The Sun.
London, England, 1852-05-26 00:00:00

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CIIANCERY.—(THIS DAY:)
(Before the LORD CHANCELLIR.) '
. THE RIVAL OPERA. HOUSES.
LIIXLEY V. WAGNER.
Mr. Utiles was beard this morning in support of the
appeal against -the decision of Vice-Chancellor Parker.
The Learned Counsel, following the same line 'taken by
Mr. Bethel' on Saturday, confined his argument to the
- points as to whether the Court had jurisdiction, or whe-
ther it was its settled custom to interfere in cases of this
nature by way of an injunction. ' '
- Mr. IltlenTerneehn followed on the same side.
Mr. BACON then proceeded to address the Court. in
support of the injunction. Addressing himself to the
point of jurisdiction, the Learned Counsel proeeeded to
argue and to cite cases to sleciw than it bad, for a long
series of years, been the custom of the Court to-grant
injunctions in cases where there was u negative stipula-
tion, even though there was no specific performance.
Entering into the filets of the case, he admitted that if it
were possible to perceive any trace of the agreement be-
tween Mr. Lumley and Madlle. Wegner having been
obtained by misrepresentation, then, Mr. Lumley would
• have no right to be in .court, but he contended that no
such trace could be discovered. With regard to tho
agreement itself, he thought that the adoption of it by
the Wagners was sufficiently clear, even if it were' said
that Dr. Becher was not sufficiently their agent to'bind
them by his act. As to the non-payment of the
money, .he contended that this was not. a pre.
cetlent, nor was ever considered by the Wagners as
such until it was their turn to make an excuse of the
non-payment of it. No trace was to be diosovered of their
having demanded the payment of the money; they had
been informed that Dr. Becher had tha money for them;
they themselves requested the extension of the
time, and that long. before the time they could
have been justified in breaking the engagement
the money was tendered to them in bank. notes.. He
therfore trusted that his Lordship would' be of opinion
that the plaintiff, not seeking specific
performance, but
relying on the negative prohibition, had, according to
the plain law of the Court, a right to
thisdy, and
that, so Jar as the facts were concerned, had Pnroved a
seflicient case to entitle him to claim full exercise of his
In ,ht. •
Mr. Humor CLAIM followed on the eh . Mr. BETELELL replied, confining hl'nrmlfei st° thei. point
of jurisdiction, which, ha contended, would be enlarged
to a most dangerous extent, if this injunction were
maintained. The law of this country, he believed, gave
no remedy for breaches of contract of
this nature except
by personal damages.
Hil Loansuee then proceeded to give. judgement.
This, he said, was a case arising out of a simple contract
Without considering for a moment the difficulties which
. arose from the conduct of the parties, it was a contract
of a young lady to sing at her Majesty's Theatre for a
certain number of nights, and not to sing elsewhere
during that period. Nothing was moro simple
than the case upon • which he had now to
give judgment, or the points or law which
had been so elaborately and ably set before him.
Re understood the precise question, to be, whether the
Court could interfere in any but a case of specific per-
formance, or to prevent the performance of what bad
been contracted not to be done, when the other part of
the agreement rhtnained to be done. The point, there-
fore, was, first, how the matter stood upon principle, and
cow it stood in regard to authority. In the first case,
"Martin v. Nutkins, " the Court did issue an jejune-
t:on to restrain an act from being done, which
Fan by no means be considered as one
111 which the case could have granted any specific per-
formance. This case fell within the second line of cases
cited bY the °tenant. It, however, was a case in
which the Court granted an injunction to prohibit the
try.? front doing that which the Court could never
te, interf,red with respect of, by' way of spe-
care perforrnance. The' Noble and Learned Lord
`ureviewed at considerable length the cases of " Bar-
ret v, Bin
kw_ „ grove," " Robinson v. 'Byron," "'Collinson v.
, been
in, from ail of which he inferred that it had always
the settled rule of the Court to prohibit by Injunc-
tion the - doing of those things which had
been contracted not to b done, even
when they wore things 'which the Court
could not have compelled the performance of. This
Was a mixed ease, but of this nature, that there •
were not two acts to be done by p
Lumley was not to do ono act and. the parties. Mr.
t e c a young
another, which might, and had in somebu
a very . important difference, oiunntrgodulacdeyd
it was an act to be done by the the youthg this case
an act of forbearance, not to break in upon
lady alone,
any
sets the performance of which she had agreedtoof the
xe cute. The one was co-existent and co-equal with the
other.. There was no opposition of interest during that
time of her engagement. She was not to sing for anybody:
else.. In effect, the whole contract was one contract, and
according to all sound judicial construction and the true
spirits and essence of men's acts, the agreement to per-
form , at one theatre .must necessarily exclude the
Performance at another at . the same • time.
The measure of performance was meted out
according to the lady's physical capacity to sing, and
In_ l) contract showed that she was to exercise all her
physical capacities allowed her to do, to aid the theittre
;which she intended to attach herself. Therefore, if
there_ had.been no stipulation, she would bait) broken
the spirit and true meaning of ' the contract
an much as she had
done now. As regards this being a
mixed ease it _et.was necessary to see what was the 'kids-
En ion of the Court. The Court '
in. such cases operated
to bind men's con •
to asciences es far as they could be bound
true and literal performance, of their agree-
ment, lie had al
dealing and Iv
1
a s thought .that the . fair
to be found . fidelity to engagement which was
tmore general in England than
in any other cows
power of the Court. The the world proceeded from thts
sulfur men to d ' The law of this country did rib
depart I. h
with whom tom tuck contracts, or love parties
thane® of we had- broken theiacontracts to tho mere,
cl• "at a jury ,Enage, It
onf , would Ripe is the particulars of ,
fortuunce, of c timed as far as it could the liberal per-.
wholesome 0 contracts. The jurisdiction, therefore, was
by a judge, h ne, and though it was not to be extended
_ e would desert his duty if 130 did not act up
to the mi.
Whet: handed down to him by . his predecessor.
eeh a Was the mischief • . • •
in exercising that
-h° Young lady
though itw herself bad no right to complain, al-
Weul " said that if he refused this application he
sad u oe preventing her from singing at Covent-garden,
yet not be able to compel her to sing at her Ma-
Jacyb Theatre. It was true that he could not compel
ocause that was a jurisdicticn which ,the Court
very properly did not posses:, ; but what cause acorn-
vhtaent,,had she if the Court compelled her. to abstain from
ce)°,l4 an set which iu. Effect would compel her
resdo that which she. had agreed to do. In doing so
ho uldtdo it in the power of the Court; he touched on ;
no subject over '
whlch he had no jurisdiction, He went
to the
whole extent of the jurisdiction, and he left no.
. thing unaccomplished by his order was
Power of the Court to accomplish. Sept:ie.:leg that he
was of opinion that it was
Which to interfere, then he a
leftproper , course in
satisfied, nothing uncovered .h ' thenothing' lin"
, which be pronounced. The naturalycmotwouldudifenatehut
' thet young lady` would be 'answerable to the Court, and
it might
was no doubt that the Court, however reluctant
ititmui.ght be, would commit her if she broke the inj uric-
injuuctionha thad she to complain of? His
her e roma would have this effect—to
doing prevent
action a,„, br an act' which, in case an
jury to give ii e'irin,!'t against her, might lead the
would no doubt 4011;i:five amount of damages, as they
j
theatre. It appeared exercised her talents at a rival
justice that ia '
exencto him fortunate for the ende of
ing to the, simple lng their jurisdiction accord-
by continuing open them i .settled rule ,of . the Court,
. redly leading to the perteErtnuction. he would be nidi-
.n.ot directly compel. lie, howeveere 9.1 that which he could
. d 0 Indirectly that which ho could
us disclaimed any wish to
be thought it would be otdo di!cetly,although
to do that which she
fortunate if
y oung lady
I7he case had been elaborately aeghead pontrected to do.
Fie meant:to accept those author- •
. authorities, he did
on tha authorities.
to assume any ,power of his owe nor not mean
authoritative decision of his oethhee to. give any
"to follow the current of authorities,
ananlanit merely
80, as it was said there was difference of opinionn among
the Learned At iges who had preceded him, it would be
.necessary to weigh their opinions carefully and follow
those which seemed to him to be the best. the Lord-
ship proceeded to analyze the different cases at consi-
derable length, and also the judgments of different
edges, from which he said he had arrived at the clear
a
conclusion that it was in the jurisdiction and had al.
Ways been the custom ,of the Court to interfere
, • eases of this nature by way of injunction.
1t the course of this part of the case his Lordship re-
xnerkid that if the stipulation not to perform at any
other theatre had bean omitted, he should certainly be 1
of opinion °Pinion that no injunction could be. given.., The point
6Ththe'law therefore he thoht had been properly de.
rl--41,c1 in the' court below,' bud he wishbd it to be clearly
o,7livrstood that he thought the remedy was, with-
casee
- the slightest doubt, applicable
.to thisas
to the
4b7.llterits of the case rested on two points 7 _
s.,
" or confidence by Bather, who was confidently a.
aeeted
be 'l3 be a paid agent of Lumley, although
he was
und to here.
say a hatever might be the fair inferench,t
wag Ao . ,
lavas and
evidte f
iptp. had
ce o any such fact in the :;ffi , ,
never seen a case in which there was less
fonndgti
116 lanrdn
etor a charge of wilful misrepresentation.
the ~,thhsoiP then went through the circumstances of
ands eu„el,g of the engagement between the Wagners
in whivrl 'tehY, stating Ida opinion that, from the manner
WIB vrordeP engagement, drawn up by Mr. Wagner,
Person, •
Mr• Wagner himself was one of the last
delved. whoht would be Sikely •to be. - easily clo-
the prnhib.-t'here was no eviuence to show that
with the • ttory clause was imposed on Miss Wagner
wh,,,,_ lntention of deceiving her, for'it was a 'clause
Lunituale entered into all the agreements made by Ahlr.
eehen tYlt, The Wagners grumbled at it, but acquiesced
e et
clans.. ,n gagement was sent back with the prohibitory
no:. i
.serted i they had full power to' rejeCt ithbut they
three did. With regard to the payment of the
hundred •
poands, he was certainly of
9Djuittn that e '
into that C Mr. Lumley never could have came
pot lakes „out to enferce the_ contract unless he had
3ch' the 6" right by offeringeo payehh-3901. in full time
use to whi h 't
c 1 seas to be applied—to bring the
,Lea ers over t° England. ' Tile . question then was,
he _llcs . a bound to pay it? By the first contract
1 efowre
that
tund to pay before tho 9th of ' March, but
/ay the young lady applied herself . to
Lumley to e
11 convenin enlarge the time of the contract to suit her
:ilia env°. Mr. Lumley hid acceded to' thOt,
informed them that Bather bad the 300/ in his
411dS. la the rsican
tiers,
htime Becher had written to the Wag-
to Which he askingreceived °W.and where he'ahould send the money,
no answer. The Wagners allowed