Burbage et al. v. Brend

[Transcriptions based on Herbert Berry, Shakespeare’s Playhouses (New York: AMS, 1987): 197-203, 203-7.]
[This transcription is pending final vetting]
 

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To the Kinges most excellent Maiestie.
In all humble manner Complayning shewe vnto your most excellent Maiestie your true faithfull and obedient subiects Cuthbert Burbadge of London gentleman Richard Robinson your Maiesties servaunte and Winifride his wife late wife and Executrix of Richard
Burbadge deceased William Hemings sonne and Executor of John Hemings your Maiesties late servaunte deceased and John Lowen and Joseph Taylor your Maiesties servaunts assignees of the said William Hemings Executor of the said John Hemings That
Nicholas Brend late of West Moulsey in the County of Surrey Esquire deceased was in his life time about Thirty and two yeeres since seised in his demeasne as of ffee of and in all that parcell of ground then lately inclosed and made into fowre seuerall
gardens which were then late in the tenures or occupacions of Thomas Burte Isbrand Morris Dyers and Lactantius Roper Salter Citizens of London and of and in all that parcell of ground then also lately inclosed and made into three severall gardens
two of them being then or lately in the severall tenures or occupacions of one John Robertes Carpenter and the other of them then late in the tenure or occupacion of Thomas Ditcher Citizen and Merchauntaylor of London being all of them scituate in the parrish of
St Saviour in Southwarke in the County of Surrey by his Indenture of lease tripartite bearing date the One and twentith day of January in the One and ffortith yeere of the raigne of our late soueraigne Lady Queene Elizabeth [January 21, in error for February 21, 1599] made betweene him the
said Nicholas Brend on the firste parte the said Cuthbert Burbadge and Richard Burbadge of the second parte And William Shakespeare Augustine Phillips Thomas Pope the said John Hemings and William Kempe of London gentlemen on the third parte
for divers greate and valuable Consideracions him therevnto especially moveing in the said recited Indenture specified did demise graunte and to ferme lett vnto the said Cuthbert Burbadge Richard Burbadge William Shakespeare Augustine Phillipps
Thomas Pope John Hemings and William Kempe All those before recited parcells of ground or garden plotts with thappurtenaunces in the said recited Indenture specified for the terme of one and thirty yeeres from the ffeaste of the Birth of our Lord God
then last past before the date of the said Indenture of lease for severall yeerely rents amounting in the whole to the somme of ffowrteene pounds and tenn shillings As by the said Indenture of lease wherevnto relacion being had more at large
appeareth  And your said subiects and servaunts further informe and shewe vnto your most excellent Maiestie that the said Cuthbert Burbadge and other the said Leassees did then enter into and vpon the aforesaid recited ^^demised premisses by force
and virtue of theire said lease and demise and became of them lawfully and quietly possessed and did at theire owne proper Costs and chardges expend disburse and lay out in the erecting newe building and setting vp there in and vpon the said
demised premisses of a howse structure or building vsed for a Playhowse and Commonly called the Globe the somme of One Thowsand pounds of lawfull English money at the leaste And that about eighteene or nineteene yeeres sithence the said
howse or playhowse called the Globe so by them erected and builte in and vpon the said demised premisses was by Casualty of fire vtterly ruinated burnt downe and Consumed to the damage and losse of the Leassees theire partners and assignes
of whatsoever had bine by them formerly expended disbursed or laid out in or about the erecting building or setting vp of the same (it being to the value of One thowsand pounds at the leaste) And your said subiects and servaunts further also
shewe vnto your most excellent Maiestie. That in or about the moneth of ffebruary 1613 and in the Eleaventh yeere of the raigne of our late soueraigne lord Kinge James of pious memory (it being some shorte time after the greate Casualty of
fire) The said Cuthbert Burbadge Richard Burbadge and John Hemings being surviving Leassees  and others theire partners interessed in the said lease by assignement from other the Leassees became suitors and petitioners vnto Sir Mathewe
Brend then Esquire and nowe Knight who was then interessed in the imediate revercion of the said demised premisses as sonne and heire vnto the said Nicholas Brend his late father deceased and was then to haue the same after thexpiracion
of the said lease so made by the said Nicholas Brend as aforesaid in Consideracion and respect of theire said greate losses by Casualty of fire as aforesaid and the better to inhable and incourage them to reedify erect and new build the
same againe to graunte vnto them a further and longer time therein And your said subiects and servaunts further also shewe vnto your most excellent Maiestie that the said Sir Mathew Brend (albeit he the said Sir Mathewe Brend was not then
of the full and perfect age of one and twenty yeeres yett he was then of the age of Twenty or eighteene yeeres at the leaste and well able to iudge not onely of the greate losse which had befallen the said Leassees by the said greate Casualty of
fire but also of the greate charge and expence which the said Leassees and theire partne[r]s were to be putt vnto in and about the newe erecting and building of the said howse and of the benefitt and advauncement that should ^^come to his lands
and ground thereby) did then most worthily and willingly with the assent of his mother his vncle and other freinds and allies at the peticion and request of the then surviving Leassees theire partners and assignes in consideracion of the
said greate losse and the better to inhable and incourage them to newe erect build and sett vp the said Playhowse not onely graunte and yeild to make a further and longer terme ^^{of yeeres} of and in the said demised premisses vnto them the said
then surviving Leassees and theire partners for the space of ffifteene yeeres to Comence and beginne imediatly after thend and expiracion of theire said old lease made by the said Nicholas Brend his late father  But also by his writing
vnder his hand and seale bearinge date in or about the moneth of ffebruary 1613 in further expression of his the said Sir Mathewe Brend his willingnes to make the said newe Lease in Consideracion of the greate losse charge
and expense susteined by the said Casualty of fire and to be susteined by newe building as is aforesaid and for theire better incouragement towards the reedifying thereof and for the somme of Tenne pounds of lawfull money
of England to be paid vnto him the said Sir Mathewe Brend when he should accomplish
his full age of one and twenty yeeres did Covenaunte and graunte to and with the said Cuthbert Burbadge Richard Burbadge John
Hemings and Henry Condell who was then an assignee of parte of the said howse theire executors and assignes and to and with every of them that hee the said Sir Mathew Brend at such time as he should accomplish and Come to
his full age of one and twenty yeeres should and would make graunte and confirme vnto them the said Cuthbert Burbadge Richard Burbadge John Hemings and Henry Condell theire executors and assignes the full
terme of ffifteene yeeres more in the said garden plotts grounds and premisses to Comence and beginne imediatly from and after thend and expiracion of theire said former lease made and graunted by his said late father
Nicholas Brend deceased as aforesaid for and vnder the like and the same yeerely rent of ffourteene pounds and tenne shillings and such other Covenaunts and Condicions as are or were conteined and specified in the
said former lease made by his said late father As by the said writing subscribed sealed and delivered by the said Sir Mathewe Brend and attested and witnessed by dame Margarett Zinzan naturall mother of the said
Sir Mathewe Brend and by Henry Strelly Vncle of the said Sir Mathewe who were both present at thensealing thereof and gave theire Consent therevnto wherevnto referrence being had more at large also appeareth
And your said subjects and servaunts further shewe vnto your most excellent Maiestie that your said subjects and servaunts and those whose estates they have in the said Playhowse and grounds relying vpon the word
promise and agreament of the said Sir Mathewe Brend and of his Covenaunte in writing vnder his hand and seale as aforesaid did and haue sithence at theire owne proper Costs and chardges erected builte and sett vp
there vpon the said demised premisses in the same place where the former howse stood a very proper newe and faire howse or Playhowse Called the Globe to theire further charge of ffifteene hundred pounds [£1500]
of lawfull English money at the leaste being the greatest parte of your said subiects and servaunts substance and estates  And sithence the said Sir Mathewe Brend hath accomplished his age of one and Twenty yeeres
your said subjects and servaunts and those whose estates they haue, in all gentle and Courteous manner haue tendred the said Tenne pounds vnto the said Sir Mathewe Brend and haue requested him to accept
thereof and according to his said promise graunte and Covenaunte in writing to make graunte and Confirme vnto them a newe lease or estate of the said howse and ground for the said terme of ffifteene yeeres to
Comence after the expiracion of theire said ould lease vnder the like yeerely rent of ffourteene pounds and tenne shillings and other the Covenaunts and agreaments conteined in the same ould lease  But may it please
your most excellent Maiestie he said Sir Mathewe Brend takeing advantage of his said then minority when he did make seale and deliver the said writing hath and doth refuse to accept of the said somme of Tenne
pounds and to graunte and Confirme your said subiects and servaunts such further terme of yeeres as he promised agreed and Covenaunted to doe  And your said subiects and servaunts further also shewe vnto your most excellent Maiestie That
the interest and estate of and in the said howse and grounds (amongest other things) Comeing by some lawfull wayes or means vnto the hands and possession of Sir John Bodley then Esquire and nowe Knight The said Sir John Bodley takeing
notice of the greate losse and charge susteined and to be susteined by them the said Cuthbert Burbadge Richard Burbadge John Hemings and Henry Condell by the burning of the former howse and in reedifying the same anewe
did therevpon graunte and demise the same premisses vnto the said Cuthbert Burbadge Richard Burbadge John Hemings and Henry Condell for the terme of Sixe yeeres to Comence and beginne at thend and expiracion of the
said Lease made by the said Nicholas Brend as aforesaid at the said yeerely rent of ffourteene pounds and tenne shillings and vnder such other Covenaunts as were Conteined in theire said old lease according to the said Covenaunte
and agreament of the said Sir Mathewe Brend and in parte of performance and towards the accomplishment thereof  And the same lease so made by the said Sir John Bodley of the same premisses for the said terme of Sixe
yeeres as aforesaid was and hath bine amongest other leases sithence accordingly ratefied Confirmed and decreed vnto them in his Maiesties Courte of Wards and liveryes  But nevertheles May it please your most excellent Maiestie
the said Sir Mathewe Brand (the said lease made by the said Sir John Bodley drawing on and comeing ^^neere to an end and being to end about foure yeeres hence) The said Sir Mathewe Brend doth not onely refuse to make the said
newe Lease for the remainder of the said terme of ffifteene yeeres according to his said Covenaunte but doth threaten when the said lease made by the said Sir John Bodley is ended to dispossesse your said subjects and servaunts of the
said house and grounds and to thrust your said subiects and servaunts out of the possession thereof and to sell it to others and offereth also nowe to sell the same presently from your said subiects and servaunts (who haue
the present estate and terme therein) vnto others who are not nor cannott be bound by lawe by or vnto the performance of the Covenaunts graunts or agreaments of the said Sir Mathewe Brend) which is Contrary to all equity
and wilbe to your said subjects and servaunts vtter vndoing haueing disbursed and laid out theire whole stocks and estates in and vpon the reedifying and newe building thereof and your said subiects and servaunts are become
remediles (sic) at lawe therein for that the said promise Covenaunte and agreament of the said Sir Mathewe Brend was by him had and made in his minority and the same neither doth or can binde or conclude him at the Common
lawe being had made and done in his minority as aforesaid  But nevertheles in equity the said Sir Mathew Brend ought to be bound therevnto for that the inheritance of the said Sir Mathewe Brend is advaunced & bettered thereby
to the somme of ffifteene hundred pounds which hath bine so done and improved by the whole Costs and chardges that hath bine expended and laid out by your said subiects and servaunts and those whose estates they haue in the
newe building and reedifying thereof and your said subiects and servaunts were therevnto drawne to expend and disburse the said moneys (which otherwise they would not haue done) but by and vpon the promise Covenaunte and
agreament of the said Sir Mathewe Brend as aforesaid  The premises therefore tenderly Considered and for that your said subiects and servaunts are otherwise remediles but onely by peticion vnto your most excellent Maiestie
And for that also the said howse is for theire exercise and practise of theire quality very fitt and Comodious the better to inhable your Maiesties said servaunts to doe theire service to your Highnes  And that your most excellent Maiestie by
your Highnes Letters Patents vnder the greate Seale of England for the purposes aforesaid hath also licenced and authorized your said servaunts to exercise theire said quality of acting and playing of Enterludes Comedies and
Tragedies in the same howse Called the Globe As by your Maiesties said Letters Patents wherevnto relacion being had truly appeareth May it therefore please your most excellent Maiestie to graunte vnto your said subiects and servaunts
your Maiesties most gracious writt of Privy Seale to be directed to the said Sir Mathewe Brend thereby Comaunding him at a Certen day and vnder a Certen paine therein to be lymitted personally to be and appeare before your
most excellent Maiestie and your highnes Councell in your Maiesties honorable Courte of Requests then and there to answer the premises vpon his Corporall oath and to stand to and abide such further order and direction therein as to your
Maiestie shall best seeme to stand with equity and good Conscience And as &c./
(signed) S. Maunsell

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/vjo die ffebruarij Anno Regni Regis Caroli septimo [February 6, 1632]./
The Answeare of Sir Mathew Brend Knighte to the Bill of Complaynt of Cutbert Burbage
Robert Robinson and Winifrid his wife William Henings John Lowen and Joseph Taylor Complainants./
The said defendante saueinge to himselfe nowe and att all tymes hereafter all advantages and benefitt of Excepcion to the incertaynty insufficiency and other imperfections of
the said Bill of Complaynte for Answeare therevnto saith that he beleeueth it to be true that his late ffather in the said bill of Complainant mentioned did make such a Lease of
the parcells of ground gardens and Lands in the Bill mentioned vnto the said Cutbert Burbage Richard Burbage William Shackspeere Augustin Phillipps Thomas
Pope John Hemminges and William Kempe and vnder such yearely rents as in the said Bill is sett forthe, But this defendant neither knoweth nor beleeueth That the same
was made vpon any other Considerations then are in the said Lease expressed, And this defendant further saith That by the said Indenture of Lease the said Lessees had powre
to pull downe all such houses and buildinges as then were vpon the premises so they would build as good or better instead thereof, And the said Lessees for them theire Executors and
assignes did thereby Covenante att theire owne proper Costs and Charges to mayntaine and Supporte the said Buildinges and fences of the premisses in and with all needefull and necessary reparacion
and amendementes from tyme to tyme when and as often as need should require duringe the Terme in the said Lease mencioned and the same so repaired and made mayntayned
and amended together with all such edifices and buildings whatsoeuer as should be builte and sett vpp by them the said Lessees or theire assigns in and vpon the premisses or
others as good and Conveniente for the place at the end expiracion or other determinacion of the said Lease to leaue and yeeld vpp vnto this defendants said late ffather his
heires and assignes as in and by the said Lease to which this defendant for certainty therein referreth himselfe doth and may appeare, And afterwards Sir John Bodley in
in [sic] the bill named pretendinge Title to the said parcells of land and premisses and the Play house nowe called the Globe therevpon errected by his Indenture beareinge
date the Six and Twentith day of October in the yeare of our Lord God One Thousand six hundred and thirteene and in the Eleauenth yeare of the raigne of
Kings James of pious memory [October 26, 1613] did make a further Lease thereof vnto the said Cutbert Burbage and others therein named for Sixe yeares from the end and expiracion of
the said former Lease made vnto them by this defendants said late father vnder the like yearely rentes as in the said old Lease was reserued vnder Covenantes to the same and like
effecte as are Contayned in the said old Lease whereby it may appeare as this defendant Conceyueth very cleerely to this honorable Cort that the said Lessees in the said firste and
old Lease mentioned and theire Executors and assignes were bound in Case any such fire happend as in the Bill is pretended and dammage thereby to the said Lessees theire
executors or assignes. That by theire agreamentes and Covenantes in theire said Lease they were bounde to have borne the same and att theire owne Charges to haue repayred
whatsoeuer the said fire destroyed and leaue the same buildinges in good repaire to this defendants said late father his heires and assignes att the end of the said old Lease, and
therefore this defendant Conceyueth there was noe Just cause or motiue or Consideration for him to enter into any such Covenante for the makeinge of any newe lease att to commence from the end
of the said old Lease as in the said Bill of Complaynte is pretended, And this defendant further saithe That he doth not knowe nor beleeue that there was One Thousand pounds
disbursed for the errecting of the Play house aforesaid or neere any such summe, neither doth this defendant knowe that the same was by fire burnte downe as in the bill is pretended
neither is the same materiall vnto this defendant as he Conceyueth vnder fauoure of this honorable Courte for that the said originall Lessees theire executors and assignes were
by Covenante as aforesaid bounde to errect buildinges vpon the said pareclls of grounde and premisses and for that Consideracion the same were lett vnto them att such small yearely
rentes by this defendants said late father as aforesaid, 205 and in Case any Casuallity happened therevnto they were to mayntaine repaire rebuild and amend the same buildinges
and in the end of theire said old Lease to leaue and yeeld vpp the same in good repaire vnto this defendant, and therefore theire negligence or ill keepeinge of theire fire ought not as
this defendant Conceyueth in Lawe or equity to moue this defendant to Make them any longer lease of it or graunte them any longer terme in the said playhouse called the
Globe then they had by vertue of the said first Lease, And as to the Covenante in the Bill suggested to be entred into by this defendante in the Eleauenth yeare of the raigne
of Kinge James of blessed memory this defendant saith that in Case any such Covenante was entred into by this defendant the same was as this defendant conceueth & hopeth to proue when this defendante was either within
the age of ffoureteene yeares or when this defendant had but newly attayned therevnto and this defendant was greately abused therein and drawne therevnto without any consideracion att all for it this defendant cann discerne as he also conceiueth and therefore as he is not by Lawe bounde to performe the same, So he conceyueth vnder the fauoure of this most honorable Courte he is not
Compellable in equity to make the same good or performe the same Covenant in any parte especially seinge by the Complainants owne shewinge it appears That without any Consideration att
all they haue obtayned a further terme of Sixe yeares from the said Sir John Bodley then they had by the said old lease which this defendante agreeth to Confirme, And in
regard that thereby the Complainants are to enioy the same play house and premisses for so many yeares more att so small a yearely rentes with out any valuable benefitt or
advantage att all to this defendant whereby this defendant hath sustayned so much losse in the improuemente he mighte raise the yearely value and rentes of the said play house
and premises vnto this defendant is not willinge nor will to agree to make any further Estate therein vnto the said Complaynants then they haue by the said Lease of the said Sir
John Bodley made vnto them as aforesaid, Without that that this defendant was att the tyme when the Complainants pretend the said Covenante to be entred into by him of the age of
Twenty or Eighteene yeares or of any other age to this defendants knowledge then is above herein sett forthe, or that this defendant was then able to Judge either of the losses or charges and expences in the
Bill mentioned And whether this defendants mother Vncle or any other of his friends did assente to this defendants enteringe into such Covenante as in 206 the bill is pretended or
not this defendant knoweth remembreth not neither doth he conceyue the same to be materiall vnto this defendant or to binde him att all, And this defendant further saith that he doth not
beleeue that the nowe playhouse called the Globe euer Coste ffifteene hundred pounds the buildinge or any more then ffiue hundred poundes as the defendant conceiueth if it did so muche
and that whatsoever it Cost this defendant beleeueth that they were bound by the said Covenantes to errecte the same, And that by the said newe addition of Six yeares vnto
the said old Lease which they haue and inioy by this defendantes agreemt and Confirmacion they haue had and receyued much more profitt and advantage then this defendant was
bound either by Lawe or equity to giue vnto them for the same, And therefore hopeth vnder the fauoure of this Honorable Courte it shall and may be lawfull for him after the
end of the said newe lease of Sixe yeares to dispose of the same play house and premisses as pleaseth him and to whom he will and att such better yearely rentes as he can gett
for the same notwithstandinge the said Covenante abusively and surreptisiously obtayned from him when he had not discretion to knowe what he did or wherefore he did it, And
this defendant doth not knowe nor beleeue that the said play house and groundes ever came to Sir John Bodley any lawfull meanes or waies as in the bill is pretended
But this defendant Confesseth that the said Lease by him made of the said play-house Confirmed by the assente of this defendant and by the decree of his Maiesties Courte of Wards and
Liveries and this defendant is willinge the Complainants shall enioy the benefitt of that Lease so made unto them by the said Sir John performinge the Conditions and Covenants thereof, but
this defendant because he intendeth to dispose of the same after the expiration of theire said newe lease for Sixe yeares att his own pleasure and as he shall thinke most meete to be for
his best profitt and Commodity this defendant doth refuse to accept the Tenn poundes in the bill mencioned or to doe any other thinge that may giue or Confirm any longer
tyme or Terme of yeares vnto the Complainants therein then the said Terme of yeares graunted vnto them by the said Sir John Bodley, And this defendant doth not beleeue
that his inheritance is advanced or bettered by any buildinges nowe vnto vpon the premisses but verily thinketh that if fitt dwellinge houses had beene erected vnto vpon it in value Answeareable to
the longe terme of yeares the Complainants and theire predecessors haue enioyed it and are to enjoy it att such meane yearely rentes as aforesaid it had bene farre better for this
defendantes inheritance then nowe it is or can bee, And that whatsoeuer benefitt this defendant shalbe able to make of the buildinges nowe vpon it, after the end of the said Terme
of Six yeares the same will neuer Countervaile the losse his ffather and he hath sustayned and he is yett to sustaine by the letting of the same parcells of grounds gardens and
groundes originally lett vpon vnto the said first Lessees att such small yearely rentes, Without that that any other matter or thinge Clause sentence Article or allegation in the
said Bill of Complaint Contayned materiall or effectuall to be by this defendant Answeared vnto and not herein before well and sufficiently Answeared Confessed and
avoided traversed or denied is to the knowledge of this defendant true All which matters and thinges this defendant is ready and willinge to averr mayntaine and
proue as this most honorable Courte of Chancery shall award, And humbly praieth to be dismissed out of the same with his Costs and and [dittography] Charges in this behalfe most
wrongfully vniustly had and sustayned:/
John White