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 subpœna 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.