would not interfere, but would leave the plaintiff to an action at law.

Secondly-That the plaintiff had himself concurred with Mr. Const in proceedings and applications inconsistent with the contract for the lease, and therefore, ought not to be allowed to enforce the perform ance of that contract in a court of equity.

Thirdly-That the contract proceeded upon representations made by the plaintiff, which had turned out to be erroneous.

In the month of March 1822, the plaintiff, Henry Harris, was entitled to fourteen twenty-fourths of the property of Covent Garden Theatre; the defendants, Kemble, Willett, and Forbes, were then entitled together to seven twenty-fourth shares; the defendant, Const, was then entitled for life to the remaining three twenty-fourth shares, and the reversion of those three twentyfourths was vested in persons claiming under the will of Mrs. Martindale, to whom the defendant, Const, was executor. On the 11th March 1822, the plaintiff, Harris, and the defendants, Kemble, Willett, and Forbes, entered into the agreement, which is the subject of this suit; and the effect of that agreement was, that the defendants, Kemble, Willett, and Forbes, as between themselves and the plaintiff, should be considered as the lessees of the theatre for the term of ten years, to be computed retrospectively from the 1st August 1821, at a yearly rent of 12,000l., which would be, in effect, to give the plaintiff during that term, as rent for his share, the annual sum of 70001. But there being at this time a very heavy debt upon the theatre, it was agreed, that no part of that rent should be paid to the plaintiff until that debt was discharged; and that the whole profits of the theatre should, in the meantime, be applied in the reduction of that debt. The plaintiff, Harris, appears to have had no other property at command than his interest in this theatre: and, in order to provide an income for his subsistence until the debt was paid off, it was agreed, that he should receive from a Mr. Rodwell and a Mr. Bochsa, certain annual rents paid by them to the proprietors of the theatre, for the use of the fruit-rooms, and the hire of the theatre for the performance of Oratorios, and that the plaintiff should also receive an annual sum of 210., which

was stated to be payable by Sir Edmund Antrobus, as the rent of a private box for alternate weeks. The sums thus to be received by the plaintiff were computed to amount together to 1360l. a-year, and were to be received by him in the nature of a loan; and, when the debt should be discharged, he was to account for those sums upon that principle.

The plaintiff's father, Mr. Harris the elder, who died in the month of October 1820, was, in his lifetime, the proprietor of one half of the theatre. He had been for many years manager of the theatre, at a salary of 1000l. He was succeeded in his property in the theatre, and in the management, by the plaintiff, who, having been educated for the bar, had quitted his profession, and had for twelve years assisted his father in the affairs of the theatre. The defendants, Kemble, Willett, and Forbes, appear to have been dissatisfied with the plaintiff's management, and to have been desirous of saving the salary of 1000l. a-year, which was paid to him in that respect; and they seem to have entered into this agreement with the plaintiff rather for the purpose of obtaining the management of the theatre to themselves, than with a view to any profit from the bargain. They first proposed, that the rent should be determined annually by the annual profits of the theatre; but the plaintiff, protesting against that, required that the rent should be computed at 15,000l. a-year, and he afterwards himself offered to become the lessee of the theatre, at a rent of 13,500l. The defendants say, that they refused this offer, because they questioned the responsibility of the plaintiff, and considered the offer as a mere artifice of treaty; and, ultimately, they agreed to become the lessees of the theatre, at the rent which I have before stated, of 12,000l. a-year. The defendants appear to have expected, that Mr. Const, as the proprietor of three twenty-fourths of the theatre for his life, would have concurred in the intended lease; and the name of Mr. Const, as a party, was originally introduced into the draft of the agreement. That expectation was, however, disappointed; and the agreement was cuted by the plaintiff and the defendants, without Mr. Const being a party.

exe

Immediately after the execution of the agreement, the plaintiff retired from the

theatre, and the management was assumed by the defendants, Kemble, Willett, and Forbes. In that management they continued, when Mr. Const filed his bill in this court, on the 15th April 1823, against the plaintiff, and the defendants, Kemble, Willett, and Forbes; thereby stating a certain deed, bearing date the 4th March 1812, by which the then proprietors of the theatre contracted with each other, that the funds of the theatre should be applied in payment of certain specified debts, until the whole thereof should be satisfied; and, by his bill, Mr. Const stated further, that such debts remained undischarged, and that the funds of the theatre were now applied contrary to the provisions in that deed; and the bill, therefore, prayed, that effect might be given to the deed of 1812; and that, for that purpose, a receiver of the profits of the theatre might be appointed.

In this suit, an order was made by the Lord Chancellor, for the appointment of a receiver, on the 19th February 1824; and, four days afterwards, the defendants, Kemble, Willett, and Forbes, caused a letter to be written to the plaintiff, with notice, that they altogether repudiated the agreement entered into with him in March 1822, whereby they were to become the lessees of the theatre; stating, as their reason for so doing, the appointment of the receiver in Mr. Const's suit, under the deed of 1812, and alleging, that the plaintiff was a party to that deed; but that they (the defendants, Kemble, Willett, and Forbes) had, at the time of the agreement with the plaintiff, no notice of the existence of that deed. The parties to that deed of 1812 were, Mr. Harris, the father, who was then possessed of one half, or twelve twenty-fourths of the theatre; the plaintiff, Harris, who was then possessed of four twenty-fourths; the late Mr. John Philip Kemble, who was then possessed of four twenty-fourths; the late Mr. White, who was then possessed of three twenty-fourths; and the late Mrs. Martindale, who was then also possessed of three twenty-fourths. The deed of 1812 appears to have been acted upon for a year or two only, and then to have been abandoned; and, at the time of the appointment of a receiver, there remained unpaid of the debts intended to be provided for by that deed,

a sum under 10,000l. It was in August 1818, that the defendants, Willett and Forbes, who had married two daughters of Mr. White, became entitled to the three twentyfourths, which, in 1812, had belonged to him; and, in the month of November 1820, the defendant Kemble became entitled by gift to the four twenty-fourths which, in 1812, had belonged to Mr. John Philip Kemble. On the death of Mrs. Martindale, the three twenty-fourths which had belonged to her in 1812, were vested in Mr. Const, her executor, in the manner I have before stated.

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On the 14th April 1824, the plaintiff Harris filed the present bill, for the purpose of compelling the defendants, Kemble, Willett, and Forbes, to adhere to the agreement of the 11th March 1822. Mr. Const is made a party defendant to this bill the plaintiff insisting, that, although not a party to the agreement between the plaintiff and the defendants, he had, by his subsequent conduct, entitled the plaintiff to call upon him in a court of equity to confirm that agreement.

With respect to Mr. Const, it may be as well to state at once, that the plaintiff has not established any case of the sort against him, and that the bill against him must be dismissed with costs.

The defendants, Kemble, Willett, and Forbes, by way of defence to this bill, first insist, that, having entered into the agreement of March, 1822, with the plaintiff, solely for the purpose of acquiring the management of the theatre, and having lost that management by the appointment of a receiver in Mr. Const's suit, they are no longer bound by their agreement with the plaintiff. It is first to be observed, that, in the agreement of March 1822, the plaintiff expressly contracts, that he is not bound to the performance of the agreement further than as it is to be performed by, or is applicable to, himself; and that the defendants, Kemble, Willett, and Forbes, expressly contract, that they will be bound by the agreement, not only so far as it is to be performed by, or is applicable to, them, but so far also as it is to be performed, or is applicable to, Mr. Const, or to the estate of Mrs. Martindale, which he represents; and it appears to me, therefore, to be against the clear effect of that expressed contract,

that they now seek to make the plaintiff responsible for the acts of Mr. Const.

The defendants next insist, that they had no notice of the deed of 1812, under which the receiver is appointed; and that, as the plaintiff was a party to that deed, and is to be taken to have known that it might be used as an instrument to defeat that possession and management of the theatre, which, on the part of the defendants, was the motive of the agreement, it was the plaintiff's duty to have apprized the defendants of that deed, and that, he not having done so, they are for that reason entitled to be released from their agreement with the plaintiff. It is not pretended, that there was any intentional concealment of this deed on the part of the plaintiff. It had long been abandoned and lost sight of by all parties concerned and, the very parties, under whom the defendants claim, having executed that deed, it is not easy to understand upon what principle it can be material, whether they had or had not actual notice of the deed. If, however, that fact were material, I should be bound to declare, upon the evidence in the cause, that these defendants are to be affected in this court with notice of that deed.

These defendants next insist, that, although the plaintiff did oppose the appointment of the receiver, yet, after the receiver's appointment, he supported the proceedings of Mr. Const to have the monies paid to the receiver secured in this court, and that, the payment of the money into court being contrary to the terms of the agreement of March 1822, which placed the monies at the disposition of these defendants, for the purpose of paying the debts, they, for that reason, are entitled to be relieved from the agreement. That the plaintiff did support this proceeding of Mr. Const to have the monies paid to the receiver secured in this court, is not disputed. The present bill of the plaintiff to enforce the agreement of March 1822, was then depending; and the support given by the plaintiff to Mr. Const's proceedings cannot be represented, under the circumstances, as evidence of an intention on his part to abandon the agreement. It is said for the plaintiff, that he at the same time strenuously insisted upon the agreement, and that, these defendants having given him notice that they repudiated

the agreement, he had a right to use his efforts to secure the receipts of the theatre in this court, as a measure that would be beneficial to him in the alternative of the defendants succeeding to avoid the agreement. Whether the plaintiff's knowledge of the subject, or his conduct in that respect, was or was not correct, it is not necessary for me to state: it is enough to say, that his conduct in that respect can form no ground upon which the defendants can retire from the agreement in question.

The defendants next state, that, for want of more correct information, they were obliged to make their calculations, as to the rent which might properly be paid for the theatre, from statements and accounts furnished by the plaintiff, purporting to be founded upon his personal experience, and his knowledge of the affairs of the theatre, and that the statements and accounts so furnished by the plaintiff were incorrect and erroneous, and that they were misled by him; and are, therefore, entitled to be relieved from the agreement: and they refer to particular statements and accounts in support of these allegations.

Before I enter into the consideration of these particulars, it is necessary to premise some general facts. During the management of Mr. Harris, the father, and of the plaintiff, all accounts of the theatre were kept by Mr. John Brandon, the treasurer; and it is admitted by the defendants, that the accounts so kept were at all times open to their inspection, and were repeatedly inspected by them; and with these accounts the defendants were so well acquainted, that one of the defendants actually suggested an alteration in the mode of keeping the accounts, which was afterwards adopted. And the defendants allege, in passages in their answer, which have been read as evidence, that Mr. Brandon was an incompetent person to manage the accounts of the theatre, and that, in fact, he did not understand the same, and that he improperly left the same, in a great degree, to his son James Brandon: and the defendants further allege in such passages, that, in consequence of the imperfect and irregular manner in which the accounts had been kept during the management of the plaintiff and his father, there were not any means, in the year 1821, by which the defendants could ascertain the

exact amount of the debts of the theatre, and of their own liabilities consequent thereupon; and, further, that they were informed by Mr. Harrison, who was the medium of communication between the plaintiff and the defendants in the treaty which ended in the agreement, that he, Mr. Harrison, had repeatedly declared to the plaintiff, pending the treaty, that the plaintiff did not understand and was incompetent to manage the accounts of the theatre; and that he did not know the true state of the accounts of the theatre; and that he did not understand the nature of the accounts, or the profits, or the loss. In all these passages to which I have referred, I have stated the very words of the answer.

Mr. Henry Robertson, who was appointed by the defendants, when they took upon themselves the management of the theatre, as treasurer, in the place of Mr. Brandon, and who is now the receiver under the order of the Lord Chancellor, and who is represented as a skilful accountant, being examined as a witness on the part of the defendants, deposes, that, from the obscure manner in which the accounts were kept by Mr. Brandon, he does not conceive that the true state of the affairs of the theatre, and the actual profit or loss which had been made, prior to the date of the agreement between the plaintiff and the defendants, could have been collected from the books and accounts by any person not intimately acquainted with the management of the theatre, or without the most minute and laborious examination thereof, by a person well accustomed to the examination of accounts.

In the agreement of March 1822 itself, there is a provision, that the list of the names of the creditors of the concern, then so made out and signed by the parties, is not to be deemed conclusive as to any item of account contained therein, or omitted to be included therein, or as to any debt or demand omitted therefrom, but that all just or correct debts, if stated or omitted in that list, are to be fully satisfied; and this provision amounts to an admission of the nature of the accounts kept by Mr. Brandon, to the same effect as Mr. Robertson's testimony.

Having made these preliminary observations, I shall now proceed to the particular

statements and accounts of the plaintiff, of which the defendants complain. The treaty for the lease of the theatre, from the plaintiff to the defendants, commenced, according to Mr. Harrison's evidence, in the month of December 1821; and, at the beginning of the treaty, a letter, bearing date the 21st of that month of December, was written by the plaintiff to Mr. Surman, for the purpose of being communicated by him to Mr. Harrison on the part of the defendants. That letter is proved as an exhibit, and the material part of it is in the words following:

"My dear sir,-I have directed Mr. Brandon to make out the receipts and expenditure of the last season, according to the wish of Mr. Harrison. It will be impossible in the short time to give more than the gross amount of the receipts, and the gross amount of the salaries, and the weekly payments forming the current expenses of the theatre; for, to enter into the examination of the tradesmen's bills, and pick out everything which should be put to the account of last season, would be a work of time. The excess of the receipts over the expenditure, and the consequent profit of the concern will appear large" (speaking of the then actual year, the year 1821); "but if it be meant by that account to form some idea of the rent which might safely be given for a lease of a theatre, perhaps, instead of taking any one season, it would be better to take the whole number of seasons since the opening of the new theatre. The total amount of receipts during the eleven seasons is 991,8117.; average per season 82,650l." [It is to be observed, that the word "eleven" here is a mistake for twelve; for the division of 991,811. is not into eleven parts for the sum of 82,650l., but is a division into twelve parts.] "Now, I have no doubt, one third of the above sum may be accounted as profit; and, I am sure, if the sums were calculated which have been paid (independently of the expenses of working the theatre), that I should be fully borne. out in my assertion."

This letter was forwarded by Mr. Surman to Mr. Harrison; and it is asserted by the defendants, that, forming their calculations upon the statement here made by the plaintiff, they were grossly misled: for, al

though it appears by Mr. Brandon's accounts, that the receipts of the twelve seasons did amount to 991,8117., being the sum stated by the plaintiff, yet this sum, to the amount of 66,2891., was partly made up by monies received on benefit nights, which were afterwards paid to actors to whom the monies belonged, and partly by monies advanced by the bankers, and ought not, therefore, to be included in any computation for the purpose of profit; and they prove that fact by the evidence of Mr. Robertson and they then proceed with certain comparative statements of figures, to shew the effect that would be produced in any calculation, if the plaintiff's statement as to the 991,8117. had been correct, and if the profits could have been justly estimated, as Mr. Harris appears to have estimated them in this letter, at one third of the gross receipts.

It does not appear to me necessary to follow these calculations. The plaintiff, in his statement of this sum of 991,811l., must be understood to refer to Mr. Brandon's accounts, which were certainly open, both to the plaintiff and to the defendants, and he cannot be understood as speaking from any personal knowledge; and Mr. Brandon's accounts on the face of them do not justify his statement, and, as the defendants at that time complained of the imperfect and irregular manner in which Mr. Brandon kept those accounts, and had been informed by Mr. Harrison that the plaintiff did not know the true state of the accounts of the theatre, and did not understand the nature of the accounts, and of profit and loss, those defendants cannot reasonably state, in a court of justice, that they either did rely or were entitled to rely upon this representation made by the plaintiff, or that they were guided by it. The plaintiff's estimate of the profits at one third of the gross receipts, professes to be nothing more than a mere conjecture on his part.

The defendants further allege, that they were induced to believe by the representations of the plaintiffs, that a saving to the amount of 200l. a week, or 7000l. a-year, might be made in the expenses of the theatre, and that in that respect also they were misled. Upon this head the defendants refer to a letter from the plaintiff to the defendant Willett, which is dated on the 27th

July 1820, and is proved as the exhibit A ; and they also refer to two exhibits, G and H, which were inclosed in a letter written by Mr. Surman on the part of the plaintiff to Mr. Harrison, dated on the 3rd October 1821, and proved as the exhibit F. It is to be observed, that the exhibit A was written in the lifetime of Mr. Harris the elder, when probably there would not exist the least idea of the defendants ever becoming the lessees of the theatre; and it could only be under very special circumstances indeed, which have no existence here, that a letter written at that time could be brought to bear upon a subsequent treaty, as a representation affecting that treaty. But if it were admitted that it was a representation upon which the defendants were entitled to rely, it is only a statement, that, by means of the plaintiff's connexion with the Dublin theatre, he had been able to reduce the expenses of the ensuing season about 2001. a-week, and not a representation that a permanent annual saving of 7000l. might be made in the expenses of the theatre. With respect to the exhibits G and H, they also were written prior to the treaty for the lease. They do indeed represent that a reduction of expenditure to the amount of 71051. 5s. 7d. had occurred in the season 1820-21, (that being the season to which the plaintiff refers in the exhibit A), and thus establishing the truth of the statement in that letter, that, by means of his connexion with the Dublin theatre, he had been able to reduce the expenses of the ensuing season above 2001. a-week. But so far from representing that such a reduction is always to be expected, the letter F, which encloses those exhibits, has these passages, speaking of the season 1821-2,-"the present saving per week is 271. and a fraction; and, the usual number of weeks being forty-four, I need not point out to you the saving of each season in future."

It may be further observed, that the exhibits G and H were furnished by Mr. Brandon, and were mere extracts of the accounts kept by him, and which were accessible to all parties, and neither contained, nor professed to contain, any personal representations of the plaintiff.

In exhibit E, which is a letter written by the plaintiff to Mr. Surman, dated the 14th May 1821, and which is communicated to