Scottish Court of Session Decisions

On 24th June 1868 William Glover, proprietor of the Theatre Royal, Dunlop Street, Glasgow, obtained royal letters-patent under the Acts 43 Geo. III. cap. 142, and 6 and 7 Vict. cap. 68, for the performance of plays for the period of twenty-one years in that theatre, “or within any other theatre built or to be built at any other suitable place within the city of Glasgow, the suburbs or neighbourhood thereof, instead of the said theatre in Dunlop Street.” The letters were in favour of William Glover, “his executors, administrators, and assigns.”

The Act of Geo. III. enacts as follows—“Whereas a licensed play-house in the city of Glasgow would be of convenience to the said city, and to persons resorting there, may it please your Majesty that it be enacted that it shall and may be lawful to His Majesty, his heirs and successors, to grant letters-patent for establishing a theatre or playhouse in the city of Glasgow, suburbs, or neighbourhood thereof, subject to such restrictions as to the number of persons to be interested therein, and in the profits thereof, and with such privileges and under such provisions and regulations for the due and orderly conducting and managing the same as to His Majesty shall seem fit: Provided always, and be it enacted, that the said theatre or play-house, and management thereof, shall be under and subject to the control and inspection of the Lord Provost, Bailies, Dean of Guild, and Deacon Convener of the Trades and City of Glasgow, and of the Sheriff-Depute of the county of Lanark for the time being.”

The Act 6 and 7 Vict. cap. 68, enacts by sec. 2, that “it shall not be lawful for any person to have or keep any house or other place of public resort in Great Britain for the public performance of stage plays without authority by virtue of letters-patent from Her Majesty, her heirs and successors, or predecessors, or without licence from the Lord Chamberlain of Her Majesty's Household, for the time being, or from the justices of the peace as hereinafter provided.” The letters-patent contained a clause declaring “that these our letters-patent shall be revocable by us, our heirs and successors, at our and their pleasure, and without any cause given, and that thenceforth the right of the said William Glover, his executors, administrators, and assigns, shall cease and determine.”

In 1869 the theatre in Dunlop Street was acquired by the Union Railway Company, and Glover leased a theatre in Hope Street, Cowcaddens, which became known as the Theatre Royal, and to which the letters-patent applied.

By conveyance dated 31st July 1878 and duly recorded, Mr Andrew Yuille and a Mr Rae purchased the theatre. Mr Glover on 10th May 1878, in consideration of the sum of £400, assigned the letters-patent to them, “their heirs and assignees.” Twelve days later, on 23rd May, in security of an advance of £13,000 obtained from a Mrs Anderson, Messrs Yuille and Rae granted a bond and disposition in security over the property. This deed contained no reference to the assignation of the letters-patent, and bore merely to convey the property by description, with the whole houses and buildings erected or to be erected thereon, “parts, pertinents, and privileges thereof, and free ish and entry thereto,” in security of the sum lent. The theatre was burnt down in 1879, and rebuilt in 1879–80. In July 1881 Mrs Anderson's trustees entered into possession of the theatre under the bond and disposition in security. From them the property passed to the marriage-contract trustees of a Mr and Mrs Richmond. On 20th August 1887 William Thomas Rushbury became lessee under them of the theatre.

This action was raised by Yuille, Rae being dead, to have Rushbury interdicted “from producing stage plays in the buildings known as the Theatre Royal, Hope Street, Glasgow, in virtue of the licence and authority contained in the royal letters-patent

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for the performance of stage plays in a theatre in Glasgow granted to William Glover, artist and theatrical manager in Glasgow, in the year 1868, to remain in force for the period of twenty-one years from the date thereof, and from using the said royal letters-patent in any manner of way without permission from the pursuer, or from interfering with the pursuer in any way in his use and enjoyment thereof.”

The pursuer averred that the letters-patent were not sealed to the Theatre Royal buildings, but were acquired and held on a title distinct therefrom, and could be used in any other suitable building in Glasgow or suburbs. He further averred—“The pursuer has learned that stage plays are now being produced and performed in the Theatre Royal buildings by the defender in virtue of the licence and authority of the said royal letters-patent without having obtained the consent of the late Mr Rae's trustees or of the pursuer, and that the defender is unwarrantably taking advantage of the other rights and privileges pertaining to the proprietors of the said letters-patent. The defender while advertising the said performances as being given under the said letters-patent is contravening the terms thereof, and endangering the continuance of the same by his reducing the charge for admission below the prescribed rates.”

In answer the defenders averred that by the bond and disposition in security the pursuer had divested himself of his whole interest in the letters-patent.

The pursuer pleaded—“(1) The defender having interfered with and used the rights and property of the pursuer as libelled, the pursuer is entitled to protection against such interference and use being repeated. (2) The pursuer is, in virtue of his titles, entitled to claim the protection of the Court against the acts of the defender complained of.”

The defenders pleaded—“(1) No title to sue. (3) The pursuer having been divested of any right be may have had in the letters-patent, cannot enforce his present claim.

The trustees of Mr and Mrs Richmond sisted themselves as defenders in the capacity of bond-holders in possession of the theatre.

The Sheriff-Substitute ( Lees) on 26th November 1887 sustained the first plea stated for the defenders, dismissed the action and decerned.

On appeal the Sheriff ( Berry) on 13th February 1888 adhered.

The pursuer appealed, and argued—When he purchased the theatre and granted the bond and disposition in security he did not assign to the bondholders any rights in the letters-patent. These were not sealed to the Theatre Royal, but were acquired by him from Glover, and held on a title perfectly distinct from the theatre, and could be used in connection with any other theatre in Glasgow. The right to them was assignable by the pursuer if he chose to assign. Granted that the theatre passed to the bondholders with its pertinents and privileges, it was an unwarrantable straining of the terms of the bond to apply it to a separate, distinct and valuable right like that contained in the letters-patent. He was entitled to interdict against use of the letters-patent.

The defenders replied—The pursuer had no title to sue. He had been divested of all right to the letters-patent by the bond and disposition in security. That deed conveyed them to the defenders' authors under the word “privileges.” The word was one peculiarly applicable to those rights. But even without that word they passed to the defenders as the pursuer's creditors. It was impossible to hold that their debtor should hand them over the theatre without giving them the accessory letters-patent, which clearly rendered the subjects valuable. The rights under the letters-patent were not assignable nor separate from the threatre. The Act of George III. authorised the Crown to licence the theatre in Glasgow, and the letters-patent showed merely that a franchise of opening a particular theatre was conferred on the licensee, and not, as the pursuer alleged, that a right assignable by him had been conferred upon him.

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