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

N,

TIIE

V ICE- C 1-1 A 4-Tlllg IYAA .)
(Before Vice•ChancelloePAKKEß.);
RIVAL OPERA HOUiiES.
LUMLEY V. IYAGNEK.
The arguments in this case wereresumedthis-Mdrainet
by
Mr. MsLOP CLARKE, who followed Mr.' Bacotilili
support of the injunction. After insisting (in--the4We
that the letters of the Wagners to Dr. Baeher proved
that they had, all along, considered him as-their agent,
and had fully concurred in all his arrangemente
to procure Mdlle. Johanna an engagement in Lon-
don, the Learned Counsel preceeded to argue from the
-probabilities of the case, that it was not poßsibl,4 for
Mr. Lumley to have aicepted any contract v:ith Mdlle.
il.rVnanignsiernaeixnzpatt itancyontained a - clause prohibiting her
other house tut her li.jesty's
Theatre. Without that stipulation the vslue. ot her ssr -
vices would have ben considerably ditnieiseed. Fok.
this reason Dr. amber, haviog fully di-‘cussed the
matter with the Wegners, and having no d eibt, ob-
tained their c )mplisince, had felt. himself fully justified
in addieg this clause to the ngreement, lifter it had been
ilenf:er'toeudt. tbhye blcolz6ittarka7t; btasetTr%rsivvvedi'hs-tiltdhni3c:l''aPiti:de
by the Wagner, With resist-et to-the Bth Clause, con-
tabling the stipulation as to the pre-payment
of the 300/., he contendal 'Out thnci
not the essence of the contrect, and that the payment of
the 3004 was not a eondivon or precedent. He thought
it was quite clear that, by the law of this country, if
the money 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.
-Colquohon, an L.L.D. of Heidelberg, whei was well cc- •
qrntioani withnf
Germany, the Prussian
a law,bad a
tbldistic'e°9 ew- jilt:ebb mt bi
Qt
t ec do ilate-e
him, and had -given an opinion to the effect, that the
Wagner had
tphaaytmaennetorodfinthgeto3OthOeLlwawasonfoptrancssoinadmiti,odnilperecedent, and
not the, power of determining the contract' by notarial
protest t
ne
extension the nonpayment onf
ft lraymnisonqyfr.o-nitnitohlrsetgnsral
to
March to the 2d .'of April, and the force which had been
attached to the translation of the particle Os, he-eon-
sidered that of very slight importance,as the real mean-
ing of the sentence was to desire-MreLumley, 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 Story
and other authorities to show-that-the law of contracts
was to be governed by the law of the place' where,, ;the
contract was to be performed, and net of the place
where the contract was made. -With regard to the al-
legations made in Mr. Ltimley'a bill against Mr. Gye
he contended_ that they were perfectly prove
even by :Mr. Gye's own affidavits, and that it was
owing to Mr.,Gye's conduct that this litigatien had been
produced, and he hoped that the public would learn to
saddle the consequences of it not upon, _ her, but upon
those whOse desire to make moneyeand to crush a rival,
had produced this complicated litigation.
Mr. BETHELL replied on the whole • case. Ile;_itifA
that he did. not intend to add fresh matter to this case,
but he thought that a contrast of the argnnients used on
the othereideendthose used by him
.would', lead to the
follewing conclusions—that the agreemetitiwith Lumley
had been. - unfairly obtained, that the, isrobibitory
article was not- added by the authorisation of the
Wagners--'-that they remonstrated against the article,
and that their remonstrances were smothered by the
assurances of Dr. Baclaer=that . there was a default of
payment, or of readiness of payment, of the money sti-
pulated to be paid_to the Wagners before the obligation
of performance of their contract _ arose. __Dr. Basher's
own affidavits, he thought, showed that all through the
transaction he bad been. acting -as the paid agent of
Lumley, and while putting on
'the appearance of a fair
and impartial mediator between the, parties, or, in lamb
rather of a sincere friend of Madllee Wagner, .anxious
to obtain for_ her a favourable engagement in LondPfi
and Vienna. It was evident that the firieiropression of
the Wagners had been in favour of Mr." Gye, but die ,
misrepresentations the delusive promisee, and the false
appearences which 'Dr. . Becher had made use
of bad induced them to listen to the offers of
Mr.. Lumley., Then, with regard to the addition of the
prohibition, it was clear that .Dr. Becher bad no au-
thority from the Wagners to add it, except his own aster-,
non of the fact, and without some further proof, Mr.
Lumley ought not to have taken his addition of it at
Paris unknown to them, as an evidence of their adhe-e
row.; But it was contended that if even this were thee
case the silent acquiresceace of the Wagners in,
the; ...nontract with., the additionele ;article, was
sufficient
_to gender it • bincloug on : them. Why,
they never ceased to protest.
,against ;this clause,
and was only by repeated assurances an the part of
Di. Becher that they were prevented frond taking posi-
tive measures to get rid of the contract altogether. The
argumeneef acquiescence was
.entirely neutralised by
the facts as stated in the affidavite and by the conduct of
the Wagners. But even .if this acquiescence were al-
lowed, it could only be used to the extent of being a
shield of defence ,to Mr. Lumley against any proceed-
ings of the Wegners, and could not be used by
him r.s a weapon, of offence against them. It must'
be remembered that, ia granting this injunction,
without sufficient grounds, as he contended had nakbeen;
brought forward in this case, the Coart would be adjnelie
eating thisasseebefore-an oppertunity had been afforded'
of vigLt being done. Suppose for a moinent that the
scales of evidence were equally balanced in this matter,
the Court must, of necessity, turn to that sideeia wbich
the antecedents of probability relied; and be contended
that here that argument rested entirely with his clienio
With regard to the proof which was attempted to have
been brought forward by Dr. Bacber'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 I±4Edlle. Johanna
stating that-the expressions which she - had need were.
in reference to . the contract, msgile by Dreeliacher
for her, with M. •Roqueplan, .ot Paris, duplicate-
copies of had been torwardedto her, and that he
had not at that-time -received the altered contract with
Lumley. With regard- to the second part 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 dou% t.
that a sti-
pulation for the. pre payment of
-. a sum of
money was usually made as , a -sort of caution-
money, and a preparatory guarantee of each expenses
as might be incurred by the artiste. It would be, there:e
fore, to talk of it as not being a precedent condition
which it was not absolutely -necessary to fulfil. Time,
was, of necessity, an essential -condition, because heri
they were talking of the season, and if it were in the will
of the management to dispense. with the necessary pay-
ment of this caution-money, an unfortunate artiste, en-
gaged abroad with the . safe-guard of this cau-
tion-meney, might, • on arriving here, 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 and
the only evidence given of its being offered was the letter
of the 9th March. Now there
--was one fact which could
not fail to strike every one, and that was, that whereas
Lumley had sworn that Becher hadan his hands money of
his (Lumley's) up to the 9th of March, Becher himself
had not confirmed the statement in any way by, his affi-
davit. Supposing, however, that Becher had written
such-a letter, and had obtained sufficient money of Lum-
ley in his hands; that would_ not have dispensed with
any further attempts on the part of els. Lumley to eV
this money, and would not have- been euffisient of itself
to enable him to set up a plea at law. that he had die-
charged his part in. the contract. But it was
requisite for , Mr. Lumley .to 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 at the conclusion
that Becher ever bad the money ready to pay at any
time between the 9th of March and the notarial protest.
Then Bacher's whole conduct at Harnburgh was nothing
more than a 'demonstration, of his connexion with
Lumley. Looking at the circumstancee, no man nt.pc4d
be able to doubt that no •effer, of thsethoney was;inade
before the 15th of, April, the -very 4371,:when Mitchel
oined Lumley at Hamburgh.
~e I
ses
[The case was proceeding when our report left.]

A-RLB R o'-ST REE T—(T HIS DAY.)
-ArAdRANTS --About twenty men, women, and
children, of the•lower order of Irish, in a most wretched
antlsqutt'iitl oondition, wens larorght before Mr. Bingham,
charged wi:h begging of and annoying e, number of
-tladies;and gcntleaseu at the entrance of the Catholic-
"Satton-strEet: Soho.
„ The officer of the chapel said the whole of the per-
(pie_ at the bar were :on. &filthy- snoring in &WOE•
streak, and from frit:pent. coMplaints which had been
Made by the congregation, he ordered them to.move
off, which they did, but as soon as his back was
turned they came back and punned their avocations
with the greatest assiduity, the women and men lurk-
ing in the cleo-tways adjacent, while their children fol.
lowed the na
ladies and gentleen as they wore leaving
the chapel. The r:officer procured the assistance of a
couple of policemen,' and they were all lodged in the
§s4tiion. Money, via-yin in sums from 9d. to ls. 6d.,
was tuund opoe them.
The whole pith° prisoners most stoutly denied having
beggdd of any one. l'bey had been to mass-, and were
on. their re urn home when they were ta ken into
tody. The owhole lit hero act up such a howl as to dis-
turb the bus-Use-as of-.the Court for about ten minutes;
and Wben,csder was r. snored,
Brgoasalt said the defendants were the last per-
sona who on,:ht to be begizing at the doors of a chapel,
f 4" i•,; was Well kelvin that the csogrt,gation gaVe most
liberally te:the_ priest for the relief of the faithful poor
in the neighbourhood of such chapel, end the reverend
gentleman Bo doubt distributed such gifts to the deserv-
ing poor of, Whom he had a persorusl knowledge. If the
defendants were-in distress, they hnew there was a re-
lieving officer in every perish, and it wastheir duty to
have gone to one of them. Ile (Mr. Bingham) then sent
the, teen and women for seven days each, and 'directed
The*cbildrea to be. taken to the workhouse.