Richard Steele / Edited, with an Introduction and Notes by G. A. Aitken

by Sir Richard Steele

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 subpœna 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.