I.

STEELE v. RICH.

(Pages xxviii—xxx.)

PLAINTIFF'S BILL.[144]

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