Anno Dni 1702[148] inforeming this Defendt that he had neare finished another Comedy which he intended to call the Election of Goatham he proposed to sell the same to this Deft and accordingly in or by a certaine writing or Agreement beareing date on or about the Seaventh of January Anno Dni 1702-3 signed by the Complaynant in Consideracon of one shilling to him the Complt then paid by this deft and for the Consideracon therein and herein after menconed he the said Complaynant did sell or is therein or thereby menconed to sell unto this Defendt his heires and assignes A Certaine Comedy which he the Complaynt was then writing called the Election of Goatham and which he was to deliver to this Defendt on or about the Twentyeth day of ffebruary then next in order to be acted by the Company of Actors under this Defendt's Governmt assoone as they could conveniently[149] In Consideracon whereof the said Complaynt was to have all the Receipts of the third day on which the said play should be acted Hee the Complt paying out of the same all the Charges of the house both constant and Incident But if the Receipts on the ffourth day should double the Charges thereof then the Charges of the third should be returned to him and he thereby obliged himselfe to make good the Charges of the second day out of the profitts of the third day in case the Charges of the second day should not arise to soe much Item if the Receipts on the ffourth day of acting the said play should amount to fforty pounds or upwards the said Company was to act it the ffifth day and if the ffifth dayes Receipts should be fforty pounds Then they were to act it the sixth day for the Benefitt of the Complaynt Hee paying out of the same the Charges of that day But if att any time there should appeare Reason to doubt whether the play would bring Chardges or not Then the Company should not be obliged to act it the next day unlesse he the Complaynt would oblige himselfe to make good the full charges And lastly the Complaynant was not to print the said play untill a month should be expired from the ffirst day it should be acted and three of the printed Books in Marble paper Covers and Gilt edges were to be delivered into the office for the use of the patentees assoone as the same should bee printed (As in and by the said Agreemt in Writing last menconed under the hand of the said Complaynt and to which this Defendt for more Certainty referreth himselfe ready to be produced to this honoble Court may appeare) And this deft sayth that there being a ffreindship contracted between him the Complt and this Deft and the Complt expressing greate kindnesse to this Deft and telling him of his the Complts want of Money and of his being likely to be arrested for moneys oweing by him prevayled with this Deft to advance lend and pay to him the Complt and to his use the Summe of Seaventy and Two pounds And he the Complaynant in or by one Bond or Obligacon bearinge date on or about the Seaventh day of January Anno Dni 1702[150] became bound unto this Defent in the penall Sume of One Hundred fforty and ffower pounds Conditioned for the payment of the said Seaventy and two pounds with Interest on the Eighth day of March then next And alsoe he the Complt executed a Warrant of Attorney to confesse a Judgemt upon the said Bond in the Court of Queen's Bench att Westmr which Judgement was Entred up accordingly as by the said Bond Warrant of Attorney and the Record of the said Judgement and to which this Defendt referreth himselfe may appeare And this defendt sayth that he the Complt Steele as an Additional Security for the better payment of the said Debt did by a writing under his hand beareing date the Seaventh day of January Anno Dni 1702[151] assigne and sett over or is therein menconed to assigne and sett over unto this Deft all the Money and profitts which was or were to come to him the Complt for his play intended to be called the Eleccon of Goatham by the Agreemt therein before written upon this Condition That if the said debt should not be paid unto this Deft before the acting of the said play That then this deft his Executors or assignes might retaine and apply such profitts for or towards paymt of the said debt of Seaventy and two pounds with damages But if such profitts should amount to more moneys then should be due to this Deft or his assignes att the time of acting such play then the Overplus of the moneys and profitts arising due to the Complaynant on his play by the agreemt aforesaid was to goe to the use of the Complt and his assignes after payment of the aforesaid debt with damages to this deft and his assignes as by an Agreement in writing under the hand of the Complt bearing date the said Seaventh day of January Anno Dni 1702[152] ready to be produced to this honoble Court and to which this deft alsoe referreth himselfe may appeare And this deft sayth that the Complt did not pay or cause to be paid unto this deft the said debt of seaventy and two pounds or any part thereof or any Interest for the same according to the Condition of the said recited Bond on the Eighth day of March next after the date thereof nor hath he ever since paid the said debt or any part thereof or any Interest for the same to this deft And this deft sayth that he the Complt did not deliver to this deft the said Comedy sold as aforesaid to this deft by the writing before menconed to beare date the seaventh of January Anno Dni 1702-3 on the twentyeth of ffebruary then next as thereby was mentioned nor hath he the Complt ever since that time delivered to this deft any Comedy called the Election of Goatham altho this deft very often requested him the Complt for the same But this deft confesseth that the Complt about the latter end of March Anno Dni 1705 brought a Comedy to this deft which he stiled or called the Tender Husband or the accomplished ffooles & desired and urged this deft and his cheife Actors that the same might be acted by them with all speed which he the Complt said was in leiu and in stead of the said play which he intended to have called the Election of Goatham and the same was the next and onely play or Comedy which the Complt has brought sold and delivered to this deft since the lending of the said Seaventy Two pounds as aforesaid And this deft Beleiveth that his this defts Company of Actors did according to his the Complts desire gett up the said Comedy called the Tender Husband with all the speed they could and acted the same the first time on the three & twentyeth of Aprill 1705 and acted the same the second time the next day after and the third time on Wednesday the five and twentyth of the same month of Aprill for the Benefitt of the Complt the Author according to the same Conditions in the said ffirst and second Agreements menconed and acted the same the ffourth time on the next day after being Thursday the sixth and twentyeth of Aprill 1705; on which day the Receipts being but Twenty Six pounds and Eleaven shillings as this deft beleives the same was thirteen pounds and Nine shillings short or wanting of fforty pounds the contingent in the said agreement menconed This deft was not obliged by the said Articles or any Agreement to cause the same to be acted on the Sixth day or any more for the Benefitt of the Complaynt save as hereinafter is menconed And this deft sayth that the said Mr Baggs the Treasurer computing each dayes charge of acting the said play called the Tender Husband to amount to Thirty Eight pounds ffifteen shillings and Ten pence and the Receipts of the third day being Sixty one pounds and six shillings & noe more as this deft beleives out of which the said Summe of Thirty Eight pounds ffifteen shillings and ten pence being deducted there then rested two and twenty pounds ten shillings and two pence as this Deft computes the summe But the Receipts of the second day of acting the same play amounting to but twenty and six pounds and ffourteen shillings being deficient Twelve pounds one shilling and ten pence to make up the charge of that day which twelve pounds one shilling and Ten pence being deducted out of the said two and twenty pounds and ten shillings the Residue of Neate and cleere profitts to come to the Complt pursueant to the Agreement aforesaid amounted to Ten pounds Eight shillings and two pence and noe more as this Deft is informed and beleives with which this deft beleives the Complt was acquainted and that he was well contented and satisfyed with the account given to him the Complt of the Receipts and Charges of and for the said play called the Tender Husband for the ffower ffirst dayes of acting thereof And this Deft sayth that the profitt accrewing due to the Complaynant being soe small the Complaynant applyed himselfe to this deft and alsoe to the principall Actors under this deft's Government That he the Complt would waive his profitt by the said play being Ten pounds Eight shillings and two pence as aforesaid and permitt the same to goe to the use of the Company provided they would act the said play the then next Winter one day for his the said Complt's Benefit instead of the third day aforesaid he paying or allowing out of the Receipts on such day in Winter the constant and incident charge thereof and alsoe what money the Receipts on the said second day of acting the said play wanted to make up the full charge for that day being Twelve pounds one shilling and ten pence as aforesaid which this deft as well as most of the Cheife Actors Consented to or to such effect And thereupon the said Treasurer made the full Receipts on the third day of acting the said play called the Tender Husband to be charged for the use of the Company without chargeing any part thereof paid to the Complaynant in regard the Complaynant refused to receive the profitts due to him for that day But chose to have a day in Winter in Leiu thereof as aforesaid And this deft sayth that in pursueance of such Request made by the Complt to this deft and the Cheife actors as aforesaid a day was appoynted in the winter following according as the Complaynant desired and Bills were sett up the day before it was to have been acted and it was ordered by this deft to be geven out that Night and Bills putt up for the same to be acted the next day for the Author's Benefitt; But a little before it was to have been given out the Complt forbidd the same to be given out on the Stage or putt into the Bills for his Benefitt saying that he did not thinke there would be such an Audience att it as would please him or used words to some such or the like Effect But how ever the same play was acted on the then next day and the whole Receipts that day being Thursday the Twentyeth of November[153] one thousand seaven hundred and ffive amounted to sixty ffower pounds three shillings and Six pence and noe more (as this deft beleives & is informed by the said Treasurer) which was about two pounds seaventeen shillings more then the Receipts came to on the said third day that the same play was acted as aforesaid which two pounds seaventeen shillings and Six pence this deft and the said principal Actors were willing should be paid to the said Complt as well as the summe of Ten pounds Eight shillings and two pence before menconed And this deft sayth that as to the Ten pounds Eight shillings and two pence which was due to the Complt out of the Receipts of the said third day according to the Agreement before menconed this deft never received the same or any part thereof nor the said two pounds seaventeen shillings and six pence But both the said Summes remaine in the said Treasurers hands for the use of the Complt as this deft beleives And this deft gave order to the said Mr Baggs the Treasurer to pay the same to the Complaynant amounting together to Thirteen pounds ffive shillings and Eight pence as this deft computes the same And this deft beleives that Mr Baggs hath severall times offered to pay the same to the Complt and is still ready to doe the same But that he the Complt hath neglected or refused to receive the same as the said Treasurer has informed this deft And this deft denyeth that the said play called the Tender Husband was acted att any time in the yeare one thousand seaven Hundred and ffower either in the Summer or Winter as in the Complt's Bill is suggested But the first time the same was acted was on the said three & twentyeth of Aprill Anno Dni 1705 as this Deft verily Beleives and as is before sett forth And this deft denyeth that he this deft ever made any other agreement with the Complt touching or concerning the Comedyes or Playes before menconed or either of them other than as is herein before sett forth And this deft denyeth that he lent the said Seaventy two pounds upon any other agreement then as aforesaid and Sayth that he this deft did never agree to stay for the said debt untill the Complt should bring the said play called the Eleccon of Goatham or any other play to this deft And this deft denyes that he was or is minded to Oppresse the Complt and extort greate Summes of money from him and not allow the Complt any profitt whatsoever in Consideracon of the said Comedy called the tender Husband which Comedy as this deft hath been informed and beleives hath been severall times acted in the last yeare by the Company of Actors in the playhouse in the Hay Markett[154] without this deft's consent or direccion & in Opposition to this deft's Interest which this deft has reason to beleive was soe done by the Incouragement or att least the Conniveance of the Complt But what Benefitt or profitt the Complt hath had from thence for the same this deft doth not know And this deft Confesseth that the Complt haveing for a long time delayed the payment of the said debt of seaventy two pounds with Interest and Damages to this deft and not keeping his promises touching the same this deft hath caused prosecucon to be made against Complt for Recovery of the said debt with Interest & damages which this deft humbly insists was & is lawfull for him to doe and humbly hopes this honoble Court will not hinder him therein & this deft denyeth all and manner of unlawfull combinacon & Confederacy for any the ends or purposes in the Complt's Bill menconed without that that [sic] there is any other matter or thing Clause Sentence or allegacon in the Complt's said Bill of Complaynt conteyned materiall & effectual in the Law for him this deft to make answere unto and not herein and hereby well and sufficiently answered unto confessed or avoyded traversed or denyed is true to the knowledge of this Deft all which matters & things this Deft is and shall be ready to averre justifye maintaine and prove as this honoble Court shall direct & humbly prayes to be hence dismissed with his Reasonable Costes & Charges in this behalfe most wrongfully susteyned
Turner
John Metcalfe
II.
STEELE v. WILBRAHAM, &c., 1722.
(Page liii.)
Steele's bill,[155] after referring to the Letters Patent of the 14th January 1714-15, and to the agreement then made by Steele with Wilks, Cibber, and Booth, proceeds to state that in or about 1713 Steele had contracted an acquaintance with Edward Minshull, Esq., of the parish of St. Martin-in-the-Fields, who professed great friendship, and offered to help Steele to money to supply his then urgent occasions. The offer being accepted, Minshull became bound with Steele to one Cox for £500 or thereabouts, and to one Aston[156] for £400 or thereabouts, and to some other persons, of whom he borrowed, as he pretended, money to lend Steele; and he lent Steele at several times some small sums, and about the 24th July 1716 desired Steele to give him some security for the money he had lent to and stood engaged to pay for Steele, all which he then pretended to compute at £1500 and more; and particularly he desired that a security might be made to him of Steele's fifth part of the Letters Patent and of the clothes, scenes, &c., and of the profits of the Theatre in Drury Lane; and Steele having a good opinion of Minshull's integrity, and believing the account made out to be true, readily agreed to make such security, whereupon Minshull got and prepared an assignment of Steele's share to him, his executors and assigns, dated the said 24th July 1716, the consideration whereof was expressed to be the sum of £1500 paid to Steele; but in truth there was not any sum then paid to Steele, nor were the debts for which Minshull was bound then paid, nor was any account then drawn out or settled between Steele and Minshull. And at the same time Minshull signed a defeasance to Steele, that upon payment of the £1500 and interest at a day therein mentioned the said assignment should be void; and Steele thereupon directed Castleman, Treasurer of the Theatre, to pay his share to Minshull or his order. And there having been great dealings between Minshull and Charles Gery, Esq., of London, of whom Minshull had at times borrowed several sums on several securities, and Minshull proposing to assign over the security from Steele, Gery insisted that Steele should join in the assignment; but Minshull declared there was no occasion for it, and that Steele should make affidavit that he had no otherwise encumbered his share in the Theatre; and Gery being satisfied with this, Minshull told Steele that he was much pressed for the payment of the debts to Cox and Aston, and that he must raise money on Steele's assignment to discharge those debts, and that for that purpose the affidavit must be made, to which Steele consented. And some time afterwards, as Steele had been lately informed, Minshull assigned the security to Gery, but Steele could not discover what money was paid by Gery. Minshull endorsed Steele's note to Castleman, and gave it to Gery, who received several sums from Castleman. Minshull and Gery formed at that time a design to get Steele's share of the scenes, clothes, and profits; and Minshull undertook to purchase the same absolutely of Steele for £4000, which it was agreed between Minshull and Gery should be for their joint and equal benefit; but the £4000 was to be paid by Gery, and £2000 repaid by Minshull as he could raise the same out of his moiety of the profits; and this agreement was marked in the assignment made by Minshull to Gery, or in some other deed or writing between them. Minshull then often requested Steele to sell his share, but being unsuccessful he said he perceived Steele was in straits for money, and that it would be proper for Steele to raise a considerable sum at once, and professed that he would advance a further sum of £2500 upon the security of the said premises, and allow Steele two years for the payment thereof. This Steele accepted, and Minshull being in daily expectation, as he pretended, of receiving £3000, or some such sum, directions were given by him to Mr. Ralph Wilbraham, his attorney, to draw up an assignment to him of Steele's share, which Wilbraham accordingly got drawn up and engrossed. It was dated on or about the 31st January 1716[-7], and was made absolute, Minshull undertaking to give Steele a defeasance thereof in payment of the said £4000 and interest within two years of the date thereof. And this assignment being drawn and engrossed, Minshull and Wilbraham came to Steele, who was then attending the service of his country in the House of Commons, and carried him to the Horn Tavern, in the Palace Yard, Westminster, and after the assignment was read over, Minshull, speaking with Steele in another room, said that, being disappointed of money, he could not pay Steele any part of the said £2500, but would in a few days, and in the meantime would give a note for the money, and that for Steele's security the assignment should remain in Wilbraham's hands till the sum was paid, and that he (Minshull) would execute a proper defeasance to Steele. Steele, being ignorant of matters of law, spoke to Wilbraham, who assured him that he would receive no prejudice thereby, adding that he (Wilbraham) was obliged to take extraordinary care that Steele should not suffer because Steele put such great confidence in him.[157] Steele was thus, at the earnest request of Minshull and Wilbraham, induced to sign the assignment of the 31st January 1717, and to sign a receipt endorsed on the back of the paper for the sum of £4000 as the consideration thereof; and Wilbraham was a witness that Steele executed this assignment and signed the receipt, well knowing that not one penny was advanced as the consideration thereof, and that the same was only to be security for the £1500 for which the former assignment was given, and the £2500 when the same should be paid to Steele, and for which Minshull then gave Steele a receipt, Wilbraham being a witness; and Wilbraham assured Steele that this receipt would screen him from any prejudice by signing the receipt for £4000, and that if the £2500 were not paid to Steele, by virtue of the said receipt for £2500, Steele would be entitled to an allowance thereof out of the £4000. By agreement between Steele and Minshull the assignment of the 31st January 1717 was then deposited in the hands of Wilbraham as a common trustee between them, until the £2500 should be paid to Steele and a proper defeasance executed by Minshull; and until that was done no use was to be made of the assignment, and then Steele's former assignment for £1500 was also to be delivered up to him. And Steele requiring some further memorandum from Wilbraham of such trust, Wilbraham wrote a short memorandum, acknowledging that he had received the indenture of the 31st January, purporting a sale from Steele to Minshull of the fifth part of the Letters Patent, scenes, clothes, &c., and profits in consideration of £4000, which Deed was deposited in his hands in order that in case Steele, his executors, &c., should redeem the same within two years, the same should be delivered up to be cancelled and destroyed; and this he promised to do, unless the Deed were lost by fire or other unavoidable accident. Wilbraham and Minshull witnessed this memorandum by affixing their signatures; and Steele depended upon Minshull's Note, and Wilbraham's memorandum, and Wilbraham's privity to and knowledge of the whole affair, and the Deed being kept by Wilbraham, so that there should be no prejudice to Steele, that the £2500 would have been paid, and the former assignment delivered up; and he therefore then delivered his counterpart and defeasance thereof to Minshull. And Minshull, or Gery at his order, continued by virtue of the first assignment of July 1716 to receive Steele's fifth part of the profits; but Minshull never paid Steele the £2500, to the very great disappointment of Steele, who, depending upon the same, was reduced to great straits, and therefore desired Minshull would supply him with some part of it; this Minshull agreed to do if Steele would consent that the agreement in Wilbraham's hands should remain as security for such further sums as Minshull should advance beyond the £1500 for which the first security was given. Steele consented, being desirous that whatever money was really advanced to him should be repaid with interest; and thereupon Minshull supplied several sums and paid several sums for Steele; and Gery received out of Steele's share of the profits £2398 16s. 10d., or some such sum; and Steele's share was received by Minshull, or his order, Gery, for the years 1716 and 1717, to the amount of £1418. Having paid to Minshull by one Mr. Paterson £400, Steele desired Minshull, on or about the 22nd October, to state accounts with him, which Minshull did, and notwithstanding the debt of Aston was included in the first security for £1500, yet Minshull charged Steele with the sum of £47 8s. for the costs thereof, and also with several sums over and above the £1500, the total of one account amounting to £768 19s. 9d., and the total of the other to £712 5s. 10d., so that on the whole Minshull charged Steele as debtor for £3029 3s. 7d., and at the same time gave Steele credit for £1418 received of Castleman and £400 received of Paterson, whereby there was a balance of £1211 3s. 7d. due from Steele to Minshull, as will appear by the said account signed by Minshull and Steele; and Gery was privy to the stating of this account, and continued by virtue of Steele's note endorsed by Minshull to receive Steele's share of the profits until the 24th January 1719, and received thereby £348. There remained then due to Minshull for principal and interest only £886 16s. 6d. or thereabouts, but Steele tendered to Minshull £900, and demanded the assignment for £4000, and also the assignment for £1500, which Minshull pretended he had long before redeemed, and often promised to deliver to Steele, and had received back the defeasance and counterpart from Steele, and also Steele's note to Castleman. Minshull sent to Wilbraham's house for the said assignment, but Wilbraham being out of town or from home, Minshull desired the matter might be put off to another opportunity, and that in the meantime he might continue to receive the profits belonging to Steele, the same to be afterwards deducted out of the said £886 16s. 6d. To this Steele agreed; and on the 4th February 1719 paid Minshull the further sum of £300. And afterwards, on or about the 26th November 1719, Gery, by virtue of Steele's note, received the further sum of £238; but Minshull had in the meantime paid to and for Steele some other sums, so that, on the 11th December 1719, there remained due from Steele to Minshull £596 2s. 9d.; and thereupon Minshull by a writing dated the said 11th December declared that Steele before the expiration of two years from the 31st January 1717 tendered to him full satisfaction for the consideration money mentioned to be advanced to Steele by the said deed of sale, but that he (Minshull) could not then come at the deed by reason of Wilbraham not being at home when he sent for it, and therefore he desired Wilbraham by this writing to deliver up to Steele or his order the deed dated 31st January 1717 on payment of the sum of £596 2s. 9d., that being all the money then due to Minshull. Steele sent this writing to Wilbraham, offering to pay the £596 2s. 9d., and well hoped the deed would have been delivered up to him, and that the other assignment of the 24th July 1716, and the order to Castleman, would have been delivered up by Minshull. But now Minshull, Wilbraham, and Gery, combining together, and with William Woolley, Esq., of the county of Derby, and with others as yet unknown, to defraud Steele of his share in the Theatre, Wilbraham utterly refused to deliver up the deed of assignment of the 31st January 1717, but threatened to deliver it to Gery, with whom he entered into an agreement for that purpose; and Gery insisted that there was due to him from Steele £2500 or some such great sum, and that Steele's fifth share ought to be charged therewith; and to cover these unjust proceedings he pretended that he advanced £1500 to Minshull upon Minshull assigning over to him Steele's security of the 24th July 1716, and that on the 31st January 1717 he advanced to Minshull the further sum of £2500, and that Minshull paid the same to Steele; and that by a deed poll dated on or about the 31st January 1717, Minshull declared that the £4000 mentioned to be the consideration money of the said deed of sale of that date was the proper money of Gery, Minshull's name being used only in trust for Gery; and by means of this pretended deed poll of trust Minshull and Gery endeavoured to charge Steele with the whole £4000, although for £1500, part thereof, they or one of them had a former assignment, which was never delivered up, and no part of the residue, £2500, was paid until long after, and then only some part thereof in small sums, and, as Steele had reason to believe, raised out of the very share of the profits belonging to him; and in truth no such sum of £2500 was advanced by Gery at that time upon the said security, nor was the said declaration of trust executed till long afterwards, when there were various accounts between Minshull and Gery, and Gery was apprehensive that he should lose money by Minshull; nor did Gery till lately inform Steele of the said declaration of trust, and Steele apprehended he had nothing to do with any person but Minshull, as Minshull often informed him; and he looked upon Gery only as the order of Minshull, and accountable to Minshull for what he received; nor did Gery ever oppose or forbid Steele paying money to Minshull. And if any such trust were fairly declared for Gery, yet he ought only to stand in the place of Minshull as to what was due to Minshull on the 31st January 1717, and which he long since received with interest and a great overplus; and Wilbraham, in whose custody the assignment for £4000 was left, ought to have acquainted Gery that no part of the £4000 was advanced except the £1500 secured by Steele for the assignment; or at least Gery would have received such information if he had inquired of Wilbraham or Steele. And at other times Gery pretended he had assigned his interest in the premises to Woolley, and would not concern himself about the same, although he well knew that since the 11th December 1719, he had received of Castleman at several times the further sum of £394, so that upon a fair account there now remained due from Steele to Minshull or his order only about £220, which sum Steele was willing to pay to Minshull or Gery or Woolley, as the Court should ordain, upon the cancelling of the several securities entered into by Steele to Minshull. But Minshull, Gery, and Woolley most unreasonably insisted upon charging Steele with the whole £4000 and interest from the 31st January, 1717, and nevertheless refused to discover when or how this £4000 was advanced or paid by Gery to Minshull, or what they knew or had been informed, or what interest Woolley had therein. All which being contrary to equity, Steele prayed that writs of subpoena might be directed to Minshull, Gery, Wilbraham, and Woolley, commanding them to answer the matters contained in this Bill.
Wilbraham's answer, dated 17th March 1721[-2], is the only one existing. It states that some short time before the 31st January 1717 Minshull gave Wilbraham directions for preparing such assignment or sale from Steele to Minshull of Steele's fifth part in the Theatre, as was mentioned in Steele's Bill, and two parts of such assignment were engrossed, leaving a blank for the consideration money; and Wilbraham said that to the best of his remembrance he carried the engrossments to Steele's then house in St. James's Street, and not to the Horn Tavern; and Wilbraham read over the assignment, and then Steele and Minshull retired to another room, as he apprehended to converse together upon the subject-matter of the assignment. When they returned, a proposal was made by one or both of them, that inasmuch as the assignment was drawn absolute and without any clause of redemption, and yet it was intended to be redeemable and to be only in the nature of a mortgage, the assignment, when executed by Steele, should be deposited in Wilbraham's hands as a common trustee, and that he should give to Minshull a note that the deed was in his custody, and that he would deliver it up to Steele upon Steele's redeeming the same within two years' time from the date of the deed. Steele particularly asked Wilbraham whether, in case the deed was deposited in his hands, the note would be sufficient to make the deed a mortgage, and Wilbraham said that it would, if the note were attested and witnessed by Minshull. Steele then acquiesced in the proposal, and did not in Wilbraham's hearing require any other defeasance of the deed; and Wilbraham was ordered to fill up the blank, and make the consideration £4000. The engrossed copies were then signed, and Steele gave a receipt for £4000, which was endorsed on the deed executed by him, and Wilbraham added his signature as witness. The deed was then handed to Wilbraham, who gave a receipt—as mentioned in Steele's Bill—which was attested by Minshull. Wilbraham was of opinion that Steele, like himself, then believed Minshull to be a man of substance. Wilbraham did not remember to have seen any money paid by Minshull to Steele, but believed Minshull gave Steele a note or receipt for £2500, for which sum Minshull promised to be accountable to Steele, and Wilbraham believed he added his signature as witness. Wilbraham denied that he assured Steele that this note or receipt would effectually secure him from any prejudice which might arise to him by his signing the receipt for £4000, or that he told Steele that if the £2500 were not paid him he would, by virtue of the note or receipt for £2500, be entitled to an allowance thereof out of the £4000, or that Steele asked him any questions relating thereto. He also denied that the deed was placed in his hands as a common trustee until the £2500 should be paid to Steele and a proper defeasance executed, or that until the same was done no use was to be made of the deed, or that then Steele's former assignment for £1500 was to be delivered up to Steele; and he also denied that the deed was given to him upon any other terms than those set forth in the note which he gave; nor did he use any persuasion to induce Steele or Minshull to entrust the deed to him, or to induce Steele to sign the deed or the receipt thereon endorsed, or to accept Minshull's note or receipt for £2500; nor was he any way privy to or acquainted with the reasons which induced Steele to do the same, save that he knew the £1500 was or was mentioned to be the consideration of a former deed of sale of Steele's fifth share, dated about 24th July 1716. And Wilbraham had heard that Gery had, before the 31st January 1717, advanced £1500 to Minshull upon the credit of Steele's first assignment, and that Minshull had assigned over to Gery Steele's first assignment as security; but he did not then apprehend that Gery had advanced to Minshull, or was to advance, £2500, and therefore he understood himself to be only a trustee as between Steele and Minshull. But some time afterwards Minshull and Gery came to Wilbraham and told him that Gery had advanced a further sum of £2500, and that the whole £4000 was therefore, in truth, Gery's money. Wilbraham then drew up a declaration of trust to that effect, dated 31st January 1717, which was duly executed by Minshull in the presence of one Mr. William Aspin and Wilbraham, witnesses. But Wilbraham admitted that this deed was not executed on the 31st January 1717, as dated, but some time afterwards, though he could not remember the particular time. After the execution of this last deed Wilbraham considered himself as a common trustee between Steele and Gery. After all this, when, as Wilbraham believed, Minshull had failed in answering Steele's drafts of money upon him, Steele sent to Wilbraham and offered him thirty guineas to deliver up the deed of assignment of the 31st January, and said Minshull was consenting thereto; but Wilbraham answered that Minshull's consent would not indemnify him for so doing, because he knew that the money intended to be secured by the assignment was not then Minshull's but Gery's, and that he must have Gery's consent; he therefore refused to deliver up the deed. And he believed Minshull sent to him when he was not at home, as narrated in Steele's Bill; and he from time to time acquainted Gery with the proceedings of Steele and Minshull; but he denied that he had threatened to give the deed to Gery, or had entered into any engagement with Gery for that purpose. The deed was still in his hands or power. He was never taken into council by Steele and Minshull, except that he paid, subsequently to the assignment of the 31st January 1717, £70 to Hugh Reason, Esq.,[158] for Steele by order of, and with the money of, Minshull, and had also seen several notes which Steele drew on Minshull, which he believed were paid by Minshull.
There is no record of this case having ever come before the Court, and there are no answers to Steele's Bill from Minshull, Gery, or Woolley. Fresh arrangements were entered into in 1723, as will be seen below.
III.
Steele and Scurlock
v.
438 Wilks, Cibber, Booth, Castleman, and Woolley, 1725-8.
(Page lxviii.)
In their bill, dated 4th September 1725, the complainants,[159] after describing the Indenture Quadrupartite of June 3, 1724,[160] the Articles of Agreement of September, 1721,[161] the Indenture between Steele and Woolley of June 17, 1723, and the note to Castleman of July 17, 1723,[162] said that they well hoped they should have had the benefit of the assignment and letter of attorney to Scurlock for the payment of Steele's debts and incumbrances, and that Wilks, Cibber, and Booth would have ordered the treasurer of the theatre to have paid and duly accounted with Scurlock weekly, and for all arrears due to Steele at the time of the assignment, as in all justice and equity they ought to have done, the rather because Woolley had been long since paid the £900 due to him, together with all interest thereupon. But Wilks, Cibber, and Booth, confederating together with Castleman, their treasurer, and with Woolley and others, to defraud the complainants of their just right, and to elude the force of the assignment made by Steele for the benefit of his creditors, refused to come to any account with the complainants touching the profits, pretending that the charges they had been put to in finding clothes, scenes, &c., had been so great that they had made little or no clear profit, and yet they at the same time refused to disclose their expenses; and at other times they pretended that Steele by himself or his agents had from time to time received his full share of the profits; whereas the complainants expressly charged that the profits, over and above all expenses, had been very great, and that neither Steele nor any person acting by his order had received any but a very small and inconsiderable part of his share of the profits since the time of his entering into partnership with Wilks, Cibber, and Booth, and that there was now a very great sum owing to him. And at other times the defendants, and especially Woolley, pretended that the £900 secured for Woolley was not yet paid, and that until that was paid the provisions for the other creditors could not and ought not to take place; but the complainants expressly charged that this £900 was and ought long since to have been paid out of the profits of the fourth part belonging to Steele; and Woolley and the others refused to inform Steele how much had been paid to Woolley. And at other times Wilks, Cibber, and Booth pretended that they, on the 24th January 1719[-20], were, together with Steele, suspended by the Lord Chamberlain from further acting, and that from the time of this suspension (whatever licence they afterwards obtained for proceeding therein), they were not answerable to Steele for any part of the profits; whereas Steele expressly charged that the suspension lasted only two days or thereabouts, neither could the Lord Chamberlain or any other person thereby or otherwise except by due course of law deprive him of his share of the profits, wherein he had a just freehold during his life by the Grant and Letters Patent from His Majesty; and therefore Wilks, Cibber and Booth ought to pay and be accountable to him for his just share as if no such suspension had been. And at other times the defendants pretended that by some provision in the aforesaid Articles of Agreement it was provided that neither of the parties thereto should at any time sell, mortgage, part with or incumber his or their share without the consent in writing of the rest of the said parties, and it was pretended that Wilks, Cibber, and Booth never gave such assent to the assignment made by Steele to Scurlock; whereas Steele and Scurlock declared that Wilks, Cibber, and Booth were well aware of the assignment before it was made, and had copies of it delivered to them severally afterwards, and although they did not give their consent in writing, yet they did not oppose or forbid the same; and if they had, yet the same being for the payment of Steele's creditors, it ought to be supported and made good by the Honourable Court, or at least it could not debar Steele from having an account of his share of the profits. Yet upon these and the like pretences the defendants not only refused to pay Scurlock, on behalf of Steele's creditors, but likewise refused to come to an account with Steele. Sometimes they pretended that they were entitled to a dividend of £10 a piece each week, or some such considerable sum, out of the profits, in consideration of their extraordinary trouble in the management of the theatre and their playing their several parts, previous to and exclusive of the dividend to be made under the Articles between them and Steele, and they had accordingly ever since the date of the said Articles appropriated these sums, regardless of Steele's share or interest. And they pretended to be entitled to the whole of the money given by His Majesty or any of the Royal Family when they were graciously pleased to be present at any performances, and they had kept such moneys; whereas the complainants declared that Steele had a right to his share of all profits whatsoever. And the defendants pretended that they had a right to, and had set aside for their own use, £20 a night or some greater sum under the name of several constant charges, contingencies, and bills, and pretended that Steele had no right to share therein; and Steele charged that in favour of Mrs. Oldfield, Mrs. Porter, and Mrs. Booth, three of the actresses at Drury Lane, on their respective benefit nights the defendants had forborne to deduct the necessary expenses of the house out of the profits of the night, as they ought to have done, but had placed the same to the account of the partnership, whereby Steele had been charged a fourth part of those expenses without any profit whatever; and on the benefit nights allowed to under-officers and others of the theatre, they had deducted each night, which they had shared and divided, without admitting Steele to any share. And sometimes the defendants pretended that Steele had no colour to call them to account touching any of these deductions or allowances to themselves, because he had from time to time passed and allowed these accounts without objection, and agreed to the said deductions, &c.; but this he never did; if he had passed accounts without objection, it was through want of knowledge or oversight. And Wilks, Cibber, and Booth had in other ways defrauded Steele; it was therefore prayed that writs of subpoena be issued to compel them, together with Castleman and Woolley, to answer these premises.
The "joint and several answers" of Wilks, Cibber, Booth, and Castleman are dated October 13, 1725. Long before the Letters Patent to Steele, Wilks, Cibber, and Booth had, as they said, a licence to act at Drury Lane, and were acting there at the Queen's death, and had scenes, &c., there of great value; and a short time after the Queen's death, they, looking upon Steele as a person who had a great acquaintance, and who was fit and able to promote the interest of the theatre, did, for these reasons, and out of friendship and kindness to Steele, invite him to come into a share and benefit of the theatre, for which he seemed very thankful; and it was agreed he should apply for a new licence, which he obtained, and which was afterwards, by agreement with them, changed for a Patent. The application for the Patent was to be in Steele's name only, but upon the express trust that Wilks, Cibber, and Booth should have an equal share in it; and when Steele applied, he informed these defendants that he could not obtain a reference to the Attorney and Solicitor-General for having such a Patent without first having their consent, as they shared with him in the licence; and they thereupon gave their written consent to Steele, to whom a Patent was then granted. And some time afterwards Steele agreed to give them £1200 as a consideration for the fourth part of the scenes, clothes, &c., belonging to them, and did pay to each of them £400, as appears from the receipts. Then came the Articles Quadrupartite of September 1721. By acting under the Letters Patent the defendants had received large sums, which had been entered in books and kept by Richard Castleman, their treasurer and cashier. Divers sums had been paid to great numbers of persons weekly and otherwise, as they were entitled to receive the same; and the accounts had been at sundry times stated and settled by the defendants and Steele, and Steele had received his share; on the 18th June 1723, in particular, he gave his receipt as follows: "Received of Richard Castleman £708 8s. 2d., being so much due to me arising from the profits of the Theatre Royal in Drury Lane, I say received in full to this day, Richard Steele." This was a stated account, and ought not to be ravelled into. From June 18, 1723, to June 25, 1725, divers other considerable sums had been received and paid on account of the theatre; and Steele, or persons lawfully authorised by him, had received his share thereof. On June 25, 1725, Richard Eadnell received of Castleman, by virtue of a letter of attorney executed to him by Steele, £52 10s. 3d., as Eadnell's receipt showed: "I say received for Sir Richard Steel's use ballance due for the year 1725, £471 13s. 2d., being a fourth part of the clear profits," &c.; and these defendants acknowledged that they had each of them received to their own use from the 18th June, 1723, £1 13s. 4d. for every day upon which a play had been acted, exclusive of Steele. This they claimed as a consideration for their acting and the extraordinary charge they were put to in respect thereof, for which they had no allowance in the said accounts; and they said that Steele never made any objection to the same to their knowledge till the filing of this bill. There had been from time to time paid to other actors more than £1 13s. 4d. a day for acting. On the 18th June last the defendants left off acting under the Letters Patent, and so discontinued until the 4th September last, during which interval no profits did or could arise; and since the 4th September they had acted seventeen nights and no more up to the time of putting in this answer, and the clear profits of those seventeen nights could not at present be set forth, because tradesmen's bills were not sent in; but as soon as they could the defendants were ready to account for the same and to share all just allowances. They denied that they had deducted or claimed £10 a week for management or acting, or any sum other than as above mentioned, nor had they set apart or divided among themselves £20 a night or other sum on pretence of incidental charges, &c., exclusive of Steele, nor had they taken to their own use, exclusive of Steele, any part of such bounty money as His Majesty or any members of the Royal Family had given. And they said that Mrs. Oldfield, Mrs. Porter, and Mr. Mills had plays once in every year acted for their respective benefit, without any sums being deducted for the charge of the house, which was the best agreement the defendants could make with them; no other actors had the like privilege of having benefit plays without deduction for the charges of the house; and these defendants denied that they had had any benefit thereby, exclusive of Steele. And they said that, finding by long experience that the profits grew less towards the end of the spring and until June or July, the time of leaving off acting, £5 for every acting night was and had been kept back in order to make up the charges of the house in case the money received should not be sufficient for that purpose,—which often happened about the latter end of the season; but when they left off acting the said sum of £5 was always brought to account, and what remained after the charges were paid was divided among these defendants and Steele equally. And these defendants said that they had great ground to expect that Steele would not, contrary to his own express agreement with them in writing, have sold, parted with, or encumbered his property in the Patent, clothes, scenes, and profits to any one without the defendants' consent in writing, especially because that to accommodate Steele and at his particular request (he being indebted to Edward Minshull, Esq., in the sum of £200, by whom the debt was assigned to Mr. Gery, and by him to Mr. Woolley) these defendants consented and agreed with Steele and Woolley that Castleman should pay to Woolley £200 a year out of Steele's share till the debt, with interest, should be paid. There was now £500 of the debt unpaid, and no interest had been paid. By Articles Quadrupartite, dated 19th September 1721,[163] between Steele, Wilks, Cibber, and Booth, reciting the aforesaid Articles, and also that the then Lord Chamberlain did some time since by his order direct that Steele should not be paid his fourth part, Steele did, for himself, his executors, &c., agree that if at any time the King, Lord Chamberlain, or other person authorised by the King should order that Steele be not paid his share, but should direct that Steele's share should be paid to any other person, that Steele's share should cease to be paid to him, and he should be debarred from demanding his share during the continuance of such order; and so with any proportion of Steele's share. Steele had some time since been suspended, but the defendants denied that they ever took advantage thereof. They were strangers to the several demands made by persons named in the complainants' bill as creditors of Steele, and conceived they were in nowise concerned therein. Castleman denied that he refused to let Steele see the books.
Richard Eadnell, of the Inner Temple, Gent., solicitor to Steele and Scurlock, made oath on the 27th October, that on Wednesday the 20th October he applied to Castleman, treasurer at the old playhouse in Drury Lane, on behalf of the complainants, and told him that he had occasion to look in the books of accounts kept for Steele and the defendants, and that he, the deponent, would wait on Castleman for that purpose when convenient. But Castleman said he could show no books or give any information without an order to do so from the other defendants. And on the 21st Eadnell applied to Wilks, Cibber, and Booth, but they utterly refused to give an order to Castleman, saying that no one should inspect the books or papers save Steele himself. Notice was subsequently given to the defendants' solicitor that the Court would be asked to make an order that these books could be examined by Steele or his solicitor;[164] and the order was duly granted. On the 2nd February 1726 Eadnell made oath that by virtue of this order he had looked over the books, and by them it appeared that Wilks, Cibber, and Booth had each received of Castleman £480 10s. (sic) for clear profits from the beginning of that season till Saturday, 15th January last, and Castleman had received the like sum of £487 10s. for the use of Steele, out of which he had paid £200 to Woolley, as arranged; but Castleman refused to pay Eadnell the remaining £287 10s. without the consent of Wilks, Cibber, and Booth. Eadnell thereupon applied to them, and gave them a copy of a letter of attorney duly executed by Steele and Scurlock, empowering him to receive and give discharges for such money as should become due to them from the theatre; but Wilks, Cibber, and Booth absolutely refused to direct Castleman to pay Eadnell, unless Eadnell would give them discharges for £30 which they received weekly on pretence of acting exclusive of Steele, and which was now in dispute in that Court. Wilks, Cibber, and Booth had received this £10 apiece weekly over and above the £487 10s. since the commencement of the winter season, and still intended to receive the same, as they informed Eadnell, notwithstanding the same was in dispute. And it appeared that over and above the £487 10s. and the £30 weekly, the sum of £30 a week was kept in the hands of the treasurer under the name of contingencies, in case there should be occasion to advance any money at any time on account of any new performances or otherwise.[165]
The defendants having put in their answer, Steele's counsel obtained leave, on the 12th February, to amend the complainants' bill.[166] The answer of Wilks, Cibber, and Booth to this amended bill is dated 15th June 1726. The defendants said they never refused to disclose to Steele the expenses incurred for scenes, clothes, &c.; those charges were entered in books which Steele could examine, and which they had reason to believe he had often inspected. In accordance with the order of the Court of the 28th October last, Eadnell had often examined the books, and was never denied the same. They submitted, therefore, whether they need do more than refer to the books as regards the particular sums laid out in clothes, scenes, &c. They never denied that Steele might controvert the accounts, but they apprehended he had no reason to do so, for the allowances they demanded were reasonable, and were for the daily and extraordinary labour and expenses in acting their several parts not otherwise charged for. If they had not taken upon themselves to look after and manage the theatre, they and Steele, instead of being gainers, would have lost by it; and if Steele had been as active on his part in the management as they (which he ought to have been by their Agreement), the same would have been an addition to the clear profits of the theatre, at least one fourth part.
In the meantime, Wilks, Cibber, and Booth had commenced a cross action against Steele.[167] In their bill, dated 11th January 1725-26, they said that Swiney and Collier had both constantly attended the business of the theatre, and much benefit had resulted therefrom; Collier solicited persons of quality, and drew audiences to the theatre. When Steele was invited to come into partnership, he faithfully promised to attend the meetings and consultations of the Company, and to write plays and other performances, and to use his utmost endeavour to support the interest thereof; and he did continue to attend the business of the Company until 28th January 1719-20, since when he had altogether absented himself. From that date they had each taken to their own use £1 13s. 4d. a day, and Steele was so conscious that they deserved a much greater sum that he allowed the accounts wherein the same was charged. The scope of this cross bill, therefore, was that Wilks, Cibber, and Booth might be quieted in receiving the said £1 13s. 4d. apiece exclusive of Steele, and might have such allowance as the Court should think reasonable for the expense they were at in clothes, periwigs, laces, and linen, and for their trouble in instructing the actors and overseeing artificers, &c., and might be indemnified in paying the £1200 and interest to Woolley, and be relieved.
Steele's answer to this bill was taken by commission by Alexander and Theophilus Scurlock on June 23, 1726. He denied that on entering into the partnership he promised to attend meetings or instruct young actors, not being qualified or required to appear as an actor; but he believed he did in general promise to write plays, and to promote the interests of the theatre, and this he had done to the utmost of his power, as the managers had often admitted; see, for example, Cibber's dedication to him of Ximena. The Conscious Lovers "brought more money to the House than any play was ever known to do;" and he was at that time preparing, as fast as his health would permit, a new Comedy, which, God willing, he hoped to finish by the next season, the plot of which play was formed for the reformation of the theatre, and restoring the credit and good sense of theatrical entertainments, which he was sadly sensible was never more wanted. He had done and was doing as much as his health would permit. He had entered into an agreement on the 4th September 1721, and then or shortly before, when accounting for his share during the time of the pretended suspension by the Lord Chamberlain, the other managers had urged that they had lost much in 1720 in connection with the South Sea scheme, and that Steele had not borne his share of the cost of scenes; and he then, out of pure friendship and good-will, forgave them £1,200, which he believed was due to him. Steele insisted that he was not obliged to make Wilks, Cibber, and Booth any allowance for their managing and acting, as they were by the Articles obliged to do their duty in consideration of the three fourth parts they received; but he denied that he had pretended they ought not to be allowed for clothes, &c., used on the stage, he being willing to allow his share out of the joint stock; and he believed they had frequently taken out of the joint stock for their own private clothes, which they brought to the joint account; all which Steele allowed without objection. He admitted he asked permission to assign his share, and, being refused, assigned his interest without such consent to Scurlock, and he hoped that what he did through the need of satisfying his creditors would not in equity be a breach of his covenant. He did not know of the deduction of £1 13s. 4d. a day till the beginning of 1724[-5], when he brought his bill to be relieved against it; and he hoped that notwithstanding his signing the receipt of the 18th June 1723, he should be at liberty to call the managers to an account touching the said deduction.
The original cause was before the Court several times in August and October 1726.[168] Leave was given to Wilks, Cibber, and Booth to examine Castleman, a material witness for their case, and in no way concerned in point of interest in the matters in question; and upon application that Castleman should pay Steele £468 4s., which was found to be his share of the clear profits for 1725, it was ordered, by consent, that Castleman should pay Steele £200, subject to the order which should be made upon the hearing of the cause. In December leave was given to Steele and Scurlock to examine Castleman as a witness for them. The "answer of William Woolley, Esqre., one of the Defendants to the Bill of Complaint" of Steele and Scurlock, was not put in until the 20th October 1726.[169] It contains nothing fresh of importance. Woolley said he had received £600 of the £900 due to him from Steele, and that £300 was still due, besides interest; and he urged that he was entitled to his £200 a year in preference to all other creditors mentioned in Steele's bill. On the 21st November, Wilks, Cibber, and Booth obtained leave to amend their bill in the case in which they were complainants; and Alexander and Theophilus Scurlock were again commissioned to take Steele's answer.[170] In this answer to the amended bill, which was not sworn until the 11th May 1727, Steele said it was true that he had declared that Cibber's zeal for the Conscious Lovers was an obliging favour and friendship to him, but he was referring to Cibber's care in instructing the actors, &c. Cibber did make several alterations in the play before it was acted, but to its disadvantage, and therefore he did not pay Cibber anything for his meddling. The piece ran eighteen nights, and brought £2,536 3s. 6d. to the house, but how much was paid for charges and how much to him Steele could not say, save £329 5s. or thereabouts, which he received for three author's benefit nights. He could not set forth particular passages altered by Cibber; if he did, it might run him, in vindication of his own performance, into a sort of criticism very improper, as he apprehended, for the entertainment of that Honourable Court.
In October and November 1727, publication in the original cause was twice enlarged, upon the petition of the defendants, and on the 3rd February 1728, upon the original cause coming before the Court, the defendants' counsel alleged that the counter action was ready for hearing, but that as Steele lived at Carmarthen the plaintiffs in that action had not had time to serve him with a subpoena to hear judgment; and they said that both causes were proper to be heard together. Whereupon it was ordered that the original cause should stand over to the fourth day of causes after the term, and that judgment should then be pronounced in both causes.[171] The combined suits accordingly came to a hearing before Sir Joseph Jekyll, Master of the Rolls, on Saturday night, the 17th February 1728, at the Rolls Chapel,[172] when Cibber addressed the Court, acting upon the advice of his counsel, who pointed out that he could speak better upon the question of the business of a manager than the most learned lawyer. Two of the counsel for Steele afterwards held the post of Lord Chancellor, and Cibber professes to have almost broken down with nervousness; but he succeeded, with the help of notes, in making a successful speech of an hour's length, which he has printed at length in the sixteenth chapter of his Apology. He maintained that Steele was as much obliged to do the duty and business of a manager as either Wilks, Booth, or Cibber; and the reason why he had ceased to take any part in the management was, that he was annoyed at his fellow-managers, who had often helped him when he was in want of money, but who found it necessary at last to peremptorily refuse to advance another shilling until it was due to him. After that Steele not only absented himself, but made an assignment of his share, without the consent of the others, in breach of their Agreement, thereby exposing them to the chance of trouble and inconvenience. His absence, too, had led to more than proportionate loss, because his rank, and figure in the world, and the ready access which he had at Court, had been of great service; that was, in fact, the very end and consideration of his share in the profits. Cibber proceeded to argue that he, Wilks, and Booth had been justified in charging £1 13s. 4d. a day for their extraordinary labour, in Steele's absence, by graphically describing the multitude of duties and disagreeable tasks which fell to a manager's lot. Steele had not written plays for nothing, and though, said Cibber, in writing The Conscious Lovers, "he had more assistance from one of the managers than becomes me to enlarge upon, of which evidence has been given upon oath by several of our actors, yet, Sir, he was allowed the full and particular profits of that play as an author, which amounted to three hundred pounds, besides about three hundred more which he received as a joint sharer of the general profits that arose from it." Cibber adds, in another place, that when they told Steele of the salary they meant to take for themselves in future, Steele only remarked that he had no reason to doubt of their doing him justice, and he never complained for nearly three years; indeed it was not until his affairs were put into the hands of lawyers and trustees that his lawyer thought that here was a fair field for an action in Chancery, in which, whatever the result might be, his bill would be paid.
After hearing Cibber, and the counsel on both sides,—the proceedings lasted five hours,—the Master of the Rolls declared that he saw no good cause for breaking through the account dated 18th June 1723, or for varying the allowances of £1 13s. 4d. which had been made at that time to each of the defendants, Wilks, Cibber, and Booth. He therefore ordered that the account dated the 18th June 1723 should stand, and that it should be referred to Mr. Bennett to take an account of the profits of the theatre from that time; the defendants were to produce before the said Master upon oath all books of account, &c., and to be examined as the Master should direct; and in taking the account the Master was to make to the defendants all just allowances. His Honour declared he conceived the allowance of £1 which had been already made to each of the defendants for management every night was a reasonable allowance, and that they ought to have this allowance continued to them until Steele should come into the management of the theatre; but the Master must determine what the defendants respectively deserved for their charges for wigs, lace, and linen, for which Steele admitted by his answer that an allowance should be made; and he was also to take an account of what was due to Woolley for principal and interest on his mortgage, and to tax Woolley's costs in this suit. The Master was also to ascertain what would be coming to Steele for his fourth part of the profits on the balance of the account, and from what was certified as due to Steele, Wilks, Cibber, and Booth should pay to Woolley what was reported due to him in the first place for principal, interest, and costs as aforesaid, and should pay the remainder to Scurlock for the uses mentioned in the deed of assignment from Steele to Scurlock, or to whoever Scurlock should authorise to receive the same; and Wilks, Cibber, and Booth were hereby indemnified for so doing; and they were to continue to pay Steele's fourth part of the growing profits, under such allowances as aforesaid, to Steele or to whoever he should authorise to receive the same. And it was further ordered that Steele and Scurlock's bill against Castleman be dismissed out of the court; and that no costs be paid to either of the said parties, except to Woolley.
The Master's Report is dated July 10, 1728.[173] Mr. Bennett said that the plaintiffs' solicitors having allowed Wilks, Cibber, and Booth 13s. 4d. apiece for every day a play was acted, from the 18th June 1723, as the same had been allowed up to that time, he had taken an account of Steele's fourth part of the profits from the said 18th June to the present time, and found that that fourth part amounted to £2,692 3s. 3d., in discharge whereof he found that the said defendants had paid to Steele or order several sums, amounting to £1,601 3s. 3d., leaving due to Steele £1,091. And the clerk in court for Woolley had admitted that Woolley had been already paid off and discharged all the principal and interest due to him on Steele's account; and the Master had already, by his Report of the 5th instant, taxed Woolley's bill of costs at £29 2s. 10d., which sum he appointed Wilks, Cibber, and Booth to pay Woolley out of the said sum of £1,091 in their hands, and the residue, £1,061 17s. 2d., they were to pay to Scurlock, as directed by the order of the 17th February. On the following day, July 11, 1728, upon motion made by the counsel for the defendants in the original cause, this Report and all contained therein was confirmed by order and decree of the Court.[174]
