IT was no laughing matter for comedian Francis Phillips when the circus came to town – he sued them on behalf of Southampton’s Theatre Royal where he regularly performed.

Not out of professional jealousy, it was simply business. No doubt fearful for his livelihood, he reasoned the theatre was unfairly burdened with heavy overheads and the circus was not.

So the entertainer complained that Charles Hengler, manager of Hengler’s Circus Royal, later to become one of Victorian Britain’s greatest attractions, “kept open a building in which stage plays were performed without a licence,

having produced a stage play called Mazeppa or the Wild House of Tartary, and with having enacted one of the characters in the said play”.

Hengler, born in 1821, travelled the country with his brothers and sisters, each with their individual skills. His elder brother Edward, for example, was a brilliant tightrope artiste, completing somersaults while playing the violin without missing a note.

By contrast, Charles was a splendid horse trainer and equestrian, as well as an astute businessman, acting as manager for his father.

In the mid 19th century there were hundreds of circuses operating and competition was tough.

Trick riding continued to be the main feature but a variety of other acts developed as the arrival of the railways enabled them to travel further, shows often put on in specially constructed tents so flimsy they regularly blew away in the wind.

It was in October 1846 that Hengler’s Circus came to Southampton, instantly popular with the townsfolk – but not with Phillips.

However, the curtain in the court room drama almost never rose, with the magistrates urging the two parties to sort out their differences. However, they could not agree and so it was on with the show.

Phillips alleged the circus put Mazeppa, an exact replica of what had been performed on the stage in London and would not have needed the presence of horses with a slight alteration to the script.

“The manager of the Theatre Royal is not actuated by any vindictive feeling in this prosecution,” prosecuting solicitor Mr Harfield insisted. “But having heavy rates and taxes to pay, and having an expensive establishment to keep up, he thought it proper in justice to himself to avail himself of the protection which the law afforded to licensed houses.

“So unwilling is he at having to bring this case before the public that he has written to Mr Hengler with a view to rendering the present proceedings unnecessary. But that has had no affect and so the action has been laid by Mr Phillips.”

The central character in the case was well established actor William Charles Smith who trod the boards in Southampton and in London. He had not only seen Mazeppa on the London stage but had even acted in it.

“I was there on October 27,” he stated, referring to the Southampton production. “I paid 6s for admission to the pit (half price) and saw Mazeppa performed. There were many performers. It was the same play I had seen acted in London, only it was curtailed.

“I did not know Mr Hengler but the character of the Castellan of Laurenski was performed by a person who to me seemed to be him and whose name was set down in the bill as Mr Charles Hengler.”

Under cross-examination, Smith remained unruffled, adamant that Mazeppa could be played without a horse being brought on to the stage by simply cutting out one scene. “There is sufficient plot without it.”

Defence solicitor Mr Pocock rebutted the prosecution’s case, submitting there was no evidence to link Hengler with the circus.

“No proof he is the manager or proprietor of the circus. Even if it has been distinctly sworn that he has acted in the piece, that does not prove he is the manager. Even if that has not been sworn to, the witness has merely said the defendant appeared to be the same person performing.”

Dialogue was essential “to excite the wonder of the audience” when the horses were on stage and being trained to obey the command of their riders. “They are the main part of the entertainment and were not merely auxiliary to the acting.”

Hengler, he said, also had expenses, with a £40 a year tax bill, but he donated money to charities in every town he visited, and in Southampton he had proposed to benefit the Royal South Hants Infirmary.

Pocock concluded: “It has not been proved that the performance of Mazeppa here was as complete as in London. There is nothing in the way of a stage here – they performed here amongst the sawdust and not 20 sentences were spoken – only enough to to bring out in advantageous light the very expensive stud of horses.”

Magistrates, following a lengthy recess, acquitted Hengler of the first charge but convicted him of the second, underlying their anger at the case not being settled out of court by passing the lowest fine possible – just 5s with no costs.

Despite the leniency, Hengler however was far from satisfied.

“I think it ridiculous that I should have to apply to the magistrates for a licence for every time I want to open my circus for a week or two but, however, I will not repeat the performance of Mazeppa in Southampton.”

He was given short shrift by chairman E H Hulton. “You had better not repeat it in Southampton or anywhere else.”

The following year, Hengler’s Circus began to really flourish, extending from a small but successful company into a giant and successful one. Hengler died suddenly at home in London, aged just 57, leaving a widow and nine children.