The Sun.
London, England, 1852-05-08 00:00:00

Ittirtr Nbition+

VICE-CHANCERY.—(THIS DAY.)
(Before Vice-Chancellor PARKER.)
THE RIVAL OPERA HOUSES.
LUMLEY V. 'WAGNER.
(Continued from our Afternoon Edition.)
Mr. BACON then proceeded to address the Court in
support of the injunction. This case was entitled to the
most serious consideration of the Court, as, at least so
far as Mr. Lumley was concerned, it was a case of the
utmost importance. Mr. Lumley had made arrange-
ments upon the basis of having secured the services of
the' ady who was now before the Court; he had incurred
great expenses on this understanding, and if he were not
able to compel the completion of the contract he would
sustain great loss. It was true that the Court could not,
perhaps, compel the specific performance of that con-
tract, but it could interfere to prevent a violation
of it, and to prevent, as a consequence of such violation,
the gains which Mr. Lumley would have had by the ful-
filment of this contract from going into the pocket of
the opposing parties. His Honour was asked to discharge
the injunction which was granted upon an information
ex parte to a certain extent, but still one upon which both
parties were heard. It was said that the contract was en-
tered into by Dr. Bacher without may authorization on the
part of the Wagners, without any authority from them
to act as their agent, that it was obtained from them by
misrepresentation, and further by suppression of mate-
rial facts. He trusted, however, that he should be able
to satisfy his Honour that the matter as it was originally
presented on the first application was the truth
of the case, and that it had not been
successfully ceerthrown by any of the affidavits
which had been sworn on the other side. Upon
the fact of Bacher's authority to act as agent for the
Wagners, it is true that there were contradictions, and
to a certain extent, conflicting evidence. There were,
however, letters to show that the contract, after it had
been entered into, and after the insertion of the prohibi-
tory clause, was communicated by Dr. Bacher to the
Wagners, confirmed by them, and that from some day in
the month of November, 1851, the contract was treated
by them as binding upon both parties. Now, Dr.
Bacher was upon the most friendly and confident terms
of intimacy with them, was treated by them as a
friend, and as a useful friend, and to that extent, at
least, was entitledao treat and to act for them. In a letter,
long before this transaction, from the Wagners to Ba-
cher, there were expressions used which left no doubt
that he was entitled to act for them in other contracts.
They were first introduced to Bacher at Vienna, and
negotiations had taken place between them with respect
to the establishment of a German Opera in London du-
ring the time of the Exbibition,which was afterwards, how-
ever, abandoned. In a letter from Madlle. Johanna shortly
after this to Bacher she said that " she never would wish
for a better chargé d'agaires than Bacher," that " he
could not have managed his own business better," and that
"she left all concerns, including money matters, to his
management, being sure that he would manage
them better than anybody else for his child" (meaning
Miss Wagner). That of course was sufficient to show that
up to March, 1851, Bacher had been engaged by them
to transact business for them, and he was very much
surprised to find that the Wagners now committed thems
selves to the assertion that at no time was Bacher their
area Bacher, it appeared, had afterwards interviews
with them in reference to making engagements for Madlle.
Johanna with Mr. Lumley and M. Roqueplan, the di-
rector of the Grand Opera at Paris, and he would have
the Court remember that ell through the affair these
two operations were going on simultaneously; he
handed to them a printed form of Mr. Lumley's
engagements—it was the common fcrin used
in that establishment, kept ready to be
signed by every artist who might enter into an engage-
ment with the Opera; and the second article sass that
prohibitory article which. had been so much discussed.
M. Wagner objected to this form as being complicated,
and Dr. Becher desired him to write out a form of en-
gagement, and ultimately an engagement was signed, in
which, howevcer, this stipulation was left out. This
point Dr. Becher had said had been well considered, it
was accepted by the defendants, and by some mis-
take was left out, and Dr. Bacher believed him-
self tally authorised to add it. Hero he would
pause to ask what would have been the use of
an engagemement without this clause, what good would
he have gained by Miss Wagner'3 services if they had
no been restricted to his theatre ? Mr. Gye had been
bidding for her, there had boen competition for her en-
gagement, and if she had come to this country with
liberty to sing for Mr. Gye if she chose, what would
Mr. Lumley have gained ? Clearly nothing—the great
point, certainly, was to secure Miss Wagner
exclusively for his own theatre. It vas neither
reasonable, nor according to common sense, to
suppose that Mr. Lumley would have taken
an agreement without this clause inserted in it.
He repeated, then, that on the 27th November, 18.31, the
Wagners received the contract from Dr. Becher with
this clause in it, they received it thankfully, and they
did nut think fit to offer any sort of objection to it. And
here, with reference to what he said before, as to the
two contracts which were being negotiated by Dr.
Bacher, ho wished to correct a mistake in the transia-
lion of the letter before the Court from Madlle.
Wagner, acknowledging the receipt of the contract.
In the original German the word " contract" was in the
plural, tne " sent contracts" (contracte übersendete),
showing most clearly that these two contracts, from
Mr. Lumley and M. Roqueplan, had been forwarded
together, and the receipt of them acknowledged by
Madile. Wagner together in a letter, too, in which she
called Dr. Bacher her " beat friend," and desired him,
moreover, to make her compliments to Mr. Lumley and
M. Rcqueplan. With reference to the allegation that
they had oely reconciled theinselves to this
prohibition, on the assurance of Dr. Bacher that he
would ineke it all right when they got to London.
Dr. Becher had utterly denied having made such a
promise. Wit:t reference to the ioree of the particle
des, which was so much insisted on, he was ut-
terly indifferent about it. The expression was,
" der la eleuxibne d'Avril a Hambourg," and what-
ever might be the force of it, he contended that it was
only meant to direct Mr. Lumley where M. Wagner
would be about that time, and was never intended as
fixing the latest day on which the payment of the
*tree hundred pounds was to be wade. The
affidavits of the Wagners placed Dr. Becher in an
entirely different positioa to that which the letters of both
clearly showed he occupied in relation to them. Their
object wan to repudiate the agency of lir. Bacher, and
they stated what was evidently untrue, viz., that they
had only a slight knowledge of him prior to the Ist of
November, 1851. Though this was a slight dis-
erepancy, it would serve as a test of their vera-
city on more important points. Both the father
and deughter declared that they never employed
Dr. Bacher as their agent, or authorised him to enter
into any agreement or to receive money on their behalf.
The most charitable conclusion as to Madlle. Wagner
that could be drawn was, that she had a very slight
memory, and had forgotten her letter of August, 1851,
in which she described Dr. Bacher ae a most efficient
charm; and the best of friends. lacy went on
ton
iittts,,Y that when a duplicate or the agreement
* , produced by Dr. Becher, it contained
the clause to
detrimental which they had formerly objected as being
to the interests of Johanna Wagner, and
they requestedupon it, aa it should be struck out, but did not insist
Bacher said the matter would be satis-
factorily arranged
facts were gd
on their arrival in London. If these
true,mention ict, was almost impossible to conceive
that any
atconcert,,
ferthe objectionable clause, preventing
her singing
the 6th
would be omitted from the letter
to Mr. Lumley on
of Feb. 1852. Yet such was the
case. In tandhis let
asketer magi
contract, d that .la\-Ver
agner virtually admitted the
appearance might be post-
poned for fifteen days.
to Dr. .Bacher, and said Subsequently her; rather wrote
body admitted they had
supplied
matters, especially as
made a very bad bargaintaievr7
Madlledt Wagner was preventene7 at concerts,
and was not to be
there was no existing
and attendance. Now, was
thavrtith a carriage
of a man who seFionsly believed like the act
that elapsed before
(Apr,il2:alcrh2, not one
During the long period agreement.
the signing of the agreement. until
complaint was made by the defendants
in
was dis-
posed to think that nothing had transpired
the 6th ef
i this case
which could induce any Court te
-- is
that the
by the agreement in its
were not bound entirety.Y
day Are parties were at Ilam-
declared
The last ant of the defendants_ on
April put the validity of the , contract beyond
all question. On that
paid; adding at
burgh, and they
haying
_buemeae,
appeared before..anotary, and
that the contract had become void in "nsequence of the
stipulated sum of 300/. not
the same time their belier'that Mr. L -hel ,was generally
negligent in money affairs, and that
She probably e
would
not fulfil his part of the contract. afterwards. wrote
et-et at being obliged
to Mr. Lumley, expressing her twat-
it
to take this course; but said she considered necessary
for: maintaining her reputation and securing her pros-
perity, but he (Mr. Bacon) did not think that by such a
step she wotfld either advance her reputation as an artiste
or promote her private interests in thin country. That
the contract was duly ratified and binding on them was
beyond all question. On the preceding day, the sth,
they had made an engagement with Mr. Gye to sing at
the Royal Italian Opera, Covent-garden, for a much
kirger sum of money. The hypothesis on the other
side was, that the 3001. had never been paid, but both
Mr. Lumley and Dr. Bacher stated that it had been
offered to the defendants.
His HONOUR—I do not think Mr. Lumley mentions
that in his affidavit.
Mr. 13sTHELL—And Dr. Bacher only says in a very
qualified way kart he offered the 3001.
Mr. BACON—Did his Learned Friend mean to in-
sinuate that Dr. Bacher had committed perjury
because his affidavit might not be very
explicitly drawn up ? There could be no
doubt that Monsieur Wagner was actuated by the sordid
desire of getting more money, and that he seized upon
the alleged omission td pay 3001. as an excuse for
litcah tirg a bona' fide engagement. But the objection
a that
2.tac point did not hold good—for the moment Dr.
is I
er heard that Madlle,Wagnerintended to
the non-Payment t use
astegto Jtymeut as an excuse for violating the
over them,
he went to Hamburgh and offered to hand
sum at his of mat aii., a hotel. Bet it was said the payment
when there conditionwas
pr,..z.,.ilent, hut could that be so
as ne - . that stmulatieu it should be forth-
ri flys) . ow any -ar .....
-That a v acum, day ? Ho readily ad-
-11"----,. be / exp ;!ti at sung lady ertisto could not
4 __, without y t receiete%, an outy on a long journey
Pa: itt'Are, t.. the afaciOti
c showed she could
ddhavemoney;as
obtained
• the 300/, if
ot .Kaae tt :vs shoe ask so disposed. It w
1,-- i 7.— ' • • • =to apply to the
F.,t ~"- • P11135111' ' agree
\'......i.!„_• r-iita i- 1 ag, er foreign law entered ment, but neither that
"•""k---,k- geiee‘ `t o present qusstien, ilem the slightest de-
.."'N Angleq, and the legal remedies werepaes wore all in
'The courts of the country. It to be evoked in
Wu next said

THE

that the injunction ought to be dissolved because
these
the allegations respecting Mr. Lumley had not been dis-
proved. They were told that he was involved in pecu-
niary difficulties, and that it was not at all unlikely that
he would be unable to keep the opera open. Now
nothing was more common than to find managers of
large establishments subject to such vicissitudes; but
was that any reason why his:private and civil rights
should not be protected? If the Court said a man
should have no enjoyment in his property because he was
in debt it would be the first time he had
ever heard such an unjust doctrine propounded.
With regard to the expression which had been so much
commented on, and the mistranslation :of it, which
had been objected against the plaintiff as a piece of
fraud, he was perfectly indifferent; whether the Ger-
man were translated " That England was to be valued
only for her money," or " England rewards only with her
money ;" the meaning of the sentence was that their only
reasorr for coming to England was the money they
should get, and he would defy them to get out of that
meaning, try how they would. He considered that if this
had been a mere mercantile affair there was no doubt
that it would have been disposed of long ago, and if it
had been a bale of cotton sent for sale, and a prohibi-
tory clause in the agreement, it would have been
enforced without half this discussion. With regard to
the letter which was brought forward as having
been written by Dr. Bacher to Mr. Guernsey, informing
him that he had had a bill of Lumley's in his hands
dishonoured, Dr. Bacher had since made an affi-
davit: that he had never written such a let-
ter, or ever knew Mr. Guernsey at all in his
,life.
The law on the subject being perfectly clear, he con-
tended that on the facts stated he had made such a
case as entitled him to retain the injunction he had
originally obtained. Of misrepresentation, suppression,
or fraud, there had been none on the part of the
plaintiff. There was no law in this country which would
justify
i the course which had been taken by the defen-
dants n breaking the engagement with the plaintiff for
the sake of making the larger, sum of money which had
been offered to them by Mr, Gye; and under these
circumstances he submitted that Mr. Lumley was enti-
tled to:the remedy which it was in theipower of the Court
to grant.
It being now the usual time for the rising of the Court,
and this being the last day of term,
His HONOUR asked what it was proposed to do with
reference to the future progress of this case? It was
impossible to finish it to-night, but, for himself, he was
quite prepared to sit on Monday, or any early day which
might be convenient.
Mr. BETHELL said that he thought he should be
obliged to ask his Honour to sit at ten o'clock on Mon-
day, and lao would engage for himself that the case
should be finished by twelve o'clock.

THE ARMY AND NAVY.
(From the United Service Gazette of this day.)
CAPTAIN HAWKEY AND LIEUTENANT SWAlN.—War-
rants have been received at the Woolwich division of
Royal Marines for assembling courts-martial for the
trials of Captain Hawkey and Lieutenant Swain, on
charges arising out of the late fracas between those two
officers.
AUGMENTATION OF THE ROYAL ARTILLERY.—The
sanction of her Majesty's Government has been ob-
tained for an augmentation to the Royal Artillery of
1,000 men and 135 horses, whieh is to be distributed as
follows:—To the Horse Artillery, 35 gunners, 11 dri-
vers, and 35 horses. To the Battalions, 954 gunners
and drivers. To the Batteries, 100 horses.

TOWER OF LONDON.—It iS in contemplation to mount
a heavy battery of guns on that part of the walls front-
ing the Thames, extending from the Warder's Tower to
the Devil's Battery.

DUBLIN GARRISON.—We regret to hear that fever
has broken out amongst the troops stationed at Aldbo-
rough-house Barracks, and that several cases have
proved fatal.

The Court of Inquiry held at Templemore Barracks on
Tuesday, the 20th April, Brevet Lieutenant-Colonel
Thorald, 92d Highlanders, President, to investigate the
charges made by Major H. G. Hart, Commanding Depot
49th Regiment, against Lieutenant Graves Ackland, the
barrackmaster, for barrack damages, amounting to
191. Bs. 4d., which have been paid by Major Hart to the
barrackmaster, wherein ho accused him of " perfect
fraud," have delivered it as their opinion that the
" charge is unfounded."
MILITARY PATAGONIANS.—It is supposed that the
17th Regiment, now stationed in Dublin, possesses the
tallest officers in her Majesty's service, and the Corps is
in admirable working order.
ORDNANCE DEPARTMENT.—Exercise ground has been
ordered for the use of the troops at Cork, Waterford,
Kilkenny, and Athlone.
ENROLLED PENSIONERS.—The spring drills of the
Local Companies belonging to the London districts, will
commence on Monday next.
The Lords of the Admiralty have very considerately
ordered that such of the officers of the dockyard bri-
gades as may have personally increased in height or
bulk, beyond the capabilities of their regimentals, are
to be supplied with new clothing by the contractors.
We understand that Lieutenant-Colonel Tierney, of
the Coldstream Guards, has declined to offer himself as
a candidate for the county of Cork, although requested
to do so by many influential Conservative residents.
Ground has been ordered to be purchased for a mili-
tary burial-ground at Fermoy and Birr.
PORTSMOUTH GARRISON.—On Major General Simp-
son taking the command of the garrison, he gave orders
to discontinue the trooping of the Queen's colours in the
Lieutenant-Governor's field on Monday mornings, as
had been the practice during the command of Lord
Frederick Ft zelarence. We understand that the inha-
bitants intend addressing the M-..jor General on the sub-
ject, with the request that these grand Military spec-
tacles may be resumed to the advantage of the town and
the delight of visitors from all parts of the surrounding
country.

The Troops at Florian and Valetta—Royal Artillery,
Buffs, 68th, and Royal Malta Fencihies—have been
paraded twice for Brigade exercise this spring, under
Lieutenant-Colonel Van Straubenzee, of the Buffs.
Preparations are being made for a grand field-day, to
come off shortly. The 76th are to join on this occasion
from the Cattonera District. The whole of the bands
have been practising, and are to play together on the
occasion.