The Sun.
London, England, 1852-05-10 00:00:00

THE 2

IS DA )r.)---
-V
I CE -C A
(Beforell-N vaCaeE. Chancellor PARKER,)
Tra.l!Kr: a.)
e.
RIVAL OPERA 110U6sES.____
LUMLEY V. WAGNER.
I The arguments in this case were resumes thiapeapng
by
Mr. ITISLOP CLA.RIKE, who fouowel fir, -Bacon-in
support of the injunction. After insisting on the flieta
that the letters of the Wagners to De. Becher peened
that they had, all along, considered him as tlieiretig'ent,
and had fully concurred in all his arrangements
to procure Mdlle. Johanna an engegement in Lou-
don, the Learned Counsel proceeded to argue from the
probabilities of the case, that it was not possible for
Mr. Lumley to have accepted any contract with Mdllo.
Wegner except it contained a chine prohibiting her
from singing at any other house but her Majesvie
Theatre. Without that aiipulation the ,value of her fl.t?''
vices would have betn, considerable' diminished. For
this reason Dr. Wicher, having fully diecussed the
matter with the Wagners, and having no &Alba oh-
it:I:toe:lout:let: y r compliance, had felt hiniself fully justified
in adding this clam° to the agreemeht 'after it bad been
mistake ; and, moreovie; wiih this clause
inserted, the contract had been received and accepted
by the Wagners. With respect .:.to the Bth clause, coil-
raining the stipulation 113 to the pre-pa tit
of the 3001., he contended , that time was
not the essence of the contract, and that the payment of
the 3001. was not a condition or precedent. He thought
it was quite clear that, by the law of, this country, if
the motley were paid at any time before the commence-
ment of the contract, it was quite sufficient. That, too,
he contended was also the law of foreign countries. Dr.
Celquohon, an L.L.D. of leleidelberga_veleo was well tic._
nunani nitaewdwithf G theerm
any had Prussian law,bada
nd
him, and hada the 'lcildosewistuhbmthi6ttiecd6nltO.:'
payment of the
that according to the law of Prussia Madlie. Wagner had
gaiovoe/n. wasan opiniont ontl tttoen epffeeecate'dtehnatt, at de,'
not the, power of determining' The contract by notarial
protest on the nonpayment of the money. With reglad..
to the extension of the time of, payment from the 15th of.
March to the ad of April, and the force whickhad been
attached to the translation of the particle des, he con-
sidered that of very slight importance,ai the real mean-
ing,
of the sentence was to desire Mr. Ltimloy, if he sent
the money on the 15th of March, to send it to Berlin,
where the Wagners were then; and if on the 2d of April,
to Hamburgh, where they should be. With regard to
the law the Learned Counsel cited Mr. Justice Stant
and other' authorities to show that the-law of cor4ra4ta,
was to be governed by the law of the: place where the
contract was to' be performed, and not of the place
' where the contract was made. Witkregard to the al-
legations made in Mr. Lumley's bill ;against MreeGyese
he contended that they were perfectly proved
even by Mr. Gye's own affidavits, and that it was
owing to Mr. Gye'a conduct that this litigation had been
produced, and he hoped that -ate .;public would learn to
saddle the consequences of it not upon,: her, but upon
those whose desire to make money, and to crusts naivete
had produced this complicated litigation:s
Mr. BETHELL replied on ;the whole Case. He said
that he did not intend to add fresh matter to this case,
but he thought that a contrast of the arguments used on
the other side and those used by him- would lead to the'
following conclusions—that the agreement with Lumley
had been- unfairly obtained, that the prohibits r 9
article was not added by the authorization of the
Wagners—that they remonstrated against the article,
and that their remonstrances were smhthered by the
assurances of Dr. Basher—that there was a default of
payment, or of readiness of payment, 'ef the money sti-
pulated to be paid to the Wavers before the obligation.
of performance of their contract Dr.
arose' Bacher's
, •
own affidavits, he thought, showed that all through the
transaction he had been acting as -the paid agent of
Lumley, and while putting on the appearance of
and impartial mediator between the perties;'er, in fact,,
rather of a siacere friend of Madlle. Wagner, atrkio&
to obtain for her a favourable engagement in Loudon
and Vienna. It was evident that_the first impressthn'bf
the Wagners had been in favour of Mr. Gye, but the
misrepresentations, the_delusire prcniiises, and the false
appearances which Dr. Becher had made use
of had induced them to listen to 'the offers of
Mr. Lumley. Then, with regerd to the :addition of the
prObibition, it was clear that Dr. Backer had no ti••''l
thoritY from the Wagners to add iteexcept his own asser-
tion of the fact, and without some further proof, gre
Lumley ought not to have taken his addition of it fer,
Paris unknown to them, as an evidence of their adle4-;
fence. Bit it was contended that if even this were the
case the silent acquiescence; of the Wagners in
the contract with the additional article, was
sufficient to render -it binding on' them. WhY,
they- never ceased to protest against this clause,
and it was only by repeated assurances 'on the part of 1
Dr. Becher that they were prevented frem taking posi-
tive measures to get rid of the contractailtogether. The
argument of acquiescence was entirely neutralised by
the facts as stated in the affidavits and by the conduct of
the Wagners. But even if this .acquiescence were al-
lowed, it could only ho used to ,the extent of being a
shield of defence to Mr. Lumley egainst any proceeck,.
ings of thu Wegners, and could not be used by
him as a weapon of offtnce against .them. It must
be remembered that in granting this injunction;
without sufficient grounds, as he contended had not.been
brought forward in this case, the Court would be adjudi-
cating this case before an opportunity had been afforded
of right being done. Suppose for a moment that the
scales of evidence were equally balanced in this matter,
the Court must, of aecessity, turn to that side on which
the antecedents of probability relied; and he contended
that here that argument rested entirely with his clients.
With regard to the proof which was attempted to have
been brought forward by Dr. Bather's affidavit, that
Mademoiselle Wagner had written an express accep-
tance of the altered contracts, and with reference too to
what they had heard of the word " contracts" being in
the plural, he had an affidavit from Madlle. Jobanna
stating that the expressions which she had used were
in reference to the contract made by Dr. Becher
for her, with M. Roqueplan, of Paris, duplicate
copies of which had been forwarded to her, and that he
had not at that time received the altered contract wish
Lumley. With regard to the second pert of the case,
the payment of the money, the facts were pretty nearly
all undisputed, with the exception .of 'the letter of the
9th of March. It - was, - -without doubt, that a sti-
pulation for the pre payment of 1 a sum of
money was usually, made as a snit of caution-
-Lumley, and a preparatory,., guarantee of ,;such expensis
as might be incurred by the-artiste.. It, wbuld be, there-
fore, to talk of it as not being a precedent condition
~
which it was not absolutely necessary Ito fulfil. Time
was, of necessity, an, essential conditions because here
, they were talking of the season, and, if it *ere in the will
of the manegement to.dispense -with.ther accessary pay-
ment of this caution-money, an unfortunate artiste, en-
gaged abroad with the ':safe-guardeiof this cau-
tion-money, might, on , arriving, +are, find it
repudiated and himself involved in -Expenses for which
he would not be able to receive remuneration. Now it
was. not contradicted that the -money was not paid, and
the only evidence given. of it* being. offered was the letter
of the 9th March. Now there was ene faat Which could
not fail to strike every one, and that was, that whereas
Lumley had sworn that Becher had in hishande money of
his (Lumley's) up to the 9th of March,_l3Acher himself
had not confirmed the statement in any:_viay by his affi-
davit. Supposing, however, that Becher had written
,such a letter, and had obtained sufficienttmoney of Lum-
ley in his hands; that would not have: dispensed with
any further attempts onahe parted lire Lumley to pay
this money, and would not .have 'been auffieient of itself
to enable him to set up a plea, at iawahat he had dis-
charged ,his part in that contract..l But it was:
requisite for Mr. - Lumley to e proVe not only
that he had furnished. Becher with the 3001. on
the 9th March, but he must prove too that he had kept
him furnished. with it down to the time Of the notarial
protest having been made. No such statement was
made, and it was impossible to arrive ai the conclusion
that Becher ever had the money ready to pay at any
time between the 9th of March and thtenotartal protest.
Then Bacher's whole conduct at Hamburgh was nothing
more than a demonstration of his connexion with
Lumley. Looking at the circumstances, 'no man would
be able to doubt that no offer of the money was made
before the 15th of April, the very day when Mitinha:
joined Lumley a.t Hamburgh.

:±S UN:

alt `shbula tieufe,-the °Curt, -which would be constantly
iteuld-be quite ready and willing to render them
tlid.sissistateef in' its power. With these obr,erva-
-ti-ons tfe-dismissed -theurto- th-e-dischurge of their duties.
The grand,.jury then retired, and a few minutes after-
Wards, 607eral true 'been returned into Court,
the,trials_werc_at onc_3,proceedtd with,

MA R 1.13 R.©'-$T .RE E r—('l' HIS DAY.)
IRISH VAGRANTS.;--About twenty men, women, and
;cbildten, of the lower order of Irish, in a most wretched
and squalid condition, were brought before Mr. Bingham,
'chlirged with begging of and:annoying a. cumber of.
'ladies, and gentlemen at the entrance of the Catholic-
,chatiel; Sutton-street, Soho.
The ofiScer of the chapel said the whole of the per-
sons at the bar were on Sunday moring in Suttor.
street, and from frequent complaints which had been
made by the cengregatioo, he ordyred them to move
err, which_ they did, but as soon as his back was
;turned they came hack and punned their avocations
with the greatest assiduity, the women and men lurk-
ing hie the deorweys adjlcent, while their children fol•
lowed the ladies and gentlemen as they were leaving
the chepel. - The officer. procured the assistance of a
Couple" of" pol;eemen, anti they were all lodged in the
station". -Money, varying in sums from Od. to is. 6d.,
was found upon them:
The whole of the prisoners most stoutly denied having
begged of any one. They bad been to mass, and were
on their return home when they were taken into cus-
tody. The whole lot here set up such a howl as to dis-
turb the business of the Court for about ten minutes;
and when order was restored,
Mr. Brecnem said the defendants were the last, per-
sons who otreht to be begging at the doors of a chapel,
for it was well known that the congregation gave most
liberally, to the priest for the relief of the faithful poor
in the neighbourhood of such chapel; and the reverend
gentleinan no doubt distributed such gifts to the deserv-
ing poor of, whom be had a personal knowledge. If the
defendants were in distress, they knew there was a re-
lieving .officer
_in every parish, and it was their ditty to
have gone to one of them. Ile (Mr. Bingham) thou sent
the men and women for seven days eacb, and directed
the children to be taken to the workhouse.

LONDON,