The Sun.
London, England, 1852-04-23 00:00:00

fourth Writion

SUN OFFICE, Seven o'Clock.

VICE-CHANCERY —(THIS DAY-)
(Before Vice-Chancellor TURNER.)
LUNLET V. WAGXER.
Mr. Bacore applied to his Honour this afternoon, on behalf
of Mr. Lumley, the lessee of her Majesty's Theatre, for an
injunction to restrain Mdlle. Johanna to agner from violating
or committing any breach of the last article of an agreement
signed between Mr. Lumley and Mdlle. Wagner, at Berlin, o enn
the 9th November last. The Learned Counsel proceeded to
read the affidavits of Mr. Lumley and others on which he
grounded the application, stating that an agreement had been
entered into between the parties securing the services of the
defendant for:Her Majesty's Theatre fur three:months, dating
from the let of April 1852, to sing in six parts, the three
first of which were stipulated to be " Romeo," " Fidee," and
" Valentine," at a salary of 400/. per month, with a stipula-
tion that 310/. should be paid in advance, on the 15th of
March, at Berlin. A clause was afterwards) inserted, stipu-
lating that Mdlle. Wagner should not sing at any other
place in England, either in public or private, without the
written consentof Mr. Lumley. This latter and supplemental
clause was signed on behalf of Mdlle. Wagner, by Dr. Bacher
through whose agency, being a mutual friend of both par-
ties, the engagement was made. On the 9th of February,
Mdlle. Wagner wrote to Mr. Lumley from Hamburgh to
extend the date of the commencement of her engagement
from the Ist of April to the 10th of April, which was fol-
lowed by a letter from Herr Wagner, the defendant's father,
to the same effect, to which request Mr. Lumley consented,
acquainting the Wagners at the same time that
Dr. Becher had in his hands the sum of 3001. ready to pay
over to defenlsn ashen she chose. Dr. Bacher at that
time had in his potsession the 300 L, and on the 10th of
March wrote to Mdlle. Wagner acquainting her that he had
in his hands on behalf of Mr. Lumley that t
stip
hulated
and sum,
and asking when and where he should pay ito er, alai)
where he should meet her, according to agreement, to con-
vey her to England. To this he received an answer that she
was at that time in Schwerin, and in Passion Week would
be in Hamburgh. Dr. Bacher also received a letter
from Herr Wagner, acquainting him that Mr.
Lumley had consented to extend the time of the
commencement of the agreement, complaining
of the bad terms which they had made with Mr. Lumley as
regarded money matters, more particularly resulting from
the clause prohibiting the defendant from singing at any
other place but Her Majesty's Theatre, and concluding with
what the Learned Counsel denominated a characteristic re
mark, "that England was only to be valued on account of
her money." On the 10th of April, Dr. Bacher went to
ifambaegbe'where he was told by the Wagners that they
bad signed an engagement with Mr. Gye, and
were etraid that they had done wrong in so doing.
At the same time and on the same day, the 10th of April,
Mr. Lun 1:y being at Paris, received a letter from Mdlle.
Wagner, then at Hamburgh, accompanied by a notarial pro-
test, informing him that she considered that their engage-
ment was at an end, that she felt justified and at liberty to
dispose of her time and talents as she thought best. She
also said that she had been informed by another party that
Mr. Lumley was very deficient in :noney matters, and that
she felt it due to her professional reputation to form another
engagement. Mr. Lumley then went to Hamburgh,
where he had several interviews with Dr. Bacher
and Mdlle. Wagner, when he was informed that
Mr. Gye had offered to her 2,0001. for two months'
engagement, and had made representations to her at the
same time that Mr. Lumley's theatre must soon close, and
that she never would receive the sums which had been pro-
mised to her, and that it would be injurious to her reputation
to persevere in it. Under these representations, and feeling,
as it were, under intimidation, she had entered into engage-
ments with Mr. Gye. Mr. Lumley then °tiered to her 30..'1.
in Bank of England notes, which were refused, and Mr.
Lumley was unable to prevail upon Mdlle. Wagner
to fulfil her contract. The affidavits went on to say
that on the 19th of April Mdlle. Wagner arrived in Eng-
land, and that she was advertised to sing at Covent-garden
Theatre to-morrow evening. Affidavits were also read from
Mr. Mitchell and Mr. Rach, setting forth that • in conse-
quence of Mdlle. Wagner not singing at Her Majesty's The-
atre, boxes and stalls had been re'urned on their hands,
having been taken under the impression that that artiste
would appear there. On these facts the Learned Counsel,
after quoting the several cases of " Kemble v. Kean,"
" Clarke v. Price," " Morris v. Colman," and other cases,
submitted that he had good ground for asking for an injunc-
tion to restrain Mdlle. Wagner from breaking the last clause
in the agreement, and Mr. Gye from taking advantage of her
services.
Mr. CLARICE followed on the same Bide, insisting that the
excuse of the non-payment of the 300/. was a mere after-
thought, and that the larger offers and misrepresentations of
Mr. Gye were the real cause of the pre-engagement being
broken.
Mr. MALIN% for the defendant, said that in consequence
of the very short notice given he had had
no opportunity of becoming acquainted with the
plaintiff's affidavit, or of filing affidavits on behalf
of the defendant. There was a substantive answer, however,
on the part of the defendant and that was, a breach of
the contract on the part of Mr. Lumley under circumstances
which induced the defendant and her father to belive that
Mr. Lumley would be unable to perform it. With regard
to the negative. clause, he submitted that that was not
proved with sufficient clearness to have been a part of the
original contract; it was inserted afterwards, and was signed
merely by Dr. Becher. He should suggest that the case
should be deferred until Monday, when he should be pre-
pared to go into it on its merits. One night's performance
could not do so much harm to Mr. Lumley.
Vice-Chancellor PAEKER—Are you prepared to give any
undertakings?
Mr. aanuirs said that he would have no objection to give
an undertaking that Mille. Wagner should not sing a se-
cond time until the affair was disposed of.
Mr. BACON said that this would certainly not meet the
views of his c ient.
Mr. Maares then proceeded to argue that there was no
proof that the negative stipu!ation hod been accepted
or signed ty Mdlle. Wagner, and it could not therefore be
considered to be part of the contract. The Court, there-
fore, could do nothing, because, even though it might on
sufficient grounds have prevented Mdlle. Wagner from sing-
ing at Coventg-arden, it ce Mainly had no power to make her
sing at Her Majesty's Theatre. The Learned Counsel
quoted a number of cases to show that it had always been the
practice of the Court, when it could not enforce the specific
performance of a contract, not to interfere at all. He a'so sub-
mitted that there had been a breach of the contract by the
non-payment or the stipulated sum of 309/. on the part of Mr.
Lumley. He therefore thought that the Court was not
called upon to take the course which was urged upon it, but
that the parties ought to be left to their remedy at law.
Mr. MORTIMER followed on the same side.
His HONCXR suggesteal hat an undertaking should be given
that the young lady should not act te-morrow, leaving an
opportunity at the same time of making affidavits in the
course of the day and entering into the merits of the case.
Mr. Metiers said that be was afraid be should nct be in a
bet ter position, because it would he impossible to make affi-
davits in the course of to-morrow.
His Honoult then said that the Court must act necessarily
on ex parte information, and the statement of one side only
of the question. It appeared then to him in the first place, that
the contract containing the prohibitory clause was the real
bone fide contract existing between the parties, and that it
had been accepted and agreed upon by both parties, and was
the agreement by which the conditions of the engagement
were regulated. If there were a contract between the parties,
there was little doubt on his mind, that if a party agree i to do
a specific thing for a valuable consideration, and to refrain from
doing something else inconsistent with that former thing,
that the Court could and would interfere to restrain the
party from doing that which had been agreed not to be done,
even were unable to compel the performance of that
which had been agreed to be done. With regard
to the other question, the non-payment of the 3001.
at the stipulated
information whlchtinehe, it appeared to him, from the
obliged to act, that a posseaocd, on which be was
r Lumley had by the letters already
read, both of his own and that of Dr. Becher,' offered pay-
ment of it before the tithe
grant an injunction agreed upon. He should, there-
fore,pertoz sinst Mdlle. Johanna Wagner,
restraining her from at the Royal Italian Opera,
and also against Mr. Gye,g restrainingvlinng him from taking ad-
vantage of her services, leave however, to the de-
fondante, either to-morrow or any yliitsiuotsequent day, to file
affidavite, and to move for its dissolution.

[HE LONDON GAZETTE.
(THIS EVENING.)

LORD CHAAIBERLAIN'S OFFICE A
. ,
fo
Notice is hereby given, that her :A' `LE,PRIL 7 1852
Drawing-rooms. at Sr. James's Palace,:lil sq. the will hold
llowing
days, at two o'clock:—Thursday, 29th A prii lust"
and
on Thursday'. 13th May next, to celebrate hz,rj 4eat-y'B
zi "
birth-day. N.B. The Knights of the several orders
are to appear in their collars at the Drawing-room on
the 13th of May next.
FOREIGN- OFFICE, APRIL 20.
The Queen has been pleased to approve of Mr. Henry
Hoyte as Consul at Dublin for his Majesty the Ring of
Hanover. 1
The Queen has also been pleased to approve of M. Joseph
Hitler as Consul at Liverpool, and of M. Theodore Goepp as
Consul at Newcastle for the French Republic.
WHITEHALL, APRIL 22.
IlleThe Queen has been pleased to constitute and appoint the
Right Hon. William Earl of Mansfield, K T., to be her Ma-
jesty's High Commissioner to the General Assembly of the
Church of Scotland.

WHITEHALL, APRIL 21.
The Queen has been pleased to present the Rev. Colin Mac-
kenzie to the church and parish of Contin, in the presbytery
of Dingwall. and county
of Rose, vacant by the death of the
Rev. Charles Downie, late Minister thereof.
The Queen has also been pleased to present the Rev.
John Sinclair to the church and parish of Muckairn, in the
presbytery of Lorn, and shire of Argyll, vacant by the trans-
portation of the Rev. Donald M'Farlaoe, late minister
thereof, to the united parishes of Killeen and Killenzie.
WAR-OFFICE, Arnie 23.
Ist Regiment of Dragoon Guards--Troop Serjeant-Major
William Smith to be Quartermaster, vice Joseph Mis:.ett,
who retires upon half-pay, April 23.
3d Dragoon Guards—Lieutenant Andrew Rudkin Robin-
son has been permitted to retire from the service by the sale
of his commission ; Cornet John William Cannon, from the
Ist Dragoons, to be Cornet, April 23.
4th Light Dragoons—Lieutenant Thomas Hutton to be
Captain, by purchase. vice Wellington, who retires, April 23.
21st Regiment of Foot—MajJr Frederick George Ainslie
to be Lieutenant-Colonal, by purchase, vice Thorpe, who re-
Lrevet Lieutenant-Colonel Charles Richard Sackville,
lalte\Vest, to be Major, by purchase. vice Ainslie; First
tient John Thomas Dal yell to lee Captain, by purchase,
vieileresttedNlit ext; Second Lieutenant John Aldridge to be
32d Fl,ntt, pureheee, vice Dalvel I, April 23.
West Indi ittenant James Dugafil Thomson, from the
appointed peyl,apcsere, to be Lieutenant, vice Garfortb,
:33,1 Foot —Astastt, 4ril
Macbeth to be A •'i Staff Surgeon Alexander Mackay
Stlet-Auts,4
April 23. eurgeon, vice Webster, who resigns,
46th Foot—Captain Rob
Ll,eht Drkecone, to be etl. Nisbet, from hall-pay 20tit
Stuart, promoted to an -dliaatlitl, vice Ilrevet Major -Douai]
chtlAe; Lieutenant P..ohprt wined ALijority, without pur-
purcb.an‘4ll4n
tPieer to be Captain, by
purchase, vice Nisbet, who retiree'''.
William Itegicald
Hesketh to be Lieutenant, by '
60th Feat—First Lieutenant GeorieeeT, ice Piper, April 23.
tLitro,..nr)ted ; Second
taro, without purchase, vice Binebem aP"tt to be Cap-
Lieutenant John Du Cane to be First
Lieutenant
purchase, vice Clapcott, Oct. 19, 1851 ; without
George Clarke has been permitted to retire fe"4
April 23 ; William Augustus Dean Pitt, Gern°l:l,the B.rvice,
Lieutenant, without purchast., vice Du can') bl Second
Wykebam Leigh Pemberton, Gent. to be Second &tit 22 ;
by purchase, vice Tedlie, promoted, April 23. utenant,
92d Foot—Ensign Gibson Stott to be Lieutenant, by p
&Me, Vice Cunningham. who retiree; hillltS A1f434:174;